Opinion
No. 27441
March 6, 2007
Appeal From The Circuit Court Of Taney County Honorable John R. Hutcherson, Senior Judge.
Attorney for Appellant — Mark A. Grothoff.
Attorneys for Respondent — Jeremiah W. (Jay) Nixon, Roger W. Johnson
Oscar Glover ("Movant") brings this appeal from the denial of his Rule 29.15 motion, which contended that his appellate counsel was ineffective for failing to assert on direct appeal a claim regarding the admission of evidence and for trial counsel's failing to object to closing arguments of the State. We affirm the judgment.
All rule references are to Missouri Court Rules (2006), unless otherwise specified.
Movant was convicted of possession of cocaine with intent to distribute, a violation of § 195.211 and possession of more than thirty-five grams of marijuana with intent to distribute, a violation of § 195.211. The trial court sentenced him as a prior drug offender to consecutive terms of twenty years and ten years of imprisonment respectively. The conviction and sentence were affirmed by this Court in State v. Glover , 98 S.W.3d 917, 922 (Mo.App.S.D. 2003). In June 2003, Movant filed a timely pro se motion to amend or vacate the judgment and sentence under Rule 29.15, which motion was later amended in 2004 by counsel. In his pro se motion, Movant signed the in forma pauperis affidavit, but did not sign the motion itself. After an evidentiary hearing, the motion court denied relief in November 2005 and Movant appealed.
All references to statutes are to RSMo 2000, unless otherwise specified.
Although the Sentence and Judgment does not reflect that Movant was convicted as a prior drug offender, the trial judge clearly stated at the sentencing hearing that Movant was "found to be a prior offender under Section 195.275, 195.291."
The State, in its September 29, 2006 brief, cited Tooley v. State , 20 S.W.3d 519, 520 (Mo. banc 2000) and Denny v. State , 179 S.W.3d 381, 383 (Mo.App.W.D. 2005), to contend that the appeal should be dismissed for lack of jurisdiction because Movant never invoked the jurisdiction of the circuit court by filing an unsigned motion. In October 2006, Movant's appellate counsel filed in the motion court another copy of Movant's original motion, this time signed by Movant and notarized. A copy of the same was also furnished to this Court. This Court requested that the parties file supplemental suggestions addressing jurisdictional and procedural issues relating to Movant's failure to sign his original pro se motion. In the supplemental suggestions, the State claims the circuit court acquired jurisdiction to accept the filing because it was exercising a "purely ministerial" act and, thus, both the circuit court and this Court now have jurisdiction to determine the merits of the appeal. We reject the State's argument that the filing of the signed motion was a purely ministerial act, thus conferring jurisdiction on the court; yet, the question arises as to whether the motion court had the power or authority to hear and decide the motion during the period of time in which it remained unsigned.
We answer this question in the affirmative and will proceed to hear this appeal on its merits. Before proceeding to the merits, however, we acknowledge that our colleagues on the Western District of this Court have answered this question in the negative in Denny v. State , 179 S.W.3d 381, 383 (Mo.App.W.D. 2005). We offer the following explanation for our differing conclusion.
Jurisdiction of Unsigned Rule 29.15 motions
Effective January 1, 1988, and continuing through January 1, 1996, motions for post-conviction relief under both Rule 24.035 and Rule 29.15 required, under subsection (d) entitled "Contents of Motion" of each rule, that "[t]he movant shall verify the motion[.]"
"Verified," as used in Rules 24.035 and 29.15, means that a declaration required by Rules 24.035(d) and 29.15(d) must be made in a manner that is supported by a movant's oath or affirmation. A movant does that by subscribing to the required declaration while in the presence of someone authorized by Missouri law to administer oaths and affirmations. Upon a movant making the required declaration on his oath or affirmation, the person authorized to administer oaths and affirmations must affix an acknowledgment that the declaration was subscribed and sworn to in his or her presence.
Crawford v. State , 834 S.W.2d 749, 752 (Mo. banc 1992) (emphasis added). Thus, the verification requirement under these rules included a signature requirement.
