Henry L. Ward v. State of Missouri

• Court: Missouri Court of Appeals
• Decided: January 28, 2025
• Docket: WD86338
• Status: Published

Opinion

MISSOURI COURT OF APPEALS WESTERN DISTRICT HENRY L. WARD, ) ) Appellant, ) ) v. ) WD86338 ) STATE OF MISSOURI, ) Filed: January 28, 2025 ) Respondent. ) Appeal from the Circuit Court of Pettis County The Honorable Robert Koffman, Judge Before Division Three: Thomas N. Chapman, P.J., and Lisa White Hardwick, and Alok Ahuja, JJ. Henry Ward was convicted of multiple felonies in the Circuit Court of

Pettis County. After this Court affirmed his convictions on direct appeal, Ward

filed a motion for post-conviction relief under Supreme Court Rule 29.15. The

circuit court denied Ward’s amended post-conviction relief motion after an evidentiary hearing. Ward appeals. The circuit court did not enter a final

appealable judgment, because the court did not address all of the claims in either

Ward’s pro se or amended motions for post-conviction relief. We accordingly lack appellate jurisdiction, and dismiss Ward’s appeal. Because Ward’s amended

motion for post-conviction relief was filed substantially outside the deadline

specified in Rule 29.15(g), the circuit court must conduct an inquiry to determine whether Ward was abandoned by his appointed post-conviction counsel, before it can decide which of Ward’s claims it must address.

Factual Background Ward’s convictions arose from the armed robbery of a pawn shop in Sedalia in December 2014, during which a pawn shop employee was beaten and

shot. Ward was sixteen years old at the time of the crimes. Following a two-day

trial, a jury convicted him of first-degree robbery, first-degree assault, armed

criminal action, unlawful use of a weapon, and receiving stolen property. The

circuit court followed the jury’s sentencing recommendations, and sentenced

Ward to twenty years’ imprisonment for robbery, fifteen years for assault, thirty years for armed criminal action, fifteen years for unlawful use of a weapon, and

seven years for receiving stolen property. The court ordered that all sentences

run consecutively, resulting in a total term of imprisonment of eighty-seven

years.

Ward appealed his convictions. This Court affirmed the circuit court’s

judgment in State v. Ward, No. WD82701, 598 S.W.3d 926 (Mo. App. W.D. May

5, 2020) (mem.). Our mandate in Ward’s direct appeal issued on May 27, 2020.

On July 24, 2020, Ward filed a timely pro se motion for post-conviction

relief under Supreme Court Rule 29.15. Ward’s pro se motion asserted fourteen claims of ineffective assistance of trial counsel, and another ten claims of

“Judicial Misconduct.” The claims of “Judicial Misconduct” challenged rulings

made by the circuit court during Ward’s trial and sentencing, and the trial judge’s failure to recuse himself.

2 On August 4, 2020, the circuit court entered an order on the docket, appointing the Public Defender’s Office to represent Ward in the post-conviction

proceeding. At that time, the circuit court did not notify the Public Defender’s

Office that it had been appointed as counsel, however. More than seven months later, on March 8, 2021, the circuit court received

a letter from Ward. In the letter, Ward inquired about the status of his case, and

stated that he had not been contacted by the Public Defender’s Office. On the

same day, the Circuit Clerk contacted the Public Defender’s Office by voice-mail

and e-mail, asking why no one from the Public Defender’s Office had entered an

appearance on Ward’s behalf. In response, an attorney from the Public Defender’s Office entered her appearance as counsel for Ward on April 5, 2021.

Despite appointed counsel’s entry of appearance on April 5, 2021, no

further activity occurred in Ward’s post-conviction relief case for more than ten

months. Then, on February 7, 2022, appointed counsel filed a “Motion to

Declare Abandonment of Movant and to Consider Movant’s Untimely Filed

Amended Motion.” The abandonment motion, and an attached affidavit from a

District Defender, both proceeded on the assumption that the circuit court’s

appointment of counsel was effective on August 4, 2020, when the court’s

appointment order was entered on the docket. The motion and affidavit both assumed that the time to file an amended post-conviction relief motion had

already expired by the time the Public Defender’s Office was notified of its

appointment on March 8, 2021. Accordingly, while the motion and affidavit sought to explain appointed counsel’s failure to take any action on Ward’s behalf

3 prior to March 8, 2021, the motion and affidavit did not offer any explanation for the lack of activity in Ward’s case after that date.

The caption of appointed counsel’s February 7, 2022 Motion asked the

circuit court “to Consider Movant’s Untimely Filed Amended Motion.” Despite the title of the Motion, no amended motion for post-conviction relief had been

filed at that time, and none was attached to the Motion to Declare Abandonment.

