State v. Gardner

• Decision Date: 22 October 1996
• Docket Number: 69778,Nos. 67147,s. 67147
• Citation: 932 S.W.2d 858
• Parties: STATE of Missouri, Respondent, v. Robert GARDNER, Appellant. Robert GARDNER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 858

932 S.W.2d 858

STATE of Missouri, Respondent, v. Robert GARDNER, Appellant.

Robert GARDNER, Appellant, v. STATE of Missouri, Respondent.

Nos. 67147, 69778.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 22, 1996.

Robert E. Steele, Jr., Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Breck K. Burgess, Assistant Attorney General, Jefferson City, for respondent.

GERALD M. SMITH, Judge.

Defendant, allegedly a recovering chemical dependent, appeals from his conviction of illegal delivery of a controlled substance, cocaine base. The conviction was based upon a jury verdict, and the court imposed sentence of twenty-five years as a prior and persistent offender. Defendant also appeals from the court imposed sanctions against his attorney for violation of Rule 55.03. The sanction was a $25 fine. We affirm the conviction and reverse the imposition of sanctions.

The only point raised on direct appeal is that the trial court erred in refusing to give an entrapment instruction. Defendant's testimony was that he needed drugs on the evening in question and that he assisted the undercover police officer in obtaining drugs because he thought the officer would share them with him. The officer's question to defendant as to where he could obtain drugs was not entrapment. Defendant's response to that question of directing the officer to a location where defendant purchased drugs and brought them to the officer did not demonstrate that the officer solicited, encouraged, or otherwise induced the defendant to engage in illegal conduct when he was not ready and willing to engage in such conduct. Sec. 562.066.2 RSMo 1994; State v. Moore, 904 S.W.2d 365 (Mo.App.1995)[5-10]. There was no error in the trial court's refusal to give an entrapment instruction.

Defendant filed a pro se motion pursuant to Rule 29.15 seeking a new trial based upon ineffective assistance of counsel. Counsel was appointed for him from the public defender's office--Nancy Vincent. Ms. Vincent filed an amended motion to vacate. It was 26 pages long and contained a number of grounds for Rule 29.15 relief. Included were two grounds upon which the motion court based its imposition of sanctions. The first was an assertion that counsel was ineffective for failing to object to the reasonable doubt instruction; the second was a challenge to the constitutionality of Rule 29.15 because of the strict time limits contained therein. It can be readily acknowledged that Missouri appellate courts have uniformly, consistently, and frequently denied challenges to the reasonable doubt pattern instruction and the time limits of Rule 29.15. There is no doubt that under present Missouri case law both attacks are without merit.

The court issued a memorandum in which it denied an evidentiary hearing on the Rule 29.15 motion. It established a schedule for the filing of memoranda in support of the parties' respective positions. In that memorandum it further notified defendant and defendant's motion counsel that the claims headed "trial counsel failed to object to the Court's instruction on reasonable doubt" and "Rule 29.15 is unconstitutional" appear to violate Rule 55.03(b)(2). It directed that unless those claims were withdrawn defendant and his motion counsel are directed to show cause why Rule 55.03(b) has not been violated and why sanctions should not be imposed.

Defendant, by and through counsel, filed a response. Therein it was asserted that counsel was well aware of the chances of success on the two claims at the state court level but that counsel "believes it is her duty to protect her clients' interests at not only this stage of the appeal process but beyond, including direct appeal in state court and federal habeas review, and will not knowingly waive possible future federal habeas claims for Mr. Gardner, should he find himself in need of pursuit of federal habeas relief...." The response then set out examples of situations where courts, both state and federal have reexamined well established legal propositions and counsel's belief that her obligation to her client required her to assure that any possible rights of Mr. Gardner not be waived by failure to assert them in the Rule 29.15 motion.

The motion court issued its findings of fact, conclusions of law, order and judgment. No challenge is made on appeal to those portions of that document disposing of defendant's various claims for relief under Rule 29.15 contained in both his pro se motion and the amended motion filed by counsel. The court determined that the claims concerning the reasonable doubt instruction and the constitutionality of Rule 29.15 "are frivolous as a matter of law, are not accompanied by a good faith argument for the reversal of existing law, and are asserted solely on the basis that the Supreme Court in the future 'might change its mind.' " The court characterized the response filed to its memorandum as "an obstinate refusal to accept the commands of Rule 55.03 and the Rules of Professional Responsibility, and mulish insistence that almost any claim can be asserted in a criminal case, because of the seemingly eternal opportunities for collateral attack of criminal convictions." It then imposed sanctions against counsel through a fine of $25.

Before turning to the merits we must address an issue not directly addressed by the parties--standing. Standing cannot be waived, can be raised on appeal for the first time, and is subject to review by an appellate court at any time. Pace Construction Company v. Missouri Highway and Transportation Commission, 759 S.W.2d 272 (Mo.App.1988)[1-4]; Missouri Department of Social Services v. Administrative Hearing Commission, 826 S.W.2d 871 (Mo.App.1992). The appeal in this case was taken in the name of the defendant--Robert Gardner. No monetary sanctions were imposed against Gardner pursuant to Rule 55.03(c)(2)(a). No issue is raised on appeal challenging the sanction imposed against Gardner--the striking of the claims found to be frivolous. Counsel sought to challenge the court's imposition of sanctions by writ in this court and in the Supreme Court. Both applications were denied.

There is no authority in Missouri which addresses the situation now before us. Federal Circuits have taken different approaches to the standing issue. The First Circuit has taken the position that it will not review sanctions imposed against an attorney if the attorney is not a named party to the appeal. Marshak v. Tonetti, 813 F.2d 13 (1st Cir.1987). The court did recognize the possibility of "special circumstances to warrant the client challenging the order on the attorney's behalf." The Third and Ninth Circuits, and appellate courts in Ohio and Washington, D.C. have followed the First Circuit. Bartels v. Sports Arena Employees Local 137, 838 F.2d 101 (3rd Cir.1988); Estate of Bishop by and Through Bishop v. Bechtel Power Corporation, 905 F.2d 1272 (9th Cir.1990)[9-12]; Parks v. Baltimore & Ohio Railroad, 77 Ohio App.3d 426, 602 N.E.2d 674 (1991); Walker v. District of Columbia, 656 A.2d 722 (D.C.App.1995)[1, 2].

The Eleventh Circuit has allowed a sanctioned attorney to appeal without becoming a named party to the appeal. Donaldson v. Clark, 819 F.2d 1551 (11th Cir.1987)(banc); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Associated Contractors, Inc., 877 F.2d 938 n. 1 (11th Cir.1989), reh'g denied, en banc, 888 F.2d 1398, cert. denied, 493 U.S. 1079, 110 S.Ct. 1133, 107 L.Ed.2d 1038 (1990). In Corporation of the Presiding Bishop, supra, the court identified the close privity between the lawyer and his client in the conduct of the litigation as making it unjust to refuse to hear counsel's appeal of the sanctions. Supra, n. 1. In dicta, the Third Circuit has stated that "... while there are variables to when an attorney against whom a sanction has been imposed may [appeal], depending upon whether the underlying action is pending and whether the attorney is still of record in it, there is no doubt at all but that at some point an attorney subjected to a sanction may appeal." Bartels, supra at .

This is a quasi-criminal matter governed by the Rules of Civil Procedure. Thurman v. State, 859 S.W.2d 250 (Mo.App.1993)[9-10]. Therefore, both the attorney and the client must adhere to Rule 55.03. Id. Because the violation found by the court in this case arose under Rule 55.03(b)(2) monetary...