Pate v. State

• Decision Date: 27 October 2017
• Docket Number: No. SD 34672,SD 34672
• Citation: 554 S.W.3d 419
• Parties: Jermaine Cortez PATE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

554 S.W.3d 419

Jermaine Cortez PATE, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 34672

Missouri Court of Appeals, Southern District, Division One.

Filed: October 27, 2017 Motion for Rehearing and/or Transfer to Supreme Court Denied November 21, 2017

ATTORNEY FOR APPELLANT—SUSAN L. HOGAN, Kansas City, MO.

ATTORNEY FOR RESPONDENT—NATHAN J. AQUINO, Jefferson City, MO.

MARY W. SHEFFIELD, P.J.

Jermaine Cortez Pate("Movant") raises three points in appealing a judgment that denied his amended Rule 29.15motion for post-conviction relief.¹In point 1, he argues the case must be remanded with directions for the motion court to enter a prior judgment sustaining his amended motion for post-conviction relief.In points 2 and 3, he argues the motion court clearly erred in denying claims that Movant's trial counsel was constitutionally ineffective.For the reasons that follow, Movant's points are denied, and the motion court's judgment is affirmed.

Background

After a jury found Movant guilty of receiving stolen property—a video camera—valued at $500 or more, he was sentenced to seven years' imprisonment.Movant's conviction was affirmed on direct appeal in an unpublished opinion.State v. Pate , No. SD33086(Mo. App.May 28, 2015)(per curiam ).

Movant filed a pro se and amended motion for post-conviction relief.²Movant and the State agreed to submit the amended motion for the court's consideration based on the underlying criminal case file, the deposition transcript of Movant's trial counsel, and the deposition transcript of Movant's appellate counsel"in lieu of a live evidentiary hearing."On March 21, 2016, the motion court issued a judgment granting the amended motion("the first judgment").On April 13, 2016, the State filed a "Motion to Vacate Judgment."On June 28, 2016, the motion court granted the State's "Motion to Vacate Judgment."On August 1, 2016, the motion court then entered a new judgment denying Movant's amended Rule 29.15 motion("the second judgment").This appeal followed.Additional facts will be discussed below as necessary.

Discussion

Point 1–Control over the First Judgment

Movant's first point claims the motion court was "without authority to enter [the second judgment] because the time for filing an amended judgment had expired" by the time the motion court entered the second judgment.Movant therefore concludes that the second judgment "is a nullity and this case must be remanded with directions to reinstate" the first judgment.

"The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time."Rule 75.01.If no authorized after-trial motion is filed, the judgment becomes final at the expiration of thirty days after its entry.Rule 81.05(a)(1).If an authorized after-trial motion is timely filed, however, Rule 81.05(a)(2)(A) grants the trial court up to ninety days from the date the motion was filed to rule on the motion, after which the motion is deemed denied.Rule 81.05(a)(2)(A) and (B).

The combined effect of these Rules is to afford the trial court the authority to modify its judgment for any reason for good cause within thirty days of its entry, and the authority between the thirty-first and ninetieth day following entry of a judgment to modify its judgment to remediate a matter raised by a party in an authorized after-trial motion.

State ex rel. Missouri Parks Ass'n v. Missouri Dept. of Nat. Resources , 316 S.W.3d 375, 382(Mo. App. W.D.2010).³

"Missouri law authorizes the filing of several after-trial motions, including motions for new trial ... pursuant to ... Rule 78.04."Payne v. Markeson , 414 S.W.3d 530, 538(Mo. App. W.D.2013)."[A]motion for a new trial is an authorized after-trial motion that is ‘directed toward errors of fact or law in the trial.’ "State v. Carter , 202 S.W.3d 700, 705(Mo. App. W.D.2006)(quotingTaylor v. United Parcel Service, Inc. , 854 S.W.2d 390, 392(Mo. banc 1993) ).A "motion to vacate" is not an authorized after-trial motion, but it may be considered as one depending on the relief requested.Lucious v. State , 460 S.W.3d 35, 38(Mo. App. E.D.2015).This is because "in evaluating whether a pleading is an authorized after-trial motion, we do not concern ourselves with the title of the pleading or with a party’s citation to a particular Rule, but we look instead to the substance of the pleading."Missouri Parks Ass'n , 316 S.W.3d at 382.In other words, "Missouri courts have looked not to the nomenclature employed by the parties, but to the actual relief requested in the motion."Berger v. Cameron Mut. Ins. Co. , 173 S.W.3d 639, 641(Mo. banc 2005).

