Lead Opinion
Bruce Watson (hereinafter, “Watson”) was convicted by a jury of first-degree robbery and sentenced to fifteen years’ imprisonment. At Watson’s sentencing heating, the circuit court misinformed him about the time deadlines to file his Rule 29.15 post-conviction motion. Watson’s conviction was affirmed on direct appeal, State v. Watson,
This Court holds that Watson’s Rule 29.15 post-conviction relief motion was
Factual and Procedural History
On July 11, 2009, Watson entered a Check N’ Go store where Yulena Shull (hereinafter, “Shull”) was working. When Shull asked Watson if she could help him, Watson reached around another customer, tossed a blue plastic grocery bag onto the counter and told Shull to fill up the bag. Watson walked around the counter, reached into his pocket, and quickly flashed what Shull believed to be a gun at her. Shull emptied the contents of her cash drawer into the grocery bag. Watson left the store, and Shull contacted the police. Watson was arrested and charged with one count of first-degree robbery and armed criminal action. The jury convicted Watson of first-degree robbery but acquitted him of armed criminal action.
At sentencing, when the circuit court asked Watson if there was any legal reason why he should not be sentenced, Watson answered, “I wasn’t properly represented.” After the circuit court sentenced Watson to serve fifteen years’ imprisonment, the circuit court informed Watson of his post-сonviction relief rights pursuant to Rule 29.07(b). The circuit court stated, “In order to obtain review of your conviction and sentence, you must file a verified Criminal Procedure Form Number 40 within 180 days after your delivery to the Missouri Department of Corrections; otherwise, you waive or give up your rights under Rule 29.15.” Watson indicated he understood his rights. Watson listed grievances he had with trial counsel’s representation, which included wanting to plead guilty to a lesser charge but being forced to go to trial.
Watson’s conviction was affirmed on April 23, 2013. On May 15, 2013, the court of appeals issued its mandate. More than sixteen months later, on October 2, 2014, Watson filed his initial pro se motion for post-conviction relief. Watson’s pro se motion stated he was sentenced on March 9, 2012, and “was instructed not to file this cause until [he] was delivered to the [department of corrections] by the courts making this cause timely.”
The motion court appointed counsel, who subsequently filed an amended motion. Watson’s amended motion attempted to explain the tardiness of his pro se filing. Watson averred that he was never delivered to the department of corrections to serve his sentence. The record reflected that before the robbery trial, Watson was charged with a separate criminal offense. In lieu of being delivered to the department of corrections after the robbery conviction, Watson was detained in the Saint Louis City Justice Center to undergo a pretrial psychiatric examination to determine his competency to stand trial for the separate offense. On August 4, 2014, Watson was adjudicated incompetent to stand trial for the separate offense and ordered committed to the custody of the department of mental health. The separate offense had not yet been disposed of at the time of Watson’s pro se filing.
Watson requested that the motion court find his pro se motion timely because the circuit court misinformed him during sentencing regarding the deadline to file his motion. Watson understood the circuit
The motion court recognized Watson’s Rule 29.15 motion was filed untimely. The motion court further stated the circuit court was not required to inform a movant of the time limits, and a failure to inform a movant does not override the rule’s mandatory time limits. However, the motion court found Watson’s case did not involve the circuit court’s failure to advise him of the time limit but, rather, involved a misrepresentation about the time limit. The motion court stated it would address the merits of Watson’s claim out of an abundance of caution. The motion court overruled Watson’s ineffective assistance of counsel claim, finding Watson was not entitled to a second-degree robbery instruction where there was evidence prеsented that Watson used or threatened the use of a deadly weapon or dangerous instrument during the course of the robbery. Watson now appeals.
Standard of Review
This Court reviews the denial of post-conviction relief to determine whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). “A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Swallow v. State,
Timeliness of the Rule 29.15 Motion
This Court must determine first whether it has the authority to address the merits of Watson’s Rule 29.15 motion because his pro se motion was filed untimely. Rule 29.15(b) provides in part:
If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence. If no appeal of such judgment or sentence was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections.
Because Watson sought an appeal from the circuit court’s judgment and sentence, his Rule 29,15 motiоn should have been filed ninety days after the court of appeals issued its mandate, which occurred May 15, 2013. Therefore, Watson’s initial pro se motion was due on or before August 13, 2013, but was filed on October 2, 2014, approximately sixteen months after the mandate issued.
