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Harris v. State

Court of Appeals of Missouri, Southern District, Second Division

September 11, 2019

CORNELIUS JUNIOR HARRIS, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY Honorable John Spielman

          DON E. BURRELL, J.

         Cornelius Junior Harris ("Movant") appeals the Dunklin County Circuit Court's denial of his amended Rule 24.035[1] motion ("the motion"). As Movant suggests in his brief - and the State agrees - because the motion was filed out of time and the record does not indicate that the motion court conducted an abandonment inquiry, we must reverse and remand the matter for the motion court to determine whether Movant was abandoned by his appointed counsel.

         Background

         In March 2012, Movant pleaded guilty, pursuant to a plea agreement, to one count of possession of a controlled substance. At the time of his plea, Movant was on probation in two other cases The plea court revoked Movant's probation in those cases and imposed, concurrently, the previously-suspended, four and six-year sentences pursuant to section 217.362, [2] the long-term substance treatment program.

In exchange for his guilty plea in the current case,
the State agreed to recommend a six-year sentence on this charge pursuant to [section] 217.362, that that sentence initially run consecutive to the six and four which run concurrent with each other, both subject to [section] 217.362, all with placement in long-term substance abuse treatment program.
Further, that [Movant] be released until 6:00 p.m., Sunday, April 1st. That's this coming Sunday. And that if he returns without problem and not having committed any new offenses that this would be amended to be made concurrent with the other sentences. If he did not return at that time or if he had some kind of violations of law between now and then, then the 217 portion of all three sentences would be removed and it would remain this would remain a consecutive sentence. So there's a big risk.

         Movant and his counsel both agreed that the foregoing recitation was consistent with their understanding of the plea agreement. The plea court sentenced Movant accordingly, and it cautioned Movant that if he did not return as directed from his furlough, then his new sentence would run consecutively to the other two, and Movant would be "taken back to prison to serve [his] sentence."

         Movant did not return from his furlough on the appointed date, and he was arrested at his home on the plea court's capias warrant the following evening. As previously announced, the plea court deleted "[t]hat portion of the [j]udgment and [s]entence . . . sentencing [Movant] pursuant to [section] 217.362" and ordered Movant's new sentence to run consecutively with his previously-imposed sentences.

         Movant was delivered to the Department of Corrections on April 10, 2012. He timely filed his pro se motion on May 23, 2012. See Rule 24.035(b). On May 25, 2012, the motion court appointed counsel to represent Movant and granted an additional 30 days in which to file an amended motion. The transcript of the guilty plea and sentence was filed on May 31, 2012, making Movant's amended motion due on Wednesday, August 29, 2012. Rule 24.035(g). Movant's counsel did not file his amended motion until Thursday, August 30, 2012, one day after the deadline. The amended motion alleged that plea counsel was ineffective for failing to adequately communicate with Movant during the pretrial phase of his case and failing to adequately explain the consequences a failure to timely return from his furlough would have on his sentence.

         In January 2018, the motion court filed an "ORDER REQUIRING DEPOSITION OF MOVANT AND ORDER AUTHORIZING DEPOSITIONS OF OTHER WITNESSES" ("Order"). The motion court's Order stated that "[a] hearing is granted on the [a]mended [m]otion previously filed in this matter." It ordered that Movant's deposition testimony be taken by telephone, and it authorized the parties to take other depositions, including the deposition of plea counsel. While Movant's deposition testimony was never filed with the motion court, plea counsel's deposition testimony was filed on April 2, 2018.

         On November 14, 2018, the motion court issued its "judgment" denying Movant's amended motion. The judgment noted that Movant had filed an amended motion, that plea counsel's testimony had been submitted to the court, and it stated that "[f]indings of fact and conclusion[s] of law were not requested by either party."[3]

         Standard ...


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