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In re Care and Treatment of Braddy

Court of Appeals of Missouri, Southern District

November 29, 2017



          MARY W. SHEFFIELD, P.J.

         James Braddy[1] ("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.[2]Finding that point 2 does not present a cognizable claim, and the remainder of Braddy's points are not preserved for our review, we affirm.

         Point 2 - Ineffective Assistance of Counsel

         In 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.

         The 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.

         Indeed, 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.

         The 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."[3] 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.

         We 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.

         Points 3 through 6 - Issues Not Preserved for Appellate Review

         This 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 trial.

         Rule 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.[4] 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 78.07(a).

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 ...

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