Swallow v. State

Decision Date14 May 2013
Docket NumberNo. SC 92432w.,SC 92432w.
Citation398 S.W.3d 1
PartiesBrandon L. SWALLOW, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Supreme Court

OPINION TEXT STARTS HERE

Lisa M. Stroup, Public Defender's Office, St. Louis, for Swallow.

James B. Farnsworth, Attorney General's Office, Jefferson City, for the State.

PATRICIA BRECKENRIDGE, Judge.

Brandon Swallow appeals the circuit court's judgment dismissing his Rule 24.035 motion for post-conviction relief, because the circuit court found his motion was untimely filed. Mr. Swallow claims the circuit court erred in dismissing his motion because he filed it within 180 days of his delivery to the department of corrections for his first degree assault sentence, which triggered the period in which he could file a post-conviction relief motion challenging that conviction and sentence. The court of appeals held that the triggering event was his previous delivery to the department to serve an armed criminal action sentence imposed in the same judgment. Mr. Swallow asserts that Rule 24.035 permits serial post-conviction relief motions challenging a single judgment when the movant is delivered to the department at different times to serve the sentences within the judgment and sets the filing deadline as 180 days from delivery to the department for each individual sentence within a multiple-count judgment.

Mr. Swallow claims the circuit court's misapplication of Rule 24.035 prejudiced him in two ways. First, he claims it prevented him from challenging the ineffective assistance of his guilty plea counsel when counsel failed to advise him of and pursue the defense that the police unconstitutionally obtained incriminating statements by interviewing him when he was 17 years old without advising him that he had the right to have his parents present. Second, he claims that the circuit court's error prevented him from challenging the assistance of counsel at his probation revocation hearing as ineffective because counsel did not ask the court to order that he receive a psychological examination after his delivery to the department of corrections to serve his twenty-year sentence for first degree assault. Because Mr. Swallow's first claim is waived and the second claim is not cognizable in a post-conviction motion, the circuit court's judgment is affirmed.

Factual and Procedural Background

On the night of July 6, 2005, Brandon Swallow stabbed a man during a fight behind a St. Louis restaurant. Mr. Swallow was arrested and charged with first degree assault, section 565.050, and armed criminal action (ACA), section 571.015.1 Mr. Swallow pleaded guilty to both charges. On March 3, 2006, the St. Louis County circuit court sentenced him to twenty years in the department of corrections for assault and three years for ACA, which the court ordered to be served concurrently. The circuit court then suspended execution of his assault sentence and placed Mr. Swallow on probation for a term of five years. As required by section 571.015.1, the court ordered that Mr. Swallow's three-year sentence for ACA sentence be executed. At the conclusion of sentencing, the court advised him that, absent an appeal, he had 180 days from the time he was delivered to the department of corrections to file a motion to vacate, set aside, or correct his judgment or sentence. Mr. Swallow began serving his ACA sentence March 10, 2006. He did not appeal and did not file a Rule 24.035 motion within 180 days of his delivery to the department.

Mr. Swallow completed his ACA sentence July 6, 2008, and was released from the department of corrections, but he remained on probation for his assault conviction. In March 2010, a court revoked Mr. Swallow's probation and executed his previously imposed twenty-year assault sentence, with the trial court retaining the right to grant probation pursuant to section 559.115.3, RSMo. Supp.2005.2 Within 180 days after Mr. Swallow was delivered to the department of corrections to serve his assault sentence, he filed a pro seRule 24.035 motion, which subsequently was amended. Mr. Swallow's amended motion alleged two ineffective assistance of counsel claims, and he moved the court to vacate his ACA and assault convictions and sentences. The state filed a motion to dismiss Mr. Swallow's Rule 24.035 motion as untimely. The circuit court sustained the motion and dismissed Mr. Swallow's motion.

Mr. Swallow appealed. After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, section 10. On appeal, Mr. Swallow claims that, because he initially was delivered to the department of corrections for his ACA sentence but not for his assault sentence, the Rule 24.035 time period to challenge his assault conviction and sentence did not begin until he was delivered to the department of corrections for the assault conviction and sentence.

