Moreover, regardless of whether the claims in the pro se motion for post-conviction for the murder conviction were cognizable, properly legally framed or duplicative of the claims in his robbery case, the trial court was required to appoint Costello an attorney. SeeBain v. State, 59 S.W.3d 625, 627 (Mo.App.E.D.2001). Appointment of counsel for an indigent movant is mandatory, not discretionary, under Rule 29.15(e).
Moreover, regardless of whether the claims in the pro se motion for post-conviction for the murder conviction were cognizable, properly legally framed or duplicative of the claims in his robbery case, the trial court was required to appoint Costello an attorney. SeeBain v. State, 59 S.W.3d 625, 627 (Mo.App.E.D.2001). Appointment of counsel for an indigent movant is mandatory, not discretionary, under Rule 29.15(e).
The Southern District noted, in dicta, that “[w]hile claims of error in the plea court's actions in the actual re-sentencing of Movant and in subsequently entering another judgment of conviction in the underlying criminal case are issues which could come before this Court by direct appeal or by another post-conviction motion, they are not before us in this appeal.” Id. at 614 (citing Bain v. State, 59 S.W.3d 625, 627 (Mo.App.E.D.2001) for support). Bain, however, is a case involving a jury verdict followed by the dismissal of an untimely direct appeal, a post-conviction motion, a resentencing, a second direct appeal, and a second post-conviction motion; it is not a case involving a direct appeal following a guilty plea. 59 S.W.3d at 626–27. Thus, we note that the reference to direct appeals in McKelvey was dicta and, in any event, the Southern District's reliance on Bain is misplaced.
The Southern District noted, in dicta, that "[w]hile claims of error in the plea court's actions in the actual re-sentencing of Movant and in subsequently entering another judgment of conviction in the underlying criminal case are issues which could come before this Court by direct appeal or by another post-conviction motion, they are not before us in this appeal." Id. at 614 (citing Bain v. State, 59 S.W.3d 625, 627 (Mo. App. E.D. 2001) for support). Bain, however, is a case involving a jury verdict followed by the dismissal of an untimely direct appeal, a post-conviction motion, a resentencing, a second direct appeal, and a second post-conviction motion; it is not a case involving a direct appeal following a guilty plea. 59 S.W.3d at 62627. Thus, we note that the reference to direct appeals in McKelvey was dicta and, in any event, the Southern District's reliance on Bain is misplaced.
There is nothing in the record indicating that Zeigenbein was actually re-sentenced; the record only documents the amendment to the charge to Count 1 of the judgment.First, Zeigenbein is misguided in citing to Kniest v. State, 133 S.W.3d 70, 71 (Mo.App. E.D.2003), and Bain v. State, 59 S.W.3d 625 (Mo.App. E.D.2001), in support of his claim. In Kniest, the Eastern District found that a second Rule 24.035 motion was not a successive motion barred by Rule 24.035(1) to the extent it raised claims of error regarding movant's re-sentencing hearing.
Thus, substantive claims presented in successive motions cannot be considered in the motion court. Edgington v. State, 860 S.W.2d 389, 391 (Mo. App. W.D. 1993). "Successive" means "one follows upon another." Bain v. State, 59 S.W.3d 625, 627 (Mo. App. E.D. 2001) (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2282 (1966)). Here, the second motion was not successive because it did not follow upon the earlier motion; rather Movant's re-sentencing intervened and his direct appeal of the first Rule 24.035 ruling followed.
Ct. App. 2003)(finding that movant's previous motion did not preclude him from attacking his sentencing because it did not provide an opportunity for him to raise the claims he brings now); People v. McPherson, 53 P.3d 679, 681 (Colo. App. 2001)(finding that resentencing does not restart statutory post-conviction remedy clock for movant to challenge underlying convictions); Boyd v. State, 106 So.3d 11, 12 (Fla. Dist. Ct. App. 2013)(determining that post-conviction remedy clock runs, for the purposes of challenging sentencing, when movant's sentence is filed); State v. Brumfield, 152 So.3d 870 (La. 2014)(finding that sentence vacation did not allow movant to challenge underlying conviction when facts for said motion were known at time of trial); Bain v. State, 59 S.W.3d 625, 626-27 (Mo. Ct. App. 2001); State v. Dugan, 627 A.2d 1240, 1242-43 (N.J. Super. Ct. App. Div. 1996); State v. Dawson No. 2012-CA-54, 2013 WL 1870540 at *4 (Ohio Ct. App. May 3, 2013); Baker v. State, 989 S.W.2d 739 (Tenn. Crm. App. 1998); but see also, State v. Viramontes, 118 P.3d 630, 631-32 (Ariz. Ct. App. 2005)(finding that resentencing starts the clock for movant's ability to challenge sentencing and underlying conviction).
Id. As Movant contends, the motion court's failure to appoint counsel was clearly erroneous. See Bain v. State, 59 S.W.3d 625, 627 (Mo.App.2001) ; Stroud v. State, 978 S.W.2d 785, 786 (Mo.App.1998) ; State v. Wendleton, 936 S.W.2d 120, 124 (Mo.App.1996). The order denying relief is reversed.
The State contends the criminal case became final when the conviction and sentence were imposed. See State v. Hotze, 250 S.W.3d 745, 746 (Mo. App. E.D. 2008). Thus, the second post-conviction motion challenged the same criminal conviction and sentence, and was successive, the State argues. Bain v. State, 59 S.W.3d 625 (Mo. App. E.D. 2001) (a re-sentencing and second direct appeal intervened, allowing the defendant to file a second post-conviction motion to raise claims relative to re-sentencing and the second direct appeal). However, we find the remand evidentiary hearing here similar to the re-sentencing in Kniest in that Movant could only raise claims related to the remand hearing in a second post-conviction motion, not in his first post-conviction motion prior to the remand hearing's occurrence.
(Emphasis added). While claims of error in the plea court's actions in the actual re-sentencing of Movant and in subsequently entering another judgment of conviction in the underlying criminal case are issues which could come before this Court by direct appeal or by another post-conviction motion, see Bain v. State, 59 S.W.3d 625, 627 (Mo.App. 2001), they are not before us in this appeal. Although we do not reach Movant's due process claim in this case, it appears to us, without necessarily so deciding, that Movant's right to challenge any alleged plea court error in his re-sentencing in the underlying criminal case by direct appeal or post-conviction relief motion provides Movant constitutionally required due process.