Mitchem v. State

• Decision Date: 25 March 2008
• Docket Number: No. WD 67270.,WD 67270.
• Parties: Michael MITCHEM, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

250 S.W.3d 749

Michael MITCHEM, Appellant, v. STATE of Missouri, Respondent.

No. WD 67270.

Missouri Court of Appeals, Western District.

March 25, 2008.

As Modified May 27, 2008.

Susan L. Hogan, Kansas City, MO, for Appellant.

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

Before HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS and THOMAS H. NEWTON, JJ.

THOMAS H. NEWTON, Judge.

Mr. Mitchem was convicted of first-degree murder, section 565.020,¹ and armed criminal action (ACA), section 571.015, after a jury trial.² He was sentenced to life without parole on the murder conviction and a seventy-five year term on the ACA conviction. This court affirmed the convictions and sentences. Mr. Mitchem filed a timely pro se Rule 29.15 motion. The appointed post-conviction relief (PCR) counsel timely filed an amended motion. After an evidentiary hearing, the motion court denied relief. It issued findings of fact and conclusions of law on March 2, 2005. Mr. Mitchem did not appeal the denial.

On June 2, 2006, PCR counsel filed a motion to reopen the 29.15 proceedings for the sole purpose of reissuing the decision. She alleged that she abandoned Mr. Mitchem because she failed to file a timely appeal of the denial of his 29.15 motion. She claimed that she did not know that a judgment had been entered until she checked Missouri Case.net on May 30, 2006. She obtained a copy of the decision from the Office of Civil Records on May 31, 2006. Upon discovering that it was too late to file a notice of appeal and too late to request a special appeal³ from this court, PCR counsel filed a motion to reopen. The motion court granted the motion and reissued its decision on June 30, 2006. Mr. Mitchem appeals the denial of his Rule 29.15 motion claiming trial counsel was ineffective for opening the door to otherwise inadmissible evidence of post-Miranda⁴ warnings silence and for failing to object to closing arguments. Additionally, he claims that his appellate counsel was ineffective for failing to raise a Batson⁵ challenge on direct appeal. We affirm the denial of his Rule 29.15 motion.

Legal Discussion

Before we can review the merits of this appeal, we must determine our jurisdiction. See Wise v. State, 219 S.W.3d 270, 273 (Mo.App. S.D.2007) (dismissing appeal of denial of post-conviction relief motion because the motion court lacked authority to reopen post-conviction proceedings). The State claims that we lack jurisdiction to hear the appeal because the motion court had no authority to reopen the case after the judgment became final.

Usually, a motion court loses jurisdiction over a case thirty days after entering its judgment. Id. at 272. However, a motion court may reopen its proceedings in a 29.15 case on the ground that PCR counsel abandoned the movant. Id.; Fenton v. State, 200 S.W.3d 136, 139 (Mo. App. W.D.2006) (citing State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 217-18 (Mo. banc 2001)). The State concedes that if the reopening were valid, Mr. Mitchem's appeal would be timely from the 2006 judgment. Yet, the State insists that the 2005 judgment is the only valid decision, making the appeal "nearly a year and a half" late. Thus, the issue before us is whether PCR counsel's failure to file a timely appeal supports a finding of abandonment.

Missouri precedent has repeatedly held allegations of ineffectiveness of PCR counsel are not cognizable unless it amounts to abandonment. See State v. Bradley, 811 S.W.2d 379, 384 (Mo. banc 1991). The Missouri Supreme Court found abandonment when PCR counsel "took no action whatsoever on movant's behalf, thereby apparently failing to comply with the provisions of 29.15(e)." Sanders v. State, 807 S.W.2d 493, 494 (Mo. banc 1991) (citing Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991)). On that same day, the supreme court also found abandonment "where the record reflects that counsel has determined that there is a sound basis for amending the pro se motion but fails timely to file the amended motion as required by Rule 29.15(f)." Id. at 494-95. It appears that the supreme court found abandonment in both situations because PCR counsel's omission deprived the movant meaningful review of his claims. Id. at 494. Since 1991, the supreme court has declined to recognize other grounds for abandonment. See Barnett v. State, 103 S.W.3d 765, 774 (Mo. banc 2003). It has not decided whether failure to file a timely appeal constitutes abandonment since the promulgation of Rule 29.15.

