Hollingshead v. State

324 S.W.3d 779, 2010 Mo. App. LEXIS 1592, 2010 WL 4720873

• Court: Missouri Court of Appeals
• Decided: November 23, 2010
• Docket: WD 71775
• Status: Published

Opinions

GARY D. WITT, Judge.

Timothy Hollingshead (“Hollingshead”) appeals the motion court’s denial of his Rule 24.035¹ motion without an evidentia-ry hearing. For the reasons set forth herein, the cause is remanded to the motion court.

Factual Background

Hollingshead pled guilty to one count of murder in the second degree, Section 565.021,² pursuant to a plea agreement in exchange for a “lid” of twenty-one years in prison.

In his plea colloquy before the trial court, Hollingshead acknowledged that he understood the terms of the agreement and that his possible maximum sentence was twenty-one years. He indicated that he understood he was giving up his rights to a jury trial and assured the court that his decision was not the result of force, threats, or promises, other than the plea agreement itself. Hollingshead established the factual basis of his guilty plea and that it was likely that a jury would find that he intended to cause serious physical injury to the decedent. He also stated he was satisfied with his legal representation.

The court accepted Hollingshead’s guilty plea and ordered a sentencing assessment report. Hollingshead was sentenced to twenty-one years in prison. On January 27, 2009, Hollingshead filed a timely pro se Rule 24.035 Motion to Vacate, Set Aside, or Correct Judgment and Sentence. On September 30, 2009, appointed post-conviction counsel timely filed an amended motion.

The amended post-conviction motion alleged that Hollingshead’s guilty plea was not entered knowingly, intelligently, and voluntarily, because plea counsel persuaded him that he would receive no more than fifteen years in prison.

On October 22, 2009, the motion court denied Hollingshead’s post-conviction relief motion. The judgment read in its entirety:

Pending before the Court is Movant Timothy Hollingshead’s Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Respondent State of Missouri’s Response. After a thorough review of the pleadings and applicable case law, the Court finds no factual or legal basis for granting relief.

Accordingly, IT IS HEREBY ORDERED that Movant’s Amended Motion to Vacate, Set Aside, or Correct

Judgment and Sentence is DENIED. Hollingshead now appeals.

Analysis

In his sole Point on Appeal, Holl-ingshead argues the motion court erred when it denied his Rule 24.035 motion for post-conviction relief without issuing findings of fact and conclusions of law that comply with Rule 24.035(j).

Missouri Supreme Court Rule 24.035(j) requires the motion court to “issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” “Our review of a motion court’s decision on a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the court’s findings of fact and conclusions of law are clearly erroneous.” Johnson v. State, 210 S.W.3d 427, 431 (Mo.App. S.D.2006); Rule 24.035(k). “This standard of review, however, presupposes that the motion court earned out its obligation to ‘issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.’ ” Johnson, 210 S.W.3d at 431 (quoting Rule 24.035(j)).

A denial of a post-conviction motion supported neither by factual findings nor by legal explanation provides nothing for appellate review. Supplying the necessary findings and conclusions by implication would constitute an improper de novo review on appeal. Failure to issue findings and conclusions as contemplated by Rule [24.035(j) ] mandates reversal and remand.

Brown v. State, 810 S.W.2d 716, 718 (Mo.App. W.D.1991) (citations omitted).

This court considered an almost identical issue in Gaddis v. State, 121 S.W.3d 308, 309 (Mo.App. W.D.2003). In Gaddis, Gaddis pled guilty to one count of assault in the first degree and one count of armed criminal action. Id. Gaddis then filed a pro se Rule 24.035 motion, subsequently amended by counsel, which alleged his plea counsel was ineffective because counsel assured Gaddis he would receive ten year sentences on each count if he pled guilty. Id. at 309-10. In that case, without holding an evidentiary hearing, the motion court entered the following order:

NOW on this 25 day of Sept, 2002, after a review of the pleadings on file and being fully advise [sic] in the premises, this Court adopts the State’s Findings of Fact and Conclusions of Law and hereby overrules Movant’s Motion to Reconsider, Correct, or Amend Judgment and is dismissed without a hearing.

