William S. Miller, Movant/Appellant v. State of Missouri , 478 S.W.3d 530 ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
WILLIAM S. MILLER, ) No. ED102641
)
Movant/Appellant, ) Appeal from the Circuit Court of
) the City of St. Louis
vs. )
)
STATE OF MISSOURI, ) Honorable John F. Garvey, Jr.
)
Respondent. ) Filed: December 22, 2015
OPINION
William Miller appeals the judgment of the Circuit Court of the City of St. Louis
denying, without an evidentiary hearing, his Rule 29.15 motion for post-conviction relief. We
affirm.
The facts relevant to the merits of Miller’s motion are as follows. Miller was charged
with one count of kidnapping and two counts of second-degree domestic assault after beating his
girlfriend repeatedly for over an hour. Count II alleged that Miller pummeled the victim. Count
III alleged that Miller hit the victim with a chair. In a bench trial, the victim testified that the
assault began in the couple’s living room, where Miller kicked, punched, and slapped the victim.
She attempted to escape twice but Miller caught her by hair and arm. Subsequently, Miller
retrieved a wooden chair from the kitchen and hit the victim with the chair. Miller was convicted
on all three counts.
The dates relevant to the timeliness of Miller’s motion are as follows. Miller was
convicted May 15, 2013. On June 6, the court sentenced Miller to concurrent prison terms of
twelve years, three years, and three years, respectively. On July 16, Miller filed a consolidated
pro se motion requesting both a new trial, challenging the sufficiency of the evidence, and post-
conviction relief on multiple claims of ineffectiveness of counsel. On September 24, Miller’s
counsel entered an appearance, requested an additional 30 days to file an amended motion, and
moved to stay the post-conviction case pending resolution of Miller’s direct appeal. This court
affirmed Miller’s conviction and sentence and issued its mandate October 28, 2014. State v.
Miller, 444 S.W.3d 532 (Mo. App. E.D. 2014). Miller’s amended motion was due December 29,
2014. Miller’s counsel filed the motion on that date, but it was rejected by the court clerk on
December 30 for failure to submit the motion and corresponding request for an evidentiary
hearing as separate documents in the court’s electronic filing system. Counsel re-filed them as
separate documents on January 2, 2015.
In the amended motion, Miller claimed that his trial counsel was ineffective for: (1)
failing to object to his convictions on two counts of second-degree domestic assault on the basis
of double jeopardy and (2) inducing Miller to waive his Fifth Amendment right not to testify.
The motion court denied the motion on the merits without an evidentiary hearing. The timeliness
of the motion was not discussed. Miller now appeals and asserts that the motion court clearly
erred by denying relief on the basis of counsel’s failure to object to Miller’s convictions on
grounds of double jeopardy.1
1
Miller does not appeal the motion court’s denial of his second claim based on his Fifth Amendment right
not to testify.
2
Timeliness
As a threshold matter, “we are compelled under State v. Moore to first examine the
timeliness of amended motions in each post-conviction case on appeal, even if the issue is not
raised by either party.” Lomax v. State, No. ED 101809, 2015 WL 3961195, at *1 (Mo. App.
E.D. June 30, 2015), citing State v. Moore, 458 S.W.3d 822 (Mo. 2015).
Rule 29.15(g) governs the time limits for filing an amended post-conviction motion. It
provides, in pertinent part, that where a movant appeals the judgment sought to be vacated, set
aside, or corrected, “the amended motion shall be filed within sixty days of the earlier of: (1) the
date both the mandate of the appellate court is issued and counsel is appointed or (2) the date
both the mandate of the appellate court is issued and an entry of appearance is filed by any
counsel that is not appointed but enters an appearance on behalf of movant.” Rule 29.15(g).
An amended motion filed beyond the deadline in Rule 29.15(g) can constitute
abandonment of the movant. Moore v. State, 458 S.W.3d 822, 826 (Mo. banc 2015).
