WAGGONER v. STATE (2018)

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 was 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 based, 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:

[A]scertain whether sufficient facts supporting the claims are asserted in the [pro se] motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims ․ counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken․

The Missouri Supreme Court has emphasized, however, that

[s]ince first recognized by this Court in Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), the claim of abandonment by post-conviction counsel has been limited to two circumstances—when post-conviction counsel: (1) takes no action with respect to filing an amended motion or (2) is aware of the need to file an amended motion but fails to do so in a timely manner.

Id. at 334 (emphasis in original). Luleff held that, where “there is no record of any activity by counsel on movant’s behalf, the motion court shall make inquiry, sua sponte, regarding the performances of both movant and counsel.” 807 S.W.2d at 498.

Waggoner does not claim there was no record of activity by counsel. Instead he believes that Luleff required the circuit court to engage in a sua sponte abandonment inquiry in this case, because the amended post-conviction relief motion filed by his appointed counsel made only “minor changes” to his pro se motion, and therefore failed to establish that appointed counsel fulfilled her obligations under Rule 29.15(e). Waggoner attempts to bring his case within the first category of abandonment recognized in Barton: cases where appointed counsel “takes no action with respect to filing an amended motion.” 486 S.W.3d at 334. Appointed counsel did take action on Waggoner’s behalf, however, since counsel actually filed a timely amended motion for postconviction relief. This simply is not a case in which counsel took “no action with respect to filing an amended motion.”

Waggoner argues that the amended motion filed by appointed counsel “is akin to filing no amended motion at all,” because of what he considers limited modifications counsel made to his pro se motion. Waggoner cites to our decisions in Pope v. State, 87 S.W.3d 425, 428-29 (Mo. App. W.D. 2002) and Trehan v. State, 835 S.W.2d 427, 429-30 (Mo. App. S.D. 1992) to argue that abandonment must be found where appointed counsel files an amended motion which merely replicates the allegations of a pro se motion with only minor, non-substantive modifications because that is “tantamount to a total default in carrying out the obligations imposed upon appointed counsel under the rules.” Id. at 428 (internal quotations omitted).

Our Supreme Court has provided recent guidance. In the present case, as in Barton, appointed counsel filed an amended motion with changes and additions the movant believed were inadequate. Barton clearly states that abandonment will only be found where appointed counsel “takes no action with respect to filing an amended motion,” 486 S.W.3d at 334, and Luleff makes clear that an abandonment inquiry is only required where “there is no record of any activity by counsel on movant’s behalf.” 807 S.W.2d at 498 (emphasis added).

Waggoner provides an exhaustive critique of appointed counsel’s performance in what amounts to an impermissible claim for ineffective assistance of post-conviction counsel. His argument would require a circuit court to assess the extent, and significance, of the modifications appointed counsel made to a pro se motion. This sort of qualitative assessment would necessarily—and improperly—require the court to evaluate the effectiveness of post-conviction counsel’s efforts on the movant’s behalf. Our Supreme Court has emphasized that “the rationale behind the creation of the abandonment doctrine in Luleff and Sanders was not a newfound willingness to police the performance of post-conviction counsel generally.” Price v. State, 422 S.W.3d 292, 298 (Mo. banc 2014). The Court has also stressed that “[c]laims of abandonment are reviewed carefully to ensure that the true claim is abandonment and not a substitute for an impermissible claim of ineffective assistance of post-conviction counsel.” Barton, 486 S.W.3d at 338.

The Supreme Court has explained the importance of maintaining a clear distinction between claims of abandonment and claims of ineffective assistance. Making this delineation between abandonment and ineffective assistance claims is essential both because it is required by Missouri law and because it clarifies for the federal courts that litigants who received ineffective assistance of post-conviction counsel may not obtain relief in Missouri state courts. Gehrke v. State, 280 S.W.3d 54, 59 (Mo. banc 2009), held that this is important because:

[T]he Court limits the scope of abandonment to preserve potential relief under federal habeas corpus proceedings. Federal habeas corpus proceedings require a movant to exhaust all available state remedies, including appeal and postconviction remedies, before bringing a federal claim. State court remedies are exhausted when they are no longer available, regardless of the reason for their unavailability. If the scope of abandonment were expanded further, it is foreseeable that federal habeas corpus claims could be denied due to a movant's failure to bring a motion to reopen postconviction proceedings. This would frustrate the legitimate goals of a prompt comprehensive review and finality.

(internal quotations and citations omitted).

Waggoner’s claim that his appointed counsel did not do enough to revise his pro se postconviction relief motion is “an impermissible claim of ineffective assistance of post-conviction counsel,” not a “true claim [of] abandonment.” See Barton, 486 S.W.3d at 338. The first category of abandonment claims recognized in Barton is limited to cases of non-action by counsel; it does not apply in cases of purportedly insufficient or incompetent action.

