Waggoner v. State

552 S.W.3d 601
CourtMissouri Court of Appeals
DecidedMarch 20, 2018
DocketWD 79898
StatusPublished
Cited by7 cases

This text of 552 S.W.3d 601 (Waggoner 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
Waggoner v. State, 552 S.W.3d 601 (Mo. Ct. App. 2018).

Opinions

VICTOR C. HOWARD, JUDGE

Lance Waggoner was convicted of unlawful use of a weapon following a jury trial in the Circuit Court of Linn County and was sentenced to four years' imprisonment. This court affirmed his conviction on direct appeal. Waggoner filed a motion for post-conviction relief under Supreme Court Rule 29.15, which the circuit court denied following an evidentiary hearing. Waggoner appeals. We affirm.

Factual Background

In 2011, Waggoner lived in Bucklin with his wife Samantha Waggoner and his eight-year-old stepson. On March 26, 2011, Waggoner's stepson called 9-1-1 and reported hearing gunshots. Waggoner's stepson told the dispatcher that he did not know Waggoner's current location. At 9:40 p.m., Waggoner's wife called Bucklin City Marshal John Wright on his cell phone to ask for help. Wright requested assistance from police officers in Brookfield, and then proceeded toward the home.

Once at the home, officers met Ms. Waggoner and her son at the front door. One of Ms. Waggoner's eyes was red and puffy, and she had a black eye and swollen lip. When the officers went inside, they found broken glass and debris throughout the house. Additionally, officers discovered that a Hummer vehicle had been driven through a closed garage door and away from the home.

Although it was dark outside, an officer discovered the Hummer parked in a field behind the house, about 100 to 200 yards away, with an interior light on. After one of the officers pointed a flashlight at the Hummer, a gunshot was fired from that direction. The officers took cover. When they turned back towards the Hummer, the interior light was off. Officers decided to remove Ms. Waggoner and her son from the scene. They believed that Waggoner *603was behind the house in or near the Hummer. Because it was dark outside, however, the officers decided to suspend the search for their own safety. None of the officers ever saw Waggoner.

Later, police returned to the scene with Ms. Waggoner to retrieve personal items and search for evidence. Officers found tracks leading from the house to the field and empty rifle and shotgun shells in the field near where they had seen the Hummer. A bullet hole was also discovered in the side of the home.

On April 5, 2011, Waggoner was arrested in Nebraska. He was transported back to Missouri, where he was charged with two counts of unlawful use of a weapon and one count of resisting arrest. Waggoner waived his right to counsel.

On October 7, 2011, a jury trial was held. During the instruction conference, the State agreed to dismiss one of the two charges of unlawful use of a weapon, and the trial court entered a judgment of acquittal on the resisting arrest charge. Accordingly, only a single count of unlawful use of a weapon was submitted to the jury.

The jury returned a guilty verdict on the single count of unlawful use of a weapon submitted to it. The circuit court accepted the jury's recommendation that Waggoner be sentenced to a term of four years' imprisonment. We affirmed Waggoner's conviction and sentence on direct appeal. See State v. Waggoner , 425 S.W.3d 140 (Mo. App. W.D. 2014).

On July 29, 2014, Waggoner filed a timely pro se motion for post-conviction relief under Rule 29.15, which asserted thirty-two separate claims.

Although the circuit court initially dismissed Waggoner's post-conviction relief motion as frivolous, it later reinstated the motion, appointed counsel, and granted counsel an extension of time to file an amended motion. Appointed counsel filed a timely amended motion on December 8, 2014. Following an evidentiary hearing, the circuit court issued its judgment denying Waggoner's post-conviction relief motion on June 29, 2016.

Waggoner appeals.

Standard of Review

We review the denial of a motion for post-conviction relief to determine whether the circuit court's findings of fact or conclusions of law are clearly erroneous. See Rule 29.15(k); Cornelious v. State , 351 S.W.3d 36, 41 (Mo. App. W.D. 2011). "Findings and conclusions are deemed clearly erroneous only if a full review of the record leaves the appellate court with the definite and firm impression that a mistake has been made." Id. (internal quotation omitted). We presume the lower court's ruling to be correct. Id. (citing Strong v. State , 263 S.W.3d 636, 642 (Mo. banc 2008) ).

Discussion

I.

In his first Point, Waggoner argues that the motion court erred when it failed to make a sua sponte inquiry into whether Waggoner was abandoned by his appointed counsel.

Criminal defendants do not have a constitutional right to counsel in post-conviction proceedings. Martinez v. Ryan , 566 U.S. 1, 9, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Despite the lack of any constitutional right to counsel, Missouri Supreme Court Rules provide for the appointment of counsel for indigent movants in post-conviction cases. See Rule 24.035(e), Rule 29.15(e) ("When ... an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant").

Because the right to counsel in post-conviction proceedings is not constitutionally *604based, any claim that post-conviction counsel was ineffective is "categorically unreviewable." Barton v. State , 486 S.W.3d 332, 336 (Mo. banc 2016) (quoting Price v. State , 422 S.W.3d 292, 297 (Mo. banc 2014) ). Although a movant cannot assert a claim of ineffective assistance by post-conviction counsel, a movant may be entitled to relief if the movant is "abandoned" because of counsel's failure to discharge certain obligations. Id. at 336-37. Rule 29.15(e) requires counsel to:

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552 S.W.3d 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waggoner-v-state-moctapp-2018.