Court of Appeals of Missouri, Western District, Third Division
LANCE C. WAGGONER, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF LINN COUNTY, MISSOURI THE HONORABLE
FREDERICK P. TUCKER, JUDGE
Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge
and Alok Ahuja, Judge
C. HOWARD, JUDGE
Waggoner was convicted of unlawful use of a weapon following
a jury trial in the Circuit Court of Linn County and was
sentenced to four years' imprisonment. This court
affirmed his conviction on direct appeal. Waggoner filed a
motion for post-conviction relief under Supreme Court Rule
29.15, which the circuit court denied following an
evidentiary hearing. Waggoner appeals. We affirm.
2011, Waggoner lived in Bucklin with his wife Samantha
Waggoner and his eight-year-old stepson. On March 26, 2011,
Waggoner's stepson called 9-1-1 and reported hearing
gunshots. Waggoner's stepson told the dispatcher that he
did not know Waggoner's current location. At 9:40 p.m.,
Waggoner's wife called Bucklin City Marshal John Wright
on his cell phone to ask for help. Wright requested
assistance from police officers in Brookfield, and then
proceeded toward the home.
the home, officers met Ms. Waggoner and her son at the front
door. One of Ms. Waggoner's eyes was red and puffy, and
she had a black eye and swollen lip. When the officers went
inside, they found broken glass and debris throughout the
house. Additionally, officers discovered that a Hummer
vehicle had been driven through a closed garage door and away
from the home.
it was dark outside, an officer discovered the Hummer parked
in a field behind the house, about 100 to 200 yards away,
with an interior light on. After one of the officers pointed
a flashlight at the Hummer, a gunshot was fired from that
direction. The officers took cover. When they turned back
towards the Hummer, the interior light was off. Officers
decided to remove Ms. Waggoner and her son from the scene.
They believed that Waggoner was behind the house in or near
the Hummer. Because it was dark outside, however, the
officers decided to suspend the search for their own safety.
None of the officers ever saw Waggoner.
police returned to the scene with Ms. Waggoner to retrieve
personal items and search for evidence. Officers found tracks
leading from the house to the field and empty rifle and
shotgun shells in the field near where they had seen the
Hummer. A bullet hole was also discovered in the side of the
April 5, 2011, Waggoner was arrested in Nebraska. He was
transported back to Missouri, where he was charged with two
counts of unlawful use of a weapon and one count of resisting
arrest. Waggoner waived his right to counsel.
October 7, 2011, a jury trial was held. During the
instruction conference, the State agreed to dismiss one of
the two charges of unlawful use of a weapon, and the trial
court entered a judgment of acquittal on the resisting arrest
charge. Accordingly, only a single count of unlawful use of a
weapon was submitted to the jury.
jury returned a guilty verdict on the single count of
unlawful use of a weapon submitted to it. The circuit court
accepted the jury's recommendation that Waggoner be
sentenced to a term of four years' imprisonment. We
affirmed Waggoner's conviction and sentence on direct
appeal. See State v. Waggoner, 425 S.W.3d 140 (Mo.
App. W.D. 2014).
29, 2014, Waggoner filed a timely pro se motion for
post-conviction relief under Rule 29.15, which asserted
thirty-two separate claims.
the circuit court initially dismissed Waggoner's
post-conviction relief motion as frivolous, it later
reinstated the motion, appointed counsel, and granted counsel
an extension of time to file an amended motion. Appointed
counsel filed a timely amended motion on December 8, 2014.
Following an evidentiary hearing, the circuit court issued
its judgment denying Waggoner's post-conviction relief
motion on June 29, 2016.
review the denial of a motion for post-conviction relief to
determine whether the circuit court's findings of fact or
conclusions of law are clearly erroneous. See Rule
29.15(k); Cornelious v. State, 351 S.W.3d 36, 41
(Mo. App. W.D. 2011). "Findings and conclusions are
deemed clearly erroneous only if a full review of the record
leaves the appellate court with the definite and firm
impression that a mistake has been made." Id.
(internal quotation omitted). We presume the lower
court's ruling to be correct. Id. (citing
Strong v. State, 263 S.W.3d 636, 642 (Mo. banc
first Point, Waggoner argues that the motion court erred when
it failed to make a sua sponte inquiry into whether
Waggoner was abandoned by his appointed counsel.
defendants do not have a constitutional right to counsel in
post-conviction proceedings. Martinez v. Ryan, 566
U.S. 1, 9 (2012). Despite the lack of any
constitutional right to counsel, Missouri Supreme
Court Rules provide for the appointment of counsel for
indigent movants in post-conviction cases. See Rule
24.035(e), Rule 29.15(e) ("When … an indigent
movant files a pro se motion, the court shall cause counsel
to be appointed for the movant").
the right to counsel in post-conviction proceedings is not
constitutionally based, any claim that post-conviction
counsel was ineffective is "categorically
unreviewable." Barton v. State, 486
S.W.3d 332, 336 (Mo. banc 2016) (quoting Price v.
State, 422 S.W.3d 292, 297 (Mo. banc 2014)). Although a
movant cannot assert a claim of ineffective assistance by
post-conviction counsel, a movant may be entitled to relief
if the movant is "abandoned" because of
counsel's failure to discharge certain obligations.
Id. at 336-37. Rule 29.15(e) requires counsel to:
[A]scertain whether sufficient facts supporting the claims
are asserted in the [pro se ] motion and whether the movant
has included all claims known to the movant as a basis for
attacking the judgment and sentence. If the motion does not
assert sufficient facts or include all claims ... counsel
shall file an amended motion that sufficiently alleges the
additional facts and claims. If counsel determines that no
amended motion shall be filed, counsel shall file a statement
setting out facts demonstrating what actions were taken....
