Vogl v. State

• Decision Date: 19 August 2014
• Docket Number: No. SC 93157.,SC 93157.
• Court: Missouri Supreme Court
• Parties: Mark D. VOGL, Appellant, v. STATE of Missouri, Respondent.

437 S.W.3d 218

Mark D. VOGL, Appellant,
v.
STATE of Missouri, Respondent.

No. SC 93157.

Supreme Court of Missouri,
En Banc.

Aug. 19, 2014.

[437 S.W.3d 220]

Jeannie M. Willibey, Public Defender's Office, Kansas City, for Vogl.

Andrew C. Hooper, Attorney General's Office, Jefferson City, for the State.

PATRICIA BRECKENRIDGE, Judge.

The motion court dismissed Mark Vogl's Rule 24.035 motion for post-conviction relief, without an independent inquiry, after appointed post-conviction counsel filed a motion to rescind appointment of counsel that informed the court that Mr. Vogl's pro se motion was stamped “filed” after the last day permitted by the rule. Thereafter, Mr. Vogl filed the motion at issue to reopen his post-conviction proceedings, claiming that his counsel abandoned him

[437 S.W.3d 221]

by failing to investigate the timeliness of his post-conviction motion before counsel filed a motion to rescind appointment of counsel. The motion court entered judgment overruling Mr. Vogl's motion. Mr. Vogl appeals. After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. Because the record raises the presumption that Mr. Vogl was abandoned by his post-conviction counsel, the motion court clearly erred in dismissing Mr. Vogl's motion. The judgment is reversed, and the cause is remanded.

Facts and Procedural Background

On June 21, 2007, Mr. Vogl pleaded guilty to two felony counts of first-degree statutory sodomy under section 566.062.¹ He then was sentenced by the circuit court to 15 years imprisonment on each count, with the sentences to run concurrently. After pronouncing the sentence, the circuit court informed Mr. Vogl of his right to seek postconviction relief under Rule 24.035. On September 18, 2007, Mr. Vogl was delivered to the Missouri Department of Corrections (“DOC”) to serve his sentence. He did not appeal his conviction.

Under Rule 24.035, Mr. Vogl had to file a timely Rule 24.035 motion to seek post-conviction relief.² In light of his delivery date to the DOC, Mr. Vogl's post-conviction motion had to be filed on or before March 17, 2008.³ The docket sheet and file stamp on Mr. Vogl's motion reflect that his pro se motion was filed in the Joplin office of the Jasper County circuit clerk on March 18, 2008.

Upon the filing of Mr. Vogl's post-conviction motion, the motion court appointed post-conviction counsel to represent Mr. Vogl in the proceeding. Thirteen days later, Stephen J. Harris, the area district defender for the Missouri State Public Defender, filed a motion requesting that the appointment of counsel be rescinded. In his motion, appointed counsel alleged that Mr. Vogl's Rule 24.035 motion was untimely because Mr. Vogl was delivered to the department of corrections on September 18, 2007, and Mr. Vogl's motion was stamped “filed” 182 days later. The certificate of service indicates that the motion to rescind was served only on the prosecuting attorney, and there is nothing in the circuit court record to indicate that Mr. Vogl received service or notification of appointed counsel's filing of the motion to rescind appointment of counsel. Six days later, without a hearing or independent inquiry, the motion court entered an order rescinding its previous order appointing counsel and dismissing the case with prejudice because the court found that “[f]urther review of the file indicates that the motion was not timely filed.”

[437 S.W.3d 222]

On March 17, 2011, Mr. Vogl filed a motion titled “Motion to Reinstate Postconviction Action Brought Pursuant To Rule 24.035 On Basis of Timely Filing, And To Vacate Order Rescinded [sic] Appointment of Counsel and Dismissing 24.035 Action.” Specifically, the 2011 motion claimed that his pro seRule 24.035 motion was timely filed and, even if filed in the wrong court, should have been considered timely filed and transferred to the proper court rather than dismissed. In addition, Mr. Vogl alleged that he had been abandoned by his appointed counsel. On November 4, 2011, the motion court, without holding an evidentiary hearing, entered an order refusing to take any further action on the basis that Mr. Vogl's post-conviction proceedings previously had been dismissed with prejudice due to untimely filing.⁴

On May 11, 2012, Mr. Vogl filed the pro se motion presently at issue requesting that the motion court adjudicate his post-conviction proceedings because he was abandoned by his appointed counsel.⁵ In his motion, Mr. Vogl requested that the motion court hold an evidentiary hearing to determine the merits of his claim of abandonment. For support, Mr. Vogl made the following allegations pertaining to the filing of his pro se motion and his appointed counsel's representation:

• The April 16, 2008 motion to rescind appointment of counsel filed by postconviction counsel was filed without any consultation with Mr. Vogl.