Abandonment by post-conviction counsel extends the time limitations for filing an amended
Rule 29.15 motion. Id. Thus, when post-conviction counsel files an untimely amended motion,
“the motion court has a duty to undertake an ‘independent inquiry ...’ to determine if
abandonment occurred.” Id. If the motion court finds that a movant has not been abandoned, then
the motion court should not permit the filing of the amended motion and should proceed with
adjudicating the movant's initial motion. Id. If the motion court determines that the movant was
abandoned by post-conviction counsel's untimely filing of an amended motion, then the court
should permit the untimely filing. Id.If this court determines that post-conviction counsel untimely filed an amended Rule
29.15 motion and the motion court did not conduct an independent inquiry into abandonment,
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then we must remand the case to the motion court for such an inquiry. Blackburn v. State,
S.W.3d 468 S.W. 3d 910, 913 (Mo. App. E.D. 2015). “It is our duty to enforce the mandatory
timelines in the post-conviction rules, but ‘the motion court is the appropriate forum to conduct
such an inquiry’ into abandonment.” Id. (quoting Moore, 458 S.W.3d at 826).
Here, the docket sheet indicates that Miller’s amended motion, with request for
evidentiary hearing, was filed out of time on January 2, 2015. However, the record also
suggests, and the State acknowledges, that Miller’s counsel timely filed the amended motion on
December 29, 2014, but the court clerk rejected it because Miller’s request for an evidentiary
hearing on that motion was part of the same document and not filed as a separate document.
Though not briefed by the parties, we find no legal basis for the clerk’s action. Nothing in Rule
29.15 dictates that a request for an evidentiary hearing on a Rule 29.15 motion for post-
conviction relief must be filed separate from the motion itself. On the contrary, such a request is
generally incorporated into the motion. Rule 103 governing electronic filings also provides no
basis for the rejection of Miller’s December 29 filing. Rule 103.06(f) states that, “if the clerk
accepts a document for filing, the date and time of filing entered in the case management system
shall be the date and time the electronic filing system received the document.” But again, we find
no justification for the clerk’s refusal to accept Miller’s motion in the first instance.
We find instruction in State ex rel. Isselhard v. Dolan, 465 S.W.3d 496 (Mo. App. E.D.
2015). There, the plaintiff electronically filed a petition in proper form, but the clerk rejected it
“simply because Plaintiff failed to enter the name of the defendant and check his party status in a
box on the electronic filing page.” Id. at 499. “All of the parties were properly named on the
petition. The name and address of the defendant to be served was contained within the caption
and the body of the petition.” Id. For guidance, this court relied on State v. Ess, 453 S.W.3d 1964
(Mo. 2015). There, a court clerk refused to accept a paper filing because the accompanying
affidavit lacked a notary stamp. Counsel asked the court to deem the motion timely, and the court
sustained the motion. On appeal, the Missouri Supreme Court opined that “the circuit clerk
refused Ess’s filing in the absence of some clear prohibition in law, court rule, or specific court
order. The circuit clerk was obligated to accept the filing.” Id. at 201. Therefore, the circuit
court’s subsequent order ruling that the motion was timely filed was not an abuse of discretion.
Id. Applying the Supreme Court’s holding in Ess to an electronic filing, this court in Esselhard
opined, “We are aware of no law, court rule, or specific court order authorizing the court clerk to
reject the filing of the petition for such a minor technical deficiency.” Id. “The petition should
have been accepted as of that date” (referring to the timely filing date). Id.
Likewise here, Miller’s amended motion, first filed on time on December 29 with the
request for evidentiary hearing incorporated therein, did not violate any legal mandate justifying
the clerk’s rejection. The motion should have been accepted as of December 29 and was
therefore timely filed.2 Thus, we proceed to the merits of Miller’s amended motion.
Standard of Review
Our review of the denial of post-conviction relief by a motion court is limited to the
determination of whether the motion court's findings of fact and conclusions of law are clearly
erroneous. Rule 29.15(k); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). A movant bears
the burden of proving his claims by a preponderance of the evidence. Rule 29.15(i). A motion
2
In the interest of judicial economy, the efficient approach is for defense counsel to file a motion in the
circuit court to establish the timeliness of the motion despite any minor technical defect. A circuit court’s
finding of timeliness would obviate remand under Moore and permit appellate review on the merits.
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court’s findings of fact and conclusions of law are clearly erroneous only if the reviewing court
firmly believes that a mistake was made after it has reviewed the whole record. Kuhlenberg v.
State, 54 S.W.3d 705, 707 (Mo. App. 2001).