The record in this case reflects actions by Waggoner’s appointed counsel in furtherance of counsel’s obligations under the rules. Counsel made multiple substantive revisions to Waggoner’s pro se motion. For example, counsel corrected the date listed in the pro se motion for issuance of this Court’s mandate in Waggoner’s direct appeal, and added the docket number for Waggoner’s direct appeal to the motion. Under Rule 29.15(b), the date of the issuance of the direct-appeal mandate is critical to determining the timeliness of a pro se motion. In this case, Waggoner’s pro se motion would have been deemed untimely under the incorrect date he initially provided for the issuance of the mandate in his direct appeal.

Waggoner’s appointed counsel also added the following introductory statement prior to the specific description of Waggoner’s individual post-conviction relief claims:

8. Claims for Postconviction Relief:

Movant was denied his constitutional rights to due process of law, a fair and impartial jury, and a fair trial, contrary to constitutional guarantees under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and under Article I, Sections 10, 18(a) and 22(a) of the Missouri Constitution, because:

Most significantly, counsel in six separate places listed the witnesses upon whom Waggoner would rely to support specific claims. Item #9 of Supreme Court Form 40 requires that a post-conviction relief movant provide “the names and addresses of the witnesses or other evidence upon which you intend to rely to prove [the] facts” supporting the movant’s claim. Counsel’s insertion of witness names into the pro se motion reflects an effort by counsel to bring Waggoner’s pro se motion into compliance with the procedural requirements established by Supreme Court Rules.

Thus, the amended motion filed by appointed counsel in this case was not merely a reproduction of Waggoner’s pro se motion. To the contrary, counsel made multiple, substantive modifications to the pro se motion. The amended motion cannot be considered a “mere replication” of Waggoner’s pro se motion. Because claims of ineffective assistance by postconviction counsel are “categorically unreviewable,” we need not decide whether the modifications counsel made were well-advised, significant, or successful; nor do we consider whether a reasonably competent attorney would have made further revisions to Waggoner’s pro se motion. Because of the actions counsel took on Waggoner’s behalf, Waggoner was not “abandoned,” and there was no need for the circuit court to conduct a sua sponte abandonment inquiry.

Waggoner’s first Point is denied.

II.

In his second Point, Waggoner argues that the trial court lacked jurisdiction to convict and sentence him because the crime for which he was ultimately convicted was not charged in the First Amended Information.

In the First Amended Information, Waggoner was charged in Count I with unlawful use of a weapon based on the allegation that, “on or about March 26, 2011, outside the residence at 36417 Nickle Rd., in the County of Linn, State of Missouri, the defendant knowingly discharged a firearm from a motor vehicle, to wit, a yellow Hummer.” In Count II, Waggoner was charged with unlawful use of a weapon on the basis that, “on or about March 26, 2011, inside the residence at 36417 Nickle Rd., in the County of Linn, State of Missouri, the defendant knowingly exhibited in the presence of one or more persons a shotgun, a weapon readily capable of lethal use, in an angry or threatening manner.”

During the instruction conference, the circuit court required the prosecution to elect between submission of Count I or Count II. The State elected to submit the unlawful use of a weapon charge based on Count II. The verdict director omitted the allegation that the unlawful exhibition of a weapon occurred “inside the residence at 36417 Nickle Rd.,” however. And during closing argument, the State argued that the unlawful exhibition of a weapon occurred outside the home, when Waggoner discharged a shotgun in the presence of the law enforcement officers.

On direct appeal, Waggoner challenged the verdict director, arguing that it erroneously omitted the specific location of the offense, as charged in the First Amended Information. We rejected Waggoner’s challenge. We first noted that the allegation in Count II of the First Amended Information that the unlawful act occurred “inside the residence at 36417 Nickle Rd.” was surplusage, and that it was unnecessary for the State to prove, or for the jury to find, that the offense in fact occurred inside Waggoner’s home. We also reasoned that Waggoner’s true objection was that there was a factual variance between the crime as charged and the offense proved at trial. We concluded that Waggoner could not show that he was prejudiced by any variance between Count II of the charging instrument and the trial evidence, since in response to Count I he was on notice and prepared to respond to the allegation that he had discharged a weapon in the presence of law enforcement officers outside of his home.

“Matters decided on direct appeal may not be relitigated in a postconviction relief motion.” State v. Boyd, 927 S.W.2d 385, 389 n.5 (Mo. App. W.D. 1996); see also, e.g., Placke v. State, 341 S.W.3d 812, 818 (Mo. App. S.D. 2011). Moreover, even if Waggoner’s current claim is different from the claim he raised on direct appeal, it is well-established that “[i]ssues that could have been raised on direct appeal—even if constitutional claims—may not be raised in postconviction motions, except where fundamental fairness requires otherwise and only in rare and exceptional circumstances.” Esparza v. State, 518 S.W.3d 269, 273 (Mo. App. W.D. 2017) (internal quotation omitted); accord. Strosnider v. State, 514 S.W.3d 34, 40 (Mo. App. S.D. 2016) (quoting State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992)).