On February 8, 2022, the circuit court held a hearing on Ward’s Motion to

Declare Abandonment. A docket entry on the same date states: “Evidence is

presented. Counsel admits abandonment. Court finds abandonment and grants

Movant leave to file amended motion.” Ward’s appointed counsel filed an amended post-conviction relief motion

on March 15, 2023 – thirteen months after the circuit court issued its order

finding abandonment and granting Ward leave to file an amended motion. The

amended motion raised six claims, each asserting ineffective assistance of Ward’s

trial counsel.

Following an evidentiary hearing, the circuit court entered its judgment on

May 11, 2023, denying Ward post-conviction relief. The court’s judgment notes

that, “[o]n February 22, 2022 [sic], the Public Defender’s Office conceded the

question of abandonment.” The judgment does not otherwise address any issue of abandonment by the Public Defender’s Office.

Ward appeals.

4 Discussion

I. The State argues that the circuit court’s judgment is not final, and is therefore not appealable, because the court failed to address all of the claims in

either Ward’s pro se or amended motions for post-conviction relief. We agree.

“‘The right to appeal is purely statutory.’” State v. Harris, 675 S.W.3d 202, 204 (Mo. 2023) (quoting State v. Vandergrift, 669 S.W.3d 282, 287 (Mo. 2023)).

In this case, Ward appeals under § 512.020(5),1 which authorizes appeals

in civil cases from any “[f]inal judgment in the case.” Under § 512.020(5),

[a] final judgment is a prerequisite for appeal. A judgment is final when it resolves all claims and issues in a case, leaving nothing for future determination. Absent a final judgment, no appellate review is available and the appeal must be dismissed.

In disposing of claims in a Rule 29.15 motion, the motion court is required to issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is granted. Rule 29.15(j). Such findings and conclusions constitute a final judgment for purposes of appeal. Rule 29.15(k). Accordingly, a judgment denying post-conviction relief is not final and appealable if it fails to “acknowledge, adjudicate, or dispose” of all the claims asserted in a post-conviction motion. Creighton v. State, 520 S.W.3d 416, 423 n.9 (Mo. banc 2017) (citing Green [v. State], 494 S.W.3d [525,] at 532- 33 [(Mo. 2016)]). McAllister v. State, 561 S.W.3d 492, 493 (Mo. App. E.D. 2018) (other citations omitted). In numerous cases, this Court has dismissed appeals in post-conviction

relief cases, where the circuit court’s final judgment or order failed to mention

some of the separate claims for relief asserted by the movant. See, e.g., Joyner v. State, 685 S.W.3d 651, 653-54 (Mo. App. E.D. 2024); Huckleberry v. State, 674

1 Statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated by the 2024 Cumulative Supplement.

5 S.W.3d 801, 803 (Mo. App. S.D. 2023); Abbott v. State, 654 S.W.3d 377, 379 (Mo. App. E.D. 2022); Rogers v. State, 610 S.W.3d 733, 736 (Mo. App. E.D.

2020); Hicks v. State, 553 S.W.3d 425, 428–29 (Mo. App. S.D. 2018); Strickland

v. State, 521 S.W.3d 246, 251 (Mo. App. W.D. 2017). As we explain in § II below, a question remains as to whether the circuit

court is required to decide the claims asserted in Ward’s pro se motion for post-

conviction relief, or instead the claims asserted in his amended motion. But

whichever motion is the operative pleading, the judgment is not final: as the

State acknowledges, the circuit court’s judgment in this case failed to address all

of the claims asserted in either Ward’s pro se or amended post-conviction relief motions. Thus, of the six claims asserted in Ward’s amended motion, the circuit

court failed to address Ward’s claims that his trial counsel was ineffective for:

failing to advise Ward of the range of punishment he faced, and the risk of

consecutive sentences (resulting in his rejection of a plea offer) (Claim 8.a(1));

incorrectly advising Ward that pending criminal charges could be used to

impeach him if he testified (resulting in his decision not to testify) (Claim 8.a(2));

eliciting unhelpful hearsay testimony from a detective during cross-examination

(Claim 8.a(3)); and failing to conduct depositions of two witnesses (Claim 8.a(3)).

Similarly, while the circuit court’s judgment addressed a number of the claims in Ward’s pro se motion for post-conviction relief, it failed to address four

of Ward’s claims of ineffective assistance of trial counsel (Claims 6, 8, 10, and 14),

and addressed none of the claims Ward grouped under the heading “Judicial Misconduct.”

6 Given the circuit court’s failure to address numerous discrete claims raised in Ward’s motions for post-conviction relief, the circuit court’s judgment was not

final, and we lack appellate jurisdiction under § 512.020(5). “If a court lacks

appellate jurisdiction, it must dismiss the appeal.” State ex rel. Hawley v. Pilot Travel Ctrs., LLC, 558 S.W.3d 22, 27 (Mo. 2018) (citing Fannie Mae v. Truong,

361 S.W.3d 400, 403 (Mo. 2012)).

II. Although we are required to dismiss Ward’s appeal without addressing the

merits of his claims for post-conviction relief, we address an issue which will arise

during further proceedings, and on which the parties are in sharp disagreement: which motion for post-conviction relief is the operative pleading which the circuit

court must address?

