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Nash v. State

Court of Appeals of Missouri, Western District, Second Division

September 27, 2016

DONALD NASH, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable David M. Byrn, Judge

          Before: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

          Cynthia L. Martin, Judge

         Donald B. Nash ("Nash") appeals from the motion court's August 22, 2011 denial of his motion to reopen post-conviction proceedings due to abandonment and invalid waiver. We affirm.

         Factual and Procedural History

         Nash was convicted in Jackson County, Missouri in two different cases. In Case Number CR81-2901, Nash was convicted in January 1982 of first-degree robbery and kidnapping, and was sentenced respectively to 25 years and 15 years imprisonment, with the sentences to run consecutively to one another, and consecutively to another sentence Nash was serving for rape and burglary in an unrelated case. Nash's convictions were affirmed on appeal. State v. Nash, 648 S.W.2d 911 (Mo. App. W.D. 1983). In Case Number CR81-2905, Nash was convicted in June 1982 of rape, attempted rape, and sodomy, and was sentenced respectively to 50 years, 40 years, and 50 years imprisonment, with the sentences to run concurrently, but consecutively to the sentences imposed in Nash's two previous cases. Nash's convictions were affirmed on appeal. State v. Nash, 659 S.W.2d 795 (Mo. App. W.D. 1983).

         In January 1985, Nash filed a Rule 27.26[1] motion in connection with his convictions in Case Number CR81-2901. The motion was assigned Case Number CV85-1458. He alleged ineffective assistance of counsel for four different reasons, and a fifth claim that his sentence was unconstitutional. Appointed counsel filed an affidavit explaining that no amended motion would be filed, in part because of Nash's lack of cooperation, and that Nash had been so advised.

         In February 1985, Nash filed a Rule 27.26 motion in connection with his convictions in Case Number CR81-2905. The motion was assigned Case Number CV85-3649. He alleged ten pro se claims. Appointed counsel filed an amended motion which added an eleventh claim.

         On September 3, 1987, Nash and his appointed counsel signed a Voluntary Dismissal of both of Nash's Rule 27.26 cases. Nash's signature appears in cursive on the pleading. Nash was present in court on the day the pleading was signed and filed, which was also the date that had been set for an evidentiary hearing in the Rule 27.26 cases. The Voluntary Dismissal provided, in pertinent part, that Nash:

hereby dismisses his motions to vacate judgment and sentence pursuant to Rule 27.26 filed in this Circuit Court on January 24, 1985 and February 16, 1985 respectively. The movant verifies that he has been advised by undersigned counsel, and understands, that the granting of this dismissal by the Court will be with prejudice and that the movant will not be able to file similar motions in the future asserting claims which were or could have been raised in the present motions.

         The motion court dismissed Nash's Rule 27.26 motions with prejudice on September 14, 1987.

         In June 1988, Nash filed a pro se Rule 29.15 motion which was assigned Case Number CV88-16429.[2] Nash's pro se Rule 29.15 motion argued that his trial counsel was ineffective and that his trial counsel had a conflict of interest. In addition, Nash's pro se Rule 29.15 motion asserted that his appointed counsel for both of his Rule 27.26 cases coerced Nash into signing the Voluntary Dismissal. Counsel was appointed to represent Nash. In March 1989, Nash filed a pro se amended motion adding an additional claim for ineffective assistance of trial counsel. Also in March 1989, appointed counsel filed an amended Rule 29.15 motion that incorporated all of Nash's allegations in his previous pro se motions. The amended Rule 29.15 motion also alleged that Nash received ineffective assistance of counsel in that his previously appointed post-conviction counsel "did not adequately explain to [Nash] that the effect of his voluntary dismissal of his 27.26 motions would be to preclude him from raising any issues in future 27.26 motions that were or could have been raised in his Causes No. CV85-1458 and CV85-3649." Thus, the amended motion argued, the Voluntary Dismissal was not knowingly and intelligently made by Nash.

         On April 26, 1989, the motion court entered an order dismissing Nash's motion, including all amendments thereto. The motion court held that Nash "has previously presented motions concerning the convictions sub judice pursuant to prior Rule 27.26." The order cited to Rule 29.15(k) which, in 1989, prohibited the motion court from entertaining successive post-conviction motions.[3] Nash appealed, arguing that the motion court erred in dismissing his Rule 29.15 motion as successive because the dismissal of his Rule 27.26 motions was not knowing and intelligent in that his post-conviction counsel failed to explain fully the consequences of his decision to dismiss his Rule 27.26 motions. We affirmed the motion court's dismissal in a per curiam order with accompanying memorandum. See Nash v. State, 782 S.W.2d 693 (Mo. App. W.D. 1989).

         In May 2011, Nash filed a motion to reopen in both of his post-conviction cases, alleging abandonment by post-conviction counsel and invalid waiver. The motions were assigned Case Numbers 16CV85-01458 and 16CV85-03649, corresponding with the Case Numbers assigned to Nash's initial Rule 27.26 motions. Nash alleged that the dismissals of his Rule 27.26 motions had not been knowing and voluntary, and that ...


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