Waggoner contends that the variance between the First Amended Information and the evidence at trial divested the circuit court of jurisdiction to convict him, and that he is therefore entitled to raise the issue in this post-conviction proceeding. But the Supreme Court has rejected the argument that defects in a charging instrument affect the jurisdiction of the circuit court. More than 25 years ago, the Court explained that

[s]ubject matter jurisdiction of the circuit court and the sufficiency of the information or indictment are two distinct concepts. The blending of those concepts serves only to confuse the issue to be determined. Circuit courts obviously have subject matter jurisdiction to try crimes, including the felony of unlawful use of weapons. Mo. Const. art. V, § 14(a). At the same time, a person cannot be convicted of a crime with which the person was not charged unless it is a lesser included offense of a charged offense. Cases stating that jurisdiction is dependent upon the sufficiency of the indictment or information mix separate questions. That language ․ should not be relied on in the future. Equally inaccurate is the statement in at least one case that absence of an information deprives the trial court of jurisdiction over the person.

State v. Parkhurst, 845 S.W.2d 31, 34-35 (Mo. banc 1992) (other citations and footnotes omitted).¹ Waggoner’s claim that he was convicted of a different offense than the one charged in the First Amended Information does not raise a “jurisdictional issue” which he can raise in this postconviction relief proceeding.

Point II is denied.

III.

In his third Point, Waggoner argues that his appellate counsel was ineffective for failing to assert that the trial court lacked jurisdiction to convict him, because of the variance between the offense charged in the First Amended Information, and the offense of which he was convicted at trial. Waggoner’s Brief acknowledges that appellate counsel argued on direct appeal that “the State argued and submitted Count II on a different theory than what was charged.” He contends, however, that appellate counsel should have argued that the disparity between the charging instrument and the evidence at trial created a jurisdictional defect, not merely a trial court error.

As explained in § II, above, Waggoner’s contention that the claimed variance divested the circuit court of subject-matter jurisdiction is incorrect. Because this is not a jurisdictional issue, direct-appeal counsel was not ineffective for failing to argue the claim as an issue of subject-matter jurisdiction.

Conclusion

The judgment of the circuit court is affirmed.

The majority holds that the circuit court was not required to conduct a sua sponte inquiry into the performance of Waggoner’s appointed counsel. According to the majority, no independent inquiry was required because counsel showed some “signs of life” by filing an “amended” post-conviction relief motion which reproduced Waggoner’s pro se motion with inconsequential changes. The majority apparently concludes that, so long as appointed counsel files something which purports to be an “amended” motion, counsel has discharged his or her performance obligations under Supreme Court Rule 29.15(e), and no further inquiry is required (or even permitted).

I respectfully dissent. Contrary to the majority opinion, multiple cases hold that an abandonment inquiry is required even if counsel took some action on a movant’s behalf. Indeed, the Missouri Supreme Court has expressly recognized that “[a]n amended motion ․ has been deemed a nullity when counsel merely replicated a facially deficient pro se motion.” Stanley v. State, 420 S.W.3d 532, 542 (Mo. banc 2014). Notably, the Supreme Court supported the quoted statement in Stanley with a favorable citation to Pope v. State, 87 S.W.3d 425 (Mo. App. W.D. 2002)—a case which the majority now (apparently) holds has been overruled.

In this case, appointed counsel filed an “amended” post-conviction relief motion which reproduced Waggoner’s pro se motion with only perfunctory changes. (The “amended” motion is attached as an Appendix to this opinion.) Despite the majority’s valiant efforts to magnify their significance, none of the few revisions made by counsel give any indication that counsel fulfilled her obligations under Rule 29.15(e) “to investigate the claims raised in the inmate’s initial motion,” and to independently determine whether additional facts, or additional claims, were available and needed to be asserted. Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014). Because “[the] record does not indicate whether appointed counsel made the determinations required by Rule 29.15(e),” this “creates a presumption that counsel failed to comply with the rule.” Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991). The circuit court was accordingly required to conduct an inquiry into counsel’s performance, to determine whether counsel had failed to discharge her obligations under Rule 29.15(e). The judgment should be reversed, and the case remanded to the circuit court for it to conduct the abandonment inquiry required by Luleff.

Discussion

I.