The issue arises because Ward’s amended motion for post-conviction relief

was not filed until March 15, 2023. This was more than two-and-a-half years

after the circuit court initially appointed counsel; more than two years after the

Public Defender’s Office was advised of the appointment; twenty-three months

after the Public Defender’s Office entered its appearance; and more than a year

after the circuit court found that Ward had been abandoned by the Public

Defender’s Office. Given this timeline, Ward’s amended motion for post- conviction relief would be considered untimely under any of the versions of Rule

29.15(g) in effect between August 2020 and March 2023.

Generally, the failure to file a timely amended motion for post-conviction relief results in the waiver of any claims asserted in that amended motion. Rule

29.15(b) provides that “[f]ailure to file a motion within the time provided by this

7 Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15 and a complete waiver of any claim that could be raised in a motion

filed pursuant to this Rule 29.15.” “Missouri courts consistently find that the

rules contain strictly enforced time constraints which, if not followed, procedurally bar consideration of a movant's claims. By failing to timely file, the

movant has completely waived his right to proceed on his post-conviction relief

claims according to the language of the Rules.” Dorris v. State, 360 S.W.3d 260,

268 (Mo. 2012) (cleaned up).

The Missouri Supreme Court has held that the time limits for filing post-

conviction relief motions have quasi-jurisdictional status: courts must raise those time limits sua sponte, even if the State does not; and the time limits are not

subject to the rules of preservation or waiver which typically apply to non-

jurisdictional objections. As stated in Dorris: “It is the court's duty to enforce

the mandatory time limits and the resulting complete waiver in the post-

conviction rules – even if the State does not raise the issue.” 360 S.W.3d at 268;

see also Hatmon v. State, 661 S.W.3d 760, 765-66 (Mo. 2023) (holding that “the

mandatory time limit imposed by Rule 24.035 outweighs the law-of-the-case

doctrine,” allowing the State to raise timeliness issue in a second appeal, even

though the Court of Appeals had implicitly decided the issue in a prior appeal). A movant’s failure to file a timely amended post-conviction relief motion

may be excused, however, if the movant has been “abandoned” by his appointed

post-conviction counsel. Rule 29.15(e) requires that, within the time limits specified in Rule 29.15(g), appointed counsel must either file an amended post-

conviction relief motion asserting all available claims, and the facts supporting

8 those claims, or must file a statement indicating that the movant’s pro se motion already alleges all available facts and claims.

When appointed post-conviction counsel fails to comply with the mandates of Rule [29.15], the movant may have been abandoned by counsel. . . .

....

The untimely filing of an amended motion by post-conviction counsel creates a presumption of abandonment. When appointed counsel fails to file an amended post-conviction motion timely, the motion court is obligated to conduct an independent inquiry to determine whether the movant was actually abandoned.

The method of making this inquiry may be as formal or informal as the motion court deems necessary to resolve the question of abandonment by counsel . . . . However, a sufficient record must be made to demonstrate on appeal that the motion court's determination on the abandonment issue is not clearly erroneous.

If the motion court determines appointed counsel's apparent inattention to filing an amended post-conviction motion stems from the movant's negligence or intentional failure to act, the movant is entitled to no additional relief, and the motion court should proceed upon the pro se post-conviction motion. If the motion court determines that the movant was abandoned by appointed counsel's untimely filing of an amended motion, the court is directed to permit the untimely filing. When the independent inquiry is required but not done, this Court will remand the case because the motion court is the appropriate forum to conduct such an inquiry. The result of the motion court's inquiry will determine which motion the motion court should adjudicate. Milner v. State, 551 S.W.3d 476, 479-80 (Mo. 2018) (cleaned up).

In this case, after receiving evidence at a hearing, the circuit court found

that Ward had been abandoned by his appointed counsel as of February 8, 2022.

9 Based on its finding of abandonment, the court “grant[ed] [Ward] leave to file [an] amended motion.” Ward’s appointed counsel then filed an amended motion

– but not until March 15, 2023, more than a year after the circuit court’s finding

of abandonment. The circuit court’s finding of abandonment, and its granting of leave to file

an amended motion, did not give the Public Defender’s Office an unlimited

amount of time within which to file an amended motion. Where appointed

counsel abandons a post-conviction relief movant, “‘it is as if counsel had not

been appointed at all.’” Gittemeier v. State, 527 S.W.3d 64, 69 (Mo. 2017)

(quoting Barton v. State, 486 S.W.3d 332, 337 (Mo. 2016)). When a movant has been abandoned by counsel, “‘the proper remedy is to put the movant in the place

where the movant would have been if the abandonment had not occurred.’”

