Costa v. Allen

323 S.W.3d 383, 2010 Mo. App. LEXIS 760, 2010 WL 2265151

• Court: Missouri Court of Appeals
• Decided: June 8, 2010
• Docket: WD 71055
• Status: Published

Opinions

JAMES M. SMART, JR., Judge.

Bernardo Costa appeals the trial court’s judgment dismissing his tort action for damages against the attorney representing him in his motion for post-conviction relief. Costa asserted claims of breach of fiduciary duty and legal malpractice. The judgment is affirmed.

Procedural Background

Costa was convicted of the first-degree statutory rape of his daughter. See State v. Costa, 11 S.W.3d 670 (Mo.App.1999). The conviction was affirmed on appeal. Id. Costa filed a motion for post-conviction relief under Rule 29.15. See Costa v. State, 85 S.W.3d 758 (Mo.App.2002). The denial of that motion was affirmed. Id.

Thereafter, Costa brought a civil action for legal malpractice against Arthur E. Alien, the public defender who represented Costa in his Rule 29.15 proceeding. Cos-ta’s petition was dismissed with prejudice. Costa appealed. After opinion in this court, the Missouri Supreme Court accepted transfer. See Costa v. Allen, 274 S.W.3d 461, 462 (Mo. banc 2008). Ater holding that Costa failed to state a cause of action, the Court nevertheless remanded the case to the trial court because the court had denied Costa the opportunity to file an amended petition. Id. at 463-64. Upon remand, Costa filed an amended petition.

Allegations of the Amended Petition

In his petition, Costa alleged that at the time of his post-conviction proceeding, he directed Mr. Allen, as post-conviction counsel, to secure the attendance of Dr. Alen Scott at the motion hearing. Dr. Scott had testified in the criminal trial as to the size of the victim’s hymenal opening. Costa wished to employ certain documents to demonstrate the falsity of Dr. Scott’s testimony. Costa also wanted to show at the motion hearing that Dr. Lori Frasier did not measure the hymenal opening, but simply relied on Dr. Scott’s false measurements. Costa further wanted to show that Dr. Frasier did not even review pertinent photographs, although the photographs were available to her. Costa wanted to compel the attendance of Loletta Combs for the same purpose. Costa also alleged that he told counsel to secure the attendance at the post-conviction hearing of Melissa Welpman, along with Loletta Combs, to introduce their notes in order to prove that their trial testimony and that of another person, Lee Rear, was false. Costa also wanted to prove that an insect in his daughter’s vaginal area was misidentified as a public crab and that his daughter’s statements were prompted by leading questions. Costa wanted to show that the behaviors allegedly acted out by Costa’s daughter did not occur and that any testimony to that effect was false testimony presented by the family of Lee Rears.

Costa alleged that Alen, for “his own reasons” and to “further the interests” of the State, did not follow his instructions to secure the attendance of the witnesses. He alleged that Alen’s actions constituted an intentionally dishonest breach of fiduciary duty and a constructive fraud, as well as a negligent breach of duty. There is no allegation that Defendant Allen was bribed by money or otherwise participated in a conspiracy to sell an innocent man “down the river” for some other personal motive. The gist of Costa’s petition is that Alen was uncooperative (dishonestly, because he did not communicate to Costa his refusal to cooperate) and chose to “further the interests” of the State by refusing to recognize the wisdom of Costa’s insights as to how to get a new trial. He alleged that Alen attempted to get pertinent documents into evidence, but that he could not because the witnesses necessary to sponsor the documents were not present. He alleged that this failure resulted in the inadmissibility of certain documents, which would have shown that he was “erroneously convicted.” Costa sought money compensation, including punitive damages, for the alleged malpractice of Mr. Allen.

Trial Court Ruling

Defendant Allen moved to dismiss the amended complaint, contending that Costa failed to state a claim for relief. He also contended that he was protected by official immunity. The trial court granted the motion, dismissing the case with prejudice. Costa appeals.

Costa’s Collateral Attack on the Conviction

Numerous issues are presented in this appeal. Many are briefed by the State. Because this appeal involves the dismissal of plaintiffs petition, and because the factual allegations of the petition are taken as true for purposes of our analysis, the issues presented are issues of law. See Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). Although there are multiple apparent legal obstacles to Cos-ta’s pursuit of this claim, we select one as easily dispositive of this appeal: the public policy doctrine that the law does not allow a collateral attack of a valid criminal conviction.

