Lead Opinion
Anthоny Moore was late in filing his Rule 29.15 motion. He contends that his appellate counsel for his direct appeal abandoned him by not timely telling him that the mandate from his appeal had been issued. The State argues that appellate counsel hаs no duty to provide timely notification. Pursuant to Rule 30.24(b), the clerk of the appellate court sent Moore notice of the mandate being entered, and he does not refute receiving that notice. The judgment of the motion court dismissing his untimely Rule 29.15 motion is аffirmed.
I. Background
Moore was convicted of two counts of first-degree murder and was sentenced to two terms of life imprisonment without the possibility of parole. At the sentencing proceedings, the judge informed Moore of his right to seek post-conviction reliеf under Rule 29.15. The judge explained that there are three bases for filing a Rule 29.15 motion to set aside the sentences: (1) if they violate the constitution or laws of the United States or of Missouri; (2) if the court had no jurisdiction to impose the sentences; or (3) if the sentеnces exceeded the maximum allowed by law. Further, the judge told Moore that if he appealed, the Rule 29.15 motion would be due 90 days after the mandate from the court of appeals issued. Moore asked what form he should use to file the motion, аnd the judge instructed him to use Criminal Procedure Form 40, which could be obtained at the department of corrections. Moore indicated that he understood his right to file the motion.
After the court of appeals affirmed the conviction, it issued its mandate Oсtober 16, 2008. See State v. Moore,
II. Standard of Review
Review of a Rule 29.15 judgment is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous if, after reviewing the entire record, there is a definitе and firm impression that a mistake has been made. McFadden v. State,
III. Analysis
Moore claims that the motion court erred in dismissing his Rule 29.15 motion because his appellate counsel for his direct appeal failed to timely inform him of the mandate’s issuance, which excused his tardy filing. His claim relies on prior cases in which courts have held that, due to third-party interference, the untimely filing was excused. See McFadden,
As Moore was instructed by the trial court, Rule 29.15(b) requires that the post-conviction motion be filed within 90 days after the date the court of appeals issues its mandate affirming the judgment or sentence. The original motion must give the court notice that movant seeks post-conviction relief. Bullard v. State,
If the movant fails to file the motion within the 90-day time limit, there is a complete waiver of the right to seek Rule 29.15 relief and a complete waiver of all claims that could be raised in the post-conviction motion. Rule 29.15(b); see also Gehrke v. State,
Under the first exception, abandonment traditionally excuses a late filing in two situations: (1) when post-conviction counsel fails to file an amended motion and the recоrd shows the movant was deprived of meaningful review of the claims; or (2) when post-conviction counsel files an untimely amended motion. Gehrke,
There was no abandonment in this case. Abandonment has been found to occur when post-conviction counsel improperly acts or fails to act to the movant’s detriment. See Gehrke, 280 S.W.3d at 57; McFadden,
The judicial branch is already obligated to inform the defendant of such information. Under Rule 29.07(b), the trial court must conduct a post-sentencing hearing in which it questions the defendant concerning the effectiveness of trial counsel. The court must also advise the defendant of the right to proceed under Rule 29.15. Here, the transcript indicates that the trial court informed Moore of his right to file a Rule 29.15 motion by using Criminal Procedure Form 40 within 90 days of the appellate court mandate’s issuance. Moore indicated in open court that he understood those rights.
Under Rule 30.24(b), the clerk of the appellate court has thе duty to inform the appellant of the mandate’s issuance by sending a copy of the mandate for the appellant to the department of corrections. The appellate docket sheet reflects an entry that the mandate was sеnt October 16, 2008. It is presumed that the clerk of the appellate court sent a copy of the mandate to Moore, and he does not refute that he received it.
The second judicially created exception to Rule 29.15 occurs, “in very rare circumstances ... [in which] our courts have found an improper filing, caused by circumstances beyond the control of the movant, justified a late receipt of the motion by the proper court.” McFadden,
The motion court’s dismissal of the original motion was not clearly erroneous.
Notes
. After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.
. Moore also argues that the motion court erred in dismissing the motion because it had no "jurisdiction” over the untimely motion. Relying on Webb ex rel. J.C.W. v. Wyciskalla,
Concurrence Opinion
concurring.
I concur because Mr. Moore has failed to show that he is entitled to post-conviction relief on these facts. I write separately to note that where counsel affirmatively has told the client that counsel will take responsibility for а matter, then the client has the right to rely on that statement, as this Court recognized in McFadden v. State,
Here, Mr. Moore similarly argues that counsel undertook to inform him when the mаndate was issued by the appellate court but failed to do so. If the record supported this argument, then he would be entitled to relief. This is so even though, as the principal opinion notes, Missouri’s rules do not impose a requirement on counsel to inform a client about the issuance of the mandate in the usual case. That is because, once counsel undertakes such an obligation, then a defendant had a right to rely on counsel to complete the undertaking. The failure to do so violatеs Missouri’s ethical rules.
Rule 4-1.3, “Diligence,” states: “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 4 to Rule 4-1.3 explains what this means when a lawyer-client relationship is coming to an end:
4. Unless the relationship is terminаted as provided in Rule 4-1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be сlarified by the lawyer, preferably in uniting, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding thаt produced a result adverse to the client, the lawyer should advise the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule k-lMb). Whether the lawyer is obligated to prosecute the appeal for thе client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 4-1.2.
Rule 4-1.3, Comment 4 (emphasis added).
Rule 4-1.2 allows a lawyer to define the scope of representation of a client. Rule 4-1.4 requires a lawyer to keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed deсisions regarding the representation. Comment 1 then states:
1. Reasonable communication between the client and the lawyer is necessary for the client effectively to participate in the representation. Rule 4 — 1.4(a)(1) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.
Rule 4-1.4, Comment 1 (emphasis added).
Together, these rules mean that if an attorney has undertaken to inform his or her client about a deadline, then the attorney has an ethical obligation to fulfill that undertaking. Where, as here, failure to comply with that deadline about which counsel undertook to inform the client resulted in the client’s forfeiture of his right
Here, however, Mr. Moore failed to present evidence that counsel specifically undertook to inform him of when the mandate issued; rather, counsel merely apologized fоr not doing so. Moreover, so far as the record shows Mr. Moore was aware of the fact that the mandate had issued through the notice sent by the court clerk and was aware of the significance of this date through the information provided by the cоurt at the time of sentencing.
The facts adduced by Mr. Moore are insufficient to show that his counsel undertook to inform him when the mandate issued and, therefore, are insufficient to support his claim that counsel was ineffective in failing in that duty. For this reason, I concur.