Stanley v. State, 420 S.W.3d 532, 542 (Mo. 2014) (quoting Crenshaw v. State,

266 S.W.3d 257, 259 (Mo. 2008)); see also Price v. State, 422 S.W.3d 292, 298

(Mo. 2014). Thus, in the first case recognizing an abandonment claim where

counsel failed to act on a movant’s behalf, the Supreme Court held that the

appropriate remedy would be to appoint new counsel, and give counsel the time

otherwise allowed by Rule 29.15 within which to file an amended motion. Luleff

v. State, 807 S.W.2d 495, 498 (Mo. 1991); see also Hewitt v. State, 518 S.W.3d 227, 231 (Mo. App. S.D. 2017) (agreeing with the State that, upon the circuit

court’s finding of abandonment and reappointment of counsel, movant had only

the time allowed by Rule 24.035(g) within which to file an amended motion). Therefore, when the circuit court found abandonment and granted leave

for the filing of an amended motion, it could only allow appointed counsel the

10 time otherwise provided in Rule 29.15(g). At the time the circuit court made its abandonment finding in February 2022, Rule 29.15(g) required that an amended

motion be filed within 120 days after both the mandate had been issued in Ward’s

direct appeal, and counsel had been appointed.2 We treat the date on which the circuit court found abandonment, and granted Ward leave to file an amended

motion, as the date of counsel’s appointment. Therefore, counsel had until June

8, 2022 within which to file an amended motion. Counsel failed to meet that

deadline.

The circuit court did not make a finding that Ward had been abandoned by

appointed counsel following the court’s February 8, 2022 abandonment finding, and nothing in the record explains why appointed counsel did not file Ward’s

amended post-conviction motion until March 15, 2023. Before the circuit court

can decide which post-conviction relief motion it must address, it must

determine, based on an adequate record, whether appointed counsel abandoned

Ward (for a second time) when counsel failed to file Ward’s amended motion on

or before June 8, 2022. Once the court makes that determination, it should

explicitly address all of the claims asserted in either Ward’s pro se or amended

motions, as the case may be.

The State argues that the abandonment doctrine is inapplicable here. The State notes that, in Gittemeier v. State, 527 S.W.3d 64 (Mo. 2017), the Missouri

Supreme Court limited the abandonment doctrine to appointed counsel. The

State then contends that no effective appointment of counsel ever occurred in this

2 We apply the version of Rule 29.15(g) in effect at the time the circuit court found abandonment, and granted leave for the filing of an amended motion. See Scott v. State, No. WD86373, 2024 WL 4887460, at *3-*5 (Mo. App. W.D. Nov. 26, 2024).

11 case. The State argues that the circuit court’s August 4, 2020 appointment order was ineffective, because the court did not inform the Public Defender’s Office of

the order when it was entered. The State also contends that the Circuit Clerk’s

communications to the Public Defender’s Office on March 8, 2021 could not constitute an effective appointment either, since only the court, not the Circuit

Clerk, has the authority to appoint counsel.

As the State correctly notes, a circuit court’s appointment of counsel in a

post-conviction proceeding is not effective unless and until counsel is notified of

the appointment. “Inherent in a motion court's Rule 29.15 duty to appoint

counsel is a duty to notify counsel of that appointment – without such notice, the appointment of counsel is not effective.” Borschnack v. State, 614 S.W.3d 561,

569 (Mo. App. S.D. 2020). “[A]n order of appointment is ‘not effective such as to

trigger appointment of counsel’ and the time calculations of Rule 29.15 unless

and until appointed counsel receives notice of such appointment.” Holman v.

State, 694 S.W.3d 484, 488 n.2 (Mo. App. S.D. 2024) (quoting Borschnack, 614

S.W.3d at 568 n.4).

The State assumes – without citation of authority – that the appointment

of counsel in this case became ineffective due to the time lapse between the

circuit court’s order of appointment on August 4, 2020, and the Circuit Clerk’s notification to the Public Defender’s Office on March 8, 2021. We are aware of no

authority supporting the proposition that the circuit court’s appointment of the

Public Defender’s Office somehow expired, or lapsed, due to the delay in notifying the Public Defender’s Office of the appointment. Despite the delay

between entry of the appointment order and the notification of counsel, both of

12 the elements required to effectively appoint counsel undeniably exist here: (1) an order of appointment; and (2) notification to counsel of the appointment. The

circuit court’s appointment of the Public Defender’s Office became effective when

counsel was notified of the appointment on March 8, 2021. This case involves appointed – not retained – counsel, and the abandonment doctrine is fully

applicable here.

Conclusion The appeal is dismissed.

_________________________ Alok Ahuja, Judge All concur.