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Barber v. State

Court of Appeals of Missouri, Eastern District, Second Division

February 26, 2019

JOSEPH BARBER, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Mark H. Neill

          Philip M. Hess, Presiding Judge.

         Introduction

         Joseph Barber ("Movant") appeals from the judgment denying his Rule 29.15[1] 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.

         Factual and Procedural Background

         In late 2014, Movant was scheduled for a jury trial for two counts of Robbery under § 569.020[2], 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 trial counsel.

         The court found Movant guilty on all five counts. On December 4, 2014, Movant was sentenced to five concurrent terms[3] 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.

         Movant 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.

         Post-conviction 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.

         On May 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").

         On June 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 State's objection.

         At 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.

         Discussion

         Untimely Amended Motion and ...


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