To prove ineffective assistance of counsel, a movant must demonstrate that counsel failed
to exercise the customary skill and diligence of a reasonably competent attorney under similar
circumstances, and counsel’s deficient performance prejudiced him. Worthington v. State, 166
S.W.3d 566, 573 (Mo. banc 2005) (citing Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). To satisfy the first prong of this test, a movant must “overcome a strong presumption
that counsel provided competent representation by showing ‘that counsel’s representation fell
below an objective standard of reasonableness.’” Id. (quoting Deck v. State, 68 S.W.3d 418, 425
(Mo. banc 2002)). “Reasonable choices of trial strategy, no matter how ill fated they appear in
hindsight, cannot serve as a basis for a claim of ineffective assistance.” Id. (citing Cole v. State,
152 S.W.3d 267, 270 (Mo. banc 2004); Knese v. State, 85 S.W.3d 628, 633 (Mo. banc 2002)).
To satisfy the second prong of this test, a movant must show that, had counsel not erred, there
would be a reasonable probability that the result of the proceeding would have been different.
Id. This Court does not need to address both components of the inquiry if the movant makes an
insufficient showing on one. Strickland, 466 U.S. at 697; Sidebottom v. State, 781 S.W.2d 791,
796 (Mo. banc 1989).
A movant is entitled to an evidentiary hearing on a motion for post-conviction relief only
if: (1) he alleges facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by
the record; and (3) the matters complained of prejudiced the movant. Rule 29.15(h). Walker v.
State, 232 S.W.3d 586, 588 (Mo. App. 2007).
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Discussion
In his sole point, Miller asserts that his trial counsel was ineffective for failing to object
to his conviction on counts II and III as a violation of the double jeopardy clause of the Fifth
Amendment. The double jeopardy clause, in addition to protecting defendants from successive
prosecutions for the same offense after an acquittal or conviction, also prohibits multiple
punishments for the same offense. State v. Heslop, 842 S.W.2d 72, 74 (Mo. 1992). The
prohibition against multiple punishments is designed to ensure that the trial court’s sentencing
discretion is confined to the limits established by the legislature. Id.Section 556.041 states that a defendant may not be convicted of more than one offense
involving a continuing and uninterrupted course of conduct. §556.041(4). Here, Miller was
convicted on count II for beating the victim with his hands and feet and on count III for
subsequently hitting her with a chair. “In assault cases, separate offenses can arise from a single
set of facts each time the defendant forms an intent to attack the victim.” State v. Garnett, 298
S.W.3d 919, 923 (Mo. App. E.D. 2009). When a defendant has time to reconsider his actions,
each assault separated by time constitutes a separate offense. Id. When a separate mens rea is
newly formed, the conduct gives rise to an additional crime. State v. Tyler, 196 S.W.3d 638, 641
(Mo. App. W.D. 2006). In Tyler, the defendant was convicted on five counts of domestic assault
for separate acts involving different forms of violence in several distinct phases. As relevant
here, Tyler punched the victim in the face, left the room to retrieve scissors, and returned to
scrape her with the scissors and punch her in the chest. The appellate court upheld the two
convictions corresponding to these separate acts, reasoning that the assault was interrupted when
Tyler left the room to retrieve the scissors. “In so doing, he clearly demonstrated renewed intent
to inflict injury by committing sequential acts….” Id. at 642.
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Likewise here, Miller committed two separate offenses when he first punched and kicked
the victim, interrupted the assault to retrieve a chair from another room, and then with renewed
intent returned to hit the victim with the chair. Consequently, and as the motion court concluded,
Miller’s convictions on both counts II and III did not violate the double jeopardy clause, so any
objection by counsel would have been unavailing. Counsel is not ineffective for failing to make
non-meritorious objections. Johnson v. State, 369 S.W.3d 87, 92 (Mo. App. W.D. 2012). Point
denied.
Conclusion
The trial court’s findings and conclusions are not clearly erroneous. And because
Miller’s claims are refuted by the record and do not warrant relief, no evidentiary hearing was
required. The motion court's judgment is affirmed.
_____________________________
Lisa S. Van Amburg, Chief Judge
Sherri B. Sullivan, P.J., and
Kurt S. Odenwald, J., concur.
8