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Pennell v. State

Court of Appeals of Missouri, Eastern District

May 19, 2015

MICHAEL M. PENNELL, Appellant,
v.
STATE OF MISSOURI, Respondent

Page 368

[Copyrighted Material Omitted]

Page 369

Appeal from the Circuit Court of Marion County. Case No. 13MM-CV00190. Honorable Rachel Bringer Shepherd.

FOR APPELLANT: Greg Doty, Kansas City, MO.

FOR RESPONDENT: Chris Koster, Shaun J. Mackelprang, Jefferson City, MO.

Gary M. Gaertner, Jr., Judge. Kurt S. Odenwald, P. J., concurs. Robert G. Dowd, Jr., J., concurs.

OPINION

Gary M. Gaertner, Jr.

Page 370

Introduction

Michael M. Pennell (Movant) appeals from the motion Court's judgment denying his motion under Rule 29.15[1] for post-conviction relief after an evidentiary hearing. Movant challenges the motion court's denial, asserting he was abandoned by his post-conviction counsel and his trial counsel was ineffective for failing to properly challenge the trial court's jurisdiction. We affirm.

Background

A jury convicted Movant of one count of the class B felony of distribution, delivery, or sale of a controlled substance, in violation of Section 195.211, RSMo. (Cum. Supp. 2012). The court sentenced Movant to fifteen years' imprisonment in the Missouri Department of Corrections. This Court affirmed Movant's conviction and sentence on appeal. State v. Pennell, 399 S.W.3d 81 (Mo. App. E.D. 2013).

Movant subsequently filed a pro se Rule 29.15 Motion asserting ineffective assistance from his pre-trial counsel, his trial counsel, and his appellate counsel. He asserted five grounds of ineffective assistance by his trial counsel, Jim McConnell (McConnell), four grounds of ineffectiveness by appellate counsel, Alexa Pearson (Pearson), and two grounds of ineffectiveness by pre-trial counsel. The motion court appointed counsel on July 31, 2013. On August 23, 2013, Cinda Eichler (Eichler) entered her appearance as appointed counsel for Movant in this matter and requested an extension of time, which the motion court granted. On October 24, 2013, Movant filed a pro se motion for abandonment, asserting Eichler had a conflict of interest, in that she knew both McConnell and Pearson because she worked in the same office as McConnell (the public defender's office in Columbia, Missouri) and used to work with Pearson. On November 5, 2013, Eichler filed a Statement in Lieu of Filing a Rule 29.15 Amended Motion (Statement), in which she asserted that, having reviewed the record and discussed the case with Movant, there were no additional claims to be raised. The motion court set the case for a hearing on all pending matters.

At the evidentiary hearing, the motion court first took up Movant's motion for abandonment. Movant repeated his assertion of a conflict of interest and argued that the Statement constituted abandonment. He claimed that although Eichler had stated she had reviewed the record and found no additional claims, he had since reviewed the record and found an additional 10-12 claims, which he had sent to Eichler and the motion court in a letter dated October 6, 2013 (October 6 letter). Moreover, he claimed his pro se Rule 29.15 motion had " touch[ed] on" a meritorious jurisdictional issue in the context of another claim, which Eichler should have expanded. In addition, Movant asserted Eichler's

Page 371

Statement was untimely filed. The State called McConnell, who testified he did not work in the same office as Eichler, but was a private attorney with his own law firm in Shelbina, Missouri, who occasionally takes cases from the Missouri Public Defender system; he had never met Eichler. Eichler testified that because she had filed the Statement, she had not abandoned Movant under the law. The court denied Movant's motion for abandonment, finding Eichler had no conflict.

Movant requested a continuance to combine his pro se Rule 29.15 motion and his October 6 letter into one amended motion--and to " to make sure there [were not] more claims," due to Rule 29.15(l)'s bar on successive motions. The motion court denied the request, stating Movant had had sufficient time to research and file all the issues. The court then heard testimony on Movant's pro se Rule 29.15 motion and the claims in his October 6 letter. Eichler asked the court to take judicial notice of all the claims listed in Movant's pleadings and submitted the claims on the pleadings. Movant also challenged the jurisdiction of the trial court to hear his underlying criminal case, because the crime was committed in Kansas, and thus Missouri courts did not have jurisdiction to prosecute him. Eichler called McConnell and pre-trial counsel, and submitted an affidavit from Pearson, who was unavailable the day of the hearing.

McConnell testified, as relevant to this appeal, that he did not object to the trial court's jurisdiction because he did not believe the objection was appropriate, as Missouri has jurisdiction if any portion of the alleged offense occurred here. Moreover, the State already had the burden to prove that some element of the offense occurred in Missouri, so he did not believe a motion was necessary. He noted that he did file a motion to dismiss and raised the issue at trial and in his motion for new trial, and thus he believed " subject matter jurisdiction was covered as well as it could be." Eichler also questioned McConnell about the remainder of Movant's claims from the pro se motion and the October 6 letter.

Following the hearing, the motion court denied Movant's pro se Rule 29.15 motion. As relevant for appeal, the court concluded that McConnell's decision not to object to jurisdiction did not prejudice Movant, in that he failed to show the ...


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