Opinion
No. 26690
March 7, 2006
Appeal from the Circuit Court of Jasper County, Honorable Jon Dermott, Circuit Judge.
William J. Fleischaker, Fleischaker, Williams Powell, Joplin, Mo., Attorney for Appellant.
Jeremiah W. Nixon, Attorney General, and Richard A. Starnes, Assistant Attorney General, Jefferson City, Mo., Attorneys for Respondent.
Tyrone Davis was shot to death on January 10, 1992. On February 28, 1992, Stephen J. Hill ("Defendant") was charged with the first degree murder of Davis. He was tried before a jury from February 17, 1993 to February 19, 1993. He was represented by Dan Gralike, an attorney from the Capital Litigation Division of the Public Defender's office, until the State waived the death penalty. After that occurred, he was represented by Mary Ellen Young and Nancy McKerrow.
The jury was not instructed on first degree murder. The court used the pattern instructions then in force. It gave MAI-CR 304.03 "Parties: Defendants' Responsibility for the Conduct for Another Person," incorporating pattern instruction 313.04 "Murder in the Second Degree Conventional." The jury found Defendant guilty and assessed his punishment at life imprisonment.
Defendant by his counsel filed a motion for new trial. Defendant also filed an eight-page handwritten pro se motion for acquittal or in the alternative, for a new trial. He also filed a second pro se motion for a new trial, which consisted of ten handwritten pages. The morning on which the court set hearings for those motions, the court received in open court an envelope which contained three additional pro se motions for a new trial. The court first heard counsel and overruled the motion filed by counsel. The court heard Defendant on the pro se motions. The court overruled all of the motions for a new trial and sentenced Defendant to life imprisonment. The court then advised Defendant of his right to appeal and his rights under Rule 29.13. The court reviewed with Defendant his complaints with his trial counsel and then found no probable cause for finding ineffective assistance of trial counsel. Trial counsel was directed to file an appeal.
Defendant filed a pro se Motion for Relief under Rule 29.15. That motion was thirty typewritten pages long. It was a rambling recital of his complaints about his trial and sentence. James C. Martin from the Appellate Division of the Public Defender's Office was appointed to represent Defendant on the motion. A hearing was held on February 27, 1995, and the motion was denied. Defendant appealed from that denial.
On appeal, the criminal conviction, case No. 18753, and the denial of the 29.15 motion, case No. 20394, were affirmed by a per curiam order opinion filed in this court on August 13, 1996.
On May 28, 2004, Defendant filed in the circuit court of Jasper County a pro se pleading entitled "Motion Requesting Sua Sponte Inquiry Into Abandonment/Conflict of Interest Upon This Court By Attorney James C. Martin concerning Motion to Vacate, Set Aside or Correct Judgment or Sentence and/or to Enter Appealable Judgment." This pleading, and its accompanying exhibits, consisted of twenty-eight pages. Defendant at one place referred to it as a Rule 29.15 motion. That motion did not comply with Rule 29.15(b) and was subject to dismissal. See State v. Owsley , 959 S.W.2d 789, 797-98 (Mo. banc 1997). The trial court denied this motion on June 2, 2004, and the judgment was made final for purposes of appeal.
Defendant's appeal from that judgment to this Court was rejected as untimely. See Reynolds v. State , 939 S.W.2d 451, 453-54 (Mo.App.W.D. 1997). Defendant then appealed to the Missouri Supreme Court. That court directed that this Court accept his appeal.
Rule 29.15 provides, in pertinent part:
A person convicted of a felony after trial claiming that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this Rule 29.15. This Rule 29.15 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated.
Rule 29.15 also provides, "The circuit court shall not entertain successive motions." Rule 29.15(l). In general, Rule 29.15(l) has been strictly followed. An exception has been recognized where post-conviction counsel abandoned the defendant. Luleff v. State , 807 S.W.2d 495, 498 (Mo. banc 1991). Therefore, this Court has jurisdiction to determine an issue of alleged abandonment by post-conviction counsel. Daugherty v. State , 116 S.W.3d 616, 617 (Mo.App.E.D. 2003).
To obtain relief from ineffective assistance of counsel, the defendant must show that counsel failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney, and that the defendant was thereby prejudiced. Winfield v. State , 93 S.W.3d 732, 735 (Mo. banc 2002); Wainwright v. State , 143 S.W.3d 681, 686 (Mo.App.W.D. 2004).
When a defendant is represented by counsel upon a hearing on a post-conviction motion under Rule 29.15, an alleged incident of ineffectiveness of counsel in that post-conviction proceeding cannot be converted into an abandonment of the defendant so as to permit the filing of successive motions under that Rule. See Brown v. State , 179 S.W.3d 404, 408 (Mo.App.S.D. 2005) (analyzing Rule 27.26 (now repealed)). Cf., Anderson v. State , No. 26925, slip op. at 4 (Mo.App.S.D. December 29, 2005). "At the outset, we note that it is a well-settled tenet of Missouri law that claims of ineffective assistance of post-conviction counsel are `categorically unreviewable.'" Shirely v. State , 117 S.W.3d 187, 189 (Mo.App.S.D. 2003). Nevertheless, this Court will, as the issues have been briefed and argued by both sides, consider Defendant's points presented in this appeal.
Defendant's first point is that his Rule 29.15 counsel abandoned him in that counsel failed to "call the post conviction court's attention to the verdict directing instruction which omitted an entire paragraph required by MAI-CR 304.04." In this point, Defendant refers to the form of that instruction in its current use. This point has no merit. In Defendant's trial in 1993, the trial court was required to and did give MAI-CR 304.04 applicable at the time of trial. That instruction submitted the same elements as the current form. It has been approved in a companion case. See State v. Hill , 884 S.W.2d 69, 74 (Mo.App. S.D. 1994). The point is denied.
Defendant's second point is that his Rule 29.15 counsel abandoned him in that Martin worked out of the same office as Dan Gralike, Mary Young and Nancy McKerrow and that during the time Martin was representing petitioner, Dan Gralike had become his supervisor, and there is an inherent conflict of interest when attorneys represent a petitioner in a post conviction proceeding when attorneys in the same office represented the petitioner at trial and the trial court should have granted an evidentiary hearing to determine if the conflict was prejudicial to petitioner.
It should be noted that all of the attorneys mentioned worked in the Office of the Public Defender. That, however, does not create a conflict. State v. Ward , 782 S.W.2d 725, 732 (Mo.App. E.D. 1989); Makenson v. State , 718 S.W.2d 112, 112 (Mo.App. S.D. 1986).
Under this point, Defendant presents arguments that his Rule 29.15 counsel failed to obtain information that would have aided him in his criminal trial. Defendant cannot in this guise assert the ineffectiveness of motion counsel to establish the ineffectiveness of his trial counsel constituted abandonment so as to permit a successive motion contrary to Rule 29.15(l). Vicory v. State , 117 S.W.3d 158, 160-61 (Mo.App.S.D. 2003); Brown , 179 S.W.3d at 408. The point is denied.
The judgment is affirmed.
Rahmeyer, P.J., and Parrish, J., concur.