Link to Mo. Sup. Ct. Opinion
The Missouri Supreme Court held that an untimely filing of a post-conviction relief motion was excused because the public defender, with whom the movant had an attorney-client relationship, abandoned the movant by untimely filing his motion.
A jury convicted Vincent McFadden of two counts of first-degree assault, two counts of armed criminal action, and one count of unlawful use of a weapon. McFadden appealed, but the court of appeals affirmed his conviction, issuing a mandate on July 13, 2006. Per Missouri Court Rule 29.15, McFadden had 90 days within the issuance of the appellate court’s mandate, here October 11, 2006, to file a motion for post-conviction relief.
A public defender contacted McFadden after the appellate court issued its mandate and directed McFadden to send his motion for post-conviction relief directly to her. The public defender told McFadden that she would timely file the motion upon her receipt of it. On September 25, 2006, McFadden mailed his motion to the public defender. The public defender received the motion on September 28 but failed to file the motion until October 12, 91 days after the mandate issued. After the filing, the motion court appointed the aforementioned public defender to represent McFadden. The prosecutor filed a motion to dismiss due to McFadden’s failure to comply with the 90-day time limit imposed by Rule 29.15. The public defender argued that she, as counsel, abandoned McFadden by not timely filing his motion for post-conviction relief.
The Missouri Supreme Court held that McFadden and the public defender had an attorney-client relationship at the time she directed McFadden to send his motion for post-conviction relief to her. The Court also concluded that the public defender, as McFadden’s attorney, abandoned him because of her failure to timely file this motion. The proper remedy, as held by the Court, was to put the movant in the position where he would have been if the abandonment had not occurred.
II. Legal Background
A. Missouri Court Rule of Criminal Procedure 29.15
A motion for post-conviction relief must be filed “within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence.”[2] Generally, if the motion is not timely filed, the motion court is compelled to dismiss the motion.[3] The circuit court can, nonetheless, reopen an otherwise final post-conviction case, if the movant is abandoned by counsel.[4] In order to receive such remedy, the movant must be free of responsibility for the failure to comply with the requirements of the rule.[5]
Here, the Missouri Supreme Court noted that because McFadden failed to file a timely motion, his case should be dismissed unless he fell within the abandonment exception.[6] The Court then went into a two-prong analysis to determine whether abandonment occurred. First, the Court examined whether an attorney-client relationship existed between the movant and his attorney.[7] Second, only after establishing this relationship did the Court determine whether abandonment occurred.[8]
B. Attorney-Client Relationship
In most instances, only after a convicted defendant files a motion for post-relief will the motion court appoint the movant counsel.[9] As such, a movant generally does not have assistance from a public defender prior to filing a motion for post-conviction relief. Here, however, McFadden had contact with the public defender. She was not appointed to be his counsel until after the filing.[10] An attorney-client relationship, nevertheless, can arise before formal appointment. In Missouri, “an attorney-client relationship is sufficiently established when the advice and assistance of [the] attorney is sought and received in matters pertinent to her profession.”[11] A court should examine the substantive nature of the relationship, irrespective of what formal or procedural incidents have occurred, to determine if the putative client received such advice and assistance.[12]
In this case, the public defender initiated contact with McFadden regarding his motion for post-conviction relief and instructed him to send his motion to her for filing.[13] The Missouri Supreme Court held that these actions established an attorney-client relationship.[14]
C. Abandonment
