James v. State
| Decision Date | 14 December 2015 |
| Docket Number | No. SD 33883,SD 33883 |
| Citation | 477 S.W.3d 190 |
| Parties | Bobby Lee James, Movant–Appellant, v. State of Missouri, Respondent–Respondent. |
| Court | Missouri Court of Appeals |
Attorney for Appellant: Erika R. Eliason, Columbia, Missouri.
Attorneys for Respondent: Chris Koster, Attorney General, and Christine Lesicko, Assistant Attorney General, Jefferson City, Missouri.
Bobby Lee James ("Movant") appeals the motion court's order dismissing his Rule 24.035 motion for post-conviction relief.1 Finding that the motion court failed to conduct an independent inquiry into whether Movant was abandoned by appointed counsel, we reverse and remand with directions to conduct such an inquiry and then proceed accordingly.
Movant pleaded guilty to the class A felony of child molestation in the first degree, see section 566.067, on May 16, 2014.2 He was sentenced as a predatory sexual offender, in accordance with section 558.018, to serve eighteen years in the Department of Corrections ("DOC") and delivered to the DOC on May 21, 2014. Movant did not appeal his conviction.
On October 29, 2014, Movant timely filed his pro se Rule 24.035 motion for post-conviction relief. The motion court appointed the "Public Defender" to represent him on November 19, 2014; attorney Stuart Huffman entered his appearance "as counsel for Movant" on December 16, 2014.
On January 14, 2015, the motion court held a case review. Neither Movant nor his counsel appeared. The motion court made a docket entry that the case was "placed on inactive docket per local rule [37.1] for failure to appear/prosecute the action." A "notice of inactive docket[,]" dated January 20, 2015, addressed to the prosecuting attorney and Movant's attorney Huffman, states that Movant's "action was placed on the Inactive Docket by Local Rule 37.1 on the 14TH day of JANUARY, 2015[,] and will be automatically dismissed, without prejudice, on the 16–MAR–2015 ." The notice further provides: "Dismissals pursuant to this rule shall be automatic, upon the expiration of the time period herein set without further action by the Court." A docket entry dated January 20, 2015, indicates that a dismissal hearing was scheduled for March 16, 2015.
According to the docket sheet in Movant's underlying criminal case (the "trial court"), an order for a "Sound Recording Transcript[,]" presumably of Movant's plea and sentencing hearing, was "emailed" by a court clerk to "OSCA transcribing service" on February 3, 2015.
On March 16, 2015, the motion court by order in the docket sheet dismissed Movant's motion without prejudice. The transcript of Movant's plea and sentencing hearing was filed in the trial court on March 30, 2015. On April 13, 2015, attorney Stephen J. Harris entered his appearance on behalf of Movant by filing a motion alleging that attorney Huffman had abandoned Movant by not taking any action since Huffman's December 16, 2014 entry of appearance and praying that the motion court "reinstate this cause[.]" Attorney Ellen Flottman entered her appearance on behalf of Movant on April 23, 2015, by filing in the motion court a notice of appeal to this Court.3
In his appeal, Movant contends in his sole point relied on that the motion court clearly erred when it dismissed his Rule 24.035 motion because "he was abandoned by post-conviction counsel ... in that the record showed that motion counsel ... did not perform his required duties under Rule 24.035 because he did not file an amended motion[.]" The State contends that "[t]his Court should remand this case to determine whether [Movant] was abandoned by his postconviction counsel."
Preliminarily, and regardless of any claims made by Movant on appeal, we are compelled to sua sponte examine the record to determine whether Movant's pro se motion for post-conviction relief was timely filed, see Dorris v. State, 360 S.W.3d 260 (Mo. banc 2012), and if so, whether appointed counsel complied with the requirements of Rule 24.035(e) to file a timely amended motion or file a statement in lieu thereof, see Moore v. State, 458 S.W.3d 822, 827 (Mo. banc 2015) (Fisher, J., concurring).
Rule 24.035(b) provides that where, as here, no appeal of the judgment or sentence is taken, a movant's pro se post-conviction motion, "shall be filed within 180 days of the later of: (1) The date the person is delivered to the custody of the department of corrections; or (2) The date the new judgment or sentence was final for purposes of appeal." Rule 24.035(b). Movant was sentenced on May 14, 2014, and the judgment of conviction was entered on that day.4 Movant's pro se Rule 24.035 motion for post-conviction relief was filed in the motion court 168 days later, on October 29, 2014. Therefore, using the earliest possible date to commence the 180–day period as provided in Rule 24.035(b), Movant's pro se motion was timely filed.
After counsel is appointed to represent a movant in a post-conviction proceeding, appointed counsel's failure to timely file an amended motion "can constitute ‘abandonment’ of the movant." Moore, 458 S.W.3d at 825. See also Sanders v. State, 807 S.W.2d 493, 494–95 (Mo. banc 1991).