The Missouri Supreme Court has emphasized, however, that
[s]ince first recognized by this Court in Luleff v.
State, 807 S.W.2d 495');">807 S.W.2d 495 (Mo. banc 1991), and Sanders
v. State, 807 S.W.2d 493 (Mo. banc 1991), the claim of
abandonment by post-conviction counsel has been limited to
two circumstances -when post-conviction counsel: (1) takes
no action with respect to filing an amended motion
or (2) is aware of the need to file an amended motion but
fails to do so in a timely manner.
Id. at 334 (emphasis in original). Luleff
held that, where "there is no record of any activity by
counsel on movant's behalf, the motion court shall make
inquiry, sua sponte, regarding the performances of
both movant and counsel." 807 S.W.2d at 498.
does not claim there was no record of activity by counsel.
Instead he believes that Luleff required the circuit
court to engage in a sua sponte abandonment inquiry
in this case, because the amended post-conviction relief
motion filed by his appointed counsel made only "minor
changes" to his pro se motion, and therefore
failed to establish that appointed counsel fulfilled her
obligations under Rule 29.15(e). Waggoner attempts to bring
his case within the first category of abandonment recognized
in Barton: cases where appointed counsel "takes
no action with respect to filing an amended
motion." 486 S.W.3d at 334. Appointed counsel
did take action on Waggoner's behalf, however,
since counsel actually filed a timely amended motion for
post-conviction relief. This simply is not a case in which
counsel took "no action with respect to filing
an amended motion."
argues that the amended motion filed by appointed counsel
"is akin to filing no amended motion at all, "
because of what he considers limited modifications counsel
made to his pro se motion. Waggoner cites to our
decisions in Pope v. State, 87 S.W.3d 425, 428-29
(Mo. App. W.D. 2002) and Trehan v. State, 835 S.W.2d
427, 429-30 (Mo. App. S.D. 1992) to argue that abandonment
must be found where appointed counsel files an amended motion
which merely replicatesthe allegations of a pro se
motion with only minor, non-substantive modifications because
that is "tantamount to a total default in carrying out
the obligations imposed upon appointed counsel under the
rules." Id. at 428 (internal quotations
Supreme Court has provided recent guidance. In the present
case, as in Barton, appointed counsel filed an
amended motion with changes and additions the movant believed
were inadequate. Barton clearly states that
abandonment will only be found where appointed counsel
"takes no action with respect to filing an
amended motion, " 486 S.W.3d at 334, and Luleff
makes clear that an abandonment inquiry is only required
where "there is no record of any
activity by counsel on movant's behalf." 807 S.W.2d
at 498 (emphasis added).
provides an exhaustive critique of appointed counsel's
performance in what amounts to an impermissible claim for
ineffective assistance of post-conviction counsel. His
argument would require a circuit court to assess the extent,
and significance, of the modifications appointed counsel made
to a pro se motion. This sort of qualitative
assessment would necessarily - and improperly - require the
court to evaluate the effectiveness of post-conviction
counsel's efforts on the movant's behalf. Our Supreme
Court has emphasized that "the rationale behind the
creation of the abandonment doctrine in Luleff and
Sanders was not a newfound willingness to police the
performance of post-conviction counsel generally."
Price v. State, 422 S.W.3d 292, 298 (Mo. banc 2014).
The Court has also stressed that "[c]laims of
abandonment are reviewed carefully to ensure that the true
claim is abandonment and not a substitute for an
impermissible claim of ineffective assistance of
post-conviction counsel." Barton, 486 S.W.3d at
Supreme Court has explained the importance of maintaining a
clear distinction between claims of abandonment and claims of
ineffective assistance. Making this delineation between
abandonment and ineffective assistance claims is essential
both because it is required by Missouri law and because it
clarifies for the federal courts that litigants who received
ineffective assistance of post-conviction counsel may not
obtain relief in Missouri state courts. Gehrke v.
State, 280 S.W.3d 54, 59 (Mo. banc 2009), held that this
is important because:
[T]he Court limits the scope of abandonment to preserve
potential relief under federal habeas corpus proceedings.
Federal habeas corpus proceedings require a movant to exhaust
all available state remedies, including appeal and
postconviction remedies, before bringing a federal claim.
State court remedies are exhausted when they are no longer
available, regardless of the reason for their unavailability.
If the scope of abandonment were expanded further, it is
foreseeable that federal habeas corpus claims could be denied
due to a movant's failure to bring a motion to reopen
postconviction proceedings. This would frustrate the
legitimate goals of a prompt comprehensive review and
(internal quotations and citations omitted).
claim that his appointed counsel did not do enough to revise
his pro se post-conviction relief motion is "an
impermissible claim of ineffective assistance of
post-conviction counsel, " not a "true claim [of]
abandonment." See Barton, 486 S.W.3d at 338.
The first category of abandonment claims recognized in
Barton is limited to cases of non-action by
counsel; it does not apply in cases of purportedly
insufficient or incompetent action.
record in this case reflects actions by Waggoner's
appointed counsel in furtherance of counsel's obligations
under the rules. Counsel made multiple substantive revisions
to Waggoner's pro se motion. For example,
counsel corrected the date listed in the pro se
motion for issuance of this Court's mandate in
Waggoner's direct appeal, and added the docket number for
Waggoner's direct appeal to the motion. Under Rule
29.15(b), the date of the issuance of the direct-appeal
mandate is critical to determining the timeliness of a
pro se motion. In this case, ...