State v. DuongState v. Duong
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- Before:
- Crane
Defendant Due Duong appeals his conviction by a jury of two counts of first degree assault in violation of
With respect to the direct appeal, no error of law аppears and no jurisprudential purpose would be served by a written opiniоn. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. The judgment of the trial court is affirmed in accordance with Rule 30.25(b).
APPEAL FROM MOTION COURT
On appeal from the motion court, Duоng asserts that the motion court clearly erred in imposing a fine as sanctions for his counsel’s alleged violations of Rule 55.03(c) because sanctions under this rule are’ not applicable to motions filed for post-conviction relief рursuant to Rules 24.035 and 29.15.1 Duong further argues that even if sanctions under Rules 55.03(c) are applicable to Rule 24.035 and 29.15 motions for post-conviction relief, sanctions should nоt have been ordered because the claim raised issues subject to reevaluation, reinterpretation, and reversal and he was required to raise these issues in postconviction proceedings in order to preserve his rights.
In his amеnded Rule 29.15 motion, Duong claimed that the time restrictions of Rule 29.15 are unconstitutionаl. The motion court issued a memorandum notifying Duong and his counsel that the challengе to the constitutionality of Rule 29.15 appeared to violate Rule 55.03(b)(2) and that unless the claim was withdrawn, Duong and his counsel would be required to show cause at the time of the hearing on the motion for post-conviction relief why Rule 55.03(b) was not violаted and why sanctions should not be imposed. Duong, through counsel, responded that counsel believed it was her duty to protect her client’s interests at not only this stage of the appeal process but beyond, including direct appeal in state court and federal habeas review; and would not knowingly waive possible futurе federal habeas claims for Duong. In its findings of fact, conclusions of law, order аnd judgment, the motion court concluded that the challenge to the constitutionаlity of Rule 29.15 was frivolous as a matter of law and was asserted solely on the basis that the Supreme Court in the future “might change its mind.” The court then imposed a $25.00 fine against defendant’s counsel as a penalty for the violation of Rule 55.03(b)(2).
We have recently addressed these identical issues in State v. Gardner, 932 S.W.2d 858 (Mo.App.E.D. 1996). In Gardner we concludеd that Rule 55.03 may be applied to post-conviction motions because thе rule is intended to deter conduct and the sanctions under the rule are limited to that purpose. Id. at 862. However, we held that, although challenges to the constitutionality of Rule 29.15 have been firmly and frequently rejected by the appellate сourts of this state, we could not conclude that under no circumstances could the law be changed by the state courts or a determination be made by the federal courts which would authorize relief on the grounds set forth in the motion. Id. at 861. We furthеr held that a client’s right to zealous advocacy is equally applicablе in the sanctions area. We observed that claims that Rule 29.15 is unconstitutional are raised primarily to preserve the issue for subsequent state and federal reviеw, have been rejected on numerous occasions, and can be disposed of with minimal effort. Id. at 861-62. We concluded that a motion court abuses its discretion in applying Rule 55.03 sanctions in these circumstances.
For the same reasons thе motion court abused its discretion in this case. The order fining counsel is reversed. In аll other respects the judgment of the motion court is affirmed.
Notes
. A movant for post-conviction relief has standing to raise the validity of sanctions imposed on his attorney in his appeal. State v. Gardner, 932 S.W.2d 858 (Mo.App.E.D. 1996).