"Abandonment occurs when (1) post-conviction counsel takes no action on a movant's behalf with respect to filing an amended motion and as such the record shows that the movant is deprived of a meaningful review of his claims; or (2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner."
Taylor v. State, 254 S.W.3d 856, 858 (Mo. banc 2008) (quoting Barnett v. State, 103 S.W.3d 765, 773–74 (Mo. banc 2003) ). " ‘The absence of a record of post-conviction counsel's attention to the pro se motion "creates a presumption that counsel failed to comply with the rule" .’ " Moore, 458 S.W.3d at 825 (quoting Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991) ).5
Where the record reflects that post-conviction counsel failed to comply with the requirements set out in Rule 24.035(e), raising a presumption of abandonment, the motion court must undertake an independent inquiry into the performances of both the movant and counsel. Vogl v. State, 437 S.W.3d 218, 229 (Mo. banc 2014) ; Bello v. State, 464 S.W.3d 284, 292 (Mo.App.2015). If any delay in the filing of an amended motion or statement in lieu thereof is attributable to the negligence or intentional conduct of the movant, late filing of an amended motion will not be permitted, Sanders, 807 S.W.2d at 495, and "movant is entitled to no relief other than that which may be afforded upon the pro se motion[,]" Luleff, 807 S.W.2d 495, 498 (Mo. banc 1991).
"If a court finds that a movant has been abandoned, then the proper remedy is to put the movant in the place where the movant would have been if the abandonment had not occurred." Crenshaw v. State, 266 S.W.3d 257, 259 (Mo. banc 2008). Where appointed counsel does not file an amended motion or take any action on behalf of the movant, "the only way to restore the motion court and parties to the position Rule [24.035(e) ] intends for them is for the motion court to appoint new counsel and allow additional time for this counsel to perform the duties required" under the rule. Price, 422 S.W.3d at 298.
A careful review of the record in this case reveals that while the motion court still retained control of the case and before its dismissal order became final, Movant's appointed counsel failed to comply with the requirements of Rule 24.035(e). This failure raised a presumption of abandonment that required the motion court to conduct an independent inquiry to determine whether Movant was in fact abandoned by appointed counsel. The absence of a record of such an inquiry requires reversal and remand.
Rule 24.035(g). Therefore, in any event, the time within which an amended motion must be filed does not begin to run before the date a complete transcript consisting of the movant's guilty plea and sentence hearing has been filed in the trial court and expires sixty days thereafter.6
Rule 24.035(c) provides: "Upon receipt of the [pro se ] motion, the clerk shall notify the sentencing judge and shall notify the court reporter to prepare and file the complete transcript of the movant's guilty plea and sentencing hearing if the transcript has not yet been prepared or filed." The transcript here was not ordered until February 3, 2015, and the required transcript was not filed in the trial court until March 30, 2015. Therefore, an amended motion was required to be filed on or before June 1, 2015.7 See Rule 24.035(g).
To continue reading
Request your trial
-
Borschnack v. State
...App. 2016) ; McCullough v. State , 480 S.W.3d 439 (Mo. App. 2016) ; Silver v. State , 477 S.W.3d 697 (Mo. App. 2015) ; James v. State , 477 S.W.3d 190 (Mo. App. 2015) ; Lewis v. State , 476 S.W.3d 364 (Mo. App. 2015) ; Hawkins v. State , 476 S.W.3d 313 (Mo. App. 2015) ; Mann v. State , 475 ......
-
Williams v. State
...; Hawkins v. State, 476 S.W.3d 313, 316 (Mo.App.2015) ; Silver v. State, 477 S.W.3d 697, 699 (Mo.App.2015) ; James v. State, 477 S.W.3d 190, 196 (Mo.App.2015) ; Lewis v. State, 476 S.W.3d 364, 365 (Mo.App.2015) ; Frazee v. State, 480 S.W.3d 442, 446 (Mo.App.2016) ; McCullough v. State, 480 ......
-
Amsden v. State
...plaintiffs' motion as a motion to vacate. Id . (citation omitted). Rule 75.01 applies to a Rule 24.035 proceeding. See James v. State , 477 S.W.3d 190, 194 (Mo. App. 2015) ; Thomas v. State , 180 S.W.3d 50, 54 (Mo. App. 2005) ; Bell v. State , 164 S.W.3d 97, 97 (Mo. App. 2005). "Thus, under......
-
Propst v. State, ED103322
...have been abandoned by post-conviction counsel, the court should permit the untimely filing of the amended motion); James v. State, 477 S.W.3d 190, 193 (Mo. App. S.D. 2015). The abandonment doctrine is only applicable, however, "to the actions of appointed counsel with respect to amended mo......