McKay v. State, SC 95909

• Decision Date: 27 June 2017
• Docket Number: No. SC 95909,SC 95909
• Citation: 520 S.W.3d 782
• Parties: Daniel MCKAY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

520 S.W.3d 782

Daniel MCKAY, Appellant,

v.STATE of Missouri, Respondent.

No. SC 95909

Supreme Court of Missouri, en banc.

Opinion issued June 27, 2017

McKay was represented during arguments by Lisa M. Stroup of the public defender's office in St. Louis, (314) 340-7662.

The state was represented by Evan Buchheim of the attorney general's office in Jefferson City, (573) 751-3321.

Laura Denvir Stith, Judge

Daniel McKay appeals the motion court's order dismissing as "successive" his motion for post-conviction relief alleging the trial court erred in rejecting his speedy trial claim. Although Mr. McKay previously filed a motion for post-conviction relief, he did so only as to claims other than the speedy trial claim, because while the appellate court purported to "affirm in part" those other claims, it ordered the speedy trial claim remanded for a hearing. Mr. McKay then separately appealed and filed for post-conviction relief after the trial court denied his speedy trial claim on remand.

In this circumstance, Mr. McKay did not file a successive motion for post-conviction relief. Rather, his initial motion was premature because it was filed prior to a determination on appeal whether the judgment of conviction would be affirmed. The premature filing was caused by the appellate court's error in stating the conviction was "affirmed in part" even though the issue on which the appellate court remanded, if resolved in the defendant's favor, would have resulted in vacation of Mr. McKay's conviction. The appellate court should have held the appeal pending the remand on Mr. McKay's speedy trial motion, or vacated the judgment and remanded the entire case for the speedy trial determination.

Where, as here, the initial motion was premature, then a motion timely filed after the entire conviction is affirmed is not successive but rather should be considered a timely supplement to the initial motion. To the extent the claims raised in the premature motion already were ruled against Mr. McKay, that ruling is vacated because it was entered before the time Mr. McKay's pro se motion could be considered or an amended motion filed. Accordingly, the motion court's order is vacated and remanded with instructions that, because Mr. McKay's pro se motion was timely, the motion court should allow Mr. McKay's counsel to file a single amended motion addressing all of his claims, including those previously determined.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 21, 2012, Mr. McKay was convicted, following a jury trial, of two counts of sale of a controlled substance and one count of unlawful possession of firearms. He was sentenced to two 20-year prison terms for selling controlled substances and a seven-year term for possessing a concealable firearm while on probation. Mr. McKay raised several claims of error on appeal, including a claim his right to speedy trial was violated because he was not brought to trial until more than 180 days after he filed a request for disposition of the detainer under the Uniform Mandatory Disposition of Detainers Law (UMDDL). §§ 217.450 -217.520, RSMo Supp. 2013.

The appellate court issued an opinion finding no error as to most of the claims raised on appeal but finding the trial court should have held an evidentiary hearing to determine whether Mr. McKay's speedy trial right was violated and whether he was prejudiced by the delay in bringing him to trial. State v. McKay, 411 S.W.3d 295 (Mo. App. 2013). The opinion concluded the case was "affirmed in part and remanded in part." Id. at 306. The mandate itself, issued November 19, 2013, said the case was "remanded in part" and "affirmed in all other respects" in accordance with the opinion just issued.

From that point, the case proceeded on parallel paths. Believing the time to file his post-conviction motion on the non-speedy trial claims began to run when the appellate court's mandate issued stating it "affirmed" the judgment against him "in all other respects," Mr. McKay filed his post-conviction motion on all but the remanded speedy trial claim on February 5, 2014. More than a year later, on August 28, 2015, the motion court denied relief without conducting an evidentiary hearing. The court of appeals affirmed on August 23, 2016.

Meanwhile, the trial court conducted an evidentiary hearing as to the remanded speedy trial claim on January 10, 2014. The state presented evidence it claimed rebutted the presumption of prejudice arising from the delay in bringing Mr. McKay to trial. The trial court denied relief on Mr. McKay's speedy trial claim on January 31, 2014. Mr. McKay appealed that ruling on February 6, 2014. A year later, the court of appeals affirmed the denial of Mr. McKay's speedy trial claim and issued a second mandate on May 11, 2015, affirming the conviction. On May 26, 2015, Mr. McKay filed a second post-conviction motion, this one alleging ineffective assistance as to the speedy trial claim. The public defender appeared and was granted leave to file an amended motion, but before the time for filing the amended motion ran, the motion court dismissed Mr. McKay's post-conviction motion as "successive." Mr. McKay appealed the dismissal, arguing his motion could not be successive as he could not have raised the speedy trial issue in his prior motion because it was still pending before the trial court. Following a decision by the court of appeals, this Court granted transfer.