The verification requirement was an essential element of the post-conviction motion. Kilgore v. State , 791 S.W.2d 393, 395 (Mo. banc 1990). An unverified motion, lacking an essential element, was a nullity which was not sufficient to invoke the court's jurisdiction to grant relief. Id. ; Malone v. State , 798 S.W.2d 149, 151 (Mo. banc 1990). This jurisdictional defect could be raised at any time, including on appeal. Malone , 798 S.W.2d at 151. The defect could not be corrected by Movant's verification of the motion after the time period under the rule for filing a post-conviction motion or amended post-conviction motion had expired. Id. ; Kilgore , 791 S.W.2d at 395.
In 1994, the Missouri Supreme Court, in State v. White , 873 S.W.2d 590, 593 (Mo. banc 1994), was confronted with a pro se post-conviction motion signed by the movant, but not notarized. The court stated:
Although we wish to avoid any unnecessary technicalities that hinder a movant's ability to file timely a pro se 29.15 motion, we remain stringent about the time requirements for post-conviction motions. To alleviate one technicality, however, we hold that henceforth, for purposes of filing a pro se 29.15 motion, the defendant's signature will be sufficient verification "that he has listed all grounds for relief known to him and acknowledging his understanding that he waives any ground for relief known to him that is not listed in the motion." Rule 29.15(d). We will still strictly adhere to the requirement that all grounds not raised in the pro se motion are waived, with the exception of those filed in a timely amended 29.15 motion.
Although we are relaxing the verification requirement for defendants' pro se 29.15 motions, we will continue to require amended motions filed pursuant to Rule 29.15(e) to be properly verified. . . . Since the amended motion is drafted by appointed counsel, it is necessary to have the amended motion verified in order to ensure that movant believes it is accurate and constitutes all grounds for relief known to movant.
Prior to January 1, 1996 both Rule 24.035(f) and Rule 29.15(f) provided that: "Any amended motion shall be verified by movant[.]"
Id. at 594.
Thus, after White , the defendant's signature standing alone on a pro se post-conviction motion satisfied the essential element and jurisdictional requirement that the motion must be verified. Id. Conversely, an unsigned pro se motion was an unverified motion and, as such, was a nullity which did not invoke the jurisdiction of the court. Kilgore , 791 S.W.2d at 395; Malone , 798 S.W.2d at 151.
Effective January 1, 1996, Rules 24.035 and 29.15 were amended to delete the verification requirement in subsection (d), entitled "Contents of Motion" in each rule. The verification-by-movant requirement in subdivision (g), entitled "Amended Motion" of each rule, was also deleted, but, in lieu thereof, the following was added: "Any amended motion shall be signed by movant or counsel." Rules 24.035 and 29.15. Following these changes, the first case to address a movant's failure to sign a motion for post-conviction relief was Tooley v. State , 20 S.W.3d 519 (Mo. banc 2000).
In Tooley , the movant failed to sign his pro se motion for post-conviction relief, and, within the applicable time period within which to file such a motion, the motion court dismissed it. Id. at 520. In its brief on appeal, the State argued that, even though the verification requirement had been deleted from Rule 24.035(d) by the 1996 amendments, the language that "the movant shall declare in the motion that" mandated the movant's signature on the pro se motion. Brief of Respondent at 4-6, Tooley v. State , 20 S.W.3d 519 (Mo. banc 2000) (No. SC82342), 1999 WL 33963570 (emphasis added). The State further argued that the lack of this required signature rendered the motion a nullity and that the motion failed to invoke the jurisdiction of the motion court in accordance with the holdings in Kilgore and Malone . Id. at 6.
Without responding directly to the State's argument, the supreme court in its opinion acknowledged: "It has long been held that an unsigned, unverified motion for post-conviction relief is a nullity and does not invoke the jurisdiction of the court." Tooley , 20 S.W.3d at 520 (citing Malone , supra). The court also stated, without any other citation to authority or other analysis: "The movant's signature remains as a mandatory element for jurisdiction to attach. Tooley's failure to sign his motion rendered it a nullity. The motion court's jurisdiction was not invoked at the time the motion was dismissed." Id. These statements will hereafter be referred to in this opinion as the "jurisdictional discussion."
