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Vogl v. State

Supreme Court of Missouri

August 19, 2014

MARK D. VOGL, Appellant,
v.
STATE OF MISSOURI, Respondent

Page 219

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY. The Honorable David C. Dally, Judge.

Vogl was represented by Jeannie M. Willibey of the public defender's office in Kansas City.

The state was represented by Andrew C. Hooper of the attorney general's office in Jefferson City.

PATRICIA BRECKENRIDGE, JUDGE. Russell, C.J., Stith, Draper, and Teitelman, JJ., concur; Fischer, J., dissents in separate opinion filed; Wilson, J., dissents in separate opinion filed. Fischer, J., concurs in opinion of Wilson, J.

OPINION

Page 220

PATRICIA BRECKENRIDGE, JUDGE.

The motion court dismissed Mark Vogl's Rule 24.035 motion for post-conviction relief, without an independent inquiry, after appointed post-conviction counsel filed a motion to rescind appointment of counsel that informed the court that Mr. Vogl's pro se motion was stamped " filed" after the last day permitted by the rule. Thereafter, Mr. Vogl filed the motion at issue to reopen his post-conviction proceedings, claiming that his counsel abandoned him

Page 221

by failing to investigate the timeliness of his post-conviction motion before counsel filed a motion to rescind appointment of counsel. The motion court entered judgment overruling Mr. Vogl's motion. Mr. Vogl appeals. After an OPINION of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. Because the record raises the presumption that Mr. Vogl was abandoned by his post-conviction counsel, the motion court clearly erred in dismissing Mr. Vogl's motion. The judgment is reversed, and the cause is remanded.

Facts and Procedural Background

On June 21, 2007, Mr. Vogl pleaded guilty to two felony counts of first-degree statutory sodomy under section 566.062.[1] He then was sentenced by the circuit court to 15 years imprisonment on each count, with the sentences to run concurrently. After pronouncing the sentence, the circuit court informed Mr. Vogl of his right to seek post-conviction relief under Rule 24.035. On September 18, 2007, Mr. Vogl was delivered to the Missouri Department of Corrections (" DOC" ) to serve his sentence. He did not appeal his conviction.

Under Rule 24.035, Mr. Vogl had to file a timely Rule 24.035 motion to seek post-conviction relief.[2] In light of his delivery date to the DOC, Mr. Vogl's post-conviction motion had to be filed on or before March 17, 2008.[3] The docket sheet and file stamp on Mr. Vogl's motion reflect that his pro se motion was filed in the Joplin office of the Jasper County circuit clerk on March 18, 2008.

Upon the filing of Mr. Vogl's post-conviction motion, the motion court appointed post-conviction counsel to represent Mr. Vogl in the proceeding. Thirteen days later, Stephen J. Harris, the area district defender for the Missouri State Public Defender, filed a motion requesting that the appointment of counsel be rescinded. In his motion, appointed counsel alleged that Mr. Vogl's Rule 24.035 motion was untimely because Mr. Vogl was delivered to the department of corrections on September 18, 2007, and Mr. Vogl's motion was stamped " filed" 182 days later. The certificate of service indicates that the motion to rescind was served only on the prosecuting attorney, and there is nothing in the circuit court record to indicate that Mr. Vogl received service or notification of appointed counsel's filing of the motion to rescind appointment of counsel. Six days later, without a hearing or independent inquiry, the motion court entered an order rescinding its previous order appointing counsel and dismissing the case with prejudice because the court found that " [f]urther review of the file indicates that the motion was not timely filed."

Page 222

On March 17, 2011, Mr. Vogl filed a motion titled " Motion to Reinstate Post-conviction Action Brought Pursuant To Rule 24.035 On Basis of Timely Filing, And To Vacate Order Rescinded [sic] Appointment of Counsel and Dismissing 24.035 Action." Specifically, the 2011 motion claimed that his pro se Rule 24.035 motion was timely filed and, even if filed in the wrong court, should have been considered timely filed and transferred to the proper court rather than dismissed. In addition, Mr. Vogl alleged that he had been abandoned by his appointed counsel. On November 4, 2011, the motion court, without holding an evidentiary hearing, entered an order refusing to take any further action on the basis that Mr. Vogl's post-conviction proceedings previously had been dismissed with prejudice due to untimely filing.[4]

On May 11, 2012, Mr. Vogl filed the pro se motion presently at issue requesting that the motion court adjudicate his post-conviction proceedings because he was abandoned by his appointed counsel.[5] In his motion, Mr. Vogl requested that the motion court hold an evidentiary hearing to determine the merits of his claim of abandonment. For support, Mr. Vogl made the following allegations pertaining to the filing of his pro se motion and his appointed counsel's representation:

o The April 16, 2008 motion to rescind appointment of counsel filed by post-conviction counsel was filed without any consultation with Mr. Vogl.

