Link to Mo. Sup. Ct. Opinion
A convicted felon in the State of Missouri has only one available avenue to correct an allegedly improper trial or conviction. Missouri Supreme Court Rule 29.15 provides that such a felon must make a claim that his conviction is improper due to (a) ineffective assistance of trial or appellate counsel, (b) the sentencing court’s improper exercise of jurisdiction, or (c) an excessive sentence in violation of the law.[2] This case involves a defendant, Anthony Moore, who was convicted of first degree murder and sentenced to life in prison without parole. Moore was informed by the judge at his sentencing that he would have ninety days to file for relief under 29.15 and received a copy of the court’s mandate from the court clerk that triggered the ninety day countdown; however, he waited 218 days and filed after the deadline. As a result, the lower court rejected Moore’s motion, and Moore appealed to this court, claiming that his appellate counsel ineffectively failed to notify him of the mandate. The Supreme Court of Missouri affirmed the dismissal of Moore’s 29.15 motion.
I. Facts and Holding
This case involves a defendant, Anthony Moore, convicted of two counts of murder and sentenced to life imprisonment.[3] In 2007, Moore stood trial for the murder of his two children, which had taken place in 2004.[4] Waiving his right to a jury trial, Moore was found guilty by the trial court of two counts of first degree murder and sentenced to life in prison without parole.[5] During the trial proceedings, Moore was informed that he had the ability to seek post-conviction remedy under Rule 29.15, provided he file such a motion within ninety days of the official mandate of his sentence.[6] The judge explained to Moore that a proper motion required him to claim that he was either poorly represented, sentenced to prison by a court improperly exercising jurisdiction, or that his two terms of life imprisonment exceeded the maximum punishment under law.[7] After hearing his options, “Moore indicated that he understood his right to file the motion.”[8] Before the mandate was issued, however, Moore’s legal counsel properly appealed to the Missouri Court of Appeals, Eastern District, but his conviction was affirmed in August 2008.[9] As a result, the official mandate for Moore’s sentence was finally issued on October 16, 2008, establishing a Rule 29.15 motion deadline of January 14, 2009.[10]
On March 13, 2009, several months after the deadline, Moore’s appellate attorney notified him that his deadline for the motion had passed but encouraged him to file for relief as soon as possible.[11] Still, Moore failed to file his motion until May 22, 2009, far past the initial ninety-day limit.[12] Moore appealed after his motion was summarily dismissed by the lower court, claiming that his lawyer’s failure to inform him of the October mandate led to his untimely filing.[13] Moore, however, admitted to receiving notice of the entered October mandate from the clerk of the court.[14]
The Supreme Court of Missouri engaged in an analysis of both Rule 29.15 and Moore’s ineffective assistance of counsel claim.[15] Under Missouri law, a defendant must comply with the ninety-day deadline or risk dismissal of his motion.[16] Furthermore, the courts have determined that failure to file a 29.15 motion in a timely fashion may only be excused “(1) when post-conviction counsel abandons the movant; [or] (2) when rare circumstances outside the movant’s control justify late receipt of the motion.”[17] Finding neither abandonment by counsel nor the existence of rare circumstances, the court affirmed the dismissal of Moore’s untimely motion.[18]
In a concurring opinion, Judge Stith agreed with the majority’s assessment of Moore’s appeal but added an exploration of attorney obligations under the rules of professional responsibility.[19] Indeed, “where counsel affirmatively has told the client that counsel will take responsibility for a matter, then the client had the right to rely on that statement.”[20] Missouri courts have upheld this sentiment, provided a defendant can show such reliance occurred as a result of an attorney’s statement.[21] However, as Judge Stith noted, Moore produced no evidence of such an arrangement and had actual knowledge of the date and content of the mandate; thus, the facts in this case fail to show ineffective assistance of counsel.[22]
II. Legal Background
In reviewing a lower court’s dismissal of a Rule 29.15 motion, this court may overturn the decision only if the lower court’s “findings of fact and conclusions of law are clearly erroneous.”[23] Such a robust standard requires the court to have a strong conviction that the dismissal of a 29.15 motion was incorrect.[24] In this case, however, the court did not have a “definite and firm impression that a mistake ha[d] been made” and, thus, affirmed the dismissal.[25]
A Rule 29.15 motion is intended to notify the court that a defendant “seeks post-conviction relief.”[26] If such a defendant is pro se, the court expects that the motion serve only as notice of appeal and, as a result, “legal assistance is not required” for filing.[27] After this initial motion, the pro se defendant may then obtain counsel, who will file a more comprehensive and accurate motion.[28] However, if a defendant fails to file his first notification motion in a timely manner, he loses all ability to seek relief under 29.15.[29]
