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Mitchell v. State

Court of Appeals of Missouri, Southern District, First Division

August 31, 2017

GARY LEE MITCHELL, JR., Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.



          DON E. BURRELL, J.

         Gary Lee Mitchell, Jr. ("Movant") was convicted after a jury trial of the class A felony of second-degree drug trafficking.[1] See section 195.223.1 and .4.[2] Movant now appeals the denial after evidentiary hearing of his attempt to obtain post-conviction relief.

         Movant's first point claims that his appointed counsel filed his amended motion for post-conviction relief ("the amended motion") one day after it was due, and because the motion court made no finding as to whether this constituted abandonment by appointed counsel, "th[e] case should be remanded for an abandonment hearing." Movant also presents points that assert the motion court erred in denying ineffective assistance of counsel claims based on the failure to request jury instructions for the lesser included offenses of "class B felony trafficking" and "possession of a controlled substance" and the failure to call a particular witness.[3]

         We do not reach the merits, if any, of Movant's ineffective assistance claims because our review of the record does not preclude the possibility that Movant was abandoned by his post-conviction counsel. See Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015). We therefore reverse the motion court's "FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT ENTRY" and remand the matter for the motion court to conduct the necessary abandonment inquiry.

         Applicable Principles of Review and Governing Law

Before addressing the merits, we are compelled under Moore v. State 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. 458 S.W.3d 822 (Mo. banc 2015). If it is determined that an amended motion filed by appointed counsel is untimely, but there has been no independent inquiry into abandonment, then the case should be remanded to the motion court for such inquiry. Id. It is our duty to enforce the mandatory timelines in the post-conviction rules, but "the motion court is the appropriate forum to conduct such an inquiry" into abandonment. Id.

Childers, 462 S.W.3d at 827. We also keep in mind that if "all of the claims in both the pro se and amended motion have been adjudicated with written findings of fact and conclusions of law, remand would be pointless." Id. at 828; but see Hicks v. State, 514 S.W.3d 118, 121 (Mo. App. W.D. 2017) (reversal and remand required where the appellant's "pro se claims were not incorporated into his [a]mended [m]otion and were not considered and addressed by the motion court").

         The Timing of the Post-Conviction Motions

         We issued our mandate in Movant's direct appeal on October 21, 2014. Movant's "MOTION TO VACATE, SET ASIDE OR CORRECT THE JUDGMENT OR SENTENCE" ("the original pro se motion") was timely filed on January 20, 2015 because the 19th was a state holiday. See Rules 29.15(b) and 44.01(a). Post-conviction counsel was appointed on February 6, 2015, and on February 19, 2015, the motion court granted a 30-day extension for filing the amended motion. See Rule 29.15(g). On April 24, 2015, before counsel filed the amended motion, Movant filed a "PRO SE AMENDED MOTION PER TO [sic] [RULE] 29.15(e)" ("the amended pro se motion"). Counsel filed an "AMENDED MOTION UNDER RULE 29.15" ("the amended motion") on May 8, 2015, which the parties agree was one day beyond the due date of May 7, 2015. See id.[4]

         The original pro se motion asserted nine claims for relief.[5] In a separate section that spanned 51 pages, the original pro se motion alleged facts and analyses in support of his nine claims and added yet additional claims.[6]

         The amended pro se motion presented five separate claims, each coupled with supporting details and factual allegations under a single heading. The first two claims were that trial counsel was ineffective in failing to move to suppress evidence gathered after a traffic stop because: 1) the arresting officer did not personally observe a traffic violation and 2) the arresting officer could not rely on information he received from another officer. The third claim alleged ineffective assistance of appellate counsel based upon a failure to challenge the admission of a chemist's testimony given during Movant's first trial.[7] The fourth claim was that Movant's "Fifth, Sixth, and Fourteenth [Amendment] Right [sic] to trial was violated when the State failed to present evidence of the actual weight of the controlled substances obtained from Movant." The fifth claim was "Errors by Trial Court" that asserted the trial court sentenced Movant "without the possibility of probation or parole" as a prior offender under section 195.223 when "[n]one of [Movant's] prior offenses includes any of the charges that makes him eligible for non-parole [sic]."

         The tardy amended motion by appointed counsel asserted twelve claims, all under the general assertion that "Movant's trial counsel was ineffective[.]"[8] The twelfth such claim simply referenced photocopied pages from the original pro se motion and the amended pro se motion that were renumbered and included in the amended motion.[9]

         The transcript of the evidentiary hearing begins with a recitation of the case number, an announcement of those present, the taking of judicial notice of the underlying criminal case file, the admission of certain exhibits, and the calling of Movant as the first witness. No recitation of the particular motions or claims at issue was made. During the hearing, post-conviction counsel made the following inquiry of Movant:

Q. Now, your Pro Se Motion was attached as part of the Amended Motion, as far as your pro se aspects of your Motion is there anything you want the Court to know about that?
A. About the Pro Se Motion, just basically, like, my claims I have in there that I would like to have ...

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