Gehrke v. State

PATRICIA BRECKENRIDGE, Judge. The circuit court overruled David Gehrke’s motion for postconviction relief under Rule 24.035 after an evidentiary hearing. The judgment was not appealed, allegedly because Mr. Gehrke’s counsel did not file a notice of appeal properly. Nearly five years later, Mr. Gehrke moved to — 56 — reopen his postconviction proceedings, claiming his counsel’s actions constituted abandonment. The motion court entered judgment overruling the motion. Mr. Gehrke appeals. After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10. This Court holds that counsel’s actions did not constitute abandonment and affirms the motion court’s judgment. Factual and Procedural Background On February 20, 1999, David Gehrke timely filed a pro se Rule 24.035 motion to vacate his guilty pleas and convictions for the following felonies: (1) one count of sodomy; (2) two counts of class A felony furnishing pornographic materials to minors; (3) one count of class C first-degree deviate sexual assault; (4) three counts of felony first-degree statutory sodomy; (5) four counts of class C first-degree child molestation; and (6) one count of first-degree sodomy.1 On September 7, 2001, the motion court entered its judgment, overruling Mr. Gehrke’s motion for post-conviction relief.2 Mr. Gehrke’s counsel prepared a notice of appeal form, which the Jackson County circuit court file-stamped on September 14, 2001. The circuit court has no record of a notice of appeal being filed after the motion court overruled Mr. Gehrke’s postconviction motion. No other steps were taken to perfect an appeal. On August 10, 2006, Mr. Gehrke moved to reopen his postconviction proceeding. Mr. Gehrke’s motion alleged he was abandoned by postconviction counsel when his counsel failed to file a notice of appeal properly after the motion court overruled Mr. Gehrke’s Rule 24.035 motion. Mr. Gehrke alleged the notice of appeal form his counsel prepared was only partially completed and was not accompanied by either an in forma pauperis affidavit or a filing fee. The motion to reopen further alleged that Mr. Gehrke had asked his counsel to appeal the judgment and that his counsel told him an appeal had been filed. Attached to Mr. Gehrke’s motion was the notice of appeal form that Mr. Gehrke’s counsel had completed. The motion court overruled Mr. Gehrke’s motion to reopen his postconviction proceedings. Mr. Gehrke appeals. Standard of Review Review of a motion court’s overruling of a motion to reopen postconviction proceedings is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. White v. State, 265 S.W.3d 850, 852 (Mo.App.2008). A motion court’s findings and conclusions are clearly erroneous only if the Court, after reviewing the entire record, is — 57 — left with the definite and firm impression that a mistake has been made. Id. Abandonment Generally, a movant is entitled to relief under Rule 24.035 or Rule 29.15 if the movant files a meritorious motion within the time limits set forth in those rules. See McFadden v. State, 256 S.W.3d 103, 106 (Mo. banc 2008). When a motion is filed outside the time limits, the motion court is compelled to dismiss it. Id. The movant is responsible for filing the original motion, and a lack of legal assistance does not justify an untimely filing. See Bullard v. State, 853 S.W.2d 921, 923 (Mo. banc 1993). In contrast, an amended motion is a final pleading, which requires legal expertise, id. at 922, and, due to that distinction, this Court has recognized a narrow exception to the time limits in the rules to give a motion court authority to “reopen an otherwise final post-conviction case when a post-conviction movant is abandoned by counsel.” McFadden, 256 S.W.3d at 107.3 This Court initially found abandonment in two scenarios: “when (1) post-conviction counsel takes no action with respect to filing an amended motion and as such the record shows that the movant is deprived of a meaningful review of his claims; or (2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner.” Crenshaw v. State, 266 S.W.3d 257, 259 (Mo. banc 2008) (quoting Barnett v. State, 103 S.W.3d 765, 773-74 (Mo. banc 2003)). If postconviction counsel is found to have abandoned a movant, “the proper remedy is to put the movant in the place where the movant would have been if the abandonment had not occurred.” Id. It is imperative for relief, however, that the movant in no way be responsible for the failure to comply with the requirements of either Rule 24.035 or Rule 29.15. Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc 1991). Recently, this Court recognized an additional circumstance in which a movant may be abandoned. In McFadden v. State, this Court held that where postconviction counsel overtly acts in a way that prevents the movant’s timely filing of a postconviction motion, a movant is entitled to relief. 