Before 1991, the supreme court found that failure to prosecute the appeal of the denial of a Rule 27.26⁶ post-conviction relief motion where movant did not waive the appeal constituted abandonment. Flowers v. State, 618 S.W.2d 655, 657 (Mo. banc 1981). In Fenton, 200 S.W.3d at 139, the Western District held that PCR counsel's failure to file a timely appeal of the denial of a Rule 27.26 post-conviction motion constituted abandonment if the movant asked PCR counsel to file an appeal and PCR counsel failed to do so. The Fenton court relied on Flowers.⁷ 200 S.W.3d at 139. Both courts determined that PCR counsel's inaction constituted abandonment if the movant did not indicate that he did not wish to appeal or otherwise waive his right to an appeal.⁸ Flowers, 618 S.W.2d at 657; Fenton, 200 S.W.3d at 139. Additionally, the past decisions were based on similar language found in Rule 29.15.

Applying the same reasoning, the failure to file a timely appeal of a denial of post-conviction relief under Rule 29.15(k) constitutes abandonment because it would forfeit the movant's right to appeal. Abandonment would not be found where the delay resulted from the movant's negligence or intentional conduct thereby waiving the right to appeal. In the motion to reopen, Mr. Mitchem alleged that he wanted an appeal from the denial and did not interfere with the filing of the appeal. He also alleged that the delay was due to PCR counsel's failure to monitor the docket to determine if the motion court had entered a judgment. The motion court implicitly adopted these allegations in its order when it found that PCR counsel abandoned Mr. Mitchem and granted the motion. Because the motion court found that Mr. Mitchem did not waive his appeal, the reopening of the Rule 29.15 proceedings by the motion court was valid. Therefore, we review the merits of Mr. Mitchem's appeal to determine whether the motion court clearly erred in its findings of fact and conclusions of law. See Bradley, 811 S.W.2d at 383. We will reverse the motion court if we are left with a firm and definite impression that a mistake has been made after reviewing the entire record. Id.

Ineffectiveness of Trial Counsel

In his first point, Mr. Mitchem argues that trial counsel was ineffective because counsel opened the door for the State to ask him about "his post-arrest silence, even though defense counsel knew that [he] had refused to talk to the police and had invoked his right to remain silent." And he was thereby prejudiced because the jury "learned that [he] failed to deny involvement in the offense, when given an opportunity to do so by the police." To prevail on an ineffective assistance of counsel claim, Mr. Mitchem had to prove that his counsel's actions were not of a reasonably competent attorney and such deficiency prejudiced him. Bucklew v. State, 38 S.W.3d 395, 397 (Mo. banc 2001). It is presumed that trial counsel was competent and that his actions were the result of reasonable trial strategy. Anderson v. State, 66 S.W.3d 770, 775 (Mo.App. W.D. 2002). Prejudice is shown when there is a reasonable probability that the outcome would have been different but for trial counsel's deficient performance. Bucklew, 38 S.W.3d at 397.

At trial, the State adduced evidence that Mr. Mitchem beat the victim, Jamesetta Boles Pollard, to death with a hammer. Chase Blanchard, a medical examiner, testified that the victim died from multiple blunt force injuries to the head, which could have been caused by a hammer. Mr. Mitchem's friend, John Miley, testified for the State that he accompanied Mr. Mitchem to the victim's apartment so Mr Mitchem could borrow her car. Mr. Mitchem had a hammer in his back pocket as they walked to her apartment. Ms. Boles allowed them inside of the apartment, and she and Mr. Mitchem went to her bedroom.

Mr. Miley waited in the living room but could hear arguing. Shortly thereafter, Mr. Miley heard a woman scream and several thumps. Mr. Mitchem joined Mr. Miley in the living room and told him to wait a minute. Mr. Mitchem then returned to the bedroom so Mr. Miley went to look for him. He noticed the victim had a bloody face and was situated between the bed and the wall. Mr. Mitchem was in her closet. Mr. Miley ran out of the apartment. Mr. Mitchem followed him and locked the victim's door wearing gloves. Mr. Mitchem also had a bloody towel in his hand with something wrapped in it. He threw something in the nearby woods but returned with the bloody towel. He had one key, and they used it to drive away in her car to Mr. Mitchem's apartment. Other witnesses testified that the victim's apartment door was locked, and that she was found with a bloody face between her bed and wall.

Mr. Mitchem changed his clothes and shoes because they had blood on them and placed them in a plastic bag. Mr. Mitchem then drove the car to his girlfriend's house, and Mr. Miley followed him in his own car. They spent a few hours with Mr. Mitchem's girlfriend and her friend in the victim's car. Mr. Mitchem and the friend returned to their apartment complex sometime in the early morning hours.

Janean Garrett, Mr. Mitchem's girlfriend, testified that Mr. Mitchem returned in the victim's car to her house and spent the night. His cousin, Marcus Harris, testified that Mr. Mitchem picked him up the next day driving the victim's car. He also testified that at the end of the day, Mr. Mitchem parked the car behind the apartment complex. Mark Woods, a police officer, testified he and...