Although it recited the jurisdictional substance of the State's argument for dismissal, the court in Tooley did not premise the movant's signature on anything contained in Rule 24.035, as urged by the State. Id. Instead, it found the signature requirement for a post-conviction motion in Rule 55.03. Id. This rule generally requires any filing with the court must be signed by the filing party or its attorney. Rule 55.03(a). The court looked to Rule 55.03(a) for guidance on how to deal with the unsigned pleading: "'An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.' Rule 55.03(a). Appellant should have the opportunity to correct the deficiency." Id.
Rule 55.03(a) was amended effective January 1, 2005. Before January 1, 2005, Rule 55.03(a) provided, in pertinent part:
Every pleading, motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name or, if the party is not represented by an attorney, shall be signed by the party. . . . An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.
The significance of the Tooley court premising the movant's signature upon Rule 55.03 is that movant's signature was, therefore, no longer an essential element of the motion. As previously discussed, the pre-1996 rules required that a motion for post-conviction relief contain verification by the movant. Thus, by definition, any document purporting to be a motion for post-conviction relief not containing verification by the movant could not be a motion for post-conviction relief because it was missing an essential element. Kilgore , 791 S.W.2d at 395. Such a document could not confer jurisdiction upon the court to enter a post-conviction relief judgment because no motion for post-conviction relief as defined by the rule had been filed. Id. ; Malone , 798 S.W.2d at 151.
As previously discussed, the amendments to Rules 24.035 and 29.15, effective January 1, 1996, redefined a motion for post-conviction relief by deleting the verification element from the contents of the motion, and within that element the requirement for movant's signature. Under the post-conviction rules as amended, it now became possible to meet all the definitional requirements for a post-conviction motion without the movant's signature being required under the post-conviction motion rule.
Post-conviction motions, however, are also "governed by the rules of civil procedure insofar as applicable." Rule 24.035(a); Rule 29.15(a); see Nicholson v. State , 151 S.W.3d 369, 371 (Mo. banc 2004). When the post-conviction motion rules no longer required movant's signature on the motion within the verification element, the general rule provided for in Rule 55.03, as cited and relied upon in Tooley , became applicable and required movant's signature. Tooley , 20 S.W.3d at 520. Nevertheless, unlike the previous verification requirement, the Rule 55.03(a) signature requirement is not a definitional element of a motion for post-conviction relief.
This means that the failure to comply with the Rule 55.03(a) signature requirement has no effect upon whether the motion court has jurisdiction to hear and decide a post-conviction relief motion which meets all of the definitional requirements of such a motion under either Rule 24.035 or Rule 29.15. This conclusion is evidenced through the fact that, as previously stated, Rule 55.03(a) contains its own sanction for non-compliance — striking the motion if the omitted signature is not promptly corrected. In enacting this rule, the supreme court could have just as easily provided as a sanction that the court lacked power or authority to take any action on the filing until it was signed. It chose not to do so.
The Tooley court reversed the dismissal of the motion and remanded the case to the motion court for compliance with Rule 55.03. Tooley , 20 S.W.3d at 520. This result was mandated by the application of and the requirements of Rule 55.03(a) and not by whether or not the motion court had jurisdiction to hear and decide the unsigned motion. Consequently, the jurisdictional discussion was not essential to the holding in Tooley and as such is obiter dicta. Richardson v. QuikTrip Corp. , 81 S.W.3d 54, 59 (Mo.App.W.D. 2002). While we are bound by the holdings of the Missouri Supreme Court, its dicta are not binding. McPherson v. U.S. Physicians Mut. Risk Retention Group , 99 S.W.3d 462, 484 (Mo.App.W.D. 2003) (citing State ex rel. Anderson v. Hostetter , 140 S.W.2d 21, 24 (1940)).
