IN THE MATTER OF THE CARE AND TREATMENT OF JAMES BRADDY, a/k/a JAMES A. BRADDY, a/k/a JAMES ARNOLD BRADDY, JR., Respondent-Appellant.
FROM THE CIRCUIT COURT OF IRON COUNTY Honorable Randall L.
W. SHEFFIELD, P.J.
Braddy ("Braddy") brings five points in
appealing a judgment that committed him to the Department of
Mental Health's custody following a jury finding that he
is a sexually violent predator ("SVP").
See sections 632.480 through 632.513.Finding that point
2 does not present a cognizable claim, and the remainder of
Braddy's points are not preserved for our review, we
2 - Ineffective Assistance of Counsel
point 2, Braddy argues that he was denied effective
assistance of trial counsel. Specifically, Braddy claims
trial counsel was ineffective for introducing certain
evidence of the process implemented to screen for potential
SVP's and failing to object to other evidence of that
same screening process.
parties initially dispute the proper procedural vehicle for
bringing a claim of ineffective assistance of counsel in SVP
proceedings (e.g., via direct appeal, a habeas
proceeding pursuant to Rule 91.01, or remand to the trial
court for an evidentiary hearing). We need not resolve this
dispute because Braddy's point collapses for a more
fundamental reason: no matter the procedural vehicle
employed, Missouri does not recognize a claim for ineffective
assistance of counsel following an SVP proceeding.
Braddy concedes that no Missouri court has yet recognized
such a claim. He argues, however, that Missouri should
recognize such a right based primarily on the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution and the Due Process Clause of the Missouri
Constitution. See U.S. Const. Amend. XIV; Mo. Const.
art. I, § 10 (1945). In support, he cites to cases from
a number of other jurisdictions, which he claims recognize
such a right.
Western District of this Court heard an identical argument in
Grado v. State, WD79756, 2017 WL 4622132, at *7-9
(Mo. App. W.D. Oct. 17, 2017). After summarizing the current
state of the law in this area, Grado concluded that
"[w]here the Missouri Supreme Court has had the
opportunity to recognize such a claim but has declined to
decide the issue or amend its own rules, we decline to take
such a leap at this time." Id. at *7.
Grado also addressed Braddy's reliance on cases
from other jurisdictions, finding that the application of
those holdings in Missouri "should more properly be
determined by the Missouri Supreme Court and the
legislature." Id. at *8.
agree with the reasoning employed by our sister district, and
"will not recognize a new cause of action for
ineffective assistance of counsel following a[n] SVP trial
where such a claim has yet to be recognized in this
state." Id. at *9. Point 2 is denied.
3 through 6 - Issues Not Preserved for Appellate
Court addresses points 3 through 6 together because they fail
for the same reason: they are not preserved for appellate
review due to the lack of a timely filed motion for new
78.04 governs the time for filing a motion for new trial in
civil cases, and provides that such a motion "shall be
filed not later than thirty days after the entry of
judgment." Rule 78.04. In jury-tried civil cases,
"allegations of error must be included in a motion for a
new trial in order to be preserved for appellate
review." Rule 78.07(a). Rule 78.07 makes exceptions only
for: "(1) [q]uestions of jurisdiction over the subject
matter; (2) [q]uestions presented in motions for judgment
under Rule 72.01(b); and (3) [q]uestions relating to motions
for directed verdict that are granted at trial." Rule
For purposes of this rule, to say that an allegation of error
in a motion for new trial is not preserved for review is the
same as to say that same allegation of error was not properly
before the circuit court. If an allegation of error is not
timely presented in a motion for new trial, then that
allegation is never properly before the circuit court and,
therefore, not preserved for review.
Smith v. Brown & Williamson Tobacco Corp., 410
S.W.3d 623, 641 (Mo. banc 2013); see also Miller v.
Varity Corp., 922 S.W.2d 821, 823 (Mo. App. E.D. 1996)
(finding that a motion for new trial that is not timely filed
preserves nothing for this Court's review); Greeson
v. Ace Pipe Cleaning, Inc., 830 S.W.2d 444, 446 (Mo.
App. W.D. 1992) (same holding). Here, the motion for new