Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Williams v. State

Court of Appeals of Missouri, Southern District, First Division

November 10, 2016

ANN MARGARET WILLIAMS, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J. Johnson. REVERSED AND REMANDED

          OPINION

          DON E. BURRELL, J.

         Ann Margaret Williams ("Movant") was convicted after a jury trial in 2011 for promoting prostitution in the first degree and endangering the welfare of a child in the first degree. See sections 567.050 and 568.045.[1] Movant now appeals the "judgment" denying her amended motion for post-conviction relief ("the amended motion") after an evidentiary hearing. See Rule 29.15(k). Her sole point claims the motion court erred in finding her trial counsel not ineffective for "failing to make an offer of proof when the trial court sustained objections to questioning about appellant's past."

         We cannot reach the merits of Movant's claim because we cannot determine from the record whether the amended motion was timely filed. The judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

         Procedural History

         The mandate affirming Movant's conviction was issued on February 26, 2013. Her pro se motion was timely filed on May 24, 2013. See Rule 29.15(b). The pro se motion alleged five separate claims for vacating Movant's convictions based upon allegations of: (1) evidence that the victim recanted some testimony; (2) a biased jury; (3) the denial of a change in venue; (4) the failure to present five witnesses on Movant's behalf; and (5) insufficient evidence that Movant promoted prostitution. In her pro se motion, Movant requested leave to proceed in forma pauperis, and she completed a supporting affidavit attesting to her inability to pay the costs of her motion and declaring her entitlement to "relief as a poor person."

         The next recorded activity on the docket sheets is the May 31, 2013 entry of an "Order of Notification" ("the notification order"). The notification order does not appear in either the legal file or the trial transcript, no other docket entry expressly references the appointment of counsel, and the legal file does not contain any written order of appointment. The next activity listed in the docket sheets is the filing of an entry of appearance by "STEPHEN J HARRIS" ("Movant's counsel") on July 18, 2013. A copy of that written entry of appearance is not included in the legal file.

         A docket entry dated September 17, 2013 notes: "Took file to Judge to look at order for additional time to file amended motion."[2] Counsel for the State entered an appearance. The next docket entry, dated September 23, 2013, bears the heading "Order" and a subheading of "Amended Motion/Petition Filed[, ]" but it contains no other information. The amended motion in the legal file bears a file-stamp date of September 23, 2013 next to a file-stamp date of September 16, 2013 that has been crossed-out.

         As earlier noted, the amended motion raises a single claim: Movant received ineffective assistance of counsel when "Movant's trial counsel failed to make an offer of proof when the trial court sustained the [p]rosecutor's objections to direct examination questioning about her past which may support her defense of lack of knowledge of the sexual abuse perpetrated by" a third party against the victim.

         The transcript of the evidentiary hearing identifies Movant's counsel as a member of the "State Public Defender System[.]" The findings of fact and conclusions of law in the judgment denying the amended motion stated that "[c]ounsel was appointed by this Court and Movant's appointed counsel timely filed [the amended motion]." While the findings of fact included specific date references for the issuance of the mandate and the filing of the pro se motion, no dates for the appointment of counsel, an extension of time to file an amended motion, or the filing of the amended motion were included. Movant's notice of appeal identified the address for Movant's counsel as the "Office of State Public Defender[.]"

         Timeliness of the Amended Motion

         "Before addressing the merits, we are compelled under Moore v. State[, 458 S.W.3d 822, 826 (Mo banc 2015), ] to first examine the timeliness of amended motions in each post-conviction case on appeal, even if the issue is not raised by either party." Childers v. State, 462 S.W.3d 825, 827 (Mo. App. E.D. 2015). Rule 29.15(e) requires the motion court to appoint counsel "[w]hen an indigent movant files a pro se motion" for post-conviction relief. The "automatic" appointment of counsel is triggered by the indigent movant's filing of "an affidavit of indigency with the Rule 29.15 motion." Bittick v. State, 105 S.W.3d 498, 502 (Mo. App. W.D. 2003). Rule 29.15(g) provides, inter alia:

If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of: (1) the date both the mandate of the appellate court is issued and counsel is appointed or (2) the date both the mandate of the appellate court is issued and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.