In the Missouri Court of Appeals Eastern District DIVISION FOUR
DARRELL I. BOLDEN, ) ED109552 ) Appellant, ) Appeal from the Circuit Court of ) St. Charles County v. ) 1911-CC00240 ) STATE OF MISSOURI, ) Honorable Daniel G. Pelikan ) Respondent. ) Filed: November 23, 2021
Darrell I. Bolden (Movant) appeals from the motion court’s judgment denying his Rule
29.15 1 motion seeking postconviction relief without an evidentiary hearing. We dismiss this
appeal.
BACKGROUND
The State of Missouri (State) charged Movant with two counts of first-degree robbery
and two counts of armed criminal action. On May 5, 2014, the trial court held a hearing on
Movant’s request to waive counsel and represent himself. The trial court allowed Movant to
waive counsel for the hearing, but ordered a psychiatric evaluation to determine whether Movant
was competent to stand trial and represent himself at trial without the assistance of an attorney
(competency report). After receiving the competency report, the trial court followed its
1 All rule references are to the Missouri Supreme Court Rules (2020). recommendation and found Movant competent, and allowed Movant to proceed to trial without
an attorney. Movant was convicted of all charges. He was sentenced to consecutive terms of life
in prison for each count of first-degree robbery, and 25 years for each count of armed criminal
action.
On appeal, this Court found the trial court plainly erred in failing to appoint counsel to
represent Movant while his competency was in question. State v. Bolden, 558 S.W.3d 513, 519
(Mo. App. E.D. 2016) (Bolden I). Rather than order a new trial, this Court remanded for a
hearing to retroactively determine whether Movant “was competent to stand trial and to conduct
his own trial at the time,” based on the contemporaneous competency report. Id. at 520.
Movant was represented by counsel at the evidentiary hearing on remand. State v.
Bolden, 561 S.W.3d 827, 829 (Mo. App. E.D. 2018) (Bolden II). At the hearing, Movant’s
counsel argued, “Judge, the only argument I would make is that the report was completed after
[Movant] had waived counsel and that we have no way to look back at the time that he waived
counsel even via the report.” Id. The trial court asked whether Movant was “challenging the
competency report in any way,” and counsel answered, “Judge, I’m not challenging that
competency report, no.” Id. The trial court found Movant was competent to stand trial pro se at
the time of the trial based on the competency report. Id.
On appeal, Movant argued the retroactive competency hearing was an inadequate remedy
because there was no opportunity for meaningful adversarial testing of the original competency
report. Id. This Court disagreed, finding Movant simply failed to offer evidence or challenge
the competency report. Id. at 830. Thus, “we cannot say the trial court erred in accepting the
report’s findings as substantial evidence of [Movant’s] competency and restating its prior
determination that [Movant] was competent to stand trial.” Id.
2 The mandate in Bolden II was issued on December 21, 2018. Movant filed an amended
Rule 29.15 motion for postconviction relief, alleging ineffective assistance of trial counsel at the
retroactive competency hearing for failing to object when the trial court only inquired into the
competency to stand trial, and not the competency to self-represent. The motion court denied the
amended motion without an evidentiary hearing, concluding that “Movant has failed to establish
by a preponderance of the evidence that counsel failed to exercise the customary skill and
diligence that a reasonably competent attorney would perform under similar circumstances and
that he was prejudice [sic] thereby, as required under the law.”
This appeal follows.
DISCUSSION
Movant raises one point on appeal, which states:
The motion court clearly erred when it denied Mr. Bolden’s motion for postconviction relief without an evidentiary hearing because Mr. Bolden alleged facts, supported by the record and the law, which entitled him to relief in that he was denied his rights to effective assistance of counsel, due process of law, and protection from cruel and unusual punishment, as guaranteed to him by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §§10 and 18(a) of the Missouri Constitution when Court conducted a competency hearing, and did not use the proper standard of review for competency to self-represent, as opposed to competency to stand trial. This was error in that but for using the wrong standard, and the total lack of inquiry on this issue, Mr. Bolden was reasonably likely to have been found unable to self-represent, even though he was competent to stand trial.
We must strictly apply the requirements of Rule 84.04(d) for a Point Relied On. Kenneth
Bell & NEZ, Inc. v. Baldwin Chevrolet Cadillac, Inc., 561 S.W.3d 469, 471 (Mo. App. S.D.
2018). “Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that
appellate courts do not become advocates by speculating on facts and on arguments that have not
been made.” FIA Card Servs., NA. v. Hayes, 339 S.W.3d 515, 517 (Mo. App. E.D. 2011)
(quoting Ward v. United Eng’g Co., 249 S.W.3d 285, 287 (Mo. App. E.D. 2008)). The policy
3 behind Rule 84.04(d) is an appellant’s brief should give notice to the respondent of the precise
matters which must be contended with and answered. Baldwin Chevrolet Cadillac, Inc., 561
S.W.3d at 473 (citing Amparan v. Martinez, 862 S.W.2d 497, 499 (Mo. App. E.D. 1993)). “An
appellant’s brief which is so deficient as to require respondent to guess at the nature and scope of
claimed errors in an effort to respond creates difficulty for the respondent, as well as for the
appellate court.” Id. (quoting Carden v. Mo. Intergovernmental Risk Mgmt. Ass’n, 258 S.W.3d
547, 554 (Mo. App. S.D. 2008) (internal quotation omitted)).