Costa asserts in his petition that he was erroneously convicted of the statutory rape of his daughter. He alleges that witnesses were lying, that his daughter was coached, and that there was a scheme to convict him propagated by the foster family (the family of Lee Rears) with whom his daughter spent time. He thus implies, but does not expressly plead, that he is actually innocent, as opposed to legally innocent, of the crime of the statutory rape of his daughter. The distinction between implying and expressing is not insignificant, when one considers that it is possible to be framed with bogus evidence, and thus convicted, of a crime one actually did commit.

A criminal conviction is achieved only after the determination of the existence of proof beyond a reasonable doubt. The law allows and provides for appeals of the direct conviction. Missouri law further allows motions for post-conviction remedies and for appeal of the rulings thereon. Missouri law provides an opportunity for counsel at the post-conviction stage as well as at the trial stage. See sections 545.820, 547.360.5, RSMo 2000; Mo. Const., art. 1, sec. 18(a). See also Rules 29.15(e), 24.035(e).

As long as a conviction is not set aside by an appeal or a post-conviction procedure, it remains a final judgment, and it stands as presumptive proof to the entire world for all purposes that the person convicted was in fact actually guilty. While the defendant may deny guilt, the denial is entirely without legal import as long as the judgment of conviction stands. The judgment conclusively binds the defendant and precludes his assertion of a collateral claim as to which his actual innocence is an essential element. See State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 502-04 (Mo.App.1985).

The post-conviction proceeding as to which Costa claims legal malpractice was a proceeding under Missouri Supreme Court Rule 29.15, which allows challenge of a conviction or sentence on grounds that the conviction or sentence violates the constitution or laws of this state or the United States, including claims of ineffective assistance of counsel. The rule also allows challenge on the basis that the trial court lacked jurisdiction to impose the sentence, or that the sentence was in excess of that permitted by law. Rule 29.15 is not designed to create a forum for a second opportunity to discredit the witnesses who testified at trial. It is not a retrial in itself. If, however, the post-conviction movant pleads and proves that the trial defense counsel was guilty of constitutionally ineffective assistance and that such ineffectiveness was prejudicial, the movant can obtain the relief of an entirely new trial. Then the movant, of course, can have a “do-over” as to the impeachment of the witnesses against him in the criminal trial.

Here, Costa does not allege or seem to understand that the 29.15 motion is about proving ineffectiveness of counsel at the trial level. He pleads his claim against Arthur Allen as though Mr. Allen should have proceeded as though the 29.15 case were intended to allow a chance to bring prosecution witnesses back into the courtroom and impeach them with their own notes and records — in other words, to directly cast doubt on the guilty verdict by essentially re-trying the case. But because a proceeding under Rule 29.15 is not a retrial, at best it could have indirectly cast doubt on the verdict by demonstrating ineffective assistance of trial counsel. In any event, overlooking this lapse in the pleading, we will assume for argument purposes that Costa wishes to be understood as asserting that if post-conviction counsel had done what Costa had wanted counsel to do, counsel would have been able to successfully demonstrate the constitutional ineffectiveness of trial counsel.

It is settled that a claim for relief from a valid conviction cannot be asserted in a claim of legal malpractice. See, e.g., Johnson v. Raban, 702 S.W.2d 134, 138 (Mo.App.1985). In Johnson, the convicted client, after losing his direct appeal and his post-conviction motion, sued the attorney who represented him in the criminal trial. Id. at 135. The defendant attorney moved to dismiss the action on the ground of collateral estoppel. The trial court took note of the reported cases involving the plaintiff client and held that the action was properly barred by collateral estoppel. Id. at 136. Noting that the standard for determining ineffective assistance of counsel in a post-conviction proceeding is for practical purposes identical with the standard required for submission of a legal malpractice claim, the court found that the application of the doctrine of collateral estoppel was appropriate. Id. at 137-38. The court went on, however, beyond the facts of that case, to invoke the public policy considerations that were equally applicable. The court declared that the public policy of this state dictates that a person who has “failed in his attack upon his conviction both directly and collaterally” (referring to the direct appeal and the post-conviction proceeding and appeal) should “not be permitted to recover against his attorney in a civil malpractice action for damages allegedly arising out of the attorney’s handling of his defense.” Id. at 138. The court said that it would “undermine the effective administration of the judicial system” to allow the relitigation of the issue of guilt or innocence in a subsequent action. Id.