Rule 29.15(e) describes the fundamental obligations of appointed counsel to determine whether the filing of an amended post-conviction relief motion is required. Rule 29.15(e) provides that, after counsel’s appointment,

Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and (2) all claims known to the movant are alleged in the pro se motion. The statement shall be presented to the movant prior to filing.[2]

In Price v. State, 422 S.W.3d 292 (Mo. banc 2014), the Missouri Supreme Court explained the importance of counsel’s performance of his obligations under Rule 29.15(e):

When counsel is appointed under Rule 29.15(e), this rule requires this counsel to investigate the claims raised in the inmate’s timely initial motion and then file either an amended motion or a statement explaining why no amended motion is needed. Performance of these duties is essential because the limited scope of appellate review under Rule 29.15(j) assumes that “the motion court and appointed counsel will comply with all provisions of the rule.” Luleff [v. State], 807 S.W.2d [495,] at 497-98 [ (Mo. banc 1991) ]. Therefore, Luleff balances the Court’s need to enforce the requirements of Rule 29.15(e) and its unwillingness to allow ineffective assistance claims regarding post-conviction counsel by holding that a “complete absence of performance” by appointed counsel is tantamount to a failure of the motion court to appoint counsel under Rule 29.15(e) in the first instance. Id. at 498. Under either scenario, the integrity of the procedures set forth in the rule are compromised and the case cannot proceed as Rule 29.15(e) intends.

Id. at 297-98. We have similarly recognized that counsel must conduct a reasonable investigation in order to discharge counsel’s obligation to “ascertain” whether the movant has asserted all known claims and supporting facts.³

In Luleff, the Missouri Supreme Court imposed an obligation on circuit courts, in certain circumstances, to act on their own motion to investigate whether appointed counsel has discharged counsel’s obligations under Rule 29.15(e). Luleff holds that, where the record fails to reflect that appointed counsel has discharged his obligations under Rule 29.15(e), the circuit court has an obligation to conduct an independent inquiry concerning whether counsel has abandoned the movant.

A record that does not indicate whether appointed counsel made the determinations required by Rule 29.15(e) creates a presumption that counsel failed to comply with the rule. Where counsel determines that filing an amended motion is not warranted, counsel should make that determination a part of the record. At such time as the motion court may proceed to rule a postconviction motion and there is no record of any activity by counsel on movant’s behalf, the motion court shall make inquiry, sua sponte, regarding the performances of both movant and counsel. If counsel’s apparent inattention results from movant’s negligence or intentional failure to act, movant is entitled to no relief other than that which may be afforded upon the pro se motion. If the court determines, on the other hand, that counsel has failed to act on behalf of the movant, the court shall appoint new counsel, allowing time to amend the pro se motion, if necessary, as permitted under Rule 29.15(f).

Luleff, 807 S.W.2d at 498. Under Luleff, therefore, the record before the circuit court must affirmatively indicate that appointed counsel has complied with Rule 29.15(e).⁴

Generally, a circuit court is not required to perform an independent inquiry under Luleff if appointed counsel does either of the following: (a) counsel files a timely amended motion on the movant’s behalf; or (b) counsel files the statement contemplated by Rule 29.15(e), explaining the actions counsel undertook to determine whether an amended motion was required. See, e.g., Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015); Vogl v. State, 437 S.W.3d 218, 229 (Mo. banc 2014); Stanley v. State, 420 S.W.3d 532, 541-42 (Mo. banc 2014).

A Luleff inquiry may be required, however, “[e]ven though the record may reflect some activity by appointed counsel to demonstrate compliance with Rule 29.15(e).” Poe v. State, 820 S.W.2d 325, 327 (Mo. App. W.D. 1991) (emphasis added). For example, the Supreme Court has held that abandonment may be found even though counsel files a Rule 29.15(e) statement, if that statement fails to establish that counsel engaged in the level of activity required by the Rule. In Moore v. State, 934 S.W.2d 289 (Mo. banc 1996), appointed counsel in a guilty-plea case filed a statement in lieu of an amended motion, stating that

he had reviewed the file “with the exclusion of the transcripts of the guilty plea hearing ․, the sentencing hearing ․, and movant's pro se motion․” [Emphasis added.] On the basis of this “review,” post-conviction counsel determined that “no additional facts or grounds can be added in an amended motion.”

Id. at 290.

Counsel’s statement in Moore plainly indicated that counsel had engaged in some action to fulfill his obligations under the rules. The Supreme Court nevertheless held that counsel had essentially conceded abandonment, by acknowledging that he had failed to review essential parts of the record:

Rule 24.035(e) [ (which is identically worded to Rule 29.15(e)) ] requires counsel to “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.” In [this] case, the statement filed by post-conviction counsel shows on its face that counsel took neither of the two actions required by Rule 24.035(e). On its face, counsel’s statement is thus tantamount to a confession of abandonment. A ․ hearing is warranted ․ precisely because the face of the record raises the presumption of abandonment to which Luleff ․ refer[s].

