Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis Honorable
Mark H. Neill
M. Hess, Presiding Judge.
Barber ("Movant") appeals from the judgment denying
his Rule 29.15 post-conviction relief motion. Because we
do not have a sufficient record to review the motion
court's inquiry into abandonment, we reverse and remand
for the motion court to make a sufficient record of the
inquiry into abandonment.
and Procedural Background
2014, Movant was scheduled for a jury trial for two counts of
Robbery under § 569.020, two counts of Armed Criminal
Action under § 571.015, and one count of Resisting
Arrest under § 575.150. After learning about bench
trials, Movant approached his trial counsel with questions
about a bench trial. The details of the conversation(s)
between Movant and his trial counsel is contested. On
December 1, 2014, Movant waived a jury trial in open court
and signed a written waiver of his right to a jury trial. A
bench trial followed on December 2, 2014. At trial the court
took the case under submission after Movant testified. No
closing argument was made by the State or by Movant's
court found Movant guilty on all five counts. On December 4,
2014, Movant was sentenced to five concurrent
terms for a total of 20 years to be served in
the Missouri Department of Corrections. Movant directly
appealed the verdict. On April 27, 2016, this court issued a
mandate affirming the trial court's decision through a
per curiam order.
timely filed a pro se Rule 29.15 motion on May 26,
2016, alleging all of the following claims: identification by
the alleged victims; police testimony about weapons; the
lineup procedure; advice from trial counsel; conflict with
trial counsel; spoliation of evidence; ineffective assistance
of appellate counsel; abandonment of appellate counsel;
suggestive identification procedures; ineffective assistance
of trial counsel; prosecutorial misconduct; violation of RSMo
§ 544.170.1 (2005); violation of Rule 22.06; tampering
with evidence; and trial court error.
counsel entered an appearance on June 30, 2016. On the same
day, post-conviction counsel also moved for an additional 30
days to timely file an amended motion. No motions were filed
by Movant or post-conviction counsel for seven months. On
March 2, 2017, Movant filed a pro se motion to
disqualify post-conviction counsel and appoint new counsel.
On March 6, 2017, the motion court denied this motion.
31, 2017, post-conviction counsel filed an amended motion
accompanied by a motion ("timeliness motion") under
State v. Sanders, 807 S.W.2d 493 (Mo. banc 1991) to
treat the amended motion as timely filed due to abandonment
by post-conviction counsel. The amended motion included four
claims of ineffective assistance of counsel, specifically:
failure by trial counsel to object to sentencing as a
persistent offender; failure by appellate counsel to raise
the persistent offender issue on direct appeal; failure by
trial counsel to obtain Movant's consent to waive jury
trial ("jury waiver claim"); and failure by trial
counsel to present closing argument, to inform Movant of his
right to a closing argument, and to obtain consent to waive
closing argument ("closing argument claim").
9, 2017, nine days after the motion was filed, the motion
court signed the timeliness motion ordering the amended
motion to be considered timely filed without making any
comment or providing any rationale. On September 27, 2017, an
evidentiary hearing was held. During the hearing, the State
asked the court about the status of the timeliness motion.
The court replied, "Consider it granted," over the
evidentiary hearing, Movant and his trial counsel testified.
Movant's first two claims regarding sentencing as a
persistent offender were addressed and resolved by the motion
court by a resentencing at the hearing and the entry of a
corrected judgment form. In its judgment, the motion court
denied Movant's jury waiver claim and closing argument
claim, both of which come before us on appeal. The motion
court ruled Movant's jury waiver claim was "refuted
by the record made at the time of movant's waiver and by
the credible testimony of [trial counsel]." The motion
court ruled Movant's closing argument claim was
"without merit". The motion court made no findings
of facts or conclusions of law on any of the claims raised in
Movant's pro se motion. This appeal followed.
Amended Motion and ...