I.
Facts and Holding
In 2011,
David Latham was charged with and subsequently pleaded guilty to trafficking
drugs in violation of section 195.223 of the Revised Statutes of Missouri.[1] He was sentenced to fifteen years in prison.[2] The plea court suspended the execution of his
sentence, placing him on supervised probation for a period of five years.[3] In August 2013, the plea court found Latham
violated his probation and ordered execution of his fifteen-year sentence.[4] In November 2013, after the execution of his
sentence, Latham filed a pro se Supreme Court of Missouri Rule 24.025 motion
for post-conviction relief.[5] Latham’s motion alleged relief was warranted
on three grounds:
(1)
counsel was ineffective for failing to investigate why his preliminary hearing
was waived; (2) counsel was ineffective for failing to spend sufficient
time with him to defend him at the revocation hearing; and (3) counsel was
ineffective in that she misled him into believing she would request long-term
drug treatment at his sentencing hearing.[6]
In December
2014, the Missouri State Public Defender’s office was appointed to represent
Latham in his post-conviction action.[7] The transcript of Latham’s guilty plea was filed
on March 25, 2014, and therefore, according to the sixty-day deadline in Rule
24.035(g), post-conviction counsel was given until May 27, 2014, to file an
amended Rule 24.035 motion.[8] Latham’s counsel did not meet this deadline.[9] Instead, on June 20, 2014, Latham’s post-conviction
counsel filed a statement in lieu of an amended motion.[10]
The
statement by Latham’s post-conviction counsel indicated that counsel originally
thought Latham had a cognizable claim of ineffective assistance of counsel
regarding “the elements of the crime charged” but further research indicated
Latham was properly charged under old law (before a new law regarding trafficking
became effective).[11]
Three days
after counsel filed the statement in lieu of an amended motion Latham filed
another pro se pleading (because his post-conviction counsel did not file an
amended motion), alleging sixteen counts of ineffective assistance of his plea
counsel and asking for an evidentiary hearing.[12] Latham “assert[ed] he would not have pleaded
guilty had plea counsel noticed and explained that the laboratory report showed
the state had insufficient evidence to convict him of the class A felony of
trafficking cocaine base.”[13]
The motion
court held an evidentiary hearing that addressed Latham’s pro se motion and his
pro se pleading.[14] Mr. Latham’s plea counsel was asked at the hearing “whether she
discussed with him that the laboratory report showed the substance in his
possession was cocaine salt but he was charged with trafficking cocaine base
and did not possess enough cocaine salt to be charged with a class A
trafficking felony under section 195.223.”[15] Latham’s plea counsel responded that she
advised Latham to plead guilty because the State could charge Latham with
additional crimes.[16]
After the
evidentiary hearing, the motion court found Latham’s initial pro se claims
“were not cognizable in a Rule 24.035 proceeding.”[17] In addition, the motion court overruled
Latham’s pro se pleadings alleging
ineffective assistance of his plea counsel.[18] Latham appealed, and the case was transferred
to the Supreme Court of Missouri.[19] A crucial issue before the Supreme Court of
Missouri was whether post-conviction counsel’s failure to file a statement in
lieu of an amended motion within sixty days rendered Latham abandoned by his
post-conviction counsel.
