Court of Appeals of Missouri, Western District, Second Division
Appeal
from the Circuit Court of Cole County, Missouri The Honorable
Robert D. Schollmeyer, Judge
Before
Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and
Gary D. Witt, Judge
Gary
D. Witt, Judge
Antwain
Stewart ("Stewart") appeals from the denial of
his pro se post-conviction motion filed under Rule
29.15.[1] Stewart argues that the motion court
erred, in violation of his rights to due process of law and
right to post-conviction relief under Rule 29.15, when it
accepted the statement in lieu of an amended motion filed by
his appointed postconviction counsel because Stewart's
pro se 29.15 motion is so facially defective that no
attorney could conclude it sufficiently pled sufficient facts
to support a claim. Finding no error, we affirm.
Facts
and Procedural History[2]
Stewart
was charged as a prior and persistent offender with one count
of first-degree burglary. Stewart was represented by
appointed counsel prior to trial but waived his right to
counsel and represented himself at trial. The facts of the
underlying case as summarized in the unpublished memorandum
by this Court which was provided to the parties in
State v. Stewart, 495 S.W.3d 240 (Mo. App.
W.D. 2016) are as follows:
[O]n April 18, 2013, at around 9:00 p.m., P.N. fell asleep in
her bedroom with the television on. P.N. left the door
unlocked for her son whom she expected home soon. At some
point, P.N. woke up and saw a silhouette of a man standing at
the end of her bed. Thinking that her son was home, she
called out his name, "Brendan." The man said,
"Yeah, it is me, Lemon." P.N. realized that the man
was not her son, and she moved to the side of the bed. She
could see the man's pants were off and that he had an
erection. When the man tried to get into bed with P.N., she
rolled off the bed and turned on a light. She first ran to
her son's room to make sure he was not there. P.N. then
ran to the bathroom, but the intruder grabbed the door. When
the intruder finally let go of the door, P.N. closed and
locked it.
P.N. stayed in the bathroom for a while, thinking that the
man would leave. P.N. could hear him running between the
bedrooms. She was afraid that her son would come home and the
intruder would kill him, so she ran out of the bathroom and
retrieved a knife that she kept under her mattress. While
holding the knife, P.N. told the man to get dressed because
he was leaving her house. The man said, "What, you
don't like black guys?" He then asked if she was
going to stab him. P.N. said "Yes, if you don't get
dressed and leave my house." When the man pulled up his
pants, a canvas bag or pouch fell on the floor. P.N. kicked
it into the closet. The man said that he needed it, so P.N.
picked it up and handed it to him. P.N. then walked the man
out of her home at knifepoint, after which she called the
police.
When the police arrived, P.N. gave them a description of the
intruder. P.N.'s neighbor overheard the conversation and
indicated that she knew where the man lived. The neighbor
directed the police to an apartment building about a block
away. The people there told the police that the man they were
seeking lived in a different apartment on the same street.
The police went to that apartment and found Stewart. He was
wearing the same clothing that P.N. had described and a
trench coat, like one P.N. described the intruder wearing,
was lying next to him.
Less than fifteen minutes after the crime, the police took
P.N. to Stewart's apartment building, which was two
blocks away. As P.N. remained in the police car, the officers
shone a spotlight on Stewart. Stewart was handcuffed behind
his back. He was wearing the same clothes, the same eye
glasses, the same bracelet, and the same canvas pouch that he
had on earlier. P.M. identified him as the intruder. She
testified that she was one hundred percent certain that
Stewart was the man who was in her house. P.N. also
identified Stewart in court.
Prior
to trial, Stewart filed a motion to discharge his appointed
counsel and represent himself. After a full hearing on that
motion, wherein the trial court fully explained the perils of
self-representation, the motion was granted. A few months
later, Stewart changed his mind and requested that counsel be
appointed to represent him at trial. That motion was granted,
counsel was again appointed to represent Stewart and the
trial was continued to allow appointed counsel to prepare.
Shortly before the new trial date, Stewart again filed a
motion to waive his right to counsel and to represent himself
pro se before the jury. After a hearing, where the
trial court again went over in detail the perils of
self-representation, that motion was granted and Stewart
proceeded to represent himself at trial. He was convicted by
the jury. Following the finding of guilt, the trial court
again appointed counsel to represent Stewart in filing a
motion for new trial and sentencing. After a sentencing
hearing the trial court sentenced Stewart to twenty-five
years in the Department of Corrections. Appointed counsel
represented Stewart on his direct appeal. His conviction was
affirmed.
On
October 3, 2016, Stewart timely filed a pro se
motion pursuant to Rule 29.15. That same day, the motion
court appointed counsel to represent Stewart on that motion.
The motion court granted a thirty-day extension of time to
file an amended motion.
On
December 29, 2016, post-conviction counsel timely filed a
statement in lieu of an amended motion. The statement in lieu
included the following declaration by counsel:
In the preparation of movant's post-conviction relief
case, counsel has discussed this case with movant over the
telephone and has reviewed the following: the underlying
trial and sentencing transcript, relevant court documents
from movant's criminal case, the file maintained by
movant's former attorneys from the underlying criminal
and direct appeal cases, and the pro se motion filed by
movant in the post-conviction case. Based on this review
counsel has determined that he will not file an amended
motion in the above-captioned matter in that there are no
potentially meritorious claims known to counsel, or facts in
support thereof that have been omitted from movant's pro
se motion.
The
statement in lieu further stated that "[p]ursuant to
Rule 29.15(e), movant may file a reply to this statement by
counsel not later than ten days after this statement is
filed." No reply was filed by Stewart.
On July
6, 2017, after a change of judge, the State was directed to
file an answer to Stewart's post-conviction motion. On
August 2, 2017, the State filed a ...