Ewing v. Denney
360 S.W.3d 325
Mo. Ct. App.2012Background
- Ewing was convicted by jury in 2007 of second-degree murder, first-degree assault, and two counts of armed criminal action, with a total 35-year sentence.
- Trial counsel Toney filed a notice of appeal but failed to pay the filing fee timely, causing delays in seeking appellate relief.
- The Jackson County appeal was filed in September 2007 and dismissed as untimely in September 2007; Ewing was not informed of the dismissal by counsel.
- Ewing believed his direct appeal was pending, so he did not pursue post-conviction remedies within applicable time limits.
- Letters and notices later revealed the appeal had been dismissed; by March 2009 he was advised of the dismissal and impending deadlines.
- In 2011–2012, DeKalb County and Jackson County proceedings sought to re-sentence so a timely appeal could be filed; the circuit court denied resentencing, and Ewing filed habeas petitions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel's failure to timely file and inform dismissal constitutes a default-causing ineffective assistance. | Ewing argues counsel's failure caused procedural default of his appeal rights. | Denney/State concedes some fault but argues limited post-conviction recourse. | Cause and prejudice established; habeas relief granted. |
| Whether the 'cause and prejudice' exception allows habeas review of procedurally defaulted post-conviction claims. | Ewing relies on cause and prejudice to override default due to external counsel failure. | State contends limited applicability of the exception. | Exception applies; relief justified. |
| Whether habeas relief is appropriate to permit re-imposition of sentences so public defender can file a timely appeal. | Relief is necessary to enable timely appellate filing. | Relief is not available absent proper procedure. | Habeas relief granted; resentencing ordered to allow timely appeal. |
| Whether Ewing should be resentenced to the same terms previously imposed with credit for time served. | Resentencing should mirror prior sentences to preserve credit and allow appellate filing. | Resentencing should be limited by procedural constraints. | Resentencing ordered to impose the same sentences with time served credit. |
| Whether and when Ewing should be remanded after resentencing and when a new appeal window starts. | Remand and new appeal period should commence promptly post-resentencing. | Procedural timing to be determined by the court. | Ewing remanded to custody for resentencing; new appeal window begins after resentencing. |
Key Cases Cited
- State v. Frey, 441 S.W.2d 11 (Mo. banc 1969) (effective aid on appeal is constitutional right)
- State ex rel. Nixon v. Sprick, 59 S.W.3d 515 (Mo. banc 2001) (post-conviction remedies superior to habeas in some contexts)
- State ex rel. Nixon v. Jaynes, 63 S.W.3d 210 (Mo. banc 2001) (causal and prejudice framework for defaulted claims)
- Murray v. Carrier, 477 U.S. 478 (1986) (cause must be external to defense; supports external-cause concept via counsels' failure)
- State ex rel. Peete v. Moore, 283 S.W.3d 818 (Mo.App. E.D.2009) (habeas relief for counsel failures to timely file notice of appeal)
- Wolf v. Steele, 290 S.W.3d 136 (Mo.App. S.D.2009) (habeas relief where trial counsel assured appeal but failed to file)
- State ex rel. Koster v. McElwain, 340 S.W.3d 221 (Mo.App. W.D.2011) (discusses exceptions to default rules)
- Gehrke v. State, 280 S.W.3d 54 (Mo. banc 2009) (post-conviction counsel abandonment concept; ineffective-assistance review limitations)
- McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008) (abandonment by post-conviction counsel framework)