II. Legal Background
Supreme
Court of Missouri Rule 24.035 is one of two primary methods by which convicted
persons can seek post-conviction relief in Missouri state courts.[20] As the rule articulates, there are three
grounds upon which a person can challenge a conviction: (1) if the “sentence
imposed violates the constitution and laws of [Missouri] or the constitution of
the United States, including claims of ineffective assistance of trial and
appellate counsel,” (2) if “the court imposing the sentence was without
jurisdiction to do so,” or (3) if “the sentence imposed was in excess of the
maximum sentence authorized by law.”[21]
Indigent
defendants convicted of criminal offenses can file a Rule 24.035 motion; if
they choose to file a pro se Rule 24.035 motion, they must subsequently be
assigned counsel.[22] 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. . . . Counsel shall ascertain whether sufficient
facts supporting the claims are asserted in the motion and whether the movant
has included all claims known to the movant as a basis for attacking the
judgment and sentence. If the motion
does not assert sufficient facts or include all claims known to the movant,
counsel shall file an amended motion that sufficiently alleges the additional
facts and claims. If counsel determines
that no amended motion shall be filed, counsel shall file a statement setting
out facts demonstrating what actions were taken to ensure that (1) all facts
supporting the claims are asserted in the pro se motion and (2) all claims known
to the movant are alleged in the pro se motion. The statement shall be presented to the movant
prior to filing. The movant may file a
reply to the statement not later than ten days after the statement is filed.[23]
Per Rule
24.035(e), post-conviction counsel must determine whether a movant has
“assert[ed] sufficient facts and include[d] all claims known to the movant for
attacking the judgment and sentence.”[24] Counsel is then required to file an amended
motion or a statement in lieu of a motion.[25] If counsel determines that an amended motion
is not required because all claims have been asserted in the pro se motion, then
counsel is required to file a statement in lieu of a motion “detailing the
actions that establish postconviction counsel performed counsel’s
responsibilities under the rule and, thereby, did not abandon the movant.”[26] The purpose of the statement in lieu of a
motion is to demonstrate that post-conviction counsel complied with Rule
24.035(e) “so that a presumption of abandonment by postconviction counsel does
not arise in the absence of an amended motion.”[27]
Rule
24.035(g) provides that:
If no
appeal of the judgment sought to be vacated, set aside, or corrected is taken,
the amended motion shall be filed
within 60 days of the earlier of the date both a complete transcript consisting
of the guilty plea and sentencing hearing has been filed in the trial court
and:
(1)
Counsel is appointed; or
(2) An
entry of appearance is filed by any counsel that is not appointed but enters an
appearance on behalf of movant.[28]
Post-conviction counsel is presumed to have abandoned a
movant when an amended motion is not filed within the sixty-day deadline.[29] While Rule 24.035(g) explicitly articulates
when an amended motion is due, it is
“silent as to the filing of a statement in lieu of an amended motion.”[30] Missouri Courts of Appeal had previously held
that “no presumption of abandonment occurs when appointed counsel files a
statement in lieu of an amended motion after the deadline for filing an amended
motion.”[31] However, the Supreme Court of Missouri has
indicated that statements in lieu of an amended motion must be “timely” –
indicating that they are subject to a deadline – and that the timeliness of
such a statement is an important factor in an abandonment determination.[32]
If a
presumption of abandonment arises because counsel failed to timely file an
amended motion, a hearing is held to determine whether the movant was at fault
due to negligence or intentional failure to act for the missed deadline or
whether counsel failed to act through no fault of the movant, in which case the
movant is found to have actually been abandoned.[33] In the latter circumstance, the abandoned
movant has some remedy.[34] In the event post-conviction counsel failed
to file an amended motion or statement in lieu of a motion, new counsel may be
appointed and allowed time to file an amended motion of statement in lieu of a
motion.[35] If post-conviction counsel did file an
amended motion of statement in lieu but did so untimely, then the motion court
should treat the filing as timely.[36] If an untimely filed statement in lieu is
treated as timely filed, then the court must also consider the movant’s reply.[37]
III. Instant Decision
The State
