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Watson v. State

Supreme Court of Missouri, En Banc

May 2, 2017

BRUCE WATSON, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable Margaret M. Neill, Judge

          GEORGE W. DRAPER III, JUDGE.

         Bruce Watson (hereinafter, "Watson") was convicted by a jury of first-degree robbery and sentenced to fifteen years' imprisonment. At Watson's sentencing hearing, the circuit court misinformed him about the time deadlines to file his Rule 29.15 post-conviction motion. Watson's conviction was affirmed on direct appeal, State v. Watson, 397 S.W.3d 539 (Mo. App. E.D. 2013), and the court of appeals issued its mandate. Watson filed a Rule 29.15 motion for post-conviction relief approximately sixteen months later despite Rule 29.15(b)'s requirement that it be filed within ninety days of the mandate's issuance. The motion court overruled Watson's motion without an evidentiary hearing. Watson appeals.

         This Court holds that Watson's Rule 29.15 post-conviction relief motion was filed untimely. However, Watson's untimeliness is excused because the circuit court misinformed him about the appropriate deadline to file his motion during his sentencing colloquy. The Court further holds the motion court clearly erred in overruling Watson's Rule 29.15 motion because Watson demonstrated he is entitled to an evidentiary hearing concerning trial counsel's strategy for failing to request a lesser-included offense instruction. The case is reversed, and the cause is remanded for an evidentiary hearing.

         Factual and Procedural History

         On July 11, 2009, Watson entered a Check N' Go store where Yulena Shull (hereinafter, "Shull") was working. When Shull asked Watson if she could help him, Watson reached around another customer, tossed a blue plastic grocery bag onto the counter and told Shull to fill up the bag. Watson walked around the counter, reached into his pocket, and quickly flashed what Shull believed to be a gun at her. Shull emptied the contents of her cash drawer into the grocery bag. Watson left the store, and Shull contacted the police. Watson was arrested and charged with one count of first-degree robbery and armed criminal action. The jury convicted Watson of first-degree robbery but acquitted him of armed criminal action.

         At sentencing, when the circuit court asked Watson if there was any legal reason why he should not be sentenced, Watson answered, "I wasn't properly represented." After the circuit court sentenced Watson to serve fifteen years' imprisonment, the circuit court informed Watson of his post-conviction relief rights pursuant to Rule 29.07(b). The circuit court stated, "In order to obtain review of your conviction and sentence, you must file a verified Criminal Procedure Form Number 40 within 180 days after your delivery to the Missouri Department of Corrections; otherwise, you waive or give up your rights under Rule 29.15." Watson indicated he understood his rights. Watson listed grievances he had with trial counsel's representation, which included wanting to plead guilty to a lesser charge but being forced to go to trial.

         Watson's conviction was affirmed on April 23, 2013. On May 15, 2013, the court of appeals issued its mandate. More than sixteen months later, on October 2, 2014, Watson filed his initial pro se motion for post-conviction relief. Watson's pro se motion stated he was sentenced on March 9, 2012, and "was instructed not to file this cause until [he] was delivered to the [department of corrections] by the courts making this cause timely."

         The motion court appointed counsel, who subsequently filed an amended motion. Watson's amended motion attempted to explain the tardiness of his pro se filing. Watson averred that he was never delivered to the department of corrections to serve his sentence. The record reflected that before the robbery trial, Watson was charged with a separate criminal offense. In lieu of being delivered to the department of corrections after the robbery conviction, Watson was detained in the Saint Louis City Justice Center to undergo a pretrial psychiatric examination to determine his competency to stand trial for the separate offense. On August 4, 2014, Watson was adjudicated incompetent to stand trial for the separate offense and ordered committed to the custody of the department of mental health. The separate offense had not yet been disposed of at the time of Watson's pro se filing.

         Watson requested that the motion court find his pro se motion timely because the circuit court misinformed him during sentencing regarding the deadline to file his motion. Watson understood the circuit court's statement to mean that his motion was not due until 180 days after he was delivered to the department of corrections. Because he was never delivered to the department of corrections, Watson was under the impression that the deadline to file his pro se motion had not passed. Watson only discovered his tardiness after speaking to another inmate about his case. Watson also contended there was a genuine issue as to whether he understood his rights under Rule 29.15 because he was adjudicated incompetent. Finally, Watson's amended motion alleged trial counsel was ineffective for failing to submit lesser-included offense instructions for second-degree robbery and felony stealing.

         The motion court recognized Watson's Rule 29.15 motion was filed untimely. The motion court further stated the circuit court was not required to inform a movant of the time limits, and a failure to inform a movant does not override the rule's mandatory time limits. However, the motion court found Watson's case did not involve the circuit court's failure to advise him of the time limit but, rather, involved a misrepresentation about the time limit. The motion court stated it would address the merits of Watson's claim out of an abundance of caution. The motion court overruled Watson's ineffective assistance of counsel claim, finding Watson was not entitled to a second-degree robbery instruction where there was evidence presented that Watson used or threatened the use of a deadly weapon or dangerous instrument during the course of the robbery. Watson now appeals.

         Standard of Review

         This Court reviews the denial of post-conviction relief to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). "A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made." Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013).

         Timeliness of the Rule 29.15 Motion

         This Court must determine first whether it has the authority to address the merits of Watson's Rule 29.15 motion because his pro se motion was filed untimely. Rule 29.15(b) provides in part:

If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence. If no appeal of such judgment or sentence was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections.