Id. at 292; accord, Brown v. State, 968 S.W.2d 725, 727 (Mo. App. E.D. 1998) (reversing for Luleff inquiry where counsel’s statement in lieu of an amended motion indicated that counsel had not communicated with the movant as part of counsel’s determination that an amended motion was unnecessary). Other cases reach the same result as Moore, holding that an abandonment inquiry is required even though counsel took some action on a movant’s behalf.⁵ And the Missouri Supreme Court continues to cite Moore as good law concerning the abandonment doctrine. See, e.g., Barton v. State, 486 S.W.3d 332, 338 (Mo. banc 2016); Moore, 458 S.W.3d at 825; Vogl, 437 S.W.3d at 228-29.

The majority opinion cannot be reconciled with the result reached in Moore and related cases. If the majority opinion were correct, each of those cases should have rejected the movant’s abandonment claim, for the simple reason that counsel did something to represent the movant—however limited or incompetent. But the courts took the opposite approach, and assessed whether the record of counsel’s actions was sufficient to indicate that counsel had, in fact, discharged his duties under Rule 29.15(e).

Of more significance, the Missouri Supreme Court has expressly held that the mere fact that counsel files a paper denominated an “amended motion” is insufficient, standing alone, to make a Luleff inquiry unnecessary. Instead, the Court has explained that “[a]n amended motion ․ has been deemed a nullity”—thus triggering the obligation to perform a Luleff inquiry—“when counsel merely replicated a facially deficient pro se motion.” Stanley, 420 S.W.3d at 542 (citing Pope v. State, 87 S.W.3d 425, 427-29 (Mo. App. W.D. 2002)). We have explained that, “when counsel files an amended motion that is so patently defective that it amounts to a nullity, ․ counsel, in essence, has not filed an amended motion, and, therefore, the action falls within the first situation of abandonment recognized by the Supreme Court” (namely, cases in which counsel “takes no action” on the movant’s behalf). Dudley v. State, 254 S.W.3d 109, 111 (Mo. App. W.D. 2008); see also Williams v. State, 415 S.W.3d 764, 768 (Mo. App. W.D. 2013).

The Supreme Court found that “[t]he first amended motion was not a nullity” in Stanley, 420 S.W.3d at 542; but it reached this conclusion only after actually examining the modifications the amended motion made to the movant’s pro se motion. The Court explained:

The pro se motion alleges only (1) that the plea court failed to reject his plea agreement in “open court” and (2) that Mr. Stanley’s plea counsel was ineffective because she promised Mr. Stanley he would receive a maximum of a three-year sentence if he pleaded guilty, yet she allowed the court to treat the plea agreement as a nonbinding “open plea.” The first amended motion alleges five claims. It alleges two claims that the plea court erred in failing to tell Mr. Stanley it was rejecting his guilty plea agreement and in failing to allow him to withdraw his guilty pleas, and it alleges three separate claims that his plea counsel was ineffective. The first amended motion also states, as additional facts, that the plea court did not allow Mr. Stanley to withdraw his guilty pleas, that counsel failed to assert in the written plea agreement that the two three-year sentences were to be served concurrently, and that plea counsel did not object or inquire into the plea court’s imposition of the maximum eight-year sentence.

The first post-conviction counsel’s actions did not constitute abandonment because his filing of an amended motion discharged his duties under Rule 24.035(e). Moreover, the allegations of additional claims and facts in the first amended motion show that Mr. Stanley’s first post-conviction counsel made some effort to “ascertain whether sufficient facts supporting the claims” were asserted in the pro se motion and “whether the movant had included all claims known to the movant as a basis for attacking the judgment and sentence.” Rule 24.035(e); see Luleff, 807 S.W.2d at 497.

Id. at 542-43.

If the majority opinion were correct that the filing of any document denominated an “amended motion” is enough to defeat the need for a Luleff inquiry, the Supreme Court’s detailed comparison of the pro se and amended motions in Stanley would have been unnecessary. But the Supreme Court engaged in that detailed comparison, as part of its determination that the movant had not been abandoned by counsel. Without an explicit statement from the Supreme Court to the contrary, we must presume that Stanley remains good law.⁶

It is also significant that Stanley cited favorably to this Court’s decision in Pope—a case the majority now suggests has been overruled by the intervening decision in Barton v. State, 486 S.W.3d 332, 338 (Mo. banc 2016). In Pope, 87 S.W.3d 425, we held that the circuit court was required to perform an independent abandonment inquiry, even though appointed counsel timely filed an amended motion on the movant’s behalf. We explained that the “amended” motion in Pope “was a replica of the pro se ․ motion, except that the amended motion changed the pronoun ‘I’ to ‘Movant’ or ‘he’ or ‘his.’ ” Id. at 428. We rejected the State’s argument that a Luleff inquiry is required “only when appointed counsel takes no action on behalf of movant or files an untimely amended motion.” Id. Instead, we held that, where counsel makes “no substantial changes” to the movant’s pro se motion, and counsel fails to explain the basis for his determination that no revisions were required, the presumption of abandonment arises. Id. at 428-29. We explained:

