Johnson v. State

• Decision Date: 30 June 2015
• Docket Number: WD 78143
• Parties: Anthony F. Johnson, Appellant, v. State of Missouri, Respondent.
• Court: Missouri Court of Appeals

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Anthony F. Johnson, Appellant
v.
State of Missouri, Respondent.

WD 78143

Missouri Court of Appeals, Western District.

OPINION FILED: June 30, 2015
Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2015
Application for Transfer Denied September 22, 2015

Anthony F. Johnson, Appellant Pro Se.

Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before Division Two: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge, and Cynthia L. Martin, Judge

Opinion

Cynthia L. Martin, Judge

Anthony F. Johnson (“Johnson”) appeals from the motion court's order denying his motion for post-conviction relief due to abandonment. Johnson argues that the motion court failed to make findings of fact and conclusions of law in its order as required by Rule 29.15(j). Johnson asserts that the motion court's failure to comply with the rule resulted in the denial and deprivation of his rights to due process, to a fair and adequate proceeding, and to equal protection. We affirm.

Factual and Procedural History¹

In January 1990, Johnson was convicted by a jury of murder in the first degree, robbery in the first degree, kidnapping, and three counts of armed criminal action. While his appeal was pending, Johnson filed a timely pro se motion for post-conviction relief,² and his appointed counsel filed an amended Rule 29.15 motion. Both Johnson's pro se and amended motions asserted that he received ineffective assistance of trial counsel. Following an evidentiary hearing, the motion court issued a judgment denying Johnson's Rule 29.15

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motion. Johnson appealed, and his post-conviction appeal was consolidated with his direct appeal. See Rule 29.15(l) (1990). We affirmed Johnson's conviction and the motion court's denial of his Rule 29.15 motion in a per curiam order. See State v. Johnson, 831 S.W.2d 675 (Mo.App.W.D.1992).

Johnson filed a motion to reopen his post-conviction proceedings on the basis of abandonment by post-conviction counsel in September 2005 (“2005 Motion”). In particular, Johnson argued that he was abandoned by post-conviction counsel in that his counsel “fail[ed] to order and review [Johnson's] voir dire transcript to ascertain supporting facts or other errors within” and his counsel “fail[ed] to asset [sic] supporting facts to [Johnson's] claim concerning State's witness, Byron East's testimony.” The motion court denied the 2005 Motion, concluding that Johnson was not abandoned by his post-conviction counsel. Johnson appealed, and we dismissed the appeal as untimely.

Johnson filed a motion to vacate the motion court's denial of the 2005 Motion in 2008 (“2008 Motion”). In 2010, Johnson amended the 2008 Motion to include an abandonment claim (“2010 Amendment”). The 2010 Amendment asserted that Johnson was abandoned by his post-conviction counsel in that his post-conviction counsel filed an amended 29.15 motion that was identical to his pro se 29.15 motion and in that his post-conviction counsel filed an unverified amended motion. In denying the 2008 Motion and its 2010 Amendment, the motion court specifically concluded that Johnson was not abandoned by his post-conviction counsel. Johnson did not appeal.

In 2013, Johnson filed yet another motion asking the motion court “to conduct an inquiry hearing on [his] abandonment claim” (“2013 Motion”). The 2013 Motion alleged that Johnson's post-conviction counsel failed to order or review the voir dire transcript and failed to file a verified amended motion. The motion court concluded that the 2013 Motion was successive and therefore denied to entertain it pursuant to Rule 29.15(l). Johnson appealed the motion court's judgment, which we affirmed in a per curiam order. See Johnson v. State, 428 S.W.3d 691 (Mo.App.W.D.2014).

On July 9, 2014, Johnson filed a motion for post-conviction relief due to abandonment (“2014 Motion”), which is the subject of this appeal. The 2014 Motion argued that Johnson was abandoned by his post-conviction counsel when she (1) filed an unverified amended motion; and (2) filed an amended motion that merely “re-instated or replicated [Johnson's] facially deficient pro se motions [sic].” The motion court entered an order denying the 2014 Motion without further explanation (“Order”). Johnson filed a Rule 78.07(c) motion asking the motion court to modify its Order to denominate it a “judgment” and to include findings of fact and conclusions of law. The motion court denied Johnson's Rule 78.07(c) motion.

Johnson appeals.

Analysis

Johnson argues that the motion court erred in denying his 2014 Motion without making findings of fact and conclusions of law. Johnson asserts that his 2014 Motion alleged facts supporting a valid claim of abandonment by post-conviction counsel. Johnson claims that by failing to issue findings of fact and conclusions of law, the motion court deprived him of his rights to due process, to a fair and adequate proceeding, and to equal protection.

Before considering the merits of Johnson's appeal, we must ascertain

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whether we have jurisdiction. Sittner v. State, 405 S.W.3d 635, 636 (Mo.App.E.D.2013). Barring statutory exception, an appeal can only be taken from a final judgment. Section 512.020.³...