Opinion
No. ED88500.
April 10, 2007.
Appeal from Circuit Court of the City of St. Louis, Hon. Julian L. Bush.
Gwenda Renee Robinson, Counsel for Appellant.
Shaun J. Mackelprang, Counsel for Respondent.
APPEAL DISMISSED. Norton and Cohen, JJ., concur.
Opinion
Steven Crenshaw (Movant) appeals from the motion court's order denying his motion for post-conviction relief under Rule 29.15. Because we conclude the Movant's notice of appeal is untimely, we dismiss his appeal.
On January 9, 2003, the motion court denied Movant's motion for post-conviction relief under Rule 29.15 and issued findings of fact and conclusions of law. On March 25, 2005, Movant filed a motion to reopen his post-conviction proceedings for the sole purpose of re-filing the findings of fact and conclusions of law to allow him to file a timely notice of appeal. Movant asserted that his post-conviction counsel abandoned him, because counsel failed to take proper and necessary steps to perfect his appeal. Movant alleged that counsel failed to file a timely notice of appeal and further, failed to petition the Court of Appeals for leave to file a late notice of appeal within one year On August 7, 2006, the motion court entered an order finding Movant had been abandoned by post-conviction counsel and granted Movant until August 18, 2006 to file a notice of appeal. Movant filed his notice of appeal on August 7, 2006.
Movant also filed a motion to set aside the motion court's judgment on the basis that the judgment was void for lack of notice, citing Rules 74.06(b)(3) and 74.06(b)(4). On June 19, 2006, the motion court denied the motion to set aside the judgment as void. Movant has not appealed from the denial of this motion. In any event, such an appeal would have had no merit, because the Missouri Supreme Court has recently held that a motion under Rule 74.06 is not permitted in post-conviction proceedings. State ex rel. Nixon v. Daugherty, 186 S.W.3d 253, 254 (Mo. banc 2006).
This Court has a duty to determine sua sponte whether it has jurisdiction to hear an appeal. Eldridge v. Barnes, 189 S.W.3d 182, 183 (Mo.App.E.D. 2006). This Court issued an order directing Movant to show cause why his appeal should not be dismissed for lack of jurisdiction. This Court expressed reservation about whether Movant's post-conviction proceedings could be reopened under the circumstances Movant has presented. Movant has filed a response to this Court's order and the State has filed suggestions supporting dismissal of the appeal.
In the most recent discussion of when post-conviction proceedings may be reopened, the Missouri Supreme Court concluded that abandonment only occurs where: (1) post-conviction counsel takes no action at all on movant's behalf with respect to filing an amended motion; or (2) post-conviction counsel is aware of the need to file an amended motion, but fails to file a timely one. Barnett v. State, 103 S.W.3d 765, 774 (Mo. banc 2003). The Missouri Supreme Court then stated, "This Court has repeatedly held it will not expand the scope of abandonment to encompass perceived ineffectiveness of post-conviction counsel." Id. There is no constitutional right to counsel in a post-conviction proceeding and a post-conviction movant has no right to effective assistance of counsel. Id. Such claims are categorically unreviewable. Id. In addition, the Supreme Court has noted that abandonment may also exist if appointed post-conviction counsel has a conflict of interest, because under Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), the matter is treated as if no counsel had been appointed and the cause may be reopened. State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 217-18 (Mo. banc 2001). In these most recent expositions on the law of abandonment, the Supreme Court has not held that post-conviction proceedings may be reopened when post-conviction counsel fails to file a timely notice of appeal.
Some recent appellate decisions refer to a fourth possibility by stating that abandonment occurs when post-conviction counsel "files an amended motion that is so patently defective that it amounts to a nullity."Simmons v. State, 190 S.W.3d 558, 559-60 (Mo.App.E.D. 2006); See also, Hill v. State, 193 S.W.3d 390, 392 (Mo.App.S.D. 2006). This appears to be based on language used in State v. Bradley, 811 S.W.2d 379, 382 (Mo. banc 1991). In that case, the Supreme Court noted that ineffective assistance of post-conviction counsel is not cognizable on direct appeal of post-conviction proceedings, except where "the record shows not mere ineffectiveness but such a total default in carrying out the obligations imposed upon appointed counsel by Rule 29.15(e) as to constitute abandonment." Id. at 384. TheBradley court, however, refers only to the two exceptions previously set forth in Luleff v. State, 807 S.W.2d at 495 and Sanders v. State, 807 S.W.2d 493, 494 (Mo. banc 1991) and later reiterated in Barnett.Id. at 384-85. Therefore, the reference in Bradley does not create a separate abandonment exception.
Movant argues that this Court does have jurisdiction over the appeal, because a failure to file a timely notice of appeal in a post-conviction proceeding is abandonment, and not simply ineffectiveness of post-conviction counsel. Movant cites to several cases that were decided under the previous post-conviction proceeding, Rule 27.26 (repealed), which allowed successive motions, as well as to cases that were decided before Barnett. In addition, Movant relies upon a recent Western District opinion, Fenton v. State, 200 S.W.3d 136 (Mo.App.W.D. 2006), where movant sought to reopen his 27.26 proceedings. Without citing toBarnett, the Western District concluded that abandonment of post-conviction counsel did occur where post-conviction counsel completely failed to file an appeal, although specifically directed to do so by his client. Id. at 139. The court pointed out that "nothing in the statutes or rules or case law bars reopening of 27.26 judgment where post-conviction counsel fails to file an appeal." Id. Relying upon the "unique facts and circumstances of this particular case as well as motion counsel's egregious failure to file the appeal as directed by the client," the appellate court remanded the issue to the trial court to rule on the abandonment issue. Id. at 140.
At best, the Fenton decision applies only to Rule 27.26 proceedings. It relies upon Flowers v. State, 618 S.W.2d 655 (Mo. banc 1981). In Flowers, the movant was granted leave to file a successive 27.26 motion to allege abandonment by his post-conviction counsel for failing to perfect his appeal. However, after Flowers, Rule 27.26, which allowed successive motions, was repealed. Today, Rule 29.15 does not allow successive motions and the failure to include a claim in the initial motion acts as a procedural bar to successive motions or reopening of the motion. See, Evans v. State, 782 S.W.2d 402, 403-04 (Mo.App.E.D. 1989). Since this restructuring of post-conviction proceedings, the Missouri Supreme Court has only provided a limited number of exceptions to this procedural bar. The Fenton court did not address whether Flowers is applicable in 29.15 proceedings considering the Missouri Supreme Court's recent decision in Barnett.
We do not find Fenton or Flowers applicable to this motion to reopen a 29.15 proceeding. Movant's motion to reopen did not allege any of the grounds listed inBarnett as ground to reopen, nor did it allege that his post-conviction counsel had a conflict of interest such that his case should be treated as if no counsel was ever appointed as discussed in Jaynes. We are constrained to follow the Missouri Supreme Court's most recent decisions in this area. Therefore, the motion court had no authority for reopening Movant's post-conviction proceedings, reissuing the findings of fact and conclusions of law, and providing Movant with additional time to file a "timely" notice of appeal. Accordingly, Movant's notice of appeal, which was filed over three years after the denial of his 29.15 motion, was untimely.
The appeal is dismissed for lack of a timely notice of appeal.