256 S.W.3d at 109. In McFadden, a public defender initiated contact with Mr. McFadden, directed Mr. McFadden to send his postconviction relief motion to her and told Mr. McFadden that she would hand-file his motion with the court. Id. at 105. Counsel received Mr. McFadden’s postconviction motion before the 90-day time limit had run, but she did not file the motion until after the time limit had passed. Id. This Court found that Mr. McFadden timely had prepared and mailed his postconviction motion two weeks before the 90-day time limit. Id. at 109. Instead of mailing his motion to the court, however, Mr. McFadden followed his counsel’s express directions and mailed his motion to her — which she did not file timely. Id. This Court found that Mr. McFadden’s postconviction counsel affirmatively undertook to represent Mr. McFadden and simply abandoned that representation. Id. Because Mr. McFadden “did all he could to express an intent to seek relief under Rule 29.15, took all steps to secure this review, and was ‘free of responsibility for the failure to comply with the requirements of the rule,’ ” this Court found that such “active interfer — 58 — ence” on the part of postconvietion counsel constituted abandonment. Id. The facts that Mr. Gehrke claims constitute abandonment, however, do not fall within the scenarios found in McFadden, Luleff v. State4 or Sanders v. State.5 Instead, Mr. Gehrke asks this Court to expand abandonment to include counsel’s conduct in failing to file properly a notice of appeal of a judgment overruling a post-conviction motion. This Court declines to do so. First, Mr. Gehrke, in his motion to reopen, does not allege that counsel completely failed to act. Instead, he alleges that counsel prepared a notice of appeal form and the form must have been presented to the circuit clerk’s office because the circuit clerk file-stamped it. He further alleges that the notice of appeal form was not in proper form and that it was not accompanied by either an in forma pauperis affidavit or a filing fee. These allegations are that Mr. Gehrke’s counsel attempted to perfect an appeal on Mr. Gehrke’s behalf, but counsel’s actions were not effective to do so. While Mr. Gehrke characterizes his counsel’s failure to perfect an appeal as abandonment, it is characterized more properly as ineffective assistance of counsel. This Court “has repeatedly held it will not expand the scope of abandonment to encompass perceived ineffectiveness of post-conviction counsel.” Barnett v. State, 103 S.W.3d 765, 774 (Mo. banc 2003). “[Cjlaims of ineffective assistance of postconvietion counsel are categorically unreviewable.” Hutchison v. State, 150 S.W.3d 292, 303 (Mo. banc 2004). Additionally, even assuming Mr. Gehrke’s counsel’s actions were a complete failure to act, this Court declines to expand the abandonment doctrine to include postconvietion counsel’s failure to properly file a notice of appeal after a motion court has overruled the movant’s postconvietion motion. When considering the scope of abandonment, this Court must balance the need to protect the rights of postconvietion movants against the need for finality and a reasonable end to post-conviction proceedings. In deciding that failure to file a notice of appeal is not abandonment, this Court recognizes that Rule 30.03 allows a movant to seek a special order permitting a late filing of the notice of appeal. While a notice of appeal normally must be filed within 10 days after a judgment becomes final, Rule 30.03 permits a movant, for good cause shown, to file a late notice of appeal within 12 months after judgment becomes final, if the movant receives leave of court to file out of time. One year is sufficient time for a movant to discover that postconvietion counsel has not filed, or not filed properly, a notice of appeal within the required 10-day period and to correct counsel’s failure to act. While this Court’s ruling places a burden on a movant to ascertain whether a proper notice of appeal has been filed timely, it is not an unreasonable burden. A movant whose postconvietion counsel fails to perfect an appeal also may have potential relief available under habe-as corpus proceedings. State habeas corpus relief is available if a movant can show: “(1) a claim of actual innocence or (2) a jurisdictional defect or (3)(a) that the procedural defect was caused by some — 59 — thing external to the defense — that is, a cause for which the defense is not responsible — and (b) prejudice resulted from the underlying error that worked to the petitioner’s actual and substantial disadvantage.” State v. Norsworthy, 71 S.W.3d 610, 611-12 (Mo. banc 2002). The petitioner must show, at a minimum, that the grounds relied on in the habeas corpus petition were not known to him while proceedings under Rule 24.085 were available. State ex rel. Simmons v. White, 866 5.W.2d 443, 446 (Mo. banc 1993). If a claim could have been raised in a Rule 24.035 or Rule 29.15 motion but was not raised, the movant waives that claim and cannot raise the claim in a subsequent petition for habeas corpus. Brown v. State, 66 S.W.3d 721, 726 (Mo. banc 2002). This Court stated in State ex rel. Simmons v. White: This state has established a procedural system that provides a timely review of criminal convictions. It allows for direct appeal and for post-conviction review of certain constitutional protections pursuant to Rules 29.15 and 24.035. Neither these proceedings nor habeas corpus, however, was designed for duplicative and unending challenges to the finality of a judgment. 