McFadden v. State

• Decision Date: 30 June 2008
• Docket Number: No. SC 88895.,SC 88895.
• Citation: 256 S.W.3d 103
• Parties: Vincent McFADDEN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

256 S.W.3d 103

Vincent McFADDEN, Appellant, v. STATE of Missouri, Respondent.

No. SC 88895.

Supreme Court of Missouri, En Banc.

June 30, 2008.

Janet M. Thompson, Columbia, for Appellee.

Jeremiah W. (Jay) Nixon, Atty. Jayne T. Woods, Asst. Atty. Gen., Jefferson City, for Respondent.

PATRICIA BRECKENRIDGE, Judge.

Mr. McFadden appeals the dismissal of his Rule 29.15 motion, claiming that his motion should be re-opened and considered on the merits because he timely prepared it and sent it to his counsel, at her direction, and she then abandoned him and failed to file it within the 90-day time period provided in Rule 29.15(b). After opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. This Court holds that counsel's actions constituted abandonment, and the judgment below is reversed.

Factual and Procedural Background

Mr. Vincent McFadden was charged with three counts of first-degree assault, three counts of armed criminal action, and one count of unlawful use of a weapon. A jury convicted Mr. McFadden of two counts of first-degree assault, two counts of criminal action, and one count of unlawful use of a weapon. He was sentenced to an aggregate of thirty years imprisonment.

Mr. McFadden appealed his convictions, and the court of appeals affirmed, issuing a mandate on July 13, 2006. State v. McFadden, 193 S.W.3d 305, 306 (Mo.App. 2006). Rule 29.15 requires that a motion for post-conviction relief must be filed within 90 days of issuance of the appellate court's mandate. In the usual case, the court then appoints counsel for the litigant, if indigent, and counsel then files an amended motion. Id.

Here, a public defender initiated contact with Mr. McFadden while he was incarcerated and after the mandate had issued. Although the record does not indicate the entirety of the conversation, it does show that she directed him to send his Rule 29.15 motion for post-conviction relief directly to her and told him that she would hand-file it before the due date.

As the mandate issued on July 13, 2006, Mr. McFadden's motion was required to be filed on or before October 11, 2006. He prepared, signed, and notarized his pro se motion on September 25, 2006, and placed it in the mail to the public defender. The public defender received Mr. McFadden's motion on September 28, 2006, 13 days before the filing deadline. Nevertheless, she did not file the motion until October 12, 2006, the 91st day after the mandate issued. Subsequent to the filing, the motion court appointed the public defender to represent Mr. McFadden. The public defender then entered her appearance as Mr. McFadden's appointed counsel in his post-conviction relief case.

The prosecutor filed a motion to dismiss Mr. McFadden's post-conviction motion due to his failure to comply with the 90-day time limit imposed in Rule 29.15(b). The public defender responded, arguing that she, as counsel, abandoned Mr. McFadden when she did not timely file his post-conviction relief motion and, as such, his late filing should be allowed. The motion court found that the public defender did not represent Mr. McFadden at the time of the filing, as the court had not yet appointed her. It dismissed his Rule 29.15 motion and overruled a motion for reconsideration.

Standard of Review

Review of denial of post-conviction relief under Rule 29.15 is limited to determining whether the motion court's "findings of fact and conclusions of law are clearly erroneous." Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). The appellate court will disturb the motion court's disposition only if the reviewing court is "left with the definite and firm impression that a mistake has been made." Id.

Mr. McFadden's Late Filing

Under normal circumstances, if a movant fails to file a Rule 29.15 motion within the 90-day time limit set by Rule 29.15(b), the motion is untimely and the motion court is compelled to dismiss it. This Court has recognized a narrow exception to this requirement, however, that permits a circuit court to reopen an otherwise final post-conviction case when a post-conviction movant is abandoned by counsel. State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 217-18 (Mo. banc 2001). But, "relief is to be ordered only when a movant is free of responsibility for the failure to comply with the requirements of the rule." Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc 1991); see also Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991) (noting that movant may not benefit if failure to comply with rule is due to his own negligence or intentional failure to act). The abandonment doctrine does not modify the requirements of Rule 29.15 nor is it a substitute for an impermissible claim of ineffective assistance of counsel. See Barnett, 103 S.W.3d at 773-74. Mr. McFadden failed to timely file his Rule 29.15 motion; therefore, dismissal of his case is required unless he falls within the abandonment exception.

