Gehrke v. State

280 S.W.3d 54, 2009 Mo. LEXIS 36, 2009 WL 837723
CourtSupreme Court of Missouri
DecidedMarch 31, 2009
DocketNo. SC 89527
StatusPublished
Cited by91 cases

This text of 280 S.W.3d 54 (Gehrke v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gehrke v. State, 280 S.W.3d 54, 2009 Mo. LEXIS 36, 2009 WL 837723 (Mo. 2009).

Opinions

PATRICIA BRECKENRIDGE, Judge.

The circuit court overruled David Gehrke’s motion for postconviction relief under Rule 24.035 after an evidentiary hearing. The judgment was not appealed, allegedly because Mr. Gehrke’s counsel did not file a notice of appeal properly. Nearly five years later, Mr. Gehrke moved to [56]*56reopen his postconviction proceedings, claiming his counsel’s actions constituted abandonment. The motion court entered judgment overruling the motion. Mr. Gehrke appeals. After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10. This Court holds that counsel’s actions did not constitute abandonment and affirms the motion court’s judgment.

Factual and Procedural Background

On February 20, 1999, David Gehrke timely filed a pro se Rule 24.035 motion to vacate his guilty pleas and convictions for the following felonies: (1) one count of sodomy; (2) two counts of class A felony furnishing pornographic materials to minors; (3) one count of class C first-degree deviate sexual assault; (4) three counts of felony first-degree statutory sodomy; (5) four counts of class C first-degree child molestation; and (6) one count of first-degree sodomy.1 On September 7, 2001, the motion court entered its judgment, overruling Mr. Gehrke’s motion for post-conviction relief.2 Mr. Gehrke’s counsel prepared a notice of appeal form, which the Jackson County circuit court file-stamped on September 14, 2001. The circuit court has no record of a notice of appeal being filed after the motion court overruled Mr. Gehrke’s postconviction motion. No other steps were taken to perfect an appeal.

On August 10, 2006, Mr. Gehrke moved to reopen his postconviction proceeding. Mr. Gehrke’s motion alleged he was abandoned by postconviction counsel when his counsel failed to file a notice of appeal properly after the motion court overruled Mr. Gehrke’s Rule 24.035 motion. Mr. Gehrke alleged the notice of appeal form his counsel prepared was only partially completed and was not accompanied by either an in forma pauperis affidavit or a filing fee. The motion to reopen further alleged that Mr. Gehrke had asked his counsel to appeal the judgment and that his counsel told him an appeal had been filed. Attached to Mr. Gehrke’s motion was the notice of appeal form that Mr. Gehrke’s counsel had completed.

The motion court overruled Mr. Gehrke’s motion to reopen his postconviction proceedings. Mr. Gehrke appeals.

Standard of Review

Review of a motion court’s overruling of a motion to reopen postconviction proceedings is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. White v. State, 265 S.W.3d 850, 852 (Mo.App.2008). A motion court’s findings and conclusions are clearly erroneous only if the Court, after reviewing the entire record, is [57]*57left with the definite and firm impression that a mistake has been made. Id.

Abandonment

Generally, a movant is entitled to relief under Rule 24.035 or Rule 29.15 if the movant files a meritorious motion within the time limits set forth in those rules. See McFadden v. State, 256 S.W.3d 103, 106 (Mo. banc 2008). When a motion is filed outside the time limits, the motion court is compelled to dismiss it. Id. The movant is responsible for filing the original motion, and a lack of legal assistance does not justify an untimely filing. See Bullard v. State, 853 S.W.2d 921, 923 (Mo. banc 1993). In contrast, an amended motion is a final pleading, which requires legal expertise, id. at 922, and, due to that distinction, this Court has recognized a narrow exception to the time limits in the rules to give a motion court authority to “reopen an otherwise final post-conviction case when a post-conviction movant is abandoned by counsel.” McFadden, 256 S.W.3d at 107.3

This Court initially found abandonment in two scenarios: “when (1) post-conviction counsel takes no action with respect to filing an amended motion and as such the record shows that the movant is deprived of a meaningful review of his claims; or (2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner.” Crenshaw v. State, 266 S.W.3d 257, 259 (Mo. banc 2008) (quoting Barnett v. State, 103 S.W.3d 765, 773-74 (Mo. banc 2003)). If postconviction counsel is found to have abandoned a movant, “the proper remedy is to put the movant in the place where the movant would have been if the abandonment had not occurred.” Id. It is imperative for relief, however, that the movant in no way be responsible for the failure to comply with the requirements of either Rule 24.035 or Rule 29.15. Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc 1991).