In 2004, the Missouri Supreme Court once again addressed the signature requirement on a motion for post-conviction relief in Wallingford v. State , 131 S.W.3d 781 (Mo. banc 2004). In that case, the movant filed his unsigned motion on the last possible date under the post-conviction rule, so there was no possibility of correcting the omission under Rule 55.03 within the applicable time period for filing a motion for post-conviction relief, as was the case in Tooley . Id. at 781. The motion court dismissed the unsigned motion citing the jurisdictional discussion in Tooley . Id. at 782. The supreme court in Wallingford gratuitously acknowledged that these "general propositions are accurate," but then proceeded to limit the holding in Tooley by stating: "[T]he specific holding of Tooley is that under Rule 55.03(a), movants have the opportunity to correct omission of a signature." Id. More significantly, the Wallingford court went on to hold that Rule 55.03(a) applies at any time in the case, including after the time period for filing a post-conviction relief motion has expired. Id. This holding is diametrically opposed to the jurisdictional discussion in Tooley .
If, as stated in Tooley , 20 S.W.3d at 520, "[t]he movant's signature remains as a mandatory element for jurisdiction to attach," and "failure to sign his motion render[s] it a nullity," then Rule 55.03(a) cannot be construed in any way to grant jurisdiction to the motion court to hear and decide a motion that, being unsigned on the last day of the time period within which it could be filed, was a nullity, but when signed after the expiration of that time period becomes a timely filed post-conviction motion. The only logical resolution of this apparent inconsistency is that the Wallingford court's acknowledgment of the jurisdictional discussion in Tooley is, like the jurisdictional discussion itself, not essential to the holding of the case, and, therefore, is dicta.
Likewise, in Carter v. State , 181 S.W.3d 78, 79 (Mo. banc 2006), the movant did not sign his pro se Rule 29.15 motion but signed the amended motion. The supreme court, citing to Wallingford and Rule 55.03, found that when Carter's attorney called the lack of signature to Carter's attention, it was corrected promptly by the filing of a properly signed amended motion. Id. at 80. The court noted that under Wallingford , the movant was allowed to correct the lack of signature four days after the amended motion was filed. Id. at 80 n. 4. The Carter court did not dismiss the appeal, but reversed and remanded with no discussion regarding any lack of jurisdiction. Id. at 80.
Subsequent to and citing Carter , Hensel v. American Air Network, Inc. , 189 S.W.3d 582 (Mo. banc 2006), further elaborated on Rule 55.03 and is instructive on the issue of whether jurisdiction attaches to an unsigned Rule 29.15 motion. In Hensel , the issue was whether jurisdiction attached when an attorney, not authorized to practice law in Missouri, was the only attorney to sign a petition prior to the expiration of the statute of limitations. Id. at 582. The trial court found a lack of jurisdiction and granted summary judgment to the defendants. Id. at 582-83. The supreme court stated:
This Court has recently reaffirmed that the lack of a signature is not necessarily fatal to the filing of a petition. Carter v. State , 181 S.W.3d 78, 79-80 (Mo. banc 2006). A different rule should not apply to a petition not properly signed. This is consistent with the purposes set out in Rule 55.03-to ensure that:
(1) the claim, defense, request, demand, objection, contention, or argument is not presented or maintained for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Rule 55.03(b). The signature requirement is not intended to deprive litigants of a right of action.
Id. at 583.
The court found the petition was not a nullity even though it was "unsigned" because of "[t]he purpose of declaring certain acts by those not authorized to practice law a nullity is to protect the public." Id. at 584. In analyzing the purpose under the facts of the case, the court found when "the only issue of unauthorized practice is the signature on the petition required by Rule 55.03, the sanction of depriving the litigant of a cause of action [was] disproportionate to the harm." Id. "Where a petition is not signed or signed by an improper person, Rule 55.03 provides the sanction — the petition shall be stricken unless the omission is corrected promptly after being called to the attention of the attorney or party filing same." Id.
It is within the foregoing context that we now address the Western District's decision in Denny . Mr. Denny filed a pro se motion under Rule 24.035. Denny , 179 S.W.3d at 382. The motion court appointed counsel for Denny and then later denied the motion without an evidentiary hearing. Id. On appeal, Denny claimed that the motion court erred in failing to enter specific findings of fact and conclusions of law on each of his claims. Id. The court did not reach the merits of the appeal after discovering that Denny had failed to sign the motion. Id. at 382-83. After quoting the jurisdictional discussion in Tooley , the Denny court held: "Because the motion court never acquired jurisdiction, it did not have the power to appoint counsel or rule on the motion. Its judgment must be reversed." Id. at 383. However, the court noted the applicability of Rule 55.03 and the fact that the record contained no indication that the omitted signature had been brought to movant's attention, and determined that movant should be afforded an opportunity pursuant to Rule 55.03(a) to correct the error. Id. The court then stated, without citation to authority: "If he chooses to remedy the oversight, the motion court will have jurisdiction to rule on the motion." Id.