A record that does not indicate whether appointed counsel made the determinations required by Rule 24.035(e) creates a presumption that counsel failed to comply with the rule. Based on the fact that Pope’s amended motion merely replicated his pro se motion, we are unable to determine whether appointed counsel determined the motion was sufficiently supported by facts and included all claims known to Pope. If no substantial changes were required, appointed counsel should have filed a statement explaining what actions were taken to ensure the sufficiency and completeness of the motion. The minor pronoun changes in the amended motion do not allow an inference that appointed counsel complied with the affirmative requirements of Rule 24.035. This is particularly evident given counsel’s failure to correct obvious errors in the pro se motion, such as Pope’s allegation that he was denied “allocation at sentencing.” This misspelling (of the legal term “allocution”) was repeated verbatim in the amended motion, suggesting that appointed counsel did nothing more to the pro se pleading than have it retyped.

Id. at 428-29 (citations omitted).

Similarly, in Trehan v. State, 835 S.W.2d 427 (Mo. App. S.D. 1992), the Southern District held that a Luleff inquiry was required where, “[d]espite the flagrant inadequacy of the movant’s pro se motion, his appointed counsel simply incorporated the pro se motion, with its blank paragraph 9, into the amended motion and added two additional grounds for relief which the movant now correctly describes as ‘uncognizable.’ ” Id. at 429.

The caselaw discussed above establishes that the need for an independent abandonment inquiry does not evaporate simply because appointed counsel takes some action to represent the movant in the post-conviction proceeding. Instead, the record must affirmatively indicate that appointed counsel has in fact discharged his obligations under Rule 29.15(e) to investigate and analyze whether a pro se motion requires revision or supplementation. As discussed in the following section, the “amended” motion filed by appointed counsel in this case fails to provide any basis to infer that she in fact performed the investigation required by Rule 29.15(e), and a Luleff inquiry was accordingly required.

II.

The “amended” motion filed by Waggoner’s appointed counsel in this case is insufficient to establish that counsel in fact discharged her obligations under Rule 29.15(e) to determine the adequacy of Waggoner’s pro se motion following a reasonable investigation.

The 50-page “amended” motion, which is appended to this opinion, consists of a photocopy of Waggoner’s pro se motion, on which counsel has made a grand total of 10 handwritten insertions, and added one typewritten general statement.⁷ Because it is simply a photocopy (complete with the original file-stamp and signature), the “amended” motion retains the many misspellings in the pro se motion: for example, “Missouri” is spelled “Missorri”; “judgment” is “judgement”; “counsel” is “council”; “during” is “durring”; and “essential” is “esential.” Counsel’s failure to correct these obvious errors raises concerns as to whether counsel made the independent inquiry that is required under the Rule. See Pope, 87 S.W.3d at 429 (failure of record to show counsel’s discharge of obligations under Rule 24.035(e) “is particularly evident given counsel’s failure to correct obvious errors in the pro se motion,” such as misspellings).

In addition, counsel retained all thirty-two claims from Waggoner’s pro se motion, without any substantive modification. Among other things, Waggoner’s pro se motion alleges: that the prosecution had committed the “felony offense of witness tampering” by threatening witnesses and asking them to perjure themselves; that a prosecutor had committed perjury by drafting and filing a false probable-cause affidavit; that the prosecution had forged business records affidavits and the transcripts of two 9-1-1 calls; that Sheriff’s Department personnel presented inadmissible evidence to the jury, and improperly discussed the case with jurors, during their deliberations; that Sheriff’s Department personnel instructed the jury how to complete the verdict forms; that “rampant judicial misconduct” and “jury misconduct” had occurred; and that the court had failed to maintain an accurate and complete trial transcript by holding discussions off the record, and omitting or altering the record of proceedings. The motion alleges generally that Waggoner’s prosecution was plagued by “[r]ampant perjury, forgery, manufacture of false evidence, lying as to where evidence was found, even taking false photo’s [sic] at another ․ location claiming they were taken at the scene of the alleged crimes.” The motion also alleged that there was insufficient evidence to support Waggoner’s conviction, that the offense of which Waggoner was convicted was different from the offenses charged in the First Amended Information, and various claims of instructional error.