“A party’s failure to substantially comply with Rule 84.04 preserves nothing for appellate
review and is insufficient to invoke our authority to hear the case.” FIA Card Servs., NA., 339
S.W.3d at 517. Thus, the failure to comply with Rule 84.04(d) warrants dismissal of the appeal.
Bridges v. Am. Family Mut. Ins. Co., 146 S.W.3d 456, 458 (Mo. App. W.D. 2004). Nonetheless:
We have the discretion to review non-compliant briefs ex gratia where the argument is readily understandable. But we cautiously exercise this discretion because each time we review a noncompliant brief ex gratia, we send an implicit message that substandard briefing is acceptable. It is not.
Scott v. King, 510 S.W.3d 887, 892 (Mo. App. E.D. 2017) (internal citation omitted); see also
State ex rel. Hawley v. Robinson, 577 S.W.3d 823, 827 (Mo.
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In the Missouri Court of Appeals Eastern District DIVISION FOUR
DARRELL I. BOLDEN, ) ED109552 ) Appellant, ) Appeal from the Circuit Court of ) St. Charles County v. ) 1911-CC00240 ) STATE OF MISSOURI, ) Honorable Daniel G. Pelikan ) Respondent. ) Filed: November 23, 2021
Darrell I. Bolden (Movant) appeals from the motion court’s judgment denying his Rule
29.15 1 motion seeking postconviction relief without an evidentiary hearing. We dismiss this
appeal.
BACKGROUND
The State of Missouri (State) charged Movant with two counts of first-degree robbery
and two counts of armed criminal action. On May 5, 2014, the trial court held a hearing on
Movant’s request to waive counsel and represent himself. The trial court allowed Movant to
waive counsel for the hearing, but ordered a psychiatric evaluation to determine whether Movant
was competent to stand trial and represent himself at trial without the assistance of an attorney
(competency report). After receiving the competency report, the trial court followed its
1 All rule references are to the Missouri Supreme Court Rules (2020). recommendation and found Movant competent, and allowed Movant to proceed to trial without
an attorney. Movant was convicted of all charges. He was sentenced to consecutive terms of life
in prison for each count of first-degree robbery, and 25 years for each count of armed criminal
action.
On appeal, this Court found the trial court plainly erred in failing to appoint counsel to
represent Movant while his competency was in question. State v. Bolden, 558 S.W.3d 513, 519
(Mo. App. E.D. 2016) (Bolden I). Rather than order a new trial, this Court remanded for a
hearing to retroactively determine whether Movant “was competent to stand trial and to conduct
his own trial at the time,” based on the contemporaneous competency report. Id. at 520.
Movant was represented by counsel at the evidentiary hearing on remand. State v.
Bolden, 561 S.W.3d 827, 829 (Mo. App. E.D. 2018) (Bolden II). At the hearing, Movant’s
counsel argued, “Judge, the only argument I would make is that the report was completed after
[Movant] had waived counsel and that we have no way to look back at the time that he waived
counsel even via the report.” Id. The trial court asked whether Movant was “challenging the
competency report in any way,” and counsel answered, “Judge, I’m not challenging that
competency report, no.” Id. The trial court found Movant was competent to stand trial pro se at
the time of the trial based on the competency report. Id.
On appeal, Movant argued the retroactive competency hearing was an inadequate remedy
because there was no opportunity for meaningful adversarial testing of the original competency
report. Id. This Court disagreed, finding Movant simply failed to offer evidence or challenge
the competency report. Id. at 830. Thus, “we cannot say the trial court erred in accepting the
report’s findings as substantial evidence of [Movant’s] competency and restating its prior
determination that [Movant] was competent to stand trial.” Id.
2 The mandate in Bolden II was issued on December 21, 2018. Movant filed an amended
Rule 29.15 motion for postconviction relief, alleging ineffective assistance of trial counsel at the
retroactive competency hearing for failing to object when the trial court only inquired into the
competency to stand trial, and not the competency to self-represent. The motion court denied the
amended motion without an evidentiary hearing, concluding that “Movant has failed to establish
by a preponderance of the evidence that counsel failed to exercise the customary skill and
diligence that a reasonably competent attorney would perform under similar circumstances and
that he was prejudice [sic] thereby, as required under the law.”
This appeal follows.
