Williams v. State
Decision Date | 02 August 2016 |
Docket Number | WD 79001 |
Citation | 494 S.W.3d 638 |
Parties | Vincent U. Williams, Appellant, v. State of Missouri, Respondent. |
Court | Missouri Court of Appeals |
Ellen H. Flottman, Columbia, MO, for appellant.
Dora Fichter, Jefferson City, MO, for respondent.
Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge
Vincent U. Williams (“Williams”) appeals following the motion court's denial of his pro se Rule 24.035 motion without an evidentiary hearing. Williams alleges that his post-conviction counsel was unlawfully permitted to withdraw from his representation, leaving him without the benefit of counsel. We agree with Williams, and reverse and vacate the judgment denying his pro se Rule 24.035 motion, and remand this matter to the motion court for further proceedings.
Williams pleaded guilty to driving while intoxicated as a chronic offender and driving while revoked. He was sentenced to twelve years and three years respectively, to run concurrently.
Williams filed a timely Rule 24.035 motion (“Pro Se Motion”) on July 29, 2013.
The Public Defender's Office was appointed as Williams's counsel on the same date. The order appointing counsel extended the time to file an amended motion by thirty days. Appointed counsel did not enter an appearance for Williams until May 15, 2014. Williams's guilty plea and sentencing transcripts were filed June 9 and August 18, 2014, respectively. As a result, an amended motion was required to be filed by November 16, 2014.1
On July 22, 2014, appointed counsel filed a motion to withdraw. The motion alleged that a letter had been sent to Williams on May 5, 2014, (ten days before appointed counsel entered an appearance), with an application/affidavit for public defender services, and that Williams had never responded, despite reminder letters dated June 13, 2014 and July 1, 2014. The letters referenced in the motion were not attached to the motion. The motion to withdraw alleged that because Williams had not responded and the letters had not been returned, appointed counsel “can only conclude that [Williams] is not interested in Public Defender representation.”
The certificate of service on the motion to withdraw does not reflect service on Williams. The motion advised that a hearing was scheduled for July 29, 2014. Nothing in the record indicates that Williams was afforded notice of the hearing. On July 29, 2014, the motion court's docket entry indicates that the parties appeared through counsel . No personal appearance by Williams is noted in the record. Appointed counsel's motion to withdraw was granted. The motion court's associated bench note stated: 2
On September 10, 2014, the State filed a motion for issuance of findings on Williams's pro se Rule 24.035 Motion without an evidentiary hearing, and a notice scheduling the State's motion for hearing on September 15, 2014. The certificate of service on both pleadings reflects service on Williams by sending facsimile copies to Williams's appointed counsel, even though appointed counsel had already withdrawn. There is nothing in the record to suggest that Williams received notice of the State's motion or of the hearing scheduled on the motion.
The motion court entered a judgment denying Williams's Pro Se Motion without an evidentiary hearing on September 15, 2014 (“Judgment”).3
On September 14, 2015, the Public Defender's Office filed a motion on Williams's behalf seeking leave to file a notice of appeal out of time and to proceed in forma pauperis. The motion alleged that counsel had “reason to believe that [Williams] was abandoned by postconviction counsel,” and that “the Public Defender System has determined [Williams] to be indigent, and will represent him herein.” Leave in both respects was granted by this court on September 22, 2015.
Williams asserts two points on appeal. The first point asserts that Williams was abandoned by appointed counsel's withdrawal from Williams's representation. The second point alleges that the motion court committed legal error by permitting appointed counsel to withdraw without appointing Williams new counsel, thus depriving Williams of the assistance of counsel in his Rule 24.035 proceeding. We combine our discussion of Williams's points on appeal.
“[T]he determination of whether defense counsel should be allowed to withdraw is a matter within the discretion of the trial court, and this Court's review is for abuse of that discretion.” State v. Christeson , 50 S.W.3d 251, 261 (Mo.banc 2001) (citing State v. Hornbuckle , 769 S.W.2d 89, 96 (Mo.banc 1989), cert. denied , 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989) ). “Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id . (citing State v. Gardner , 8 S.W.3d 66, 73 (Mo.banc 1999) ).
