Gittemeier v. State
527 S.W.3d 64
Mo.2017Background
- Gittemeier was convicted in 2012 of felony DWI (for operating an ATV) and misdemeanor trespass; sentenced as a chronic offender; direct appeal affirmed.
- He timely filed a pro se Rule 29.15 postconviction motion alleging trial counsel was ineffective for not challenging whether an ATV is a "motor vehicle" under §577.010.
- Appointed postconviction counsel was provided and obtained a 30-day extension; appointment was rescinded and retained counsel appeared and received an additional 60-day extension from the motion court.
- Retained counsel filed an amended Rule 29.15 motion on March 14, 2014 (after the mandatory deadline of Jan. 15, 2014); the amended motion raised numerous additional claims including the ATV issue.
- The motion court heard evidence and overruled the amended motion; Gittemeier appealed, arguing retained counsel abandoned him so the untimely amended motion should be excused.
- The court addressed timeliness and whether the abandonment doctrine applies to retained counsel, and also reviewed the pro se claim on the merits at the evidentiary hearing.
Issues
| Issue | Plaintiff's Argument (Gittemeier) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Was the amended Rule 29.15 motion timely? | The amended motion should be considered; retained counsel’s filing should control. | The amended motion was untimely under Rule 29.15(g); the motion court lacked authority to extend the mandatory deadline. | Amended motion was untimely; entry of retained counsel does not reset the deadline. |
| Does the abandonment doctrine excuse an untimely amended motion filed by retained counsel? | Retained counsel abandoned Gittemeier by failing to timely file; Rule 29.15(e) duties apply to "counsel" generally. | The abandonment doctrine was created to address failures by appointed counsel; it does not apply to retained counsel. | Abandonment doctrine applies only to appointed counsel and does not excuse retained counsel’s untimely filing. |
| Did limiting the abandonment doctrine to appointed counsel violate Missouri’s open courts provision? | Restricting the doctrine to appointed counsel denies meaningful access to courts when retained counsel fails. | Gittemeier still had access to Rule 29.15 proceedings; limiting the doctrine is not arbitrary or unreasonable. | No open-courts violation; limitation is consistent with the doctrine’s origin and purpose. |
| Was Gittemeier’s pro se ineffective-assistance claim (ATV as motor vehicle) proven at the evidentiary hearing? | Counsel was ineffective for failing to challenge whether an ATV is a motor vehicle under §577.010. | Gittemeier failed to present evidence or question trial counsel at the hearing; burden not met by preponderance of evidence. | Claim was not proven at the hearing; motion court did not clearly err in overruling the pro se claim. |
Key Cases Cited
- Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991) (adopted abandonment doctrine where appointed counsel took no action on a timely pro se motion)
- Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991) (extended abandonment concept to appointed counsel’s failure to timely file an amended motion)
- Price v. State, 422 S.W.3d 292 (Mo. banc 2014) (explained abandonment doctrine’s limited purpose and that it targets appointed-counsel failures)
- Stanley v. State, 420 S.W.3d 532 (Mo. banc 2014) (Rule 29.15(g) time limits are mandatory; withdrawal/appearance of new counsel does not alter deadline)
- Silvey v. State, 894 S.W.2d 662 (Mo. banc 1995) (movant bears burden to prove ineffective assistance by a preponderance of the evidence)
- Nunley v. State, 980 S.W.2d 290 (Mo. banc 1998) (failure to present evidence at a postconviction hearing constitutes abandonment of that claim)