Thursday, September 3, 2015

Moore v. State of Missouri

Opinion handed down April 14, 2015
After a conviction of second-degree assault of a probation and parole officer in 2010, Charles K. Moore  was sentenced as a persistent felony offender and received a fifteen-year prison term.[1]  Mr. Moore filed a pro se post-conviction motion appealing his conviction and sentence.[2]  The motion court subsequently appointed counsel to Mr. Moore.[3]  Pursuant to Supreme Court of Missouri Rule 29.15 (“Rule 29.15”), counsel was given sixty days from appointment to file an amended motion.[4]  The appointed counsel failed to file the amended motion within the allotted time period; however, the court ruled against the amended motion anyway.[5]  After an appeal and transfer to the Supreme Court of Missouri, the court remanded the case to the trial court, holding that, in the event an amended motion is untimely filed by an appointed counsel, the trial court shall rule on whether counsel abandoned the movant before ruling on the merit of any post-conviction motions.[6]

I.  Facts and Holding
        In 2010, Mr. Moore was convicted of second-degree assault of a probation and parole officer after kicking a chair at the officer and walking toward that officer with a clenched fist.[7]  During the sentencing phase of the trial, Mr. Moore was categorized as a prior and persistent felony offender and sentenced to a fifteen-year prison term to run consecutively with other sentences he was serving at the time.[8]  On March 27, 2012, the Missouri Court of Appeals for the Eastern District affirmed the conviction and denied post-conviction relief.[9] 
        On June 20, 2012, Mr. Moore filed a pro se post-conviction Rule 29.15 motion alleging ineffective assistance of counsel.[10]  Pursuant to Rule 29.15(e), the trial court appointed post-conviction counsel to represent Mr. Moore in the proceeding.[11]  On September 19, 2012, post-conviction counsel filed an amended motion.[12]  The trial court overruled the amended motion without an evidentiary hearing, despite the fact that a presumption of abandonment arose when post-conviction counsel failed to timely file the amended Rule 29.15 motion.[13] 
        On appeal, in an unpublished opinion written by Judge Robert G. Dowd, Jr., the court of appeals reversed the trial court’s decision to overrule the amended motion without an evidentiary hearing.[14]  The case was subsequently transferred to the Supreme Court of Missouri, where the court ultimately reversed the trial court’s decision and remanded the case to the trial court for a ruling on whether the assigned post-conviction counsel had abandoned Mr. Moore.[15]
        In a concurring opinion, Judge Zel Fischer emphasized, “[P]ost[-]conviction deadlines ‘play such an important role in the orderly presentation and resolution of post[-]conviction claims that the State cannot waive them.  Instead, motion courts and appellate courts have a duty to enforce the mandatory time limits . . . even if the State does not raise the issue.”[16]
        In the lone dissenting opinion, Judge Paul Wilson posited that justice did not require the case be remanded to the trial court because the amended motion was adjudicated despite the fact that a presumption of abandonment had arisen.[17]  Judge Wilson reasoned the amended motion contained the facts and claims in the pro se motion and the facts and claims the appointed post-conviction counsel believed were missing from the pro se motion.[18]  Therefore, Judge Wilson argued the trial court had ruled on all claims alleged by the movant and a remand to the motion court would not have benefited Mr. Moore.[19]
II.  Legal Background
        The post-conviction procedure can “reveal injustices not detected earlier in the criminal justice process.”[20]  One procedural safeguard for revealing injustices in Missouri is the requirement that an “indigent movant” be appointed counsel upon the filing of a pro se, post-conviction motion.[21] 
        Supreme Court of Missouri Rule 29.15 provides the exclusive procedure by which a person convicted of a felony in Missouri may seek post-conviction relief.[22]  Pursuant to the rule, if an appellate court receives a post-conviction appeal of a judgment or sentence, a motion shall be filed within ninety days after the appellate court issues its mandate.[23]  This motion shall include “every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence.”[24] 
        When the movant is unable to afford to hire counsel and, as a result, files a pro se motion, the court shall appoint counsel for the movant.[25]  The appointed counsel shall determine whether the pro se motion contained sufficient facts to support the claims alleged in the motion and whether the movant has included all known claims for attacking the judgment or sentence.[26]  If the motion does not assert sufficient facts or does not include all claims known to the movant, counsel shall file an amended motion that states the additional facts and claims.[27]  This amended motion shall be filed within sixty days of the time counsel is appointed.[28]  In Missouri, a presumption of “abandonment” arises if an appointed post-conviction counsel fails to file an amended motion within this sixty-day deadline.[29] 
        When an amended motion is untimely filed, the trial court has a duty to independently investigate whether abandonment occurred.[30]  If the trial court finds that a movant has not been abandoned, the trial court should not permit the filing of the amended motion and should proceed with adjudicating the movant’s initial motion.[31]  If the trial court finds that a movant has been abandoned, the court is directed to permit the untimely filing of the amended motion by appointed counsel.[32] 
III.  Instant Decision
        In an opinion written by Judge Patricia Breckenridge, the Supreme Court of Missouri held that when an independent inquiry into whether a movant was abandoned by appointed post-conviction counsel is required but not done, an appellate court shall remand the case because the trial court is the appropriate forum to conduct such an inquiry.[33]  The Supreme Court of Missouri dispensed with the dissenting opinion’s argument that no injustice would be done through dismissing the case by pointing out that not all of the matters in the amended motion had been adjudicated.[34]  Both the trial court and the court of appeals failed to adjudicate Mr. Moore’s pro se claims.[35]
IV.  Comment
        Providing indigent, post-conviction movants with counsel is an important procedural safeguard.  However, Missouri does not stop there.  By setting forth deadlines for filing amended motions and procedures for when those deadlines are not met, Missouri goes a step further in an attempt to protect those falsely convicted from injustices not uncovered in preceding trials.  
        While one can appreciate the dissenting opinion’s concern for judicial efficiency, one must also appreciate that if the majority of the court had sided with the reasoning of the dissenting opinion, unjust bypasses of post-conviction procedure might have resulted.  By preserving the post-conviction procedure set forth by both Supreme Court of Missouri rule and precedent, the court preserved procedural protection for those subsequent post-conviction movants for which remanding might positively effect.  
        Of Note: Recently, the Missouri Court of Appeals for the Western District held that an appointed post-conviction counsel’s inability to timely file a statement asserting that the pro se motion included “all facts and supporting claims” and “all claims known to the movant” was not in itself abandonment.[36]  Transfer to the Supreme Court of Missouri was denied.[37] 
-Brian Scott

