Creighton v. State, 520 S.W.3d 416

Background

Movant Rodney Creighton was convicted by a jury of three counts of first-degree robbery, three counts of armed criminal action, and one count of resisting arrest; concurrent lengthy sentences were imposed and affirmed on direct appeal.
Movant timely filed a pro se Rule 29.15 post-conviction motion (with affidavit of indigency) on January 17, 2013; the motion court on March 8, 2013 sent a memorandum notifying the public defender that Movant had filed a pro se motion.
Public defender counsel entered an appearance May 30, 2013; counsel sought and received an extension and filed an amended Rule 29.15 motion on August 28, 2013.
The amended motion alleged, inter alia, that trial counsel was ineffective for failing to seek a mistrial or removal of a juror who allegedly intentionally failed to disclose familiarity with Movant during voir dire; Movant also had pro se claims attached to the amended motion.
The motion court denied relief without an evidentiary hearing, finding (1) the amended motion was untimely under Rule 29.15(g) if the March 8 memorandum constituted an appointment, (2) counsel was not ineffective because the record refuted intentional juror nondisclosure, and (3) Movant’s pro se claims were illegible and thus unreviewable.
On appeal this Court held the March 8 memorandum was a notification not an appointment, the amended motion was timely (filed within 90 days of counsel’s entry), the ineffective-assistance juror claim was refuted by the record, but the motion court clearly erred in concluding Movant’s pro se claims were illegible — remanding for consideration of those pro se claims.

Issues

Issue	Creighton’s Argument	State’s Argument	Held
Whether the March 8, 2013 court memorandum constituted an appointment triggering Rule 29.15(g) deadlines	Memorandum was only a notification; filing period began when counsel entered appearance (May 30, 2013), so amended motion was timely	The memorandum was a de facto appointment/designation that started the Rule 29.15(g) timeline, making the August 28 amended motion untimely	Memorandum was not an appointment; filing period began on counsel’s entry; amended motion timely
Timeliness of amended motion under Rule 29.15(g)	Amended motion filed within 90 days of counsel’s entry — timely	Amended motion untimely if memorandum counted as appointment	Amended motion timely (measured from counsel’s entry)
Ineffective assistance for failure to seek mistrial/remove juror for nondisclosure	Counsel should have sought mistrial or removal because a juror later said Movant’s face looked familiar	Juror’s on-the-record statements show only passing, insubstantial familiarity; record refutes intentional nondisclosure	Record refutes intentional nondisclosure; no entitlement to relief; motion court did not clearly err
Whether the motion court’s denial of Movant’s pro se claims as illegible was appropriate	Pro se claims were legible and were physically attached; should be considered on merits	Court found pro se claims illegible and refused to review them	Motion court clearly erred in finding pro se claims illegible; case remanded for merits consideration of those claims

Key Cases Cited

State v. Creighton, 386 S.W.3d 206 (Mo. App. E.D.) (direct-appeal decision affirming convictions)
Moore v. State, 458 S.W.3d 822 (Mo. banc 2015) (standard on Rule 29.15 deadlines and counsel abandonment concerns)
Stanley v. State, 420 S.W.3d 532 (Mo. banc 2014) (appointment date of public defender’s office governs filing period when an office was actually appointed)
Laub v. State, 481 S.W.3d 579 (Mo. App. S.D. 2015) (notification expressly stating it is not an appointment does not trigger Rule 29.15 deadlines)
State v. McFadden, 391 S.W.3d 408 (Mo. banc 2013) (test for intentional juror nondisclosure)
Hoeber v. State, 488 S.W.3d 648 (Mo. banc 2016) (ineffective-assistance standard)
Dorsey v. State, 448 S.W.3d 276 (Mo. banc 2014) (ineffective-assistance elements referenced)
Webb v. State, 334 S.W.3d 126 (Mo. banc 2011) (standards for when an evidentiary hearing is required on a post-conviction motion)
Green v. State, 494 S.W.3d 525 (Mo. banc 2016) (rules on incorporating pro se claims into amended motions)
State ex rel. Missouri Pub. Defender Comm’n v. Waters, 370 S.W.3d 592 (Mo. banc 2012) (context on public defender caseload management and appointment practices)
Bennett v. State, 88 S.W.3d 448 (Mo. banc 2002) (requirement that counsel be appointed before denying post-conviction relief)