argued that a statement in lieu of an amended motion is not subject to the sixty-day
deadline.[38] The Supreme Court of Missouri did not agree.[39] The court analyzed the purpose of the
statement in lieu of an amended motion and the effect that the State’s position,
if accepted, would have on the amended motion and the movant.[40]
First, the court
noted that the purpose of a statement in lieu of an amended motion is to ensure
that a presumption of abandonment does not arise when an amended motion is not
filed.[41] If an amended motion is not filed within sixty
days, and a statement in lieu of a motion is not filed within that same period
explaining why an amended motion was not filed, the purpose of the statement in
lieu of a motion – to prevent the presumption of abandonment – is defeated.[42]
In addition,
the court noted that absent a deadline for the filing of statements in lieu of
an amended motion, the deadline for the amended motion itself would be
meaningless.[43] Because post-conviction motions are
collateral attacks on final judgments, time limitations must be strictly
enforced “to prevent duplicative and unending challenges to the finality of a
judgment.”[44]
Furthermore,
the court articulated that movants are entitled to file a reply within ten days
of the filing of a statement in lieu of an amended motion in order to “respond
to postconviction counsel’s assertions that all facts and claims known to the
movant are included in the pro se motion.”[45] Absent a deadline for the filing of a
statement in lieu of an amended motion, the court’s interest in finality would
be frustrated and delays would “needlessly extend the time period for
collateral attacks on a final criminal judgment.”[46] Reasoning that both the purpose of a
statement in lieu of an amended motion and the process for a movant’s reply
support imposition of the sixty-day deadline, the court held that counsel’s
failure “to file either an amended motion or a statement in lieu of an amended
motion within the [sixty]-day deadline creates a presumption of abandonment.”[47] The motion court’s judgment was reversed, and
the case was remanded for an abandonment hearing.[48]
IV. Comment
The Supreme
Court of Missouri in Latham
articulated two important reasons why a statement in lieu of an amended motion
should be subject to the same deadline as an amended motion: (1) ensuring that
a statement in lieu serves its purpose of preventing a presumption of
abandonment and (2) preventing unending challenges to the finality of a
judgment. The court’s well-reasoned
opinion rightly recognizes that neither of these interests can be properly
served if a statement in lieu of an amended motion can be filed at any time. Allowing a statement in lieu of an amended
motion to be filed without the same deadline as the amended motion simply does
not make sense, and the Supreme Court of Missouri was right to reject the
position of the State.
- Taylor Payne
[2]
Id.
[3]
Id.
[5]
Id. Rule
24.035(a) provides that: “A person convicted of a felony on a plea of guilty
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, that the court
imposing the sentence was without jurisdiction to do so, or that the sentence
imposed was in excess of the maximum sentence authorized by law may seek relief
in the sentencing court pursuant to the provisions of this Rule 24.035. This Rule 24.035 provides the exclusive
procedure by which such person may seek relief in the sentencing court for the
claims enumerated. The procedure to be
followed for motions filed pursuant to this Rule 24.035 is governed by the
rules of civil procedure insofar as applicable.”
Mo.
Sup. Ct. R. 24.035(a).
[9]
Id.
[10]
Id.
[11]
Id.
[15]
Id.
[16]
Id.
[18]
Id.
[20]
The other method is through a Rule 29.15 motion.
See
Mo. Sup. Ct. R. 29.15.
[25]
Id.
[27]
Id.
[29]
Latham, 2018 WL 4326406 at *4 (citing
Moore
v. State, 458 S.W.3d 822, 825
(Mo. 2015) (en banc)).
[31]
Appellant’s Substitute Brief at 13, Latham v.
State (Mo. 2018), 2017 WL 5012329 (citing Mason v. State, 488 S.W.3d 135 (Mo.
App. S.D. 2016); Pennell v. State, 467 S.W.3d 367 (Mo. App. E.D. 2015); and
Scott v. State, 472 S.W.3d 593 (Mo. App. W.D. 2015)).
[34]
See id.
[35]
Id.
[36]
Id.
[39]
Id.
[41]
Id.
[42]
Id.
[43]
Id.
[46]
Id.
[47]
Id.
[48]
Id. at *6. (italics omitted). “If postconviction counsel’s failure to timely
file an amended motion or a statement in lieu of an amended motion was the result
of Mr. Latham’s action or inaction, Mr. Latham was not abandoned, and the
motion court must proceed to adjudicate only Mr. Latham’s pro se motion.” Id. “If,
however, Mr. Latham’s actions or inactions did not cause postconviction
counsel’s lack of performance, the motion court must find that Mr. Latham was
abandoned.” Id. If Mr. Latham was abandoned, the motion
court must then consider available remedies. Id.