While we recognize and understand the seeming allure of the purported black-letter statements of the jurisdictional discussion in Tooley and why it forms the basis for the decision in Denny , supra, we are unwilling to yield to its charms. First, either the motion court has jurisdiction to decide a motion for post-conviction relief at the time it is filed or it does not. This was clearly the state of the law prior to January 1, 1996. Except for the jurisdictional discussion in Tooley and its progeny, the application of Rule 55.03(a) to post-conviction motions filed after January 1, 1996, does nothing to defeat the motion court's jurisdiction unless and until the unsigned motion is stricken in accordance with the provisions of that rule. Rule 55.03(a). Second, our non-jurisdictional position on the application of Rule 55.03(a) harmonizes Tooley , Wallingford , Carter and Hensel , in that the holdings in all four cases had nothing to do with the court's jurisdiction, but dealt solely with the application of the sanction provided for in that rule.
Denny is the only case in which the citation to the jurisdictional discussion in Tooley is essential to its holding that the trial court was without jurisdiction to appoint counsel and rule on the unsigned motion. The remaining cases fall into two other categories in which the trial court's jurisdiction was not essential to the holding: either (1) the trial court took no action on the unsigned motion other than dismissal, Wallingford , supra; Carter , supra; Penn v. State , 209 S.W.3d 533, 534 (Mo.App.E.D. 2006), or (2) the movant failed to promptly correct the omission after it was brought to the movant's attention. Blanton v. State , 159 S.W.3d 870, 871 (Mo.App.W.D. 2006); Penn , 209 S.W.3d at 534 n. 1 (explaining that in Henderson v. State , 196 S.W.3d 65, 66 (Mo.App.E.D. 2006) and Purham v. State , 199 S.W.3d 908, 908 (Mo.App.E.D. 2006), movants' appeals were dismissed for failure to sign their pro se motions for post-conviction relief; however, a review of the appellate record in each case revealed that appellate counsel knew of the lack of movants' signatures, but took no action during the appeals to correct the deficiencies).
Therefore, in the instant case we find that Movant's unsigned pro se motion for post-conviction relief meets all the definitional requirements of a motion for post-conviction relief under Rule 29.15(d) so as to invoke the jurisdiction of the circuit court to hear and decide the motion, which it did. The failure to comply with the signature requirement of Rule 55.03(a), a procedural rule, has been remedied pursuant to the provisions of that rule. We respectfully reject the holding in Denny , which finds the unsigned Rule 29.15 motion a nullity conferring no jurisdiction but allows, under Rule 55.03, an unlimited tolling of time requirements for filing a signed motion, as unmanageable as a practical matter and leading to the ultimate untenable conclusion that no judgment on an unsigned Rule 29.15 motion is final. We now proceed to decide the merits of Movant's appeal.
Facts
In July, 1999, Lieutenant Steve Daulton ("Daulton") of the Branson Police Department was involved in the investigation of a condo unit in Branson, Missouri, which was inhabited by Movant and Nathaniel Meadows ("Meadows"). Because there had been numerous complaints of heavy traffic in and out of the condo, Daulton performed a surveillance of it for a two-week period. On July 22, 1999, for an hour-and-a-half after Movant returned home, eight vehicles came and went, staying just a very short period of time. Daulton and the Combined Ozarks Multijurisdictional Enforcement Team ("COMET") executed a search warrant on August 5, 1999, at the condo unit. Meadows answered the door and Movant was sleeping on a couch in the living room.
