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Moore v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

August 22, 2017

CHARLES K. MOORE, Movant/Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of St. Francois County 12SF-CC00096 Honorable Sandra Martinez Judge.

          OPINION

          MARY K. HOFF, JUDGE.

         Charles K. Moore ("Movant") appeals from the motion court's "Findings of Fact, Conclusions of Law, and Judgment" ("Judgment") denying his Rule 29.15 motion without an evidentiary hearing. We reverse and remand.

         Factual and Procedural Background

         In 2010, following a jury trial, Movant was convicted of second-degree assault of a probation or parole officer, in violation of Section 565.082, RSMo 2000.[1] The trial court later sentenced Movant as a persistent felony offender to fifteen years' imprisonment. Movant appealed his conviction and sentence to this Court, which issued its per curiam order and memorandum in State v. Moore, 362 S.W.3d 509 (Mo. App. E.D. 2012), affirming Movant's conviction. The mandate issued on April 18, 2012.

         On June 20, 2012, Movant timely filed his pro se Rule 29.15 motion, and on the same day the motion court appointed counsel to represent Movant.

         Appointed counsel untimely filed Movant's amended motion and request for evidentiary hearing on or about September 18, 2012, in which he alleged that his trial attorneys were ineffective for (1) filing a motion for an automatic change of judge and then withdrawing it against his wishes; and (2) failing to seek a change of judge because the judge presiding over his trial previously worked as a prosecuting attorney and was "involved" in a prior robbery prosecution of him in 1998.

         On December 10, 2012, the motion court denied Movant's Rule 29.15 motion without an evidentiary hearing. Movant appealed, and, on April 14, 2015, the Missouri Supreme Court reversed and remanded Movant's cause for an independent inquiry into whether Movant was abandoned by post-conviction counsel. Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2015).

         On June 4, 2015, post-conviction counsel filed a motion requesting that the motion court permit the untimely amended motion and alleged that the amended motion was untimely because "counsel or someone in counsel's office" failed to request an extension of time and that "Movant played no role in the amended motion filing date calculation, and any late filing was due to counsel."

         On June 5, 2015, the motion court conducted its inquiry, and post-conviction counsel reiterated that she was at fault for the untimely filing. The motion court found that "it was not Movant's fault" that an extension was not requested and that it "was counsel's fault, " thereby reviving the amended motion.

         On July 20, 2016, the motion court again denied Movant's amended motion. The motion court stated that it was denying Movant's motion "for the same reasons enunciated in December 2012" and restating the findings of fact and conclusions of law from the December 20, 2012 judgment in their "entirety."

         In its 2012 judgment, the motion court found that the trial court had asked Movant at sentencing about his allegation that he wanted the judge disqualified. The motion court observed that defense counsel had stated at sentencing that the motion for change of judge had been withdrawn. Indeed, the sentencing transcript reflects that defense counsel stated: "At the time that [Movant's first attorney] talked to him she indicated in the file that he did not request a change of judge." The motion court then found that its own file indicated that "the motion to withdraw [sic] was withdrawn in [Movant's] presence and with his consent in open court September 3, 2010." A docket entry on that date indicated that Movant was present in court, and it stated, "Defendant's Motion to Withdraw, Motion for Change of Judge, sustained." The motion court also found that Movant had failed "to allege prejudice sufficient to trigger relief." The motion court observed that "cases have repeatedly held that simply because a trial judge may have received knowledge of facts through prior court hearings involving the defendant, the judge need not disqualify themselves for cause." The motion court concluded that Movant had not alleged "any objective facts that would necessitate disqualification." This appeal follows.

         Additional facts pertinent to the points on appeal will be adduced as necessary in the discussion section below.

         Standard ...


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