[437 S.W.3d 223]

• If post-conviction counsel had consulted with Mr. Vogl, he would have obtained facts that would have proved the timely filing of Mr. Vogl's motion.

• Post-conviction counsel's alleged failure to investigate the circumstances surrounding the filing of Mr. Vogl's Rule 24.035 motion before filing the motion to rescind appointment of counsel constituted abandonment and noncompliance with Rule 24.035 because he filed neither an amended motion for post-conviction relief nor a statement explaining that all facts and claims had been asserted in the pro se motion.

• Mr. Vogl never received notification that his counsel intended to file a motion to rescind counsel's appointment. If he had been notified, he would have attempted to contact the court to request a hearing on the motion.

Attached to Mr. Vogl's motion were two exhibits—letters from the Jasper County circuit clerk's office written in response to Mr. Vogl's inquiries regarding the Jasper County circuit clerk's office procedures for receiving and forwarding mail from one clerk's office to the other.

Jasper County maintains two courthouses—one in Carthage, which is the county seat, and the other in Joplin. Mr. Vogl alleges that he mailed his pro seRule 24.035 motion to the Jasper County circuit clerk's office in Carthage on March 12, 2008, and it arrived there on March 17, 2008. On the same day, after recognizing that the file regarding his criminal conviction was at the Joplin office, the Carthage office forwarded the motion to the Joplin office without first stamping the motion as filed. When the Joplin office received Mr. Vogl's pro se motion, it then stamped it “filed” for the first time on March 18, 2008.

The first letter attached to Mr. Vogl's motion articulates the clerk's office procedure when forwarding mail to the correct office location. The letter states that the Carthage office received Mr. Vogl's motion, determined that it belonged in the Joplin office, and sent it to the Joplin office a day later. Specifically, the letter states:

1. Mail is received in whichever office the envelope is addressed to (in the above referenced case, Jasper County Clerk—not Jasper County Circuit Clerk—two (2) totally different offices);

2. When mail is opened and determined to belong to a different office in the Courthouse, the mail is taken to the correct office (in this case the correct office was the Jasper County Circuit Clerk's office);

3. Jasper County Circuit Clerk's Office in Carthage determined your original case was handled in the Joplin location and any subsequent filings must also be filed in the Joplin location and placed your documents in a basket for our “runner” to pick up to deliver to Joplin. Our “runner” picks up every afternoon in Carthage and delivers to the Circuit Clerk's Office in Joplin the following morning. He also delivers mail received in Joplin that needs to go to Carthage.

After receiving the first letter, Mr. Vogl wrote a letter, dated June 27, 2010, to the Jasper County circuit clerk asking when his pro se post-conviction motion initially was received by the Carthage office, not when the Joplin office received it after the Carthage office forwarded it.⁶ The second

[437 S.W.3d 224]

letter from the clerk's office was written in response to Mr. Vogl's June 27, 2010, letter. It states that, if it takes three days for Mr. Vogl's motion to get from Cameron to the Carthage office as Mr. Vogl had said, then it would follow that the Carthage office received his pro se motion on March 17, 2008. The deputy circuit clerk further stated that the envelope containing the original pro se motion was not in the clerk's file. The actual text of the letter states:

According to your letter dated March 12, 2008, your Motion was being mailed without copies since your housing unit was locked down and it needed to be mailed immediately. It is my presumption that your Motion went out in the next morning's mail, being Thursday, March 13, 2008. If, as you state, mail takes three (3) days from Cameron to Carthage, that would put it being received on Sunday, March 16, 2008 on which there is no mail delivery subsequently being delivered to our Carthage office on Monday, March 17, 2008 and received in our Joplin office on Tuesday, March 18, 2008.

On Mondays, when we receive an abundant amount of mail, it is our normal procedure for mail to be delivered to another office to stamp one (1) envelope with the date received and then rubber band anything else to that piece of mail.

The motion court overruled Mr. Vogl's motion and request for evidentiary hearing. The court stated that Mr. Vogl's post-conviction action previously had been dismissed with prejudice as untimely. Thereafter, Mr. Vogl timely appealed. The case was transferred to this Court after opinion by the court of appeals. Mo. Const. art. V, sec. 10.

Standard of Review

When a motion court overrules a motion claiming abandonment by post-conviction counsel, appellate review is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Gehrke v. State, 280...