Michael Gene Gunn v. State of Missouri , 484 S.W.3d 106 ( 2015 )

In the
Missouri Court of Appeals
Western District

MICHAEL GENE GUNN, 
 WD78003
Appellant,  OPINION FILED:
v. 
 December 15, 2015
STATE OF MISSOURI, 

Respondent. 


Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Charles H. McKenzie, Judge
Before Division Two:
Mark D. Pfeiffer, P.J., Lisa White Hardwick, and James Edward Welsh, JJ.
Michael Gene Gunn appeals the circuit court's dismissing his Rule 29.15 motion for post-
conviction relief as untimely filed. Gunn asserts that his untimely filing should have been
excused because his direct appeal counsel failed to notify him when this court issued its mandate
on the direct appeal. We affirm.
After a bench trial, the circuit court found Gunn guilty of two counts of murder in the
second degree, two counts of robbery in the first degree, and four counts of armed criminal
action. The circuit court sentenced Gunn to 25 years' imprisonment on each count of murder in
the second degree, 20 years' imprisonment on each count of robbery in the first degree, and 50
years' imprisonment on each count of armed criminal action. The circuit court ordered the
sentences on the murder in the second degree counts to run consecutively to each other but
concurrently to the other sentences, which were ordered to run concurrently to each other. Gunn
appealed his convictions to this court, and we issued a per curiam order affirming Gunn's
convictions and sentences. State v. Gunn, 391 S.W.3d 10 (Mo. App. 2012). We issued our
mandate on February 27, 2013.
Nearly nine months later, on November 20, 2013, Gunn filed a pro se motion for post-
conviction relief pursuant to Rule 29.15. On January 27, 2014, the circuit court appointed
counsel to represent Gunn and gave counsel 90 days to file an amended post-conviction motion.
On February 21, 2014, appointed counsel filed a motion to rescind the order appointing counsel.
The motion to rescind alleged that, because Gunn had filed his pro se motion 266 days after the
direct-appeal mandate was issued, Gunn's pro se motion was untimely filed. On March 3, 2014,
appointed counsel moved to withdraw the motion to rescind, and the circuit court granted the
motion to withdraw the motion to rescind.
On April 25, 2014, appointed counsel filed an amended motion, alleging that trial and
appellate counsel were ineffective for failing to challenge the sufficiency of the evidence to
support his convictions on Counts 5-8 for murder in the second degree, armed criminal action,
robbery in the first degree, and armed criminal action. On April 30, 2014, appointed counsel
filed a motion requesting that the circuit court treat Gunn's initial pro se motion as timely filed.
Gunn acknowledges that the pro se motion had been filed more than 90 days after the mandate
on direct appeal, but Gunn alleged that direct appeal counsel "did not provide [him] a copy or
notify him that mandate had issued." Gunn said that he "was without knowledge that mandate
had been issued; consequently, not knowing the deadline to file his Form 40." Gunn asserted
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that direct appeal counsel had "notified [him] by letter, on December 4, 2012 [that] she would
instruct him when to file his Form 40." Gunn, therefore, alleged that "[i]n effect, [his] direct
appeal counsel's misfeasance resulted in third party interference; preventing the timely filing of
[his] Form 40."
On June 27, 2014, the circuit court held an evidentiary hearing. Gunn's appellate counsel
testified at the hearing and said that it was her practice to keep clients informed of activity in
their cases. She testified that, based on a review of her records, it appeared that she had not
informed Gunn that his convictions and sentences had been affirmed. She said that her ordinary
practice is to advise clients that they have 90 days from the date of the mandate to file a post-
conviction motion but stated that she did not recall doing that in Gunn's case. She said that a
review of her records revealed that she did not write to Gunn after the mandate issue but that it
had been her intent to inform Gunn when the mandate issued.
Gunn testified at the hearing and said that his direct appeal counsel "pretty much wrote
[him] a letter stating that, when [the] time comes [to file a post-conviction motion], [she would]
let [him] know." He said that he believed his direct appeal counsel sent him a copy of the
decision handed down on direct appeal but that counsel told him that she was filing post-opinion
motions and an application for transfer and that she would tell him when the case was finally
over. Gunn testified that counsel never sent him a copy of the mandate. He stated that when he
later called to check and see what was going on with the case, a person from the Public
Defender's Office told him to go ahead and file a post-conviction motion even though it was
"266 days late."
On August 25, 2014, the circuit court dismissed Gunn's motion as untimely filed. The
court concluded that Gunn's "reasons for not filing the motion timely are not within the
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parameters afforded by the 'Third Party Interference' exception." The court found that Gunn "did
not do all that he could do to ensure that a timely motion was filed." Gunn appeals.
Our review of the circuit court's ruling on a Rule 29.15 motion is limited to determining
whether its findings and conclusions are clearly erroneous. Rule 29.15(k). The circuit court's
findings are presumed to be correct. Johnson v. State, 406 S.W.3d 892, 898 (Mo. banc 2013).
Findings and conclusions are clearly erroneous only if, after reviewing the record, we are "left
with a definite and firm impression that a mistake has been made." Id.
In his sole point on appeal, Gunn contends that the circuit court clearly erred in
