Kirk v. State
360 S.W.3d 859
Mo. Ct. App.2011Background
- Kirk was charged with first-degree murder and later pled guilty to assault in the first degree under a plea agreement, with the murder charge dismissed.
- Kirk filed a timely post-conviction relief motion under Rule 24.035 in December 2000; a waiver was signed in January 2001.
- Post-conviction counsel Harris advised that pursuing relief could trigger additional felony charges and recommended dismissal; the waiver and voluntary dismissal were filed.
- Kirk and Harris testified that additional serious charges (e.g., kidnapping, armed criminal action) could be filed if relief were pursued, influencing the dismissal.
- In 2010 Kirk moved to reopen alleging abandonment by Harris in the Rule 24.035 proceedings; the motion court held no abandonment and dismissed, citing voluntary waiver.
- Appellate review focused on whether Kirk knowingly, voluntarily, and intelligently waived his post-conviction rights and whether the waiver obviated any duty of counsel under Rule 24.035(e).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Kirk abandoned by post-conviction counsel under Rule 24.035(e)? | Kirk argues Harris failed to file an amended motion or statement, constituting abandonment. | State contends Kirk voluntarily waived his rights, removing the abandonment issue. | No abandonment; waiver valid and knowing. |
Key Cases Cited
- Gehrke v. State, 280 S.W.3d 54 (Mo. banc 2009) (clarifies abandonment standard and limits; deference to motion court on credibility)
- Cooper v. State, 356 S.W.3d 148 (Mo. banc 2011) (waiver of Rule 24.035 motion must be knowing, voluntary, intelligent)
- Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991) (abandonment defined; enumerates scenarios)
- Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991) (timeliness and actions by counsel)
- McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008) (counsel duties and abandonment analysis)
- Crenshaw v. State, 266 S.W.3d 257 (Mo. banc 2008) (abandonment framework authorizes reopening motion)
- Barnett v. State, 103 S.W.3d 765 (Mo. banc 2003) (ineffective assistance not reviewable in PCR; abandonment scope)
- Hutchison v. State, 150 S.W.3d 292 (Mo. banc 2004) (ineffective assistance of PCR counsel not reviewed)
- Krupp v. State, 356 S.W.3d 142 (Mo. banc 2011) (waiver considerations in sentencing context)