Standard of Review

This Court's review of a denial of post-conviction relief is limited to a determination of clear error in the circuit court's findings of fact and conclusions of law. Taylor v. State, 382 S.W.3d 78, 80 (Mo. banc 2012). A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made. Id. Even if the stated reason for a circuit court's ruling is incorrect, the judgment should be affirmed if the judgment is sustainable on other grounds. State v. Bradley, 811 S.W.2d 379, 383 (Mo. banc 1991); see also Greene v. State, 332 S.W.3d 239, 246 (Mo.App.2010) (the judgment of the post-conviction relief motion court may be affirmed on any legal ground supported by the record if the circuit court arrived at the correct result).

Claim of Ineffective Plea Counsel Waived

Mr. Swallow asserts that the circuit court erred in dismissing his Rule 24.035 motion as untimely because he filed it within 180 days of his delivery to the department of corrections to serve the twenty-year sentence for his assault conviction. He contends that the provisions of Rule 24.035, as applied in prior cases, permit a movant to file serial motions to challenge individual convictions and sentences within a multiple-count judgment when the movant is delivered to the department at different times for the sentences. Mr. Swallow claims that, if his motion is timely filed, he is entitled to relief because his plea counsel was ineffective for failing to pursue the defense that his statements to police were obtained unconstitutionally.

Absent an appeal, Rule 24.035(b) requires a person seeking to correct, vacate, or set aside a judgment or sentence to file a motion within 180 days of the date the person is delivered to the custody of the department of corrections. The judgment at issue in this case convicted Mr. Swallow on two counts—ACA and assault. Mr. Swallow did not appeal, so Rule 24.035(b) required him to file a Rule 24.035 motion within 180 days of his delivery to the department of corrections. Mr. Swallow was delivered to the department of corrections March 10, 2006, to serve his ACA sentence. He filed the Rule 24.035 motion at issue in this case September 10, 2010. Mr. Swallow contends that his motion is timely because, although he was delivered to the department of corrections initially in 2006, such delivery was solely for the purpose of serving the ACA sentence. He subsequently was delivered to the department in 2010 for the assault sentence, and this motion was filed within 180 days of his delivery to the department of corrections to serve that sentence.

Rule 24.035, as fully set out in the appendix to this opinion, does not specifically address the issue of whether a subsequent delivery permits a filing more than 180 days after an initial delivery to the department. The rule, however, has the purpose of providing a prompt review of any deficiency in the judgment or sentence. See State ex rel. Nixon v. Daugherty, 186 S.W.3d 253, 254 (Mo. banc 2006) (Rule 24.035's purpose is to avoid delay in the processing of prisoners' claims and prevent the litigation of stale claims). Rule 24.035 is designed to avoid duplicative and unending challenges to the finality of judgment. Dorris v. State, 360 S.W.3d 260, 269 (Mo. banc 2012). The rule intends “to provide a ‘single, unitary, post-conviction remedy, to be used in place of other remedies,’ including the writ of habeas corpus.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001). Permitting delay in raising claims until a later delivery would frustrate that purpose.

While Rule 24.035 does not expressly address subsequent deliveries for the same judgment, there are requirements in the rule that are contrary to Mr. Swallow's interpretation. Specifically, a Rule 24.035 motion is to include “every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence.” Rule 24.035(d). The term “judgment” encompasses all convictions and all sentences against the movant.3See Rule 29.07(c). In fact, the rule requires that the motion include a declaration that the movant has listed all claims for relief known to the movant and an acknowledgement that the movant understands that the movant is waiving any claim for relief known to the movant that is not included in the motion. Id. The rule also expressly prohibits successive motions. Rule 24.035(1). Recognizing Rule 24.035's bar against claims that could have been raised in a previous motion under the rule, Missouri courts consistently have held that post-conviction relief motions that raise claims the movant could have raised in an earlier proceeding are treated as successive and dismissed. See Shifkowski v. State, 181 S.W.3d 633, 634 (Mo.App.2006); Sales v. State, 772 S.W.2d 739, 740 (Mo.App.1989); Bolder v. State, 769 S.W.2d 84, 88 (Mo. banc 1989); see also Thurman v. State, 859 S.W.2d 250, 252 (Mo.App.1993) (a post-conviction movantwaives his right to require findings by the circuit court on the merits of his ineffective assistance of counsel claims by...

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