FROM THE CIRCUIT COURT OF WARREN COUNTY The Honorable Wesley
C. Dalton, Judge
PATRICIA BRECKENRIDGE, JUDGE
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.
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.
and Procedural Background
2012, Mr. Gittemeier was charged and convicted of one count
of felony driving while intoxicated, section 577.010,
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).
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.
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.
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. 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.
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.
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).
Counsel Untimely Filed the Amended Motion
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 ...