Here, Movant's amended motion for post-conviction relief alleged that trial counsel was constitutionally ineffective for failing to raise certain objections.After the first judgment was entered sustaining the amended motion, the State timely filed a "Motion to Vacate Judgment" 23 days later asking the court to "reconsider and vacate" the first judgment for seven reasons.The first six reasons claimed, in various respects, that Movant had failed to carry his burden of proving that trial counsel's performance was constitutionally deficient or that Movant was prejudiced by any such deficient performance.⁴

Because this motion raised errors of fact and law following a trial,⁵ it is properly classified as a motion for new trial.See, e.g. , Est. of Downs v. Bugg , 348 S.W.3d 848, 852 n.3(Mo. App. W.D.2011)(a motion operates as a motion for a new trial where "it places before the trial court allegations of trial court error regarding contested legal or factual issues.");Crowder v. State , 191 S.W.3d 99, 101(Mo. App. S.D.2006)("Motion to Reconsider Judgment" was "treated as a motion for new trial pursuant to Rule 81.05" because it asserted "the trial court committed errors of law in dismissing movant's Rule 29.15 motion.").Moreover, the motion court treated the State's "Motion to Vacate Judgment" as a motion for new trial, which it granted on June 28, 2016—76 days after the State's after-trial motion was filed—in the following docket entry:

Motion Hearing Held^[6]

Cause called.Movant appears by PD Cinda Eichler by telephone [sic].State appears by Crawford County Prosecuting Attorney, Kent Howald.State’s Motion to Vacate taken up, argued and sustained over Movant’s strenuous objection.Ordered that the [first judgment] is hereby set aside and held for naught.The matter is taken under advisement.

Movant's argument to the contrary fails because it misstates the record.Movant asserts that the June 28 docket entry "simply provided notice that the court was going to take the case under advisement to review and reconsider [the first] judgment and possibly amend the [first] judgment at some future date[.]"Here, the motion court set aside the first judgment and "held it for naught."The "matter taken under advisement" was on the merits of the amended motion.

For the same reason, Movant's reliance on In re Marriage of Noles , 343 S.W.3d 2(Mo. App. S.D.2011) —where one party("Father") had filed an after-trial motion that sought recalculation of a child support award included in a judgment dissolving his marriage—is misplaced.Id. at 4.Within 90 days of Father's after-trial motion being filed, the trial court made a docket entry and sent a letter to counsel announcing its intention to amend the judgment in the future, and requesting that Father prepare a proposed amended judgment reflecting the requested change but leaving all other aspects of the judgment untouched.Id. at 4-5.The appellate court, however, determined that the letter and docket entry were only interlocutory because they"simply provided notice that the trial court intended to amend the judgment at some future date."Id. at 8-9.Moreover, because the trial court did not actually enter an amended judgment within 90 days of Father's after-trial motion being filed, the after-trial motion was denied by operation of law on the 91st day after the motion was filed.Id. at 9.

Here, unlike Noles , the State's after-trial motion asked the motion court to "reconsider and vacate" the entire first judgment, and the motion court did vacate the first judgment.Thus, the relief requested in the State's after-trial motion was unequivocally granted by the motion court within 90 days of the motion's filing.⁷At that point, no further action remained to be taken on the State's after-trial motion, and, with the first judgment vacated, there was no time constraint within which the motion court had to reconsider the submitted evidence and enter a new judgment.Point one is denied.

Points 2 and 3—Ineffective Assistance of Trial Counsel

We address points 2 and 3 together because they raise similar issues and fail for the same reason—Movant has not shown that the motion court's lack-of-prejudice finding was clearly erroneous.

Movant's amended motion for post-conviction relief alleged that trial counsel was constitutionally ineffective for failing to object at trial to admission of evidence of the stolen video camera found in Movant's possession and to Movant's statements made to police on the ground that each had been taken "in violation of Movant's Fourth Amendment right to be free from unreasonable searches and seizures[.]"The arguments had been raised in a pre-trial motion to suppress, which was denied by the trial court following a hearing.Movant nevertheless claimed that an objection at trial with the additional evidence developed at trial would have been meritorious.⁸The motion court's second judgment denied Movant's post-conviction relief motion, finding that the trial court’s initial ruling denying the motions to suppress was correct; that the trial court would not have made a different ruling if additional objections had been raised at trial; and that Mov...