A post-conviction movant has no constitutional right to counsel. Pennsylvania v. Finley , 481 U.S. 551, 553–54, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ( ); see also State v. Hunter , 840 S.W.2d 850, 871 (Mo.banc 1992) ), cert. denied , 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 732 (1993) ). Rather, the right to counsel in post-conviction proceedings exists, if at all, as a state-created right. Finley , 481 U.S. at 556, 107 S.Ct. 1990.
Missouri Supreme Court Rules address the appointment of counsel for postconviction movants. Rule 24.035(e) provides:
When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant .
(Emphasis added); see also Rule 29.15(e). Thus, indigent post-conviction movants have a right to be represented by counsel in connection with Rule 24.035 or Rule 29.15 pro se motions.4
The right to counsel created by Rules 24.035(e) and 29.15(e) is conditioned, however, on indigency. The Missouri Supreme Court has held that indigency should be liberally assessed when pro se post-conviction motions are first filed. “Because of the vital role an attorney plays in motions filed pursuant to Rule 24.035 and Rule 29.15, a motion court should assure the appointment of counsel for indigent movants.” Bennett v. State , 88 S.W.3d 448, 449 (Mo.banc 2002). An initial determination of indigency must be made by the motion court based on the content of the movant's pro se motion and/or on whether the movant was permitted to proceed in forma pauperis at the time of a guilty plea or trial. Id . at 449–50.
Pro se Rule 24.035 and Rule 29.15 motions are filed on Criminal Procedure Form 40, which asks in question 18 whether a movant is “seeking leave to proceed in forma pauperis,” and if so whether the movant has “completed the sworn affidavit setting forth the required information (see instructions, page 1 of this form).” If a movant answers “yes” to question 18 and provides the referenced affidavit, then counsel must be appointed for the movant by the motion court. Id . Even if a movant deficiently answers question 18, a motion court is nonetheless required to appoint counsel for the movant “[w]here it is clear from the record in the trial or plea court that the movant was indigent.” Id . at 449–50.
It is uncontested that the motion court appropriately appointed counsel when Williams filed his Motion. Williams answered “yes” to question 18, and attached a notarized affidavit in the form required which provided:
I, Vincent Uran Williams am a poor person as define [sic] by law. I have no monies. I have no assets nor bank accounts. I own no property or anything of any value. I can't afford to pay for these legal proceedings. I am currently incarcerated.
Unlike Bennett, where the movant's attached affidavit “contained no information concerning [movant's] financial resources,” Williams's affidavit specifically attested that he had no financial resources.5 Id . at 449.
Once appointed, Williams's counsel had the “duty to provide [Williams] with the representation required by Rule 24.035.” Vogl v. State , 437 S.W.3d 218, 230 (Mo.banc 2014). Rule 24.035(e) requires appointed counsel to either file an amended motion or a statement setting out facts that demonstrate the actions that were taken to ensure that an amended motion was not needed. Id . at 228.
When Williams's appointed counsel filed his motion to withdraw, he had not filed an amended Rule 24.035 motion or a statement explaining that an amended motion was not needed. In fact, because the guilty plea transcript had not yet been received, appointed counsel could not have completed the investigation required of him by Rule 24.035(e) when the motion to withdraw was filed.6 “A movant is abandoned when appointed counsel fails to comply with the requirements in Rule 24.035(e) by not filing either an amended motion or a statement setting out facts that demonstrate the actions that were taken to ensure that an amended motion is not needed.” Id . The motion court was required to determine whether the natural result of granting the motion to withdraw —appointed counsel's failure to comply with the obligations of Rule 24.035(e)—would constitute abandonment. Id . at 229. The motion court failed to conduct this required inquiry before granting appointed counsel's motion to withdraw, leaving Williams without the assistance of counsel.
The circumstances in Vogl are instructive in this case. A movant filed a Rule 24.035 motion, and post-conviction counsel was appointed. Id . at 221. Thirteen days later, appointed counsel filed a motion to rescind the appointment because movant's pro se motion was untimely. Id . Appointed counsel's motion contained a...
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