During the search, police found a shoebox containing six baggies of marijuana, weighing a total of 833.79 grams, in the closet of the master bedroom. In the shoebox were pieces of paper with names and telephone or pager numbers on them, various documents with Movant's name on them, and what officers referred to at trial as an "owe list," a "list people keep when the — it's what we call front somebody drugs. They don't make them pay for them right then and there." The owe list specified that "Nate" owed a "QP," which officers testified was an abbreviation for a quarter pound of drugs. The officers also found $3,460 inside a shoe in the far back of the master bedroom closet. Additionally, in a nightstand in the master bedroom were various other personal items belonging to Movant, including a photo ID with Movant's picture and the name of "Marcus Hadaway" on it. Officers also found a small measuring scale and three plastic baggies of crack cocaine in the pocket of a red jacket that was hanging in the master bedroom closet. The three baggies weighed a total of 79.26 grams. Inside another jacket pocket were some personal documents with Movant's name, Movant's social security card, another "owe list," and a videotape. The videotape showed Movant engaging in sexual intercourse and is the subject of Movant's first point on appeal.
Point I
Movant claims his appellate counsel was ineffective for failing to assert on his direct appeal the trial court's decision to allow testimony concerning the videotape described as showing Movant engaged in sexual intercourse. Movant claims he was prejudiced by that failure because the tape was more prejudicial than probative and thus legally irrelevant. There are two types of relevant evidence, logical and legal. State v. Tisius , 92 S.W.3d 751, 760 (Mo. banc 2002). Evidence is logically relevant if it tends to make any fact at issue more or less probable or tends to corroborate other relevant evidence. Id.
Conviction of possession with intent to distribute requires proof of (1) conscious and intentional possession, actual or constructive; (2) awareness of the presence and nature of the substance; and (3) intent to distribute it. State v. Sanderson , 169 S.W.3d 158, 164 (Mo.App.S.D. 2005). To show constructive possession, the State had to show, at a minimum, that Movant had "access to and control over the premises where the substance was found." State v. Purlee , 839 S.W.2d 584, 588 (Mo. banc 1992). Where there is joint control of an area, something additional is required to connect the accused to the drugs. Id. For example, presence of Movant's personal belongings in close proximity to the drugs may support an inference that he possessed the drugs. State v. Foulks , 72 S.W.3d 322, 326 (Mo.App.S.D. 2002).
The disputed issue was whether Movant was in possession of the marijuana. At trial, Movant claimed his roommate, Meadows, possessed the drugs. He called Meadows as a witness to present evidence that Meadows had initially written a statement saying that Meadows, and not Movant, owned all the drugs in the apartment. Clearly, the personal nature of the tape in the same jacket as the drugs made it more probable that Movant was the possessor of the jacket and, thus, in constructive possession of the drugs. The tape was logically relevant.
The issue in Movant's Point I addresses the legal relevance of the tape. Legal relevance is a determination of the balance between the probative and prejudicial effect of the evidence. Tisius , 92 S.W.3d at 760. "Any incriminating evidence offered against the defendant is prejudicial." State v. Kreutzer , 928 S.W.2d 854, 867 (Mo. banc 1996). The prejudice is only unfair if it would cause a jury to convict of the charged crime without regard to the probative value of the contested evidence. See State v. Dowell , 25 S.W.3d 594, 602 (Mo.App.W.D. 2000) (explaining that prejudice is a function of whether the admission of the evidence would cause a jury to convict as to the charged crimes simply because the defendant had engaged in prior bad acts). Balancing the probative value and prejudicial effect of the evidence rests within the sound discretion of the trial court. State v. Hayes , 88 S.W.3d 47, 60 (Mo.App.W.D. 2002).
To be clear, we are not discussing the actual contents of the videotape in that the videotape was not shown to the jury nor was a detailed description of its contents admitted. What was admitted was the following testimony from a police officer concerning the videotape:
[Prosecutor]: [D]id you view that tape as part of your duties as evidence officer to determine its contents?
[Officer]: Yes.
[Prosecutor]: And can you tell me, does that videotape depict [Movant] engaged in sexual intercourse?
[Officer]: Yes.
Additionally, the prosecutor, during closing argument, stated that the personal nature of the videotape showed that only Movant would have had it. He further argued that the presence of the personal tape with the drugs in the master bedroom closet, along with numerous other personal items belonging to Movant in the room, supported the conclusion that Movant occupied the master bedroom and possessed the drugs.