This case, despite Costa’s use of the phrase “breach of fiduciary duty” and “constructive fraud,” is essentially a malpractice action that seeks to retry the criminal case, regardless of how the pleader wishes to describe the claim. In State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 499 (Mo.App.1985), the client, pursuant to a plea bargain, pleaded guilty to assault with intent to kill with malice. (His earlier conviction after trial had been reversed upon direct appeal, and the case had been remanded. Id.) Later, after his guilty plea, and after the subsequent failed attempt to set it aside, he sued the defense attorney, contending that counsel failed to investigate, subpoena, and cross-examine witnesses in the earlier trial, thereby failing to establish defenses of alibi and mis-identification. Id. at 501. Trial defense counsel, at that point a defendant in the civil case, sought a writ of prohibition on the basis that the suit was barred by collateral estoppel and public policy. Id. at 503. The court issued its writ based on considerations of defensive collateral es-toppel and public policy. Id. at 504. The court recognized that plaintiff’s actual innocence (which the court called “factual innocence”) was an “indispensible” element of a malpractice claim against the attorney who represented the defendant at trial. Id. at 503. The court stated that it would be against public policy for the suit to continue in that it would “shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.” Id. at 504 (quoting In re Estate of Laspy, 409 S.W.2d 725, 737 (Mo.App.1966)).

Although this case involves alleged misfeasance in connection with a post-conviction proceeding rather than a claim as to the criminal trial itself, we believe that the same principles would apply here, if not more so.¹ If anything, applying the public policy doctrine to bar such a claim makes even more sense in this context than it does in the case in which the alleged tor-tious conduct was that of the trial defense counsel, because here the “but-for causation” as to the conviction of an innocent person is another step removed. It is impossible to quantify the damage value of the loss of an entirely new trial without there being a way to have predicted the outcome of the new trial. As noted, Costa does not plead what such an outcome would be, much less assert actual innocence, or provide us with a road map for our judicial accommodation of a concept for determining the value of merely having a new trial. The only damage pleaded here is the defeat of his effort to obtain a new trial. Even if we assume that an acquittal would result from a new trial, that only puts the case in a posture equivalent to O’Blennis, in which the court found the public policy and collateral estoppel principles to be so compelling that it granted a writ of prohibition against allowing the claim to proceed.

Also, of course, in the absence of actual innocence, which is not pleaded, Costa’s own illegal actions would be the full legal and proximate cause of his damages. Anything else would “shock the public conscience.” Id. at 504. See also 7A C.J.S. Attorney & Client, sec. 325, at 362 (2004):

A criminal defendant bringing a malpractice action fails to state a cause of action when he or she fails to allege actual innocence and fails to set forth any facts that would establish actual innocence in the underlying criminal case.

The same public policy principles should apply whether the assertion is entitled “breach of fiduciary duty” or “professional negligence.” To rule otherwise would be to undermine the state’s interest in not allowing the guilty to escape punishment in that it would allow the actually guilty to transfer all or part of the punishment to another. See id., sec. 306, at 340. As a result of public policy considerations, Cos-ta’s claim for money damages for his attorney’s alleged misdeeds is barred by the presumption of guilt imposed by the final judgment of conviction.

Conclusion

Because Costa cannot be permitted to collaterally attack or undermine the final judgment of conviction, we hold that the trial court properly dismissed Costa’s petition with prejudice. We need not reach any of the other issues that would otherwise be present in this -appeal.

HARDWICK, concurs.

AHUJA concurs in separate opinion.

1 . This court has reached the same conclusion in another pending case with a very similar context. See Kuehne v. Hogan, 321 S.W.3d 337 (Mo.App. W.D.2010), handed down contemporaneously with this case, 321 S.W.3d at 341.