Stewart v. State

          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 The facts of the underlying case as summarized in the unpublished memorandum by this Court which was provided to the parties in State v. Stewart, 495 S.W.3d 240 (Mo.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 ...