Sunday, November 5, 2017

Gittemeier v. State of Missouri

            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.
[4] State v. Gittemeier, 400 S.W.3d 838, 846 (Mo. Ct. App. 2013).
[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.
[16] Id.
[17] 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.
[46] Id.
[47] Id. at *1.
[48] Id.
[49] Id. at *2.
[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.