Latham v. State
| Decision Date | 11 September 2018 |
| Docket Number | No. SC 96315,SC 96315 |
| Parties | David Glenn LATHAM, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Latham was represented by Samuel Buffaloe of the public defender’s office in Columbia, (573) 777-9977.
The state was represented by Evan J. Buchheim of the attorney general’s office in Jefferson City, (573) 751-3321.
David Latham appeals from the motion court’s judgment overruling his motion for postconviction relief. Mr. Latham timely filed his pro se Rule 24.0351 motion after revocation of his probation and execution of his sentence for the class A felony of trafficking drugs in the second degree, section 195.223,2 for possessing six grams or more of cocaine base. On appeal, Mr. Latham asserts he was abandoned because his postconviction counsel filed a statement in lieu of an amended motion beyond the 60-day deadline in Rule 24.035(g) for filing an amended motion. Alternatively, he contends his pro se pleading filed in reply to the statement in lieu of an amended motion filed by his counsel should be treated as a timely amended motion, and the motion court erred by concluding his plea counsel was not ineffective. He asserts he would not have pleaded guilty had plea counsel noticed and explained that the laboratory report showed the state had insufficient evidence to convict him of the class A felony of trafficking cocaine base.
Although Mr. Latham’s postconviction counsel filed a statement in lieu of an amended motion, it was not filed within the 60-day deadline in Rule 24.035(g) for filing an amended motion. The purpose of a statement in lieu of an amended motion is to make a record that postconviction counsel has performed the responsibilities imposed by Rule 24.035(e) so a presumption of abandonment does not arise when no amended motion is filed by Rule 24.035(g)’s 60-day deadline. That purpose is not satisfied when a statement in lieu of an amended motion is filed after the 60-day deadline. Accordingly, to fulfill its purpose, a statement in lieu of an amended motion must be filed by the date on which an amended motion is due.
The failure of Mr. Latham’s postconviction counsel to file either an amended motion or a statement in lieu of an amended motion within the 60-day deadline in Rule 24.035(g) created the presumption his postconviction counsel failed to comply with the postconviction rules and, thereby, abandoned Mr. Latham. Because a presumption of abandonment arose, Mr. Latham is entitled to an abandonment hearing to determine whether his postconviction counsel’s lack of performance was the result of Mr. Latham’s action or inaction. The motion court’s judgment, therefore, is reversed, and the case is remanded.
On remand, if the motion court finds Mr. Latham’s postconviction counsel abandoned him and postconviction counsel failed to act on his behalf, the motion court shall appoint new counsel and allow time for new counsel to perform the responsibilities required by Rule 24.035(e). If postconviction counsel acted on Mr. Latham’s behalf but did so untimely under the postconviction rules, the motion court shall treat the statement in lieu of an amended motion as timely and consider Mr. Latham’s subsequent pro se pleading as his reply to counsel’s statement in lieu of amended motion. The motion court shall then determine whether Mr. Latham’s initial pro se motion could have been made legally sufficient by amendment or whether there were other grounds for relief known to Mr. Latham not included in his initial pro se motion. If so, the motion court must direct postconviction counsel to file an amended motion within the time allotted by the motion court.
In 2010, the state filed a criminal complaint against Mr. Latham alleging he possessed six or more grams of cocaine base on June 6, 2010. In 2011, Mr. Latham was charged with the class A felony of trafficking drugs in the second degree, section 195.223. The information charged that Mr. Latham "possessed 6 grams or more of a mixture or substance containing a cocaine base, a controlled substance, knowing of its presence and nature." Mr. Latham subsequently pleaded guilty and was sentenced to 15 years in prison. The plea court suspended execution of his sentence and imposed a five-year term of supervised probation. On August 12, 2013, the plea court found Mr. Latham violated his probation and ordered execution of his 15-year sentence.