Despite the hard line on 29.15 waivers, Missouri courts have created two exceptions that allow consideration of late motions.[30] These judicially-created excuses allow a motion to be heard in court if (a) the defendant is abandoned by his post-conviction counsel and, as a result, he was “deprived of meaningful review of the claims” or (b) “rare circumstances” prevent timely filing.[31] Courts have held, however, that abandonment only occurs when a defendant does not receive meaningful review of his claims because his post-conviction attorney failed to file a motion, if the counsel herself files an untimely motion, or if the counsel actually stops a defendant from filing within the ninety-day deadline.[32]
The facts of Moore’s case do not comply with any abandonment argument, particularly because Moore directed his complaint at his appellate counsel, who “ha[d] no duty to represent a movant in post-conviction relief filings,” nor did she ever agree to such representation.[33] Indeed, Moore was dutifully informed of the mandate date by the clerk of the court and indicated at sentencing that he understood the instructions for filing a 29.15 motion himself.[34] It is important to note here that Judge Stith’s concurring opinion addressed an alternative outcome of the case had Moore’s appellate attorney actually agreed to “take responsibility” for informing him of the motion deadline.[35] Although it is true that a defendant need not require legal assistance to file a motion, if he is told by counsel that she will take care of the filing, counsel will then be liable for ineffective assistance if she fails in her promise.[36] This is so because Missouri ethics rules impose additional obligations on attorneys that would be triggered if Moore had proved that his appellate attorney assured him that she would inform Moore of the deadline or even file the motion on his behalf.[37]
The second exception of rare circumstances is even less applicable to Moore’s case. Indeed, these sort of circumstances involve mail mis-delivery or filing in the wrong court.[38] As such, the court found “no rare circumstances in this case that justify Moore’s failure” to file on time.[39]
III. Comment
The Rules of the Supreme Court of Missouri exist to keep legal proceedings consistent, ordered, and efficient while balancing the public interest of appeals, criminal review, and other due process rights. In Moore, Rule 29.15 serves as an exemplar of this balance, allowing defendants to bring claims for relief, but only if these claims are brought within a certain time period.[40] No different than a statute of limitations, Rule 29.15 requires a defendant to file minimal notification of appeal within ninety days after the final mandate of his sentence.[41] Indeed, the form to file such a motion is straightforward, and judges, just as the sentencing judge in Moore’s case did, will explain the process to a defendant to ensure comprehension and compliance.[42]
The defendant in Moore, though unrepresented by post-conviction counsel, claimed to rely on his appellate counsel for timely filing of his 29.15 ruling, but the facts of the case speak otherwise.[43] Indeed, Moore was notified by the official court clerk that his mandate had been issued, thus triggering the ninety-day clock.[44] Further, despite the March warning by his appellate counsel of the past-due status of his motion, Moore waited until May to finally file for post-conviction relief.[45] The scenario in Moore speaks more to a failure on the defendant’s part to adhere to strict court rules than failure on an attorney to keep the defendant on time. Such rules not only exist to protect defendants but also serve a broader interest of maintaining a working legal system.
- Brianna L. Lennon
[1] 328 S.W.3d 700 (Mo. 2010) (en banc).
[2] Id. at 701 (citing Mo. Sup. Ct. Rule 29.15) (Such a motion must be filed within ninety days of the sentencing mandate.).
[3] Id.
[4] State v. Moore, 264 S.W.3d 657, 660 (Mo. App. E.D. 2008).
[5] Id.
[6] Moore, 328 S.W.3d at 701.
[7] Id.
[8] Id.
[9] State v. Moore, 264 S.W.3d. at 664.
[10] Moore, 328 S.W.3d at 701.
[11] Id. In this notification, appellate counsel did note that she “had mistakenly failed to timely advise” Moore of the mandate. Moore v. State, 2010 WL 1328144 at *1.
[12] Moore, 328 S.W.3d at 701.
[13] Moore 2010 WL 1328144 at *1.
[14] Moore, 328 S.W.3d at 701.
[15] Id. at 702-03.
[16] Id. at 702 (citing McFadden v. State, 256 S.W.3d 103, 108-09 (Mo. 2008) (en banc)).
[17] Id.
[18] Id. at 703.
[19] Id. at 703.
[20] Id. (citing McFadden, 256 S.W.3d at 109).
[21] Id. at 703-04.
[22] Id. at 705.
[23] Id. at 702 (citing Rule 29.15(k)).
[24] Id. (citing McFadden, 256 S.W.3d at 106).
[25] Id.
[26] Id. (citing Bullard v. State, 853 S.W.2d 921, 922-23 (Mo. 1993) (en banc)).
[27] Id. (citing Bullard, 853 S.W.2d at 923).
[28] Id. (citing Rule 29.15(e)).
[29] Id. (citing Rule 29.15(b)). This bar includes preventing defendants from bringing claims for ineffective assistance of counsel, improper jurisdiction, or excessive punishment after the 29.15 deadline passes. See Gehrke v. State, 280 S.W.3d 54, 59 (Mo. 2009) (en banc).
[30] Id.
[31] Id. (citing McFadden, 256 S.W.3d at 108-09). A defendant may also be abandoned if his counsel actively stops him from filing his motion, but the court barely addressed this exception, as it did not apply to Moore’s case. Id. (citing McFadden, 256 S.W.3d at 109).
[32] Id. (citing Gehrke, 280 S.W.3d at 57) (emphasis in original).
[33] Id.
[34] Id. at 703.
[35] Id.
[36] Id. (citing McFadden, 256 S.W.3d at 109); see also Rule 4-1.3.
[37] Id. at 704.
[38] For examples, see id at 703 (citing Nicholson v. State, 151 S.W.3d 369, 371 (Mo. 2004) (en banc); Spells v. State, 213 S.W.3d 700, 701-02 (Mo. App. W.D. 2007)).
[39] Id.
[40] Id. at 701.
[41] Mo. Sup. Ct. Rule 29.15.
[42] Moore, 328 S.W.3d at 701; see also Mo. Crim. Proc. Form 40.
[43] Moore, 328 S.W.3d at 701-02.
[44] Id. at 703.
[45] Id. at 701.