Certain of the claims asserted in Waggoner’s pro se motion (such as challenges to the sufficiency of the evidence to support his conviction; claims of instructional error; and claims of a variance between the charging instrument and the evidence at trial) are plainly claims that could—and should—have been raised in Waggoner’s direct appeal. Those claims are not properly asserted in a motion for post-conviction relief, yet counsel retained them verbatim, and without any attempt to justify consideration of those claims in a post-conviction relief proceeding. Many of the other claims Waggoner asserted (such as claims of witness tampering; suborning perjury; forgery of documents; interference in jury deliberations; alteration of the trial transcript; “rampant judicial misconduct” and juror misconduct; and “[r]ampant perjury, forgery, [and] manufacture of false evidence”) are factually extravagant. Counsel retained all of those claims in Waggoner’s “amended” motion, without reciting a single additional fact or legal authority, and without any indication that counsel had herself determined that a good-faith factual and legal basis actually existed for the claims. It is significant in this regard that the circuit court initially dismissed all of the claims in Waggoner’s pro se motion as frivolous—yet appointed counsel later repeated all of those same claims, with no substantive revision or supplementation.⁸

The two most “significant” revisions made by appointed counsel were the addition of a preliminary statement to Waggoner’s pro se motion, and the explicit identification in seven instances of witnesses who would support various claims. But neither of those revisions is sufficient to demonstrate that counsel discharged her obligations under Rule 29.15(e). The preliminary statement counsel added is merely a vague claim that Waggoner was denied his right to a fair trial, a fair and impartial jury, and due process of law.⁹ The statement is so generic that it could be used to introduce the post-conviction claims of any movant, in any post-conviction case. It does not support any inference that counsel in fact investigated the circumstances of Waggoner’s case.

Counsel’s identification of witnesses is no more meaningful. In each case in which a witness was explicitly identified by counsel, the identity of that witness was already readily apparent from the claim description contained in Waggoner’s pro se motion. For example, one of Waggoner’s claims was that the State had failed to disclose pending criminal charges against his wife, Samantha Waggoner. Waggoner’s description of the claim stated that the State had failed to disclose criminal charges pending against its “key witness,” and explicitly stated that, among other things, “Waggoner will rely on the criminal complaint filed in the records of the court in State v. Samantha Waggoner.” Thus, it was obvious from Waggoner’s pro se motion that Ms. Waggoner was the “key witness” whose pending criminal prosecution was purportedly concealed. Counsel added to Waggoner’s description the additional statement that Waggoner “will rely on testimony of ‘key witness’ referenced above, who is Samantha Waggoner of New Mexico.” Counsel’s insertion added nothing of substance to Waggoner’s motion.

Similarly, in three instances where Waggoner’s description contended that the Sheriff had improperly tampered with the jury during their deliberations, counsel added the identical statement that Waggoner “[w]ill rely on testimony of Sheriff Tom Parks and jurors.” Notably, counsel’s insertion does not identify any juror by name, suggesting that counsel had not actually conducted any investigation of Waggoner’s incendiary claim that the Sheriff had actively, repeatedly and improperly interfered with the jury’s deliberations.

Finally, counsel added a general statement at the end of the motion, indicating that Waggoner would “rely on his own testimony in support of all of the foregoing claims.” This statement is so vague as to be essentially meaningless. In addition, it is hard to believe that Waggoner would in fact have any meaningful testimony to offer concerning many of the thirty-two claims asserted in his amended motion (such as claims of jury or witness tampering, or other claims of prosecutorial or judicial misconduct). This final insertion, once again, provides no basis to conclude that counsel had in fact discharged her obligations under Rule 29.15(e).

In its Brief, the State contends that counsel’s identification of witnesses in the amended motion “shows that counsel did investigate appellant’s case.” I disagree. While counsel’s insertions may indicate that counsel had reviewed the pro se motion itself, they do nothing to suggest that counsel conducted any further investigation or review. Moreover, although the majority contends that counsel’s addition of witness descriptions into the motion—with respect to only 6 of Waggoner’s 32 claims—constitutes an effort by counsel to bring Waggoner’s motion into compliance with the procedural requirements of the Supreme Court Rules, counsel’s handwritten insertions do not even satisfy the minimal formal requirements of Item #9 of Form 40, which requires that witnesses be identified by name, and address, with respect to each claim asserted in a post-conviction relief motion.

Finally, counsel’s correction of the date of the direct-appeal mandate, and addition of the direct-appeal docket number, to Waggoner’s pro se motion does nothing to indicate that counsel performed the type of investigation required by Rule 29.15(e).

