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Harshman v. State

Court of Appeals of Missouri, Western District, Third Division

January 30, 2018

BRYAN RAY HARSHMAN, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY The Ho norable Daniel F. Kellogg, Judge

          Before: Gary D. Witt, Presiding Judge, Lisa White Hardwick and Edward R. Ardini, Jr., Judges

          LISA WHITE HARDWICK, JUDGE

         Bryan Harshman appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. He challenges both the finality of the judgment and the motion court's decision to deny his motion without an evidentiary hearing. Because the motion court failed to adjudicate all of the claims raised in the motion, the appeal is dismissed for lack of a final judgment.

         Factual and Procedural History

         In May 2014, Harshman pleaded guilty to possession of a controlled substance with intent to distribute and keeping or maintaining a public nuisance. The court sentenced him to consecutive sentences of fifteen years in prison for the possession charge and three years in prison for the nuisance charge.

         Harshman timely filed a pro se Rule 24.035 motion for post-conviction relief in October 2014. In his pro se motion, he asserted several claims that he labeled: (1) "Ineffective Assistance of Counsel"; (2) "Malicious Prosecution / Vindictive Prosecution / Prosecutorial Misconduct"; (3) "Due Process Violations"; (4) "4th Amendment Violations"; and (5) "Intentional Cruel and Unusual Punishment (8th Amendment)." The motion court appointed the public defender to represent him, and appointed counsel timely filed an amended motion in February 2015. The amended motion asserted a claim of ineffective assistance of counsel for failure to investigate and prepare a particular defense. The amended motion also incorporated by physical attachment all of Harshman's claims from his pro se motion.

         At a subsequent hearing, the State moved to deny the amended motion without an evidentiary hearing. Harshman's counsel[1] explained that the claim in the amended motion was that plea counsel was ineffective for failing to investigate a defense that Harshman's ex-girlfriend had set him up and was the actual perpetrator of the crimes. The motion court found that Harshman's statements during the guilty plea hearing directly refuted any allegation that plea counsel failed to investigate or call witnesses; therefore, the motion court denied Harshman's request for an evidentiary hearing.

         The motion court then entered its judgment denying Harshman's amended Rule 24.035 motion. The findings of fact and conclusions of law in the judgment referred only to the claim raised in the amended motion. The motion court made no findings of fact and conclusions of law concerning the pro se claims that were incorporated by physical attachment into the amended motion. Harshman appeals.

         Standard of Review

         We review the denial of a post-conviction motion for clear error. Rule 24.035(k). "A final judgment is a prerequisite to appellate review." Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012). "A final judgment is one that resolves all claims and issues in a case, leaving nothing for future determination." Green v. State, 494 S.W.3d 525, 527 (Mo. banc 2016); Rule 74.01(b). If there is no final judgment, the appeal must be dismissed. Id. at 528.

         Analysis

         In Point I, Harshman contends the motion court's judgment was not final because it did not resolve all of the claims before the court, specifically, his pro se claims. The State agrees.

         Before the revision of Rule 24.035(g), which became effective on January 1, 2017, a movant could incorporate pro se claims into the amended motion by physically attaching them to the amended motion. Green, 494 S.W.3d at 528-29. In this case, Harshman's pro se claims were attached to the amended motion when it was e-filed. This incorporation by physical ...


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