Attorney-Client Relationship

The state argues that he cannot establish that the public defender abandoned him when she failed to file his post-conviction motion, because that failure occurred before her formal appointment as his counsel and, thus, before there was any attorney-client relationship that could be abandoned. There are no technical guidelines for determining exactly when an attorney-client relationship is established. The absence of such guidelines generally has no impact on the analysis as parties usually agree whether an attorney-client relationship exists. When there is a dispute as to the existence, this Court looks at the conduct of the parties to determine whether such a relationship exists. See Rule 4, Preamble, [17] (stating that "[w]hether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact"). An attorney-client relationship "is sufficiently established when the advice and assistance of [the] attorney is sought and received in matters pertinent to her profession." State v. Longo, 789 S.W.2d 812, 815 (Mo.App.1990). See also Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 626 (Mo. banc 1995).

Two cases of this Court offer guidance as to conduct and facts this Court may evaluate to determine the existence, or lack thereof, of an attorney-client relationship. In Flanagan v. DeLapp, 533 S.W.2d 592, 596 (Mo. banc 1976), Mr. DeLapp served as an attorney regarding guardianship of the estate of Mr. Joseph Flanagan's brother. This Court noted that even though no evidence existed that Mr. DeLapp served as attorney for Mr. Flanagan "in any individual matters, it also was true that [Mr. Flanagan] had no other attorney handling such matters." Id.

Thus, the only attorney-client relationship which Joseph had with any lawyer, so far as the evidence discloses, was the one with DeLapp in connection with the guardianship of the estate of Joseph's brother. That relationship had continued over a period of time and was one in which Joseph would look to and rely upon DeLapp for professional and confidential advice and information. It is unrealistic to conclude that said relationship and confidence existed only so long as DeLapp dealt with matters in the brother's estate but disappeared completely when he dealt with Joseph about a conveyance of his own property.... Accordingly, we hold that a confidential attorney-client relationship existed.

Id.

Likewise, here, Mr. McFadden had no other attorney handling his post-conviction matters. The public defender undertook to represent Mr. McFadden when she provided legal advice and directed him to provide the motion directly to her for filing. Mr. McFadden reasonably relied upon these instructions. At that time, no 29.15 motion having yet been filed, no case existed to which a public defender could formally be appointed. The fact that the court had yet to appoint the public defender or that she had not yet entered an appearance is in no way dispositive as to the formation of an attorney-client relationship, however. This Court looks to the substantive nature of the contacts within a relationship, regardless of what formal or procedural incidents have occurred, to determine whether "advice and assistance of [the] attorney is sought and received." Longo, 789 S.W.2d at 815.

As in Flanagan, this Court will not apply technical constructs when establishing the existence of an attorney-client relationship. Mr. McFadden is a convicted offender. The public defender is a licensed attorney. She initiated contact and spoke with Mr. McFadden about his motion for post-conviction relief, directing him to send the motion to her for filing, and he did so. These actions established an attorney-client relationship.

In contrast to Flanagan, in In re Walter K. Disney, 922 S.W.2d 12 (Mo. banc 1996), this Court determined that an attorney-client relationship did not exist. Mr. Stauffer alleged that Mr. Disney, an attorney, failed to utilize reasonable diligence and failed to sufficiently inform him, in addition to other allegations. Id. at 14. In order for this Court to assess the alleged violations of Mr. Disney's ethical responsibilities, it had to first establish whether an attorney-client relationship existed between the two men. Id. The evidence, there, "establishe[d][Mr.] Disney had been [Mr.] Stauffer's attorney in the past, but the attorney-client relationship ended when [Mr.] Disney completed the last legal task, revision of a will in 1988." Id. This Court noted that, "`[W]here the purpose of an attorney's employment has been accomplished, the relationship terminates.'" Id. This Court went on to emphasize that Mr. Stauffer testified he knew the two parties involved in the transaction at issue "were on `two different sides' and a lawyer should not represent both sides," that Mr. "Stauffer described their transaction as `strictly business' and, understood they could be in conflicting positions." Id. at 14-15. Furthermore, Mr. Stauffer...