Kreidler v. State

419 S.W.3d 870, 2013 WL 1775438, 2013 Mo. App. LEXIS 500
CourtMissouri Court of Appeals
DecidedApril 25, 2013
DocketNo. SD 31944
StatusPublished
Cited by3 cases

This text of 419 S.W.3d 870 (Kreidler v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kreidler v. State, 419 S.W.3d 870, 2013 WL 1775438, 2013 Mo. App. LEXIS 500 (Mo. Ct. App. 2013).

Opinion

DON E. BURRELL, J.

This case presents another occasion on which we must determine whether a particular set of facts constitutes abandonment by post-conviction counsel. The Appellant, David A. Kreidler (“Movant”), pleaded guilty to first-degree assault and armed criminal action, for which he received concurrent, fifteen-year prison terms. One-hundred-eighty-three days after Movant was delivered to the Department of Corrections (“DOC”) to begin serving his sentences, his retained attorney (“original post-conviction counsel”) filed an initial Rule 24.0351 motion on Movant’s behalf (“the original motion”). No amended motion was filed thereafter.

The original motion alleged Mov-ant’s guilty plea was involuntary and unknowing because trial counsel failed to investigate three topics: the victim’s statements, the accuracy of law enforcement reports, and “the possible side effects of medication and [Movant’s] alcohol addiction at the time of the alleged offenses.” Movant asserted that “but for the errors of his [trial] counsel, [Movant] would not have pled guilty and would have insisted on going to trial.” Although the motion court should have dismissed the original motion on the ground that it was untimely filed, the motion court did not do so.2 The motion court held an evidentiary hearing on the original motion and thereafter denied relief.

Instead of appealing the motion court’s denial of post-conviction relief, Movant [872]*872filed a motion with the motion court seeking to reopen his Rule 24.035 post-conviction matter (“motion to reopen”).3 When the motion to reopen was subsequently-denied without an evidentiary hearing, Movant filed the instant appeal. In it, he contends the motion court clearly erred in denying his motion to reopen because it sufficiently alleged that original post-conviction counsel twice abandoned Movant: first, by filing the original motion out of time, and second, by failing to file an amended motion on Movant’s behalf to add a claim that a psychiatrist’s report obtained after Movant’s plea and sentencing “would have established a basis for vacating [Movant’s] guilty plea.”

Because no purpose would be served by reopening claims already decided on their merits, and because Movant failed to provide this court with the psychiatrist’s report, we affirm the denial of Movant’s motion to reopen without an evidentiary hearing.

Applicable Principles of Review and Governing Law

We review a motion court’s decision to deny a motion to reopen post-conviction proceedings to determine “whether the motion court’s findings and conclusions are clearly erroneous.” Gehrke v. State, 280 S.W.3d 54, 56 (Mo. banc 2009).4

A movant is entitled to an evi-dentiary hearing on a post-conviction motion

only if his motion meets three requirements: (1) it must contain facts, not conclusions, which, if true, would warrant relief; (2) the alleged facts must not be refuted by the record; and (3) the matters complained of must have resulted in prejudice to the movant.

Simmons v. State, 100 S.W.3d 143, 145 (Mo.App. E.D.2003). We see no reason to apply different requirements to a request for an evidentiary hearing on a motion to reopen a postconviction proceeding. See Edgington v. State, 189 S.W.3d 703, 707 (Mo.App. W.D.2006) (evidentiary hearing on motion to reopen post-conviction matter was not required where movant did not allege facts necessary for a claim of abandonment).

“The precise circumstances, in which a motion court may find abandonment [by post-conviction counsel], are not fixed[.]” Crenshaw v. State, 266 S.W.3d 257, 259 (Mo. banc 2008) (citing McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008)).

Factual and Procedural Background

Although the transcript of Movant’s guilty plea was not included in the record on appeal, Movant does not dispute the motion court’s finding in its original order denying post-conviction relief that the factual basis for Movant’s guilty plea “was that Movant placed a loaded gun to the head of the victim and pulled the trigger.” The motion court also found that Movant had indicated to his trial counsel “that the gun did not fire because [Movant] had forgotten to chamber a round.”

Movant was delivered to DOC on May 21, 2009. The original motion was not [873]*873filed by original post-conviction counsel until November 20, 2009 — three days after the deadline imposed by Rule 24.035(b) had expired. Original post-conviction counsel did not file thereafter an amended motion as permitted by Rule 24.035(g).

Despite the untimely filing, the motion court held an evidentiary hearing on the original motion in August 2010. The record was then “held open for [Mov-ant] to present further evidence.”5 Thereafter, the State filed a motion opposing Movant’s intention to submit as such further evidence “Movant’s ‘Psychiatric Evaluation.’” The State’s “Suggestions in Opposition to Movant’s ‘Psychiatric Evaluation’ ” purportedly incorporated the referenced evaluation as an exhibit.6 The State objected to its admission and to the receipt of “any further evidence on this issue” because Movant’s claim that he was incompetent at the time of his guilty plea was not contained in the original motion. The motion court held a hearing to “[djiscuss Movant’s Psychiatric Evaluation,” and the resulting docket entry indicates only that the original motion was taken under advisement.

The motion court entered its order denying post-conviction relief with accompanying findings of fact and conclusions of law in December 2010. In it, the motion court found that Movant had entered into a written plea agreement wherein “the State agreed not to enhance the punishment in the case” (as would have been available based on Movant’s criminal history), trial counsel had advised Movant “of the possibility of an enhanced sentence[,]” and Movant “admitted to having two prior felony convictions.” The motion court also found that trial counsel did not investigate “the circumstances of the crime and conducted no depositions” because Movant told trial counsel that “he was guilty and wanted to enter a plea at arraignment” and “did not want to put the victim through any additional trouble.”

The motion court concluded that Movant was really “rais[ing] one issue. It is the claim of Movant that trial counsel’s failure to investigate the allegations against Mov-ant invalidates his plea of guilty.” The motion court noted that a guilty plea limits the ineffectiveness inquiry to whether the lawyer’s “actions impinged on the movant’s ability to enter a knowing and voluntary plea[,]” citing State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997), and that by pleading guilty a defendant in all other respects waives any complaints about trial counsel’s failure to investigate the case, citing Simmons, 100 S.W.3d at 146.

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Cite This Page — Counsel Stack

Bluebook (online)
419 S.W.3d 870, 2013 WL 1775438, 2013 Mo. App. LEXIS 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kreidler-v-state-moctapp-2013.