Recently, this Court recognized an additional circumstance in which a movant may be abandoned. In McFadden v. State, this Court held that where postconviction counsel overtly acts in a way that prevents the movant’s timely filing of a postconviction motion, a movant is entitled to relief. 256 S.W.3d at 109. In McFadden, a public defender initiated contact with Mr. McFadden, directed Mr. McFadden to send his postconviction relief motion to her and told Mr. McFadden that she would hand-file his motion with the court. Id. at 105. Counsel received Mr. McFadden’s postconviction motion before the 90-day time limit had run, but she did not file the motion until after the time limit had passed. Id. This Court found that Mr. McFadden timely had prepared and mailed his postconviction motion two weeks before the 90-day time limit. Id. at 109. Instead of mailing his motion to the court, however, Mr. McFadden followed his counsel’s express directions and mailed his motion to her — which she did not file timely. Id. This Court found that Mr. McFadden’s postconviction counsel affirmatively undertook to represent Mr. McFadden and simply abandoned that representation. Id. Because Mr. McFadden “did all he could to express an intent to seek relief under Rule 29.15, took all steps to secure this review, and was ‘free of responsibility for the failure to comply with the requirements of the rule,’ ” this Court found that such “active interfer[58]*58ence” on the part of postconvietion counsel constituted abandonment. Id.

The facts that Mr. Gehrke claims constitute abandonment, however, do not fall within the scenarios found in McFadden, Luleff v. State4 or Sanders v. State.5 Instead, Mr. Gehrke asks this Court to expand abandonment to include counsel’s conduct in failing to file properly a notice of appeal of a judgment overruling a post-conviction motion. This Court declines to do so.

First, Mr. Gehrke, in his motion to reopen, does not allege that counsel completely failed to act.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Missouri v. Jarrad Ryan Vandergrift
Supreme Court of Missouri, 2023
State of Missouri v. Jarrad Ryan Vandergrift
Missouri Court of Appeals, 2022
TIMOTHY P. CABLE v. STATE OF MISSOURI
Missouri Court of Appeals, 2021
Lamont Campbell v. State of Missouri
Missouri Court of Appeals, 2021
Gary Todd Washington-Bey v. State of Missouri
568 S.W.3d 909 (Missouri Court of Appeals, 2019)
Covington v. State
569 S.W.3d 469 (Missouri Court of Appeals, 2018)
Bosworth v. State
559 S.W.3d 5 (Missouri Court of Appeals, 2018)
Eye v. State
551 S.W.3d 671 (Missouri Court of Appeals, 2018)
Chatman v. State
558 S.W.3d 528 (Missouri Court of Appeals, 2018)
Yaeger v. State
542 S.W.3d 433 (Missouri Court of Appeals, 2018)
Waggoner v. State
552 S.W.3d 601 (Missouri Court of Appeals, 2018)
McKay v. State
520 S.W.3d 782 (Supreme Court of Missouri, 2017)
Hughes v. State
521 S.W.3d 664 (Missouri Court of Appeals, 2017)
Watson v. State
520 S.W.3d 423 (Supreme Court of Missouri, 2017)
Murphy v. State
512 S.W.3d 125 (Missouri Court of Appeals, 2017)
Andre Adams v. State of Missouri
509 S.W.3d 880 (Missouri Court of Appeals, 2017)
Otis Cornelious v. State of Missouri
526 S.W.3d 161 (Missouri Court of Appeals, 2017)
Rodney simmons v. State of Missorui
502 S.W.3d 739 (Missouri Court of Appeals, 2016)
Donald Nash v. State of Missouri
504 S.W.3d 831 (Missouri Court of Appeals, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
280 S.W.3d 54, 2009 Mo. LEXIS 36, 2009 WL 837723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gehrke-v-state-mo-2009.