On November 20, 2013, Mr. Latham timely filed his pro se Rule 24.035 motion for postconviction relief. His pro se motion alleged three claims: (1) counsel was ineffective for failing to investigate why his preliminary hearing3 was waived; (2) counsel was ineffective for failing to spend sufficient time with him to defend him at the revocation hearing; and (3) counsel was ineffective in that she misled him into believing she would request long-term drug treatment at his sentencing hearing. On December 11, 2013, the motion court appointed the public defender’s office4 to represent Mr. Latham. Because the transcript of his guilty plea was filed on March 25, 2014, Mr. Latham’s amended motion was due May 27, 2014.5
Mr. Latham’s postconviction counsel did not file an amended motion by the 60-day deadline in Rule 24.035(g). Instead, on June 20, 2014, postconviction counsel filed a statement in lieu of an amended motion. In the statement, postconviction counsel said he had requested all pertinent documents for review, including transcripts, motions, and case files. He further stated his associate interviewed Mr. Latham by phone on May 21, 2014. Counsel concluded by stating, although he originally believed Mr. Latham might have an ineffective assistance of counsel claim regarding "the elements of the crime charged," further research proved Mr. Latham "was sentenced under the old law prior to the change becoming effective."
Three days later, on June 23, 2014, Mr. Latham filed a pro se pleading titled "Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing." In the pleading, Mr. Latham stated he filed the pleading "because counsel refused to amend said motion" and alleged "[c]ounsel did not send movant a statement allowing him the opportunity to reply to it, so in the alternative, movant has filed this Amended Motion Pro Se." The pro se pleading alleged 16 claims of ineffective assistance of counsel, including plea "counsel failed to investigate and prove, for the sake of instructing [him] to offer a Guilty Plea, both the Possession prong and the Knowledge prong in this case for Trafficking."
The motion court conducted an evidentiary hearing on the claims alleged in both Mr. Latham’s initial pro se motion and his subsequent pro se pleading.6 At the hearing, Mr. Latham’s plea counsel was asked whether she discussed with him that the laboratory report showed the substance in his possession was cocaine salt but he was charged with trafficking cocaine base and did not possess enough cocaine salt to be charged with a class A trafficking felony under section 195.223.7 Mr. Latham’s plea counsel testified she would have discussed that with him and advised him to plead guilty because the state could have charged him as a prior and persistent offender and added a weapons charge for the gun found with the drugs. Mr. Latham testified plea counsel never informed him he was improperly charged or that there are different thresholds and penalties for trafficking cocaine base versus cocaine salt.8
The motion court found the claims in Mr. Latham’s initial pro se motion were not cognizable in a Rule 24.035 proceeding. The motion court also overruled the claims raised in his subsequent pro se pleading. Mr. Latham appealed. After an opinion by the court of appeals, the case was transferred to this Court. Mo. Const. art. V, sec. 10.
This Court’s review of a motion court’s ruling on a Rule 24.035 motion for postconviction relief is "limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous." Rule 24.035(k). A motion court’s findings and conclusions "are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made." Gittemeier v. State , 527 S.W.3d 64, 67-68 (Mo. banc 2017) (internal quotation omitted).
On appeal, Mr. Latham raises issues concerning his postconviction counsel’s untimely filing of the statement in lieu of an amended motion and the timeliness of his subsequent pro se pleading. Mr. Latham asserts his postconviction counsel’s failure to file a statement in lieu of an amended motion within 60 days of the transcript being filed created a presumption of abandonment. The state counters that no presumption of abandonment arose because the time requirements for filing an amended motion in Rule 24.035(g) do not apply to the filing of a statement in lieu of an amended motion. But the purpose for requiring the filing of a statement in lieu of an amended motion necessitates application of the 60-day time limitation in Rule 24.035(g).
Rule 24.035(e) sets forth postconviction counsel’s responsibilities following a movant’s filing of a pro se motion and provides:
When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant. Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (...
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...relief is ‘limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.’ " Latham v. State , 554 S.W.3d 397, 401 (Mo. banc 2018) (quoting Rule 24.035(k)) (alterations in original). "A motion court’s findings and conclusions are clearly erro......
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