II. A POST-CONVICTION MOTION FILED BEFORE THE JUDGMENT IS FINALLY AFFIRMED IS PREMATURE AND SHOULD BE HELD IN ABEYANCE PENDING THE TIME AT WHICH A POST-CONVICTION MOTION PROPERLY MAY BE FILED

Rule 29.15 and Rule 24.035 permit the filing of motions for post-conviction relief from a judgment of conviction. Id. A motion for post-conviction relief is a "collateral attack on a final judgment of a court." Dorris v. State, 360 S.W.3d 260, 269 (Mo. banc 2012) (quotation omitted). Therefore, to file a motion for post-conviction relief, there must be a final judgment subject to collateral attack. Rules 29.15 and 24.035 permit a defendant to collaterally attack a judgment only once, however; Rule 29.15(l) and Rule 24.035(l) prohibit the filing of successive motions raising the same claims or claims that could have been brought under a prior motion. Smith v. State, 21 S.W.3d 830, 831 (Mo. banc 2000) (claim movant suffered from mental illness that interfered with his right to seek post-conviction relief raised for the first time in his third motion was deemed successive under Rule 29.15); Futrell v. State, 667 S.W.2d 404, 406-07 (Mo. banc 1984) (claim available at the time of the first motion constitutes a "successive" claim when raised in a second motion). The intent of this prohibition is "to ensure that a movant receives a single—but meaningful—opportunity for timely post-conviction relief." Whitfield v. State, 435 S.W.3d 700, 701 (Mo. App. 2014), citing, Price v. State, 422 S.W.3d 292, 296 (Mo. banc 2014).

Here, the motion court dismissed as successive Mr. McKay's post-conviction motion attacking the denial of his speedy trial claim. Review of the dismissal of a motion for post-conviction relief as "successive" is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k) ; Gehrke v. State, 280 S.W.3d 54, 56 (Mo. banc 2009). A motion court's findings and conclusions are clearly erroneous only if this Court, after reviewing the entire record, is left with the definite and firm impression that a mistake has been made. Gehrke, 280 S.W.3d at 56-57.

The trial court erred in dismissing Mr. McKay's speedy trial claim as successive. While Rules 29.15(b) and 24.035(b) establish a narrow time window within which the defendant must file a post-conviction motion, that window does not close before the judgment being collaterally attacked is final. The rules require that only a single post-conviction motion may be filed. In light of this strict rule, it is vital a defendant not be led into filing a motion prematurely and thereby losing his entitlement to seek post-conviction review of still-pending claims through a partial affirmance of a judgment. Rather, Rule 29.15 and its companion Rule 24.035 contemplate only one mandate affirming a conviction. Rule 29.15(b) provides, "If an appeal of the judgment or sentence sought to be vacated ... was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence." Rule 24.035(b) provides, "If an appeal of the judgment or sentence sought to be vacated ... was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence." Both of the rules thereby contemplate a single mandate that starts the running of the 90-day period for filing a motion. Any motion filed prior to that time is premature and does not start the time running for filing a post-conviction motion.¹

Confusion as to when the time began to run for Mr. McKay's post-conviction motion was precipitated by the language of the appellate court's first mandate. It purported to "affirm in part" Mr. McKay's convictions. In possession of such a mandate, it is understandable Mr. McKay believed it best that he file his Rule 29.15 motion and the motion court believed it best to rule on the motion. There was no need to do either, however.

An appellate court cannot "affirm in part" a conviction it is remanding for further hearing and possible vacation. A review of the opinion in Mr. McKay's case reveals the appellate court actually did not "affirm in part" but rather rejected all of his claims other than his speedy trial claim. McKay, 411 S.W.3d at 295. Its opinion stated an evidentiary hearing was needed on the issue of prejudice as to the speedy trial claim before the appellate court could rule on the claim, but all of his other claims were without merit. Id.

But Mr. McKay's speedy trial claim related to all...