IT IS SO ORDERED

Id. at 810.

This court, considering the sufficiency of that order,³ held that “[s]ince there were no proposed findings of fact and conclusions of law that could be incorporated into the September 25, 2002, order, and the motion court did not adopt the State’s motion to dismiss, the order did not meet the requirements of Rule 24.035(j).” Id. at 312. This court reversed and remanded the case to the motion court so that it could enter proper findings of fact and conclusions of law required by Rule 24.035(j). Id. at 313.

The substance of the motion court’s September 25, 2002 order in Gaddis and the motion court’s order in the case at bar are identical, containing only a bare denial of the motion without any legal or factual basis contained in the record for appellate review. As in Gaddis, the motion court here failed to comply with the mandate of Rule 24.035.

The failure of the motion court to comply with Rule 24.035 does not always require reversal. Id. at 312. Missouri courts have identified a total of five exceptions to the general rule that failure to comply with Rule 24.035 warrants reversal. Id. at 312-13. The Supreme Court of Missouri has identified two such situations: “(1) when the only issue before the court is one of law, findings of fact are not required, if conclusions of law are made;” and “(2) where the motion court conducted a hearing on a post-conviction motion and no substantial evidence was presented to support the allegation upon which the court failed to make findings.” Id. at 312 (citing Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993)). Exception (1) does not apply here because no conclusions of law were made, and exception (2) is not applicable because no evidentiary hearing was held.

The Eastern District of this court has elaborated on three additional exceptions recognized by this court where:

(1) the court failed to “issue a proper conclusion of law on an isolated issue” and it is clear that the movant is entitled to no relief, as a matter of law, and will suffer no prejudice if a remand is denied; (2) there were issues “that were not properly raised or are not cognizable in a post-conviction motion;” and (3) “the motion itself was insufficient.”

Id. at 313 (quoting Bowens v. State, 18 S.W.3d 118, 120 (Mo.App. E.D.2000)). As in Gaddis, none of the above exceptions are applicable. Here, the motion was sufficient, raised cognizable issues, and no findings of fact or conclusions of law were made.⁴

Conclusion

Because the motion court failed to issue proper findings of fact and conclusions of law adjudicating Hollingshead’s post-conviction motion, the judgment is reversed and remanded for the entry of findings of fact and conclusions of law as required by Rule 24.035(j).

NEWTON, Judge, concurs.

HOWARD, Presiding Judge, dissents in separate opinion.

1 . All rule citations are to the Missouri Supreme Court Rules (2010), unless otherwise indicated.

2 . All statutory citations are to RSMo 2000, as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

3 . After receiving this first order, Gaddis filed a Motion for Reconsideration, which advised the motion court that the State’s motion did not contain adequate findings of fact or conclusions of law that could be adopted by the motion court. Gaddis, 121 S.W.3d at 310. The motion court issued a second order adopting the State’s findings of fact and conclusions of law but erred by issuing an order overruling Gaddis’ Motion for Reconsideration without ruling on his post-conviction motion. Id. at 312. However, for current purposes, only the first motion of September 25, 2002, is relevant.

4 . The dissenting opinion makes a persuasive argument concerning the application of Rule 78.07(c) to foreclose Hollingshead's claim of error. We nevertheless decline to rely on that Rule as the basis for decision in this appeal. The State did not argue that Hollingshead failed to preserve his current claim by failing to file a Rule 78.07(c) motion. Because Rule 24.035 provides that, ”[t]he procedure to be followed for motions filed pursuant to this Rule 24.035 is governed by the rules of civil procedure insofar as applicable," we believe the applicability of Rule 78.07(c) in post-conviction proceedings is better resolved in a case in which the issue has been the subject of a full adversarial presentation.