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Borschnack v. State

Court of Appeals of Missouri, Southern District, First Division

February 20, 2019

BILLIE JOE BORSCHNACK, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY Honorable Joe Z. Satterfield.

          REVERSED AND REMANDED WITH INSTRUCTIONS

          GARY W. LYNCH, J.

         Billie Joe Borschnack ("Movant") sought postconviction relief ("PCR") by a Rule 29.15 motion and now appeals the motion court's judgment denying him that relief.[1] The record on appeal establishes that a presumption arose in the motion court proceedings that Movant was abandoned by his court-appointed counsel. Because the record is not sufficient, however, for this court to determine on appeal whether the motion court's finding of actual abandonment by appointed counsel is not clearly erroneous, we reverse the judgment and remand the case to the motion court.

         Factual and Procedural Background

         By judgment entered on May 27, 2015, following a bench trial, Movant was convicted of assault in the first degree, see section 565.050, RSMo 2000, and sentenced to incarceration in the Department of Corrections for fifteen years. This court affirmed that judgment by mandate issued on March 3, 2016, in SD33932. Movant filed a Rule 29.15 PCR motion (the "initial PCR motion") on April 29, 2016, along with his completed "Forma Pauperis Affidavit."

         Four days later, on May 3, 2016, the motion court entered an order appointing "the Eastern Appellate/PCR Division for the State Public Defender" to represent Movant ("appointed counsel"). The order also granted an additional thirty-day extension for filing an amended motion.

         The motion court's appointment order also directed the clerk to mail a copy of the order, the docket sheet, and the initial PCR motion, along with copies of the docket sheets, informations, and judgments in the underlying criminal case to the "Office of the Eastern Appellate/PCR Division, State Public Defender, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101." The order further provided that "Clerk shall certify and make a part of the court file the date on which above documents were mailed to Eastern Appellate/PCR Division." No such certification or any other indication of the date that the clerk mailed such documents as directed is found in the motion court's docket sheet or anywhere else in the record on appeal.[2]The record reveals, however, that no attorney associated in any manner with the State Public Defender ever filed an entry of appearance or anything else on Movant's behalf in the motion court in this case.

         On January 23, 2017, Kevin L. Schriener filed his entry of appearance as Movant's retained counsel ("retained counsel"). Nothing in this document or elsewhere in the record on appeal indicates that appointed counsel was given notice of this filing or that Movant had taken any action to terminate his court-ordered representation by appointed counsel. Retained counsel then filed, on March 7, 2017, a "Motion to Determine Appointed Counsel's Abandonment and Allow Additional Time for Filing of Amended Motion by Retained Counsel." Nothing in the record indicates that a copy of this motion was served upon appointed counsel. The motion court scheduled this motion for hearing on April 12, 2017. Nothing in the record indicates that appointed counsel was notified of this setting. On that date, the docket sheet reflects the following docket entry:

04/12/2017 Hearing Held
Scheduled For: 04/12/2017 09:00 AM Judge: ROBERT N MAYER; Room: Courtroom A
PETITIONER APPEARS BY ATTORNEY KEVIN SCHRIENER; COURT GRANTS ADDITIONAL 90 DAYS FOR PETITIONER TO FILE AMENDED PETITION.

         Movant and the State concede that no other record of this hearing exists and that nothing in the record on appeal otherwise purports to support an abandonment determination by the motion court. Ninety days later, on July 11, 2017, retained counsel filed an amended Rule 29.15 motion (the "amended PCR motion").

         Based upon a stipulated record, the motion court entered its Judgment, Findings of Fact, and Conclusions of Law on July 10, 2018.[3] The motion court concluded that Movant's amended PCR motion was not timely filed and denied Movant's initial PCR motion, finding its conclusory ineffective assistance of counsel claim meritless. Movant timely appeals the motion court's judgment.

         Applicable ...


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