Mark D. Vogl v. State of Missouri
2014 Mo. LEXIS 206
| Mo. | 2014Background
- Vogl pleaded guilty to two counts of first-degree statutory sodomy; sentenced to concurrent 15-year terms.
- Post-conviction relief under Rule 24.035 was timely challenged; pro se motion stamped March 18, 2008, while untimely under deadline.
- Appointments of post-conviction counsel followed; counsel moved to rescind appointment due to untimely filing.
- Court-ordered rescission occurred without independent inquiry; dismissal with prejudice based on untimely filing.
- Vogl later asserted abandonment by counsel and filed a motion to reopen/post-conviction abandonment claim in 2011 and 2012.
- Majority reverses, holding presumption of abandonment requires independent inquiry; remands for proceedings consistent with Rule 24.035(e).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether abandonment by counsel requires independent inquiry | Vogl—abandonment shown by counsel's failure to investigate timeliness | State—no independent inquiry required unless record shows abandonment | Yes; independent inquiry required where presumption of abandonment arises |
| Whether counsel's rescind-counsel motion constitutes abandonment | Vogl—counsel failed to file amended motion or explain why not | Vogl—counsel’s rescind motion inadequate under Rule 24.035(e) | Yes; constitutes abandonment requiring inquiry |
| Timeliness of initial Rule 24.035 motion and impact on abandonment claim | Original motion timely if misfiling explains timeliness; amended motion would prove timeliness | Untimely original motion bars relief; abandonment claim not timely raised | Timeliness potential supported; abandonment claim warrants inquiry under Rule 24.035(e) |
| Authority for "motion to reopen" in abandonment context | Abandonment claims may be entertained post-final judgment | Rule 24.035(Z) prohibits successive post-conviction motions; no reopen option | Abandonment-based relief must be addressed in initial proceedings; remand for inquiry improper under rule |
Key Cases Cited
- Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991) (abandonment when counsel fails to file amended motion or explanation)
- Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991) (abandonment doctrine; proper forum for review in initial proceedings)
- Price v. State, 422 S.W.3d 292 (Mo. banc 2014) (clarifies abandonment definition and proper forum; reaffirmed limits of Rule 24.035(e))
- McDaris v. State, 843 S.W.2d 369 (Mo. banc 1992) (McDaris inquiry requires movant informed and given reply opportunity)
- Gehrke v. State, 280 S.W.3d 54 (Mo. banc 2009) (post-conviction court authority to address abandonment; cites Crenshaw/Edgington lineage)
- Moore v. State, 934 S.W.2d 289 (Mo. banc 1996) (records showing absence of counsel action presumptively abandons movant)
- Taylor v. State, 254 S.W.3d 856 (Mo. banc 2008) (abandonment as narrow exception; not controlling here)
- Crenshaw v. State, 266 S.W.3d 257 (Mo. banc 2008) (mentions abandonment authority; does not resolve merits)
- Edgington v. State, 189 S.W.3d 703 (Mo.App. 2006) (cites abandonment framework; intermediate appellate decision)