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Johnson v. State

Court of Appeals of Missouri, Western District, Second Division

June 30, 2015

ANTHONY F. JOHNSON, Appellant,
v.
STATE OF MISSOURI, Respondent

Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Joel P. Fahnestock, Judge.

Anthony F. Johnson, Appellant, Pro se.

Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before Division Two: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge.

OPINION

Page 2

Cynthia L. Martin, Judge

Anthony F. Johnson (" Johnson" ) appeals from the motion court's order denying his motion for post-conviction relief due to abandonment. Johnson argues that the motion court failed to make findings of fact and conclusions of law in its order as required by Rule 29.15(j). Johnson asserts that the motion court's failure to comply with the rule resulted in the denial and deprivation of his rights to due process, to a fair and adequate proceeding, and to equal protection. We affirm.

Factual and Procedural History[1]

In January 1990, Johnson was convicted by a jury of murder in the first degree, robbery in the first degree, kidnapping, and three counts of armed criminal action. While his appeal was pending, Johnson filed a timely pro se motion for post-conviction relief,[2] and his appointed counsel filed an amended Rule 29.15 motion. Both Johnson's pro se and amended motions asserted that he received ineffective assistance of trial counsel. Following an evidentiary hearing, the motion court issued a judgment denying Johnson's Rule 29.15

Page 3

motion. Johnson appealed, and his post-conviction appeal was consolidated with his direct appeal. See Rule 29.15(l) (1990). We affirmed Johnson's conviction and the motion court's denial of his Rule 29.15 motion in a per curiam order. See State v. Johnson, 831 S.W.2d 675 (Mo. App. W.D. 1992).

Johnson filed a motion to reopen his post-conviction proceedings on the basis of abandonment by post-conviction counsel in September 2005 (" 2005 Motion" ). In particular, Johnson argued that he was abandoned by post-conviction counsel in that his counsel " fail[ed] to order and review [Johnson's] voir dire transcript to ascertain supporting facts or other errors within" and his counsel " fail[ed] to asset [sic] supporting facts to [Johnson's] claim concerning State's witness, Byron East's testimony." The motion court denied the 2005 Motion, concluding that Johnson was not abandoned by his post-conviction counsel. Johnson appealed, and we dismissed the appeal as untimely.

Johnson filed a motion to vacate the motion court's denial of the 2005 Motion in 2008 (" 2008 Motion" ). In 2010, Johnson amended the 2008 Motion to include an abandonment claim (" 2010 Amendment" ). The 2010 Amendment asserted that Johnson was abandoned by his post-conviction counsel in that his post-conviction counsel filed an amended 29.15 motion that was identical to his pro se 29.15 motion and in that his post-conviction counsel filed an unverified amended motion. In denying the 2008 Motion and its 2010 Amendment, the motion court specifically concluded that Johnson was not abandoned by his post-conviction counsel. Johnson did not appeal.

In 2013, Johnson filed yet another motion asking the motion court " to conduct an inquiry hearing on [his] abandonment claim" (" 2013 Motion" ). The 2013 Motion alleged that Johnson's post-conviction counsel failed to order or review the voir dire transcript and failed to file a verified amended motion. The motion court concluded that the 2013 Motion was successive and therefore denied to entertain it pursuant to Rule 29.15(l). Johnson appealed the motion court's ...


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