866 S.W.2d at 446. While postconviction counsel’s failure to file a notice of appeal is not external to the defense, the other grounds for relief could be available to a movant who is actually innocent or was convicted when there was a jurisdictional defect. Additionally, the Court limits the scope of abandonment to preserve potential relief under federal habeas corpus proceedings. Federal habeas corpus proceedings require a movant to exhaust all available state remedies, including appeal and postconviction remedies, before bringing a federal claim. See Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). State court remedies are exhausted “when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). If the scope of abandonment were expanded further, it is foreseeable that federal habeas corpus claims could be denied due to a movant’s failure to bring a motion to reopen postconviction proceedings. This would frustrate the legitimate goals of a prompt comprehensive review and finality. Conclusion Mr. Gehrke’s allegations that his post-conviction counsel did not file a proper notice of appeal state a claim of ineffective assistance of postconviction counsel, which is not cognizable. Additionally, with the remedies already available, it is unnecessary to expand the abandonment doctrine to include postconviction counsel’s failure to file timely a notice of appeal after a motion court overrules a movant’s postcon-viction motion. Accordingly, the actions of Mr. Gehrke’s postconviction counsel did not constitute abandonment.6 The motion court did not err in overruling Mr. Gehrke’s motion to reopen his postconviction proceedings. The judgment is affirmed. — 60 — PRICE and RUSSELL, JJ., concur; FISHER, J., concurs in separate opinion filed; PRICE and RUSSELL, JJ., concur in opinion of FISCHER, J. LAURA DENVIR STITH, C.J., dissents in separate opinion filed; WOLFF, J., concurs in opinion of LAURA DENVIR STITH, C.J.; TEITELMAN, J., dissents in separate opinion filed; LAURA DENVIR STITH, C.J., and WOLFF, J., concur in opinion of TEITELMAN, J. Footnotes [1] Mr. Gehrke also pleaded guilty to and was convicted of several misdemeanors: two counts of class A furnishing pornographic materials to minors and one count of class A second-degree child molestation. Because Rule 24.035(a) limits postconviction relief to felony pleas and convictions, however, Mr. Gehrke’s misdemeanor convictions are not relevant to the matter before this Court. [2] The claims Mr. Gehrke raised in his post-conviction motion were that he lacked an understanding of the consequences of his guilty plea and that his plea counsel was ineffective because: (1) counsel told him that if he pled guilty, the sentence would not exceed 15 or 20 years; (2) counsel did not investigate potential defenses; (3) Mr. Gehrke was not given an opportunity to make a statement during sentencing; (4) the pre-sentence investigation report was not thorough; and (5) no complete psychiatric evaluation was completed. The motion court found, after the evidentiary hearing, that each of Mr. Gehrke’s claims was refuted by the transcripts, records, and files in his criminal case as well as by testimony heard at the evidentiary hearing. [3] "[A] motion court has authority to consider a motion to re-open Rule 29.15 proceedings when it is alleged that a movant has been abandoned by his counsel.” Crenshaw v. State, 266 S.W.3d 257, 259 (Mo. banc 2008). [4] In Luleff, 807 S.W.2d 495, 497-98 (Mo. banc 1991), this Court found that postconviction counsel's failure to take any action with respect to filing an amended postconvietion motion constitutes abandonment. [5] In Sanders, 807 S.W.2d 493, 494-95 (Mo. banc 1991), this Court found that untimely action on the part of postconvietion counsel regarding the filing of an amended postcon-viction motion constitutes abandonment. [6] On appeal, Mr. Gehrke does not explain his five-year delay in filing a motion to reopen the post-conviction proceedings. When questioned during oral argument about the five-year delay, his counsel indicated that justification for the delay would be apparent if an evidentiary hearing were permitted. Since the Court decides that expansion of the scope of abandonment is not warranted, the length of Mr. Gehrke’s delay in filing his motion to reopen is not considered.