Opinion
No. WD67823
May 30, 2008
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, THE HONORABLE JAMES D. WILLIAMSON JR, JUDGE.
Ruth Sanders, Esq., Kansas City, MO, for appellant.
Shaun J. Mackelprang, Esq., Jefferson City, MO and Lisa M. Kennedy, Jefferson City, MO, for respondent.
Before HARDWICK, P.J., SMART and WELSH, JJ.
David Gehrke appeals from the denial of a motion to reopen his post-conviction proceeding without an evidentiary hearing. For reasons explained herein, we reverse and remand for a hearing.
On February 20, 1999, Gehrke filed a pro se Rule 24.035 motion to vacate his guilty pleas and convictions for the following felonies: one count of forcible sodomy, one count of deviate sexual assault, four counts of first-degree statutory sodomy, and four counts of first-degree child molestation. The motion court denied post-conviction relief after appointed counsel filed an amended motion. On appeal, the cause was remanded for an evidentiary hearing. Gehrke v. State , 41 S.W.3d 615 (Mo.App. 2001).
Gehrke hired W. Geary Jaco to represent him at the hearing on remand. Following the hearing, the court denied the Rule 24.035 motion by issuing findings of fact and conclusions of law on September 7, 2001. Jaco did not file an appeal from the denial of post-conviction relief.
On August 10, 2006, Gehrke filed a Rule 75.01 motion to reopen his post-conviction proceeding. The motion alleged that Gehrke was abandoned by post-conviction counsel when Jaco failed to appeal the denial of the Rule 24.035 motion. The motion further alleged that Gehrke had requested counsel to appeal the judgment and that Jaco told Gehrke an appeal had been filed. Attached to the motion was a notice of appeal form that Jaco had partially completed for filing in the Jackson County Circuit Court. The notice of appeal was not in proper form and was unaccompanied by an in forma pauperis affidavit or filing fee. According to records of the Jackson County Circuit Court, the notice of appeal was never filed.
On September 14, 2006, the motion court entered an "Order" summarily denying the motion to re-open post-conviction proceedings. We dismissed Gerhke's initial appeal because the Order was not a final judgment. On December 6, 2006, the motion court denominated the Order as a "Judgment," and this appeal followed.
Appellate review of the denial of a request to reopen a post-conviction proceeding is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Fenton v. State , 200 S.W.3d 136, 138 (Mo.App. 2006). The findings and conclusions are deemed clearly erroneous if a full review of the record leaves us with a definite and firm impression that a mistake has been made. Carroll v. State , 131 S.W.3d 907, 908 (Mo.App. 2004).
Gehrke contends the circuit court erred in summarily denying his motion to reopen the Rule 24.035 proceeding because he stated a proper claim of abandonment based on his counsel's failure to file an appeal of the post-conviction motion. In light of our recent holding in Mitchem v. State , No. WD 67270 (Mo.App.W.D. modified May 27, 2008), we agree that Gehrke properly alleged abandonment and, therefore, was entitled to an evidentiary hearing on his claim.
As recognized in Mitchem , a motion court generally loses jurisdiction over a case thirty days after entering judgment. Mitchem, slip op. at 2 . However, a court is permitted to reopen a post-conviction proceeding on the ground that post-conviction counsel abandoned the movant. Id. "[T]he failure to file a timely appeal of a denial of post-conviction relief under Rule 29.15(k) constitutes abandonment because it would forfeit the movant's right to appeal." Id. at 4. A motion to reopen post-conviction proceedings states a valid claim of abandonment on this basis unless the delay in filing the appeal "resulted from movant's negligence or intentional conduct." Id.
Because Rules 29.15 and 24.035 are companion rules with identical language, cases applying Rule 29.15 are equally applicable here. See Crews v. State , 7 S.W.3d 563, 567 n. 1 (Mo.App. 1999).
Gehrke's motion to reopen post-conviction proceeding stated a proper claim of abandonment by alleging that Jaco failed to file an appeal of the denial of the Rule 24.035 motion. The motion further alleged that Gehrke asked Jaco to file an appeal, and there is no indication that Gehrke interfered with the filing of such appeal, whether negligently or intentionally. Based on these allegations, which are not refuted by the record, Gehrke was entitled to a hearing on his abandonment claim.
We reverse the judgment because the circuit court erred in summarily denying the motion to reopen post-conviction proceeding. The cause is remanded for an evidentiary hearing on the claim of abandonment.
All concur.
David Gehrke appeals from the summary denial of his motion to reopen post-conviction proceedings. He contends he was entitled to an evidentiary hearing on his allegation of abandonment by appellate counsel.
REVERSED AND REMANDED.
Div. I holds: Gehrke's motion stated a valid claim of abandonment in that his post-conviction counsel failed to appeal the denial of his Rule 24.035 motion. The judgment is reversed because the circuit court erred in summarily denying the motion to reopen post-conviction proceedings. The cause is remanded for an evidentiary hearing on the claim of abandonment.
THIS SUMMARY IS UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.