Despite the majority’s determined effort to magnify the extent of appointed counsel’s revisions to Waggoner’s pro se motion, those revisions are merely cosmetic—the proverbial “lipstick on a pig.” Because the record “does not indicate whether appointed counsel made the determinations required by Rule 29.15(e),” a presumption arises that counsel failed to comply with the rule, and the circuit court was required to make an independent inquiry as to whether counsel had, in fact discharged her obligations under Rule 29.15(e). Luleff, 807 S.W.2d at 498.¹⁰

Accordingly, the case should be remanded to the circuit court for the independent inquiry mandated by Luleff. That inquiry need not be formal, or extensive. As the Supreme Court explained in McDaris v. State, 843 S.W.2d 369 (Mo. banc 1992), the Luleff inquiry “may be as formal or informal as the motion court deems necessary to resolve the question of abandonment by counsel, including, but not limited to, a written response and opportunity to reply, a telephone conference call, or a hearing,” so long as the inquiry results in “a sufficient record ․ to demonstrate on appeal that the motion court’s determination of the abandonment issue is not clearly erroneous.” Id. at 371 n.1. While it may not impose significant administrative burdens on the court, conducting such an inquiry is essential to the proper functioning of the postconviction relief process.

Conclusion

Because the record before the circuit court failed to indicate that Waggoner’s appointed counsel discharged her obligations under Supreme Court Rule 29.15(e), the judgment of the circuit court should be reversed, and the case remanded to the circuit court for the conduct of a Luleff inquiry.

Attachment

FOOTNOTES

1.   In State v. Collins, 154 S.W.3d 486, 497 (Mo. App. W.D. 2005), we stated that “[a] conviction based on an offense not properly charged in the charging instrument is a nullity, as the trial court acquires no jurisdiction over non-charged offenses.” As the Eastern District recognized in Rupert v. State, 250 S.W.3d 442, 447 (Mo. App. E.D. 2008), Collins “fails to acknowledge Parkhurst’s holding,” and should not be followed on this point.

2.   Rule 24.035(e), which applies in cases where a defendant pleads guilty, is worded identically.

3.   Riley v. State, 364 S.W.3d 631, 637 (Mo. App. W.D. 2012) (“postconviction counsel cannot discharge his or her duty to determine whether the pro se motion asserts all facts, and all claims, available to the movant, where counsel has failed to examine the record essential to that determination”).

4.   See also, e.g., Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015) (“The absence of a record of postconviction counsel’s attention to the pro se motion ‘creates a presumption that counsel failed to comply with the rule.’ ” (citations omitted)); Vogl v. State, 437 S.W.3d 218, 229 (Mo. banc 2014) (“When the record refutes the claim of abandonment, however, no independent inquiry is required of the motion court.” (citation omitted)).

5.   Tabor v. State, 282 S.W.3d 381, 385 (Mo. App. S.D. 2009) (Luleff inquiry required even though counsel filed an entry of appearance, requested additional time to file a brief, and “forward[ed] ․ correspondence to the motion court relating to the ‘status of the case’ on three occasions”); Gehlert v. State, 276 S.W.3d 889, 892-93 (Mo. App. W.D. 2009) (remanding for abandonment inquiry where appointed counsel entered his appearance, requested guilty plea and sentencing transcripts, and communicated with movant, his daughter, and the court concerning status of case); Poe, 820 S.W.2d at 327 (finding presumption of abandonment even though counsel requested an extension, a trial transcript, and other documents).

6.   “Supreme Court decisions that have not subsequently been criticized, modified, or overruled are controlling authority. We do not presume the Supreme Court has overruled its previous decision unless it proclaims otherwise.” State ex rel. Wratchford v. Fincham, 521 S.W.3d 710, 715 (Mo. App. W.D. 2017) (quoting McMillan v. Pilot Travel Ctrs., LLC, 515 S.W.3d 699, 706 (Mo. App. E.D. 2016)).

7.   I presume that appointed counsel in fact made the handwritten and typed revisions to Waggoner’s pro se motion. Nothing in the record actually indicates who made the various revisions reflected in the “amended” motion, however, and the “amended” motion is not separately signed (but instead merely reproduces the signature from Waggoner’s pro se motion).

8.   It is also significant that, at the evidentiary hearing on Waggoner’s “amended” motion, counsel offered no witness testimony, live or by deposition. The circuit court found that Waggoner had failed to present evidence on twenty of the twenty-five claims discussed in the judgment, and had accordingly abandoned those claims.

9.   Counsel’s preliminary statement reads in its entirety:8. Claims for Postconviction Relief:Movant was denied his constitutional rights to due process of law, a fair and impartial jury, and a fair trial, contrary to constitutional guarantees under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and under Article I, Sections 10, 18(a) and 22(a) of the Missouri Constitution, because:

10.   This review of the extent of counsel’s revisions to the pro se motion is not a prohibited “qualitative assessment” of appointed counsel’s efforts on Waggoner’s behalf, as the majority contends. Instead, the question is simply whether the record “indicate[s] [that] appointed counsel made the determinations required by Rule 29.15(e).” Luleff, 807 S.W.2d at 498. As explained in the text, a review of the “amended” motion fails to demonstrate that counsel took any action to discharge her obligations under the Rule.

VICTOR C. HOWARD, JUDGE

Hardwick, J. concurs in majority opinion Ahuja, J. dissents in separate dissenting opinion