DISCUSSION
Movant raises one point on appeal, which states:
The motion court clearly erred when it denied Mr. Bolden’s motion for postconviction relief without an evidentiary hearing because Mr. Bolden alleged facts, supported by the record and the law, which entitled him to relief in that he was denied his rights to effective assistance of counsel, due process of law, and protection from cruel and unusual punishment, as guaranteed to him by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §§10 and 18(a) of the Missouri Constitution when Court conducted a competency hearing, and did not use the proper standard of review for competency to self-represent, as opposed to competency to stand trial. This was error in that but for using the wrong standard, and the total lack of inquiry on this issue, Mr. Bolden was reasonably likely to have been found unable to self-represent, even though he was competent to stand trial.
We must strictly apply the requirements of Rule 84.04(d) for a Point Relied On. Kenneth
Bell & NEZ, Inc. v. Baldwin Chevrolet Cadillac, Inc., 561 S.W.3d 469, 471 (Mo. App. S.D.
2018). “Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that
appellate courts do not become advocates by speculating on facts and on arguments that have not
been made.” FIA Card Servs., NA. v. Hayes, 339 S.W.3d 515, 517 (Mo. App. E.D. 2011)
(quoting Ward v. United Eng’g Co., 249 S.W.3d 285, 287 (Mo. App. E.D. 2008)). The policy
3 behind Rule 84.04(d) is an appellant’s brief should give notice to the respondent of the precise
matters which must be contended with and answered. Baldwin Chevrolet Cadillac, Inc., 561
S.W.3d at 473 (citing Amparan v. Martinez, 862 S.W.2d 497, 499 (Mo. App. E.D. 1993)). “An
appellant’s brief which is so deficient as to require respondent to guess at the nature and scope of
claimed errors in an effort to respond creates difficulty for the respondent, as well as for the
appellate court.” Id. (quoting Carden v. Mo. Intergovernmental Risk Mgmt. Ass’n, 258 S.W.3d
547, 554 (Mo. App. S.D. 2008) (internal quotation omitted)).
“A party’s failure to substantially comply with Rule 84.04 preserves nothing for appellate
review and is insufficient to invoke our authority to hear the case.” FIA Card Servs., NA., 339
S.W.3d at 517. Thus, the failure to comply with Rule 84.04(d) warrants dismissal of the appeal.
Bridges v. Am. Family Mut. Ins. Co., 146 S.W.3d 456, 458 (Mo. App. W.D. 2004). Nonetheless:
We have the discretion to review non-compliant briefs ex gratia where the argument is readily understandable. But we cautiously exercise this discretion because each time we review a noncompliant brief ex gratia, we send an implicit message that substandard briefing is acceptable. It is not.
Scott v. King, 510 S.W.3d 887, 892 (Mo. App. E.D. 2017) (internal citation omitted); see also
State ex rel. Hawley v. Robinson, 577 S.W.3d 823, 827 (Mo. App. E.D. 2019).
Movant’s point is confusing. Initially, he appears to argue the motion court clearly erred
by failing to grant Movant an evidentiary hearing. “The issue of whether a defendant is entitled
to an evidentiary hearing on a claim of ineffective assistance of counsel under state procedural
rules is different from an evaluation of an ineffectiveness claim on its merits.” State v. Driver,
912 S.W.2d 52, 55 (Mo. banc 1995). Movant spends a substantial portion of his brief discussing
the circumstances in which evidentiary hearings are required. Yet neither his point nor the
following argument explains why an evidentiary hearing was required here, and in this respect
violates Rule 84.04(d)(1)(C).
4 Movant’s point otherwise seems to challenge the ruling of the trial court at the
retrospective competency hearing by arguing the trial court applied the incorrect standard in
determining whether Movant was competent to represent himself at trial. However, claims of
trial court error are not cognizable in a Rule 29.15 proceeding. McLaughlin v. State, 378 S.W.3d
328, 345 (Mo. banc 2012). A postconviction motion does not substitute for a direct appeal.
State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992). Rule 29.15 cannot be used to obtain
postconviction review of matters which were or should have been raised on direct appeal. Id.
Movant’s claim regarding the trial court’s application of law at the retroactive competency
hearing should have been raised in the direct appeal resulting in Bolden II. Thus, we do not
review the trial court’s competency determination in this appeal of the motion court’s denial of
Movant’s amended Rule 29.15 motion.
To the extent Movant is attempting to assert a claim of ineffective assistance of counsel,
Movant’s brief does not clarify which of his attorneys was ineffective, how their performance
was deficient, or how he was prejudiced. We will not speculate on facts or arguments that have
not been made. Despite our considerable efforts trying to discern the issue Movant is asserting
in this appeal, we find we would have to become his advocate to actually reach the merits. This
we cannot and will not do. Thus, we dismiss Movant’s appeal due to his brief’s substantial
failure to comply with Rule 84.04. See Guerra v. Locarno Partners, LP, 577 S.W.3d 900, 905
(Mo. App. W.D. 2019).
5 CONCLUSION
Movant’s appeal is dismissed.
____________________________________ Lisa P. Page, Judge
Michael E. Gardner, P.J. and James M. Dowd, J., concur.