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Craigg v. State

Court of Appeals of Missouri, Eastern District, Third Division

February 21, 2017

SKIPPER R. CRAIGG, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Monroe County, Hon. Rachel Bringer Shepherd.

          OPINION

          ANGELA T. QUIGLESS, P.J.

         Skipper R. Craigg ("Movant") appeals from the judgment of the Circuit Court of Monroe County denying his Rule 24.035[1] motion for post-conviction relief following an evidentiary hearing. We reverse and remand.

         FACTUAL AND PROCEDURAL BACKGROUND

         Following 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).[2] 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.

         On 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.

         Movant's 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.

         The 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 follows.

         POINTS ON APPEAL

         Movant 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.

         DISCUSSION

         We 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).

         Rule 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 ...

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