[1] Moore v. State, 458 S.W.3d 822, 824 (Mo. 2015).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id. at 826.
[7] Id. at 824.
[8] Id.
[9] Id.; see also State v. Moore, 362 S.W.3d 509 (Mo. Ct. App. 2012).
[10] Moore v. State, 458 S.W.3d 822, 824 (Mo. 2015).  
[11] Id. 
[12] Id. at 824 n.1.  The motion was filed nearly thirty days after the deadline set by Rule 29.15(g).
[13] Id.
[14] See Moore v. State of Missouri, 2014 WL 1597633 (Mo. Ct. App. 2014).
[15] Moore v. State, 458 S.W.3d 822, 826 (Mo. 2015).  
[16] Id. at 827.
[17] Id.
[18] Id.
[19] Id.
[20] Michael Mello, Facing Death Alone: The Post-Conviction Attorney Crisis on Death Row, 37Am. U. L. Rev. 513 (1988).
[21] See Mo. Sup. Ct. Rule 29.15(e).
[22]  Mo. Sup. Ct. Rule 29.15.
[23] Mo. Sup. Ct. Rule 29.15(b).   After making a judgment or sentence, an appellate court will finalize it by issuing a “mandate . . . affirming such judgment or sentence.” Id.
[24] Mo. Sup. Ct. Rule 29.15(d).
[25] Mo. Sup. Ct. Rule 29.15(e).
[26] Id.
[27] Id.
[28] Mo. Sup. Ct. Rule 29.15(g).
[29] See Price v. State, 422 S.W.3d 292, 298 (Mo. 2014) (en banc).  
[30] Vogl v. State, 437 S.W.3d 218 (Mo. 2014) (en banc).
[31] Sanders v. State, 807 S.W.2d 493, 495 (Mo. 1991) (en banc).
[32] Id.
[33] Moore v. State, 458 S.W.3d 822, 826 (Mo. 2015).
[34] Id. at 826 n.3.
[35] Id.
[36] Scott v. State, 2015 WL 3608905 (Mo. Ct. App. W.D. 2015).
[37] Id.