We do not find the limited testimony that the tape showed Movant engaging in sexual intercourse to be so prejudicial as to convict Movant without regard to its probative value. Movant was charged with drug-related charges. We feel certain that the jury was not simple-minded enough to convict Movant of drug-related charges only because he had a tape in his own possession of himself engaged in sexual intercourse. The probative value on the issue of who would have possession of that tape was relatively high and the prejudicial value relatively low. We do not find merit to Movant's claim that his appellate counsel was ineffective in not raising the issue. Failing to raise a nonmeritorious claim does not convict counsel of being ineffective. State v. Nunley , 923 S.W.2d 911, 924 (Mo. banc 1996). Point I is denied.
Point II
Movant claims in his second point that his trial counsel failed to act as a reasonably competent attorney under the same or similar circumstances "by failing to object to the State's improper closing argument in which the prosecutor personally vouched for a witness, Nathaniel Meadows." As noted in the discussion on Point I, Movant called Meadows as a witness to substantiate Movant's contention that the drugs belonged to Meadows. After Meadows admitted to writing a statement claiming ownership of the drugs, Meadows made a second statement where he admitted that the drugs in the small bedroom were his and admitted that he had sold drugs, but said the drugs in the master bedroom were not his. Meadows explained that he lied in his first statement after Movant asked him to "take the rap for him."
Meadows further testified that his second statement was the true one and claimed he was telling the truth in the second statement and at trial. Meadows was questioned by both the prosecutor and Movant's counsel about the contradictory statements. On redirect, Meadows testified:
[Movant's Counsel]: But instead, you backed up and said, 'No, wait. I was lying the first time I gave a sworn statement. This sworn statement is the real truth," right?
[Meadows]: Yes.
[Movant's Counsel]: Okay.
[Meadows]: The second statement is.
[Movant's Counsel]: And today you're sitting here saying, "Hey, listen. What I'm saying today is the truth," right?
[Meadows]: Yes.
. . . .
[Movant's Counsel]: Mr. Meadows, are you aware that perjury is also a crime?
[Meadows]: Yes.
[Movant's Counsel]: To testify falsely under oath?
[Meadows]: Yes.
[Movant's Counsel]: And you're still willing to hold out to the jurors that your testimony today is true, is that correct?
[Meadows]: Yes.
During closing argument, the prosecutor referred to Meadow's testimony about telling the truth: "Nathaniel also sat in that chair and told you, quote, I told the truth, end quote, with regard to his second statement. . . ." Movant's counsel then argued that the only testimony linking Movant to the master bedroom and the drugs hidden there was from Meadows and Meadows could not be believed because he was a "self-proclaimed liar."
The prosecutor on rebuttal stated:
Much has been made of — of Nate, and I've covered that a little bit. The defense wants you to believe that Nate is lying; however, Nate took responsibility for the marijuana and cocaine that was in his room. Yes, he had an agreement with the State, but that makes no difference because Nate told you the truth. He sat there and told you.
. . . .
Nate did, however, come back in and did tell the truth, and he told you the truth in court today.
Movant claims the rebuttal argument of the prosecutor constituted improper personal vouching for a witness and his attorney should have objected to it. Movant notes that "[a] prosecutor's statement of personal opinion or belief not drawn from the evidence is improper." State v. Storey , 901 S.W.2d 886, 901 (Mo. banc 1995). Movant claims that had trial counsel objected to the "improper arguments," there is a reasonable probability that the outcome of Movant's case would have been different.
Trial counsel testified at the evidentiary hearing on Movant's Rule 29.15 motion that he rarely objects during closing because of how it looks to the jury. He also thought it was possible that he did not object to the statements about Meadows telling the truth because the arguments would have been a proper response to counsel's own closing argument and that it was a proper summary of Meadow's testimony from trial. We agree.
Stating that a witness is telling the truth does not constitute vouching as long as the prosecutor does not imply that the statement is based on evidence not before the jury. See State v. Vaughn , 32 S.W.3d 798, 800 (Mo.App.S.D. 2000) (holding that prosecutor's statement that victim's story had never changed "because that [was] the truth" was not improper vouching because it was an expression of opinion fairly drawn from the evidence). The prosecutor's statements that Meadows was telling the truth did not refer to facts outside the evidence or infer that the prosecutor had evidence that was unknown to the jury. He specifically referred to Meadows' trial testimony and to defense counsel's statements that Meadows was a liar. As such, it was not improper vouching.