Page 223

o If post-conviction counsel had consulted with Mr. Vogl, he would have obtained facts that would have proved the timely filing of Mr. Vogl's motion.
o Post-conviction counsel's alleged failure to investigate the circumstances surrounding the filing of Mr. Vogl's Rule 24.035 motion before filing the motion to rescind appointment of counsel constituted abandonment and noncompliance with Rule 24.035 because he filed neither an amended motion for post-conviction relief nor a statement explaining that all facts and claims had been asserted in the pro se motion.
o Mr. Vogl never received notification that his counsel intended to file a motion to rescind counsel's appointment. If he had been notified, he would have attempted to contact the court to request a hearing on the motion.

Attached to Mr. Vogl's motion were two exhibits -- letters from the Jasper County circuit clerk's office written in response to Mr. Vogl's inquiries regarding the Jasper County circuit clerk's office procedures for receiving and forwarding mail from one clerk's office to the other.

Jasper County maintains two courthouses -- one in Carthage, which is the county seat, and the other in Joplin. Mr. Vogl alleges that he mailed his pro se Rule 24.035 motion to the Jasper County circuit clerk's office in Carthage on March 12, 2008, and it arrived there on March 17, 2008. On the same day, after recognizing that the file regarding his criminal conviction was at the Joplin office, the Carthage office forwarded the motion to the Joplin office without first stamping the motion as filed. When the Joplin office received Mr. Vogl's pro se motion, it then stamped it " filed" for the first time on March 18, 2008.

The first letter attached to Mr. Vogl's motion articulates the clerk's office procedure when forwarding mail to the correct office location. The letter states that the Carthage office received Mr. Vogl's motion, determined that it belonged in the Joplin office, and sent it to the Joplin office a day later. Specifically, the letter states:

1. Mail is received in whichever office the envelope is addressed to (in the above referenced case, Jasper County Clerk -- not Jasper County Circuit Clerk -- two (2) totally different offices);
2. When mail is opened and determined to belong to a different office in the Courthouse, the mail is taken to the correct office (in this case the correct office was the Jasper County Circuit Clerk's office);
3. Jasper County Circuit Clerk's Office in Carthage determined your original case was handled in the Joplin location and any subsequent filings must also be filed in the Joplin location and placed your documents in a basket for our " runner" to pick up to deliver to Joplin. Our " runner" picks up every afternoon in Carthage and delivers to the Circuit Clerk's Office in Joplin the following morning. He also delivers mail received in Joplin that needs to go to Carthage.

After receiving the first letter, Mr. Vogl wrote a letter, dated June 27, 2010, to the Jasper County circuit clerk asking when his pro se post-conviction motion initially was received by the Carthage office, not when the Joplin office received it after the Carthage office forwarded it.[6] The second

Page 224

letter from the clerk's office was written in response to Mr. Vogl's June 27, 2010, letter. It states that, if it takes three days for Mr. Vogl's motion to get from Cameron to the Carthage office as Mr. Vogl had said, then it would follow that the Carthage office received his pro se motion on March 17, 2008. The deputy circuit clerk further stated that the envelope containing the original pro se motion was not in the clerk's file. The actual text of the letter states:

According to your letter dated March 12, 2008, your Motion was being mailed without copies since your housing unit was locked down and it needed to be mailed immediately. It is my presumption that your Motion went out in the next morning's mail, being Thursday, March 13, 2008. If, as you state, mail takes three (3) days from Cameron to Carthage, that would put it being received on Sunday, March 16, 2008 on which there is no mail delivery subsequently being delivered to our Carthage office on Monday, March 17, 2008 and received in our Joplin office on Tuesday, March 18, 2008.
On Mondays, when we receive an abundant amount of mail, it is our normal procedure for mail to be delivered to another office to stamp one (1) envelope with the date received and then rubber band anything else to that piece of mail.

The motion court overruled Mr. Vogl's motion and request for evidentiary hearing. The court stated that Mr. Vogl's post-conviction action previously had been dismissed with prejudice as untimely. Thereafter, Mr. Vogl timely appealed. The case was transferred to this Court after OPINION of appeals. Mo. Const. art. V, sec. 10.

Standard of Review

When a motion court overrules a motion claiming abandonment by post-conviction counsel, appellate review is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Gehrke v. State, 280 S.W.3d 54, 56 (Mo. banc 2009). After reviewing the entire record, a motion court's findings and conclusions are clearly erroneous only if the reviewing court is " left with the definite and firm impression that a mistake has been made." Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014).[7]

Analysis

Mr. Vogl claims that the motion court erred in overruling, without an evidentiary hearing, his motion claiming abandonment by post-conviction counsel. In his motion, Mr. Vogl alleges that post-conviction counsel abandoned him by not investigating to ascertain the facts regarding the timeliness of the filing of his pro se post-conviction motion.[8] Mr. Vogl alleges in his motion

Page 225

that, if post-conviction counsel would have contacted him regarding the circumstances of the filing of the pro se post-conviction motion rather than relying on the erroneous file stamp, counsel would have learned that the pro se motion was, in fact, filed timely. Specifically, he alleges that appointed counsel would have discovered that Mr. Vogl's motion was received timely by the Jasper County circuit clerk but was stamped with an incorrect date by the circuit clerk.

In Jasper County, there is a courthouse in Carthage, the official county seat. Jasper County maintains a second courthouse in Joplin, as authorized by section 71.300, RSMo 2000. The Jasper County circuit clerk has offices in both courthouses. The documents attached to Mr. Vogl's motion state that the circuit clerk has a practice of stamping documents received by the circuit clerk's office as " filed" only when the document is received by the office where the file for the case is physically located. Under the 29th Judicial Circuit's local court rule, Local Rule 4.3, " all circuit court actions shall be filed with the Circuit Court Clerk of this County in Joplin or Carthage." Because Mr. Vogl's pro se motion was an initial pleading commencing an independent civil action, see Cowans v. State, 778 S.W.2d 758, 761 (Mo. App. 1989), he was permitted to file it in either Joplin or Carthage per Local Rule 4.3.

Moreover, the offices are one and the same, and documents are filed when they are received by either office. A pleading is deemed filed at the time it is received by the clerk of a circuit court. Rule 43.02(b). See also Stephan v. World Wide Sports, Inc., 502 S.W.2d 264, 269 (Mo. 1973).[9] Accordingly,

Page 226

upon receipt of a pleading, the Jasper County circuit clerk immediately should stamp the pleading as filed, regardless of whether the clerk believes it would go into a file at the clerk's office in the other Jasper County courthouse. If the clerk did not do so and, instead, forwarded the pleading to a different office location without a file stamp, the Jasper County circuit court would have been operating under procedures that are contrary to Rule 43.02(b).[10] Therefore, if Mr. Vogl can prove that his pro se motion arrived at either office of the circuit clerk of Jasper County on or before March 17, 2008, the motion was filed timely.

In this appeal, Mr. Vogl claims that counsel's failure to ascertain the true date of filing and subsequent failure to file an amended motion alleging facts to prove the timeliness of his pro se motion constitutes abandonment. He maintains that he is entitled to an evidentiary hearing on his motion claiming abandonment by post-conviction counsel so he can have the opportunity to offer proof of the facts alleged in his motion. Ultimately, Mr. Vogl seeks to have his Rule 24.035 claims adjudicated on their merits.[11]

Rule 24.035 provides the exclusive procedure by which a person convicted of a felony on a guilty plea may seek post-conviction relief. Rule 24.035(a). As a threshold to achieving post-conviction relief, the movant first must file a timely Rule 24.035 motion. Rule 24.035(b). See also Price, 422 S.W.3d at 296. When a pro se motion is filed by an indigent movant, the court shall cause counsel to be appointed to represent the movant. Rule 24.035(e). Thereafter, appointed counsel must file either an amended motion to compensate for any deficiencies in the pro se motion or, in the alternative, a statement explaining the actions counsel took to ensure that no amended motion is needed. Rule 24.035(e).

In a motion filed pursuant to Rule 24.035, the movant " must allege facts showing a basis for relief to entitle the movant to an evidentiary hearing. The movant also must allege facts establishing the motion is timely filed." Dorris v. State, 360 S.W.3d 260, 267 (Mo. banc 2012). In addition to making said factual allegations, the movant also must prove those allegations. Id. The burden of alleging and proving that the motion is timely filed can be met by the movant in one of three ways: (1) by filing the original pro se motion timely so that the file stamp on the motion reflects that it is filed within the time limits proscribed in the rule; (2) alleging in the original pro se motion and proving by a preponderance of the evidence that the movant's circumstances fall within a recognized exception to the time limits; or (3) alleging in the amended motion and proving by a preponderance of the evidence that the circuit court misfiled the motion.[12] Id. If the timely filing of an

Page 227

original post-conviction motion is not proven, the motion court will regard the untimely motion as a " complete waiver" of any right to proceed under Rule 24.035. Rule 24.035(b); Price, 422 S.W.3d at 296.

The first two methods to prove timely filing were not available to Mr. Vogl as the date of filing reflected on his original pro se motion is a date past the filing deadline and, at the time he drafted his pro se post-conviction motion, he could not have been aware of that fact. Therefore, Mr. Vogl was left with only the last method of proving timeliness -- filing an amended motion alleging facts and then proving that the court misfiled his original pro se motion.[13] Id. Because appointed counsel did not file an amended motion, Mr. Vogl was deprived of the opportunity to employ this method of proof.

Unlike an original motion, which the movant is responsible for pleading and filing, an amended motion is a final pleading, which requires legal expertise. Gehrke, 280 S.W.3d at 57. Therefore, even though the burden of proving that the original pro se motion was filed timely continues to rest with the movant, alleging said timeliness through an amended motion requires the movant to depend on post-conviction counsel. This dependency is recognized in Rule 24.035, which articulates the duties owed by appointed counsel to a movant. Rule 24.035 reads:

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 ...

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