Luster v. State

785 S.W.2d 103, 1990 Mo. App. LEXIS 344, 1990 WL 19632
CourtMissouri Court of Appeals
DecidedMarch 6, 1990
DocketWD 41666
StatusPublished
Cited by16 cases

This text of 785 S.W.2d 103 (Luster 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
Luster v. State, 785 S.W.2d 103, 1990 Mo. App. LEXIS 344, 1990 WL 19632 (Mo. Ct. App. 1990).

Opinions

NUGENT, Chief Judge.

A jury found defendant-movant Eddie L. Luster guilty of second degree murder and armed criminal action, and the court sentenced him to two consecutive terms of life imprisonment. We affirmed that judgment in State v. Luster, 750 S.W.2d 474 (Mo.App.1988). Thereafter, he sought relief in a Rule 29.15 motion, but the circuit court dismissed his motion without an evidentia-ry hearing. He now contends that the motion court clearly erred in summarily denying his claims of ineffective assistance of counsel. We reverse and remand for further proceedings under Rule 29.15.

Mr. Luster’s underlying convictions arose from the stabbing death of his estranged wife on Christmas Eve, 1986. The case attained notoriety through media coverage because several weeks before her death the victim had been denied a protective order in a domestic action against her husband because she could not pay the filing fee.

Movant Luster filed his pro se Rule 29.15 motion and a handwritten motion for an evidentiary hearing on June 24, 1988. He sent numerous requests to the motion court seeking the appointment of counsel. In a letter received on September 2, 1988, he notified the court that he wanted to raise additional grounds for postconviction relief. (See chronology set out in appendix to this opinion.)

On September 2, 1988, the court finally appointed the state public defender to represent him and granted appointed counsel [105]*105thirty days to file an amended motion. On September 8, 1988, the state public defender assigned Roy King, Jr., to represent the movant in the postconviction proceeding, but he did not enter his appearance until September 30, 1988.

In other letters seeking the court’s assistance, Mr. Luster expressed his uncertainty about the appointment of counsel and concern about meeting deadlines. Reporting a single contact with appointed counsel that took place on October 8, 1988, he advised the court that counsel had no copy of his pro se motion. Movant informed the court that he had asked counsel to obtain a copy of the pro se motion and to request an extension of time to amend but that counsel had failed to respond to his letters and his family’s telephone calls.

On its own motion, the court extended the time to amend the motion until November 1, 1988. On November 2, 1988, Mr. Luster filed a pro se amendment asserting additional grounds, a motion for an eviden-tiary hearing and a motion to disqualify the judge. On that same date, appointed counsel filed a motion requesting a copy of the transcript of the movant’s “guilty plea.”

On the motion for change of judge the court transferred the case to another division. On December 5, 1988, the newly-assigned judge struck movant’s pro se amendment and his request for an eviden-tiary hearing filed on November 2, 1988, because the amendment was unverified and both were untimely filed one day after the deadline.

In its December 6 findings of fact and conclusions of law, the motion court noted that movant had not filed an amended motion and had made no proper request for an evidentiary hearing in compliance with Rule 29.15(f) and (g). The court then set forth its reasons for denying relief on each ground presented in the original pro se motion and dismissed the motion.

Mr. Luster himself filed a motion to reconsider, other post-judgment motions and the notice of appeal. The court denied the motions but wrote a letter to the state public defender seeking appointment of appellate counsel for Mr. Luster and advising that his motion counsel had done nothing.

On appeal Mr. Luster contends that the rule entitled him to an evidentiary hearing on four claims of ineffective assistance of his trial counsel for failure to seek a change of judge, to seek a change of venue, to request a mental examination, and to interview and call named witnesses who could have aided his defense. Movant had presented the first two claims in his original pro se motion. He raised the latter two claims in the November 2 pro se amendment that the court later struck.

Rule 29.15(g) bars an evidentiary hearing when no timely request is made or when the motion, files and record of the case conclusively show no entitlement to relief. When the movant timely requests a hearing, the court determines the necessity for an evidentiary hearing by examining the motion to see whether it alleges facts, not conclusions, that if true warrant relief, whether those facts raise matters not refuted by the record and whether the matters complained of prejudiced the defendant. Burroughs v. State, 713 S.W.2d 167, 169 (Mo.App.1989).

The motion court apparently overlooked Mr. Luster’s pro se motion for an evidentia-ry hearing filed with his original Rule 29.15 motion on June 24, 1988. Although handwritten, the movant in fact made the request by motion filed before the date set for amendment in compliance with Rule 29.15(g). The court clearly erred in finding otherwise. It based its denial of the mov-ant’s claims of ineffective assistance of trial counsel for failure to request changes of judge and venue on “trial strategy.” The record does not make clear whether the court appropriately determined the necessity for a hearing. In view of the court’s mistaken belief that the movant had made no timely requests for an evidentiary hearing, the court undoubtedly concluded that no consideration had to be given the merits of the factual allegations of Mr. Luster’s motion. But, in fact, because the defendant filed a timely request, under Burroughs, supra, the court should have conducted the three-prong examination of the [106]*106original pro se motion to determine the movant’s entitlement to an evidentiary hearing. The court clearly erred in failing to do so, requiring reversal.

Mr. Luster’s appointed motion counsel also failed adequately to perform the duties imposed by Rule 29.15(e), which provides in pertinent part as follows:

Counsel shall ascertain whether sufficient facts supporting the grounds are asserted in the motion and whether the movant has included all grounds known to him as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all grounds known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and grounds.

The wording of Rule 29.15(e) follows that of former Rule 27.26(h), now repealed. State v. Perez, 768 S.W.2d 224, 228 (Mo.App.1989), and cases interpreting the former rule guide us in construing the new rule. Johnson v. State, 773 S.W.2d 239, 240 (Mo.App.1989). Rule 29.15(e) requires appointed counsel to file an amended motion when necessary. Thus, where the pro se motion fails to allege sufficient facts or a full and accurate statement of the grounds, fails to raise all known grounds or is incomprehensible, counsel must act. Perez, 768 S.W.2d at 228; Woolsey v. State, 738 S.W.2d 483, 485 (Mo.App.1987). See Fields v. State, 572 S.W.2d 477, 483 (Mo.1978) (en banc).

Missouri courts have reversed denials of postconviction motions when appointed counsel have failed to amend a pro se motion. Lee v. State,

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Luster v. State
785 S.W.2d 103 (Missouri Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
785 S.W.2d 103, 1990 Mo. App. LEXIS 344, 1990 WL 19632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luster-v-state-moctapp-1990.