The motion court was not clearly erroneous in finding a failure of proof in Movant's claim. Point II is denied.
Although the foregoing discussion disposes of all the issues presented by Movant's appeal, there is one final matter to address. The trial court committed a clerical error by failing to note in the Sentence and Judgment that Movant was "found to be a prior and persistent offender under Section 195.275, 195.291" as it announced at the sentencing hearing. See State v. Taylor , 123 S.W.3d 924, 931 (Mo.App.S.D. 2004). Such an error in the judgment may be corrected provided that it was the result of an oversight or omission. Rule 29.12(c); see also State v. Lloyd , 205 S.W.3d 893, 910 (Mo.App.S.D. 2006). Accordingly, while we affirm Movant's conviction and sentence, we remand this case with instructions to the trial court to enter an amended written judgment reflecting Movant's prior offender status as it was announced by the trial judge in open court. State v. Dillard , 158 S.W.3d 291, 305 (Mo.App.S.D. 2005).
Parrish, J., concurs in the dissent of J. Scott.
Garrison, J., concurs.
Barney, J., concurs.
Bates, C.J., P.J., concurs.
Lynch, J., concurs.
Scott, J., dissents in separate opinion.
DISSENTING OPINION
Although I believe the majority opinion correctly analyzes the jurisdictional and substantive issues of Movant's appeal, precedent compels my dissent therefrom.
Seven years ago, our supreme court considered whether circumstances had "brushe[d] aside the requirement to file a signed motion to invoke the court's jurisdiction" — and unanimously concluded they had not. To the contrary, Tooley declared that a movant's signature remains mandatory for PCR jurisdiction to attach; non-signature renders the motion a nullity; and the motion court's jurisdiction is not invoked thereby. 20 S.W.3d at 520.
Three years ago, our supreme court in Wallingford reiterated as "accurate" Tooley's general propositions that "signature remains as a mandatory element for jurisdiction to attach" and "failure to sign [a] motion renders it a nullity" ( 131 S.W.3d at 782) — propositions our supreme court has not repudiated, and which our lower courts have embraced, in PCR cases since 2000.
One can persuasively argue, as the majority has done, that a movant's signature should not be treated as jurisdictional. I would so hold if we were writing on a clean slate. But Tooley , Wallingford , Carter , Penn , Blanton , Denny , and similar decisions represent an unbroken line of precedent — spawned by two recent Missouri Supreme Court cases making point-blank jurisdictional declarations — that I may disagree with, but cannot ignore. Thus, until our supreme court clarifies or disaffirms Tooley's jurisdictional declarations, I think they force us to conclude Movant's motion was "a nullity" and jurisdiction was "not invoked" until Movant signed it in October 2006.
If so, and unless the cure operates retroactively, I would share Denny's conclusion that the motion court never acquired power to appoint counsel or rule on the motion, so its judgment must be reversed and the case remanded to start again. 179 S.W.3d at 383. I considered retroactive corporate reinstatement a possible analogy to avoid this undesirable result. See Amoco Oil Co. v. Hembree , 776 S.W.2d 68, 69-70 (Mo.App. 1989) (corporate reinstatement closes the gap between revocation and reinstatement, as if the corporate existence never was interrupted). But Section 351.488 dictates that retroactivity. I found no comparable ground to stake such a claim here.
While Tooley compels me to dissent, its jurisdictional pronouncements portend continuing problems. Hensel 's jurisdictional/Rule 55.03 analysis is better than Tooley's , and thus should be extended to PCR cases as well. Unsigned PCR motions should not be considered nullities, but as defective — although jurisdictionally effective — filings subject to being stricken on a Rule 55.03 motion, just as a petition that fails to state a claim invokes the court's jurisdiction, but is subject to dismissal on a Rule 55.27 motion. By analogy to Hensel , Rule 55.03 should be a basis to strike unsigned PCR motions unless promptly cured; not a vehicle to breathe first life into nullities. Hensel's more principled analysis and more effective framework have Tooley's advantages, without its obvious pitfalls.