         Because Watson sought an appeal from the circuit court's judgment and sentence, his Rule 29.15 motion should have been filed ninety days after the court of appeals issued its mandate, which occurred May 15, 2013. Therefore, Watson's initial pro se motion was due on or before August 13, 2013, but was filed on October 2, 2014, approximately sixteen months after the mandate issued.

         In addition to proving his substantive claim, Watson must show he filed his Rule 29.15 motion within the time limits provided therein. Dorris v. State, 360 S.W.3d 260, 267 (Mo. banc 2012). The time limits for filing a Rule 29.15 motion are mandatory. State v. Day, 770 S.W.2d 692, 695 (Mo. banc 1989); Eastburn v. State, 400 S.W.3d 770, 773 (Mo. banc 2013). Generally, when movants fail to file their Rule 29.15 motions within the applicable time limits, there is a complete waiver of the right to seek post-conviction relief and a complete waiver regarding all claims that could be raised in a Rule 29.15 motion. Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 2010). Because Watson's pro se motion was filed untimely, he must allege facts showing "and proving by a preponderance of the evidence in his motion that he falls within a recognized exception to the time limits." Dorris, 360 S.W.3d at 267. While Rule 29.15 does not carve out exceptions that excuse late filings, Missouri courts recognize two exceptions: "(1) when post-conviction counsel abandons the movant; and (2) when rare circumstances outside the movant's control justify late receipt of the motion." Moore, 328 S.W.3d at 702.

         Watson does not claim post-conviction counsel abandoned him. Instead, Watson asserts the circuit court's misinformation constituted rare circumstances that justify his failure to prepare and send his original motion in a timely manner. Watson requests this Court find the circuit court's misinformation regarding the correct filing deadline justifies creation of a new exception to Rule 29.15's mandatory filing deadlines.

         Circuit Court's Obligations Under Rule 29.07

Rule 29.07(b)(4) provides in pertinent part:
If a defendant has a right to proceed under … Rule 29.15, the court at the conclusion of final sentencing shall advise the defendant of such right and shall examine the defendant as to the assistance of counsel received by the defendant. The examination shall be on the record and may be conducted outside the presence of the defendant's counsel. At the conclusion of the examination the court shall determine whether probable cause exists to believe the defendant has received ineffective assistance of counsel.

         "Under Rule 29.07(b), the trial court must conduct a post-sentencing hearing in which it questions the defendant concerning the effectiveness of trial counsel. The court must also advise the defendant of the right to proceed under Rule 29.15." Moore, 328 S.W.3d at 703. Yet the circuit court is not responsible for any breach appellate counsel commits in filing the Rule 29.15 motion and has no obligation to remedy it. Price v. State, 422 S.W.3d 292, 303 (Mo. banc 2014). The circuit court is obligated to provide a remedy under two discrete circumstances: (1) when a criminal defendant has received ineffective assistance of counsel that is so deficient it violates the defendant's constitutional right to effective assistance of counsel; and (2) when an indigent defendant timely files a post-conviction motion and appointed counsel's actions constitute abandonment. Id. This Court has yet to resolve the question presented in this case, which is what relief, if any, movants are entitled to when they rely on the circuit court's inaccurate recitation of the mandatory Rule 29.15 filing deadlines.

         Failure to Inform the Defendant

         Although this case does not present the issue of the circuit court's failure to inform a movant about his or her rights under Rule 29.07(b), appellate court cases establish that movants are not entitled to relief when the circuit court provides little or no information about the filing deadlines.[1] In Reed v. State, 781 S.W.2d 573 (Mo. App. E.D. 1989), the court held the circuit court's failure to advise the movant of the time deadlines did not excuse an untimely filing. The appeals court explained:

While Rule 29.07(b)(4) indicates a trial judge should inform a movant of his right to a Rule 24.035 or 29.15 motion, there is no indication in the rules or case law that failure to do so overrides the mandatory time limitations. In addition, the rule does not require the sentencing court to specifically advise defendant of the ninety day time limit.

Id. at 573.

         In State v. Johnston, 786 S.W.2d 220 (Mo. App. W.D. 1990), the circuit court advised the movant generally of the right to post-conviction relief but did not advise the movant of the specific time deadline. Id. at 222. The Western District rejected the movant's argument that his untimely post-conviction claims should be heard because the circuit court failed to advise him of the filing deadline. Id. The Western District stated the circuit court's general explanation complied with Rule 29.07(b)(4), despite failing to inform the movant of the specific deadline. Id. "We do not hold that failure of the trial court to give the advice required by Rule 29.07(b)(4) would in any way relax the time requirements within which a [post-conviction motion] must be filed …." Id. at 222-23.

         In Hawkins v. State, 807 S.W.2d 214 (Mo. App. W.D. 1991), the circuit court failed to inform the movant of his right to proceed under Rule 29.15 and failed to examine him regarding trial counsel's effectiveness. The movant argued these failures excused his untimely Rule 29.15 motion. The appeals court disagreed, citing and following Reed. Id. at 215; see also Drewel v. State, 835 S.W.2d 401, 402-03 (Mo. App. E.D. 1992) (rejecting the movant's untimely filing and finding case identical to Reed and Hawkins). Hence, the circuit court's failure to inform a movant of his or her rights under Rule 29.07(b) will not excuse a tardy post-conviction motion.

         Misinforming the Defendant

         There is a difference between failing to inform and misinforming movants of their post-conviction rights. Despite Watson's assertion that his case presents an issue of first impression, this Court notes only two appellate court cases have addressed instances in which the circuit court ...


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