After his felony and misdemeanor convictions were
affirmed, Paul Gittemeier filed a pro se post-conviction relief motion. Mr.
Gittemeier’s appointed counsel filed an amended motion for post-conviction
relief and received an extension of time from the motion court. Before that
brief was filed, Mr. Gittemeier retained private counsel who also received an
extension of time from the same motion court. When the court denied the motion
for untimeliness, Paul asserted the doctrine of abandonment. The Supreme Court
of Missouri held that the abandonment doctrine only applies to appointed
post-conviction counsel, not privately retained counsel. The abandonment
doctrine was put in place to help individuals whose attorneys abandon them during
the post-conviction process; limiting this rule to appointed counsel only
defeats the purpose behind the rule and punishes individuals who retain
counsel.
I.
Facts and Holding
In
2012, Paul Gittemeier rode his ATV (all-terrain vehicle) on his neighbor’s lawn
while intoxicated.[1]
Mr. Gittemeier was then charged and convicted of driving while intoxicated in
violation of Missouri Revised Statutes section 577.010 and trespassing in
violation of section 569.140.[2] Mr. Gittemeier was
sentenced to fifteen years in the department of corrections for driving while
intoxicated as a chronic offender and to ninety days in the county jail for trespassing.[3] After his convictions were
affirmed on appeal, Mr. Gittemeier timely filed his pro se Rule 29.15 motion
for post-conviction relief.[4] In his pro se motion, Mr.
Gittemeier asserted ineffective assistance of counsel because his attorney
failed to raise the question of whether an ATV is a motor vehicle under section
577.010.[5]
Accordingly,
under Rule 29.15(e), the court appointed Mr. Gittemeier counsel for his post-conviction
proceedings on October 17, 2013.[6] Mr. Gittemeier’s appointed
counsel then requested a thirty-day extension in order to file an amended motion
for post-conviction relief, which the court granted.[7] The amended motion was due
January 15, 2014.[8]
Eight days before the amended motion was due, Mr. Gittemeier’s appointed
counsel withdrew as his attorney.[9] The next day, Mr.
Gittemeier hired private counsel who then filed an entry of appearance and another
motion for extension of time to file the same amended post-conviction motion.[10] The court then sustained the
retained counsel’s request for an additional sixty days.[11] The amended motion was
due on March 16, 2014.[12] On March 14, two days
before the due date, Mr. Gittemeier’s retained counsel filed an amended Rule
29.15 motion alleging twenty-two counts of ineffective assistance of counsel
and prosecutorial misconduct.[13] One claim of ineffective
assistance of counsel was similar to the pro se claim regarding whether an ATV
is a motor vehicle under section 577.010.[14] After a hearing, the
court overruled the motion, and Mr. Gittemeier appealed.[15] The state argued the
motion court erred by considering the merits of Mr. Gittemeier’s amended post-conviction
motion because it was untimely filed.[16] The Missouri Court of
Appeals, Eastern District, then transferred the case to the Supreme Court of
Missouri.[17]
II.
Legal Background
Missouri
Supreme Court Rule 29.15 allows a “person convicted of a felony after trial
claiming that the conviction or sentence imposed violates the constitution and
laws of this state or the constitution of the United States, including claims
of ineffective assistance of trial and appellate counsel…may seek relief in the
sentencing court.”[18] Rule 29.15 also requires
the court to provide counsel to any indigent that files a pro se motion.[19] Counsel then has the
responsibility to establish whether sufficient facts support the asserted
claims in the motion and whether the defendant included all of the claims he
knew about and all claims that would attack his conviction or sentence in his
motion.[20] If those claims or facts
are not present in the motion, counsel is then required to sufficiently allege
them in an amended motion.[21] The rule also requires an
individual appealing his conviction to file an amended post-conviction relief
motion within sixty days of the earlier of (1) the date of both the appellate
court’s mandate and appointment of counsel or (2) the date of the appellate
court’s mandate and when entry of appearance is filed by retained counsel.[22] This rule allows appointed
counsel to withdraw for good cause as long as an entry of appearance by
successor counsel follows.[23] And the motion court is
allowed to “extend the time for filing the amended motion for one additional
period not to exceed 30 days.”[24]
Before 1991, Missouri did not entertain claims of
ineffective assistance of post-conviction counsel.[25] This practice followed
from the court’s finding no constitutional right exists to an appointment of
competent counsel in post-conviction relief proceedings.[26] However, in Luleff v. State, the Supreme Court of
Missouri adopted the abandonment doctrine.[27] There, a defendant filed
a timely pro se motion for post-conviction relief, and the court appointed
counsel.[28]
When the motion was overruled, the defendant appealed, arguing that his
appointed counsel failed to act on his behalf in violation of Rule 29.15(e).[29] Although ineffective
assistance claims were not allowed, the court held that in the limited scope of
Rule 29.15 motions, the proceedings are premised on the “assumption that the
motion court and appointed counsel will comply will all provisions of the
rule.”[30] The court recognized this
was not simply ineffective assistance of counsel, instead it was “as if counsel
had not been appointed at all, for counsel ha[d] abandoned his or her client.”[31] So, the court created a
presumption of abandonment when the record fails to indicate that “appointed
counsel made the determinations required” by the rule.[32]
After
Luleff, the Supreme Court of Missouri
further discussed the abandonment doctrine in Sanders v. State, finding that a failure to timely file an amended
motion under Rule 29.15 “constitutes another form of abandonment.”[33] The court held that the
underlying considerations from Luleff
also applied where “counsel has determined that there is a sound basis for
amending the pro se motion but fails
timely to file the amended motion.”[34] In Sanders, the defendant’s appointed counsel took no action
whatsoever on his behalf, violating Rule 29.15(e).[35] The Supreme Court of
Missouri reasoned that the abandonment doctrine was created to strike a balance
between providing counsel to all indigent inmates and the refusal of the court
to allow ineffective assistance claims for post-conviction counsel.[36] The court also stated,
however, that the purpose behind the doctrine is to enforce the requirements laid
out in Rule 29.15(e) and to ensure individuals fully benefit from amended
motions filed by appointed counsel.[37]
III.
Instant Decision
Here,
the Supreme Court of Missouri affirmed the judgment of the motion court
overruling Mr. Gittemeier’s motion for post-conviction relief.[38] The court held that the
abandonment doctrine, created in 1991 to aid indigent inmates in their
post-conviction relief claims, only applies when post-conviction appointed
counsel fails to act, not when post-conviction retained counsel fails to act.[39] The court reasoned that
its previous precedent only examined this issue in the context of appointed
counsel, not retained counsel.[40] The court acknowledged
this was a case of first impression but relied on precedent in determining the
origins and purpose of the abandonment doctrine, which the court used to show
why the doctrine should not be extended.[41] The court reiterated that
its decisions in Luleff and Sanders were not a “newfound willingness
to police the performance of postconviction counsel” nor were they “a wholesale
repudiation” of the court’s refusal to recognize ineffective assistance of
post-conviction counsel claims.[42] However, the court
asserted that its adoption of the abandonment rule in the first place “altered
its traditional stance” on the topic of post-conviction relief.[43]
The
court also found that the lower court improperly extended Mr. Gittemeier’s retained
counsel’s deadline to file the amended post-conviction motion by sixty days; thus,
the motion was not timely filed.[44] Accordingly, the claims
within the amended post-conviction relief motion filed by his counsel were
deemed waived.[45]
Therefore, the court only looked at Mr. Gittemeier’s pro se claims, filed
within the motion before counsel was appointed or retained, and found them to
be without merit.[46]
IV.
Comment
Mr.
Gittemeier should not be punished because a lawyer, whether retained or
appointed in the pursuit of his defense, abandoned him. This is especially true
in a criminal post-conviction relief proceeding, where a defendant is
incarcerated for a crime that he was wrongfully convicted of or where he did
not have a fair trial. Here, Mr. Gittemeier’s appointed counsel filed a motion
to withdraw with only eight days left before the amended motion was due.[47] The next day, Mr. Gittemeier
retained private counsel who received an extension of time to file the amended
motion.[48] The amended motion contained
claims not raised in his pro se motion.[49] On appeal, the Supreme
Court of Missouri found that the extension of time given to Mr. Gittemeier’s
retained counsel was improper and because the motion was therefore untimely,
all claims asserted in that amended motion were considered waived.[50] A punishment as harsh as throwing
out an amended motion for post-conviction relief is unfair and unreasonable
considering the mistake was by the attorney and the lower court, not by Mr.
Gittemeier. Now, criminal defendants filing post-conviction motions for relief will
likely not retain hired counsel for fear of being abandoned and the sound legal
arguments contained in their motions being completely waived. A defendant now
knows that if his hired counsel, who may have a lessened caseload or more experience
with post-conviction relief claims, abandons him, the defendant will have no
route to recovery.
Instead,
all claims set out in an amended motion, a motion required in Missouri to
ensure that all facts and claims that could give defendants post-conviction
relief are stated and argued, will be surrendered. Therefore, defendants are
likely to take their chances with an appointed attorney from the public
defender system who has an increasingly large caseload[51] and must hope the public
defender will provide thorough and competent representation. Because of the
criminal nature of the post-conviction proceedings, erring on the side of
caution by expanding the abandonment doctrine to include retained counsel would
only help individuals whose attorneys wrongfully fail to act. This would
encourage both private and public counsel to be competent and diligent in their
advocacy for their clients, as abandoning a client could be grounds for ethical
violations and reprimands by the Missouri Bar Association.
Because
the decision in Gittemeier could lead
to the dismissal and waiver of merit-based claims for post-conviction relief,[52] the court should re-examine
this issue if the case arises and delve deeper into the possible effects this
bright-line rule will have on wrongfully convicted defendants and the integrity
of the criminal justice system in Missouri.
-Alana
Caruso
[1] Gittemeier v. State, No. SC95953,
2017 WL 4002011, at *1 (Mo. Sept. 12, 2017) (en banc).
[2] Id.
[3] Id.
[5] Gittemeier, 2017 WL 4002011, at *1.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at *2.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[18] Mo. Sup. Ct. R. 29.15(a) (2013).
[19] Mo. Sup. Ct. R. 29.15(e).
[20] Id.
[21] Id.
[22] Mo. Sup. Ct. R. 29.15(g).
[23] Mo. Sup. Ct. R. 29.15(f).
[24] Mo. Sup. Ct. R. 29.15(g).
[25] Gittemeier v. State, No. SC95953,
2017 WL 4002011, at *3 (Mo. Sept. 12, 2017) (en banc).
[26] See Barton v. State, 486 S.W.3d 332, 336 (Mo. 2016) (en banc).
[27] Luleff v. State, 807 S.W.2d 495,
497–98 (Mo. 1991) (en banc).
[28] Id. at 496.
[29] Gittemeier, 2017 WL 4002011, at *3.
[30] Id. (quoting Luleff, 807
S.W.2d at 498).
[31] Id. (quoting Barton, 486
S.W.3d at 337).
[32] Id. (quoting Luleff, 807
S.W.2d at 498).
[33] Id.
[34] Sanders v. State, 807 S.W.2d 493,
494–95 (Mo. 1991) (en banc).
[35] Id. at 494.
[36] Price v. State, 422 S.W.3d 292,
297 (Mo. 2014) (en banc).
[37] Id. at 298
[38] Gittemeier, 2017 WL 4002011, at *6.
[39] Id. at *3.
[40] Id.
[41] Id. at *4.
[42] Id. (quoting Price, 422
S.W.3d at 298).
[43] Id. at *3.
[44] Id. at *2.
[45] Id. at *3.
[47] Id. at *1.
[48] Id.
[50] Id.
[51] See State ex rel. Mo. Pub. Def. Comm'n v. Pratte, 298 S.W.3d 870,
877–78 (Mo. 2009) (en banc) (recognizing the growing caseload of public
defenders in Missouri).
[52] Criminal post-conviction relief
motions, by their very nature, involve an individual’s liberty and freedom.