After the Missouri Supreme Court concluded that an attorney-client relationship existed between McFadden and the public defender, the Court examined whether abandonment did, in fact, occur. In Missouri, abandonment is generally limited to either “when (1) post-conviction counsel takes no action on a movant’s behalf 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.”[15] Further, the Court in Bullard v. State held that the absence of proper legal assistance does not justify an untimely filing of a post-conviction relief motion.[16] In Bullard, the movant claimed that his counsel told him that he did not have to file his motion for post-conviction relief until after his direct appeal was concluded.[17] Under the rules at that time, this was erroneous information.[18] The Missouri Supreme Court nevertheless concluded that legal assistance was not required to file such a motion and, the advice, although erroneous, did not excuse the untimely filing.[19]
In the instant decision, the Missouri Supreme Court noted that McFadden took all the steps available to him to express his intent to file a motion for post-conviction relief.[20] The public defender undertook the responsibility to file McFadden’s motion, and the Court held that her failure to timely do so was abandonment.[21] Because an attorney-client relationship existed between McFadden and the public defender, and the public defender abandoned McFadden in her representation of him, the Court authorized the motion court to accept the untimely filing.[22]
III. Commentary
The Missouri Supreme Court in McFadden fails to establish a clear precedent on when a motion court can set aside a motion for post-conviction relief due to abandonment. The Court limits the holding to the “factual scenario where counsel overtly acted and such actions prevented the movant’s timely filing.”[23] Despite this caveat, the Court fails to sufficiently distinguish Bullard from the present case. In Bullard, the movant’s counsel acted overtly—by telling the movant erroneous information regarding the filing of a motion for post-conviction relief—and such action prevented the movant’s timely filing. The Court stated that McFadden should not be punished for his reasonable reliance but fails to explain why Bullard’s reasonable reliance offers him no relief.
According to the Missouri Supreme Court, the informal nature of the motion does not require legal assistance for its filing and the “absence of proper legal assistance does not justify an untimely filing.”[24] Following this logic, a motion court should not excuse McFadden’s untimely filing just because he did not receive proper legal assistance. The Missouri Supreme Court tries to distinguish Bullard from McFadden on the fact that the public defender in McFadden told him the correct court date to file whereas in Bullard the attorney told the movant the incorrect date. This distinguishing fact, however, is outweighed by the more important fact that both Bullard and McFadden reasonably relied on information given to them by their counsel to their detriment.
The Missouri Supreme Court also stated that McFadden did all he could to seek relief under Rule 29.15, and was “free of responsibility for the failure to comply with the requirements of the rule.”[25] McFadden, however, did not take all the steps he could have to secure review under Rule 29.15. McFadden could have sent the motion directly to court. Additionally, the Court fails to explain why his reasonable reliance on his counsel’s promise to file his motion made him free of responsibility for the failure to comply with the requirements of 29.15. This was in contrast to Bullard’s reasonable reliance on his counsel’s advice, which did not give him such freedom.
- Joseph E. Bredehoft
[1] McFadden v. State, 256 S.W.3d 103, 105 (Mo. 2008) (en banc).
[2] Mo. Ct. R. Crim. P. 29.15(b).
[3] See McFadden, 256 S.W.3d at 106.
[4] State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 217-18 (Mo. 1991) (en banc).
[5] Sanders v. State, 807 S.W.2d 493, 495 (Mo. 1991) (en banc).
[6] McFadden, 256 S.W.3d at 106.
[7] See id. at 106-08.
[8] See id. at 108-09.
[9] See Mo. Ct. R. Crim. P. 29.15(e).
[10] McFadden, 256 S.W.3d at 105.
[11] State v. Longo, 789 S.W.2d 812, 815 (Mo. App. 1990).
[12] Id.
[13] McFadden, 256 S.W.3d at 105.
[14] Id. at 108.
[15] Barnett v. State, 103 S.W.3d 765, 773-74 (Mo. 1993) (en banc).
[16] 853 S.W.2d 921, 923 (Mo. 1993) (en banc).
[17] Id. at 922.
[18] See McFadden, 256 S.W.3d at 108.
[19] Bullard, 853 S.W.2d at 923.
[20] McFadden, 256 S.W.3d at 109.
[21] Id.
[22] Id.
[23] Id.
[24] Bullard, 853 S.W.2d at 923.
[25] McFadden, 256 S.W.3d at 109 (citation omitted).