dismissing his Rule 29.15 motion as untimely. He asserts that the untimely filing of his pro se
motion should have been excused because it fell within a recognized exception to the post-
conviction filing time limits when the untimely filing is due to "third party interference." Gunn
maintains that the late filing of his motion was due to his appellate counsel's failure to follow
through with her assurance to notify him when the direct appeal mandate was issued and to assist
him in the filing of his post-conviction motion.
Where an inmate is convicted following a trial and his conviction is affirmed on appeal,
the initial post-conviction motion must be filed within ninety days of the appellate court's
mandate. Rule 29.15(b). The failure to file a motion within the time provided constitutes a
"complete waiver" of any right to proceed under the Rule. Id. If a Rule 29.15 motion is not
timely filed, the circuit court must dismiss it without addressing the merits. Talley v. State, 399
S.W.3d 872, 875 (Mo. App. 2013). A post-conviction motion is considered "filed" when it is
deposited with the circuit court clerk. Miller v. State, 386 S.W.3d 225, 227 (Mo. App. 2012).
In addition to proving his substantive claims, a post-conviction movant also must show
that he filed his motion within the time limits provided. Dorris v. State, 360 S.W.3d 260, 267
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(Mo. banc 2012). As explained in Dorris, one way a movant can meet this burden is by "alleging
and proving by a preponderance of the evidence" that he falls within a recognized exception to
the time limits. Id. While the Rule itself does not carve out exceptions that excuse late filings,
court decisions have created two: (1) when post-conviction counsel abandons the movant; and
(2) in the rare set of circumstances where the reason for the late filing is beyond the movant's
control. Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 2010). Gunn claims that his
circumstance falls within the second exception. The Missouri Supreme Court, however,
describes this rare circumstance as occurring when "an inmate writes his initial post-conviction
motion and takes every step he reasonably can within the limitations of his confinement to see
that the motion is filed on time, [but] the active interference of a third party beyond the inmate's
control frustrates those efforts and renders the inmate's motion untimely." Price v. State, 422
S.W.3d 292, 302 (Mo. banc 2014).
In this case, Gunn failed to prove that he did everything he reasonably could do to timely
file his post-conviction motion or that he was prevented from timely filing the motion by the
"active interference" of his appellate counsel. No evidence existed that Gunn drafted his motion
within the time limits of Rule 29.15, that he took steps to meet or even calculate the due date of
the motion, or that appellate counsel did anything to prevent him from filing the motion. See id.
Indeed, the Missouri Supreme Court has held that "appellate counsel has no obligation to
notify the defendant of his post-conviction rights under Rule 29.15 or of the mandate's issuance."
Moore, 328 S.W.3d at 703. Gunn asserts, however, that his case differs from Moore because his
appellate counsel assumed the duty to inform him of the mandate's issuance when she explicitly
communicated to him that she would tell him when to file his post-conviction motion. But, in
Price, the Missouri Supreme Court made clear that the "active interference" requires more than
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an error committed by an attorney purporting to advise or represent the defendant in a post-
conviction case. Price, 422 S.W.3d at 292.
In Price, retained post-conviction counsel was mistaken about the post-conviction
deadline and did not timely file an initial post-conviction motion. Id. at 295. The circuit court
found that post-conviction counsel had "actively interfered with the defendant's ability to file a
pro se 29.15 motion by assuring the defendant, directly and indirectly, that he would timely
prepare and file the motion on the defendant's behalf. Id. The Missouri Supreme Court reversed
that finding and found that there was no active interference by counsel. Id. at 303. The Court
observed, "Price did not write his initial post-conviction motion and took no steps to meet (or
even calculate) the applicable filing deadline for his motion. Instead, . . . the only action Price
took with regard to these responsibilities was to retain counsel to fulfill them on his behalf." Id.
at 302. The Court acknowledged, "Price is entitled to retain counsel for that purpose, but, by
doing so, he took the same risk that every other civil litigant takes when retaining counsel, i.e.,
he chose to substitute counsel's performance for his own and bound himself to the former as
though it were the latter." The Court further stated that, even in circumstances where counsel
grossly breaches his duties to a client, the courts are not "responsible for this breach and have no
obligation to remedy it." Id. at 303.
The same is true in this case. Gunn took no reasonable steps to file his post-conviction
motion within the time limits. He merely waited and relied on his appellate counsel to tell him
when the mandate issued and to fulfill his responsibility to timely file the motion. Gunn failed to
prove that he was prevented from timely filing his post-conviction motion because of the active
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interference of a third party. The circuit court, therefore, did not clearly err in dismissing Gunn's
post-conviction motion as untimely filed.
We affirm the circuit court's judgment.
/s/ JAMES EDWARD WELSH
James Edward Welsh, Judge
All concur.
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