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Gittemeier v. State

Supreme Court of Missouri, En Banc

September 12, 2017

PAUL GITTEMEIER, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF WARREN COUNTY The Honorable Wesley C. Dalton, Judge

          PATRICIA BRECKENRIDGE, JUDGE

         Paul Gittemeier appeals the judgment overruling his amended Rule 29.15 motion for postconviction relief on the merits. Before considering the merits of a postconviction motion, however, this Court has a duty to determine whether the postconviction motion was timely filed. Mr. Gittemeier's retained counsel untimely filed the amended motion on Mr. Gittemeier's behalf. Although Mr. Gittemeier asserts the untimely filing must be excused because his retained counsel abandoned him, the abandonment doctrine does not apply to retained counsel. Rather, the abandonment doctrine originated as a means of ensuring appointed counsel complies with Rule 29.15. Because the abandonment doctrine does not excuse retained counsel's untimely filing, all claims raised in the amended motion were waived.

         The motion court, therefore, should have adjudicated only the claim raised in Mr. Gittemeier's timely pro se motion for postconviction relief, not those raised in the untimely amended motion. Nevertheless, the motion court did not clearly err in overruling Mr. Gittemeier's motion for postconviction relief. The ineffective assistance of counsel claim raised in Mr. Gittemeier's pro se motion is identical to a claim raised in his amended motion. Mr. Gittemeier failed to prove to that claim by a preponderance of the evidence at the evidentiary hearing. Consequently, the judgment of the motion court is affirmed.

         Factual and Procedural Background

         In 2012, Mr. Gittemeier was charged and convicted of one count of felony driving while intoxicated, section 577.010, [1] and one count of misdemeanor trespass in the first degree, section 569.140. The charges arose after Mr. Gittemeier rode his all-terrain vehicle (ATV) on his neighbor's lawn while intoxicated. The trial court sentenced Mr. Gittemeier as a chronic offender to concurrent sentences of 15 years in the department of corrections for driving while intoxicated and 90 days in the county jail for trespassing. His convictions were affirmed on direct appeal. State v. Gittemeier, 400 S.W.3d 838, 846 (Mo. App. 2013).

         On October 15, 2013, Mr. Gittemeier timely filed his pro se Rule 29.15 motion for postconviction relief. In his pro se motion, Mr. Gittemeier alleged his trial counsel was ineffective for failing to challenge whether an ATV is a motor vehicle for purposes of driving while intoxicated under section 577.010.

         On October 17, 2013, the motion court appointed postconviction counsel. Appointed counsel requested a 30-day extension to file an amended motion, which the motion court sustained. The amended motion was due January 15, 2014.

         On January 7, 2014, eight days before the amended motion was due, Mr. Gittemeier's appointed counsel filed a motion to withdraw and rescind appointment of counsel.[2] The following day, privately retained counsel filed an entry of appearance and a motion for extension of time to file an amended motion. The motion court entered an order sustaining appointed counsel's motion to withdraw, rescinding the appointment of counsel, and sustaining retained counsel's request for an additional 60 days to file an amended motion. Pursuant to the motion court's order, retained counsel had until March 16, 2014, to file the amended motion.

         On March 14, 2014, retained counsel filed an amended Rule 29.15 motion alleging 22 claims of ineffective assistance of counsel and one claim of prosecutorial misconduct. One of the ineffective assistance claims mirrored Mr. Gittemeier's pro se claim that trial counsel was ineffective for failing to challenge whether an ATV is a motor vehicle for purposes of driving while intoxicated under section 577.010. Following an evidentiary hearing, the motion court overruled the amended motion for postconviction relief. Mr. Gittemeier appealed. After opinion, the court of appeals transferred the case to this Court pursuant to Rule 83.02.

         Standard of Review

         This Court reviews an order overruling a Rule 29.15 motion for postconviction relief to determine "whether the motion court's findings of facts and conclusions of law are clearly erroneous." Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014) (internal quotation omitted). "Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made." Id. (internal quotation omitted).

         Retained Counsel Untimely Filed the Amended Motion

         The state asserts the motion court erred by considering Mr. Gittemeier's amended Rule 29.15 motion on the merits because it was untimely filed. At the time Mr. Gittemeier filed his motion for postconviction relief, a movant who had directly appealed his or ...


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