In addition to proving his substantive claim, Watson must show he filed his Rule 29.15 motion within the time limits provided therein. Dorris v. State,
Watson does not claim post-conviction counsel abandoned him. Instead, Watson asserts the circuit court’s misinformation constituted rare circumstances that justify his failure to prepare and send his original motion in a timely manner. Watson requests this Court find the circuit court’s misinformation regarding the correct filing deadline justifies creation of a new exception to Rule 29.15’s mandatory filing deadlines.
Circuit Court’s Obligations Under Rule 29.07
Rule 29.07(b)(4) provides in pertinent part:
If a defendant has a right to proceed under ... Rule 29.15, the court at the conclusion of final sentencing shall advise the defendant of such right and shall examine the defendant as to the assistance of counsel received by the defendant. The examination shall be on the record and may be conducted outside the presence of the defendant’s counsel. At the conclusion of the examination the court shall determine whether probable cause exists to believe the defendant has received ineffective assistance of counsel.
“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.” Moore,
Failure to Inform the Defendant
Although this case does not present the issue of the circuit court’s failure to inform a movant about his or her rights under Rule 29.07(b), appellate court cases establish that movants are not entitled tо relief when the circuit court provides little or no information about the filing deadlines.
While Rule 29.07(b)(4) indicates a trial judge should inform a movant of his right to a Rule 24.035 or 29.15 motion, there is no indication in the rules or case law that failure to do so overrides the mandatory time limitations. In addition, the rule does not require the sentencing court to specifically advise defendant of the ninety day time limit.
Id. at 573.
In State v. Johnston,
In Hawkins v. State,
Misinforming the Defendant
There is a difference between failing to inform and misinforming movants of their post-conviction rights. Despite Watson’s assertion that his case presents an issue of first impression, this Court notes only two appellate court cases have addressed instances in which the circuit court misinformed the movants about the time deadlines to file and the late filings were not excused.
In State v. Francis,
This Court finds Francis distinguishable from Watson’s case because the circuit court informed Watson of the latest date to file under Rule 29.15. The circuit court stated Watson’s Form 40 must be filed within 180 days after delivery to the department of corrections. This proclamation
More analogous to Watson’s case is Talley v. State,
Talley’s argument rests upon two unstated premises: (1) the sentencing judge’s instructions were incorrect because they did not address the applicable time limitation for filing an initial motion after mandate issued; and (2) Talley would have followed that instruction if it had been given. Based upon our review of the record before us, the second premise fails. Talley’s motion included an attached Exhibit A, which was one page from the sentencing hearing transcript. This exhibit shows Talley was told that he could ‘file a motion to vacate this sentence, which is waived if not filed within 180 days from the date you are sent to prison.’ Talley was delivered to the [department of corrections] on September 11, 2008. He did not file his initial Rule 29.15 motion within 180 days thereafter. Thus, the record reveals that Talley did not follow the one clear timing instruction that he received from the sentencing judge. Talley fails to persuade us—as is his burden—that he would have followed a different timing instruction relating to the issuance of mandate, especially given his unexplained two-and-a-half-year delay in filing the instant motion. Therefore, any omission in the sentencing judge’s instructions did not prejudice Talley or cause him to file his initial Rule 29.15 motion out of time.
Id. at 877 (emphasis added).
Like Talley, Watson did not file his motion within the circuit court’s erroneously declared deadline of 180 days. However, unlike in Talley, Watson offers several reasons to explain his delay in filing the motion.
This Court will address each reason below.
Independent Knowledge of Filing Deadline
Watson maintains he had no independent knowledge of the filing deadline until another inmate told him his motion was late. The record also raises a fact question as to whether Watson’s appellate counsel informed him of the mandate’s issuance. However, a movant’s ignorance of the law is no excuse for the failure to assert timely claims for post-сonviction relief. See Cheek v. State,
Competency to Proceed
Watson raises his competency as an impediment to understanding the filing deadlines. After his sentencing, Watson was held in St. Louis city jail on separate robbery charges. In that case, the circuit court ordered a pretrial psychiatric evalúa
An original motