Court of Appeals of Missouri, Eastern District, Third Division
SKIPPER R. CRAIGG, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Monroe County, Hon. Rachel Bringer
T. QUIGLESS, P.J.
R. Craigg ("Movant") appeals from the judgment of
the Circuit Court of Monroe County denying his Rule
24.035 motion for post-conviction relief
following an evidentiary hearing. We reverse and remand.
AND PROCEDURAL BACKGROUND
plea negotiations, Movant pled guilty and was convicted of
unlawful possession of a firearm by a convicted felon, in
violation of Section 571.070(1). Movant was sentenced as a prior and
persistent offender to a fifteen-year suspended prison
sentence with five years of supervised probation. Movant
violated the terms of his probation, the trial court revoked
his probation, and the court imposed the fifteen-year
sentence. Movant did not file a direct appeal.
August 26, 2014, Movant timely filed a pro se Rule
24.035 motion for post-conviction relief. The motion court
declared Movant indigent and appointed post-conviction
counsel on August 29, 2014. On September 30, 2014, the motion
court granted Movant's counsel an additional thirty days
to file an amended motion, which was subsequently filed on
April 17, 2015. The transcript of Movant's guilty plea
and sentencing was transcribed on November 3, 2014, and
certified by the court reporter the following day. However,
there is no indication in the record of when the complete
transcript was filed.
amended Rule 24.035 motion for post-conviction relief raised
two claims of ineffective assistance of counsel, alleging
counsel's performance was deficient to such a degree that
his plea was involuntary: (1) for "fail[ing] to advise
movant as to the state's burden of proof as to the
amended offense of felon in possession of a firearm, "
and; (2) for "fail[ing] to investigate and advise movant
as to potential defenses to the original charge for which he
was facing trial." These claims differed substantially
from the claims and allegations Movant initially raised in
his pro se motion.
motion court accepted Movant's amended motion without
considering whether it was timely filed, and held an
evidentiary hearing on the claims raised therein. After the
hearing, the motion court denied movant's amended motion
on two grounds. First, the record of Movant's guilty plea
refuted his allegations. Second, movant was not prejudiced by
plea counsel's ineffectiveness. The court also found
Movant's plea was knowing and voluntary. This appeal
raises two points on appeal. In Point I, Movant argues the
motion court clearly erred in denying his Rule 24.035 motion
for post-conviction relief because trial counsel was
ineffective for failing to discuss the State's burden of
proof concerning the possession element of his offense,
rendering his plea involuntary and unknowing in that it was
made "pursuant to a misunderstanding of the concept of
'joint possession.'" In Point II, Movant argues
the motion court clearly erred in denying his Rule 24.035
motion for post-conviction relief because trial counsel was
ineffective for failing to interview one of the State's
witnesses, and Movant would not have pled guilty if his
counsel had obtained this information.
cannot review the merits of this appeal because the record
does not include any reference to the date the plea
transcript was filed, which is necessary for determining the
timeliness of Movant's amended motion. Austin v.
State, 484 S.W.3d 830, 833 (Mo. App. E.D. 2016); see
also Moore v. State, 458 S.W.3d 822, 25 (Mo. banc 2015)
(applying similar rule in context of Rule 29.15 motion
following a direct appeal).
24.035(g) outlines the procedural requirements of an amended
motion for post-conviction relief following a guilty plea
where no direct appeal is taken:
If no appeal of the judgment sought to be vacated, set aside,
or corrected is taken, the amended motion shall be filed
within 60 days of the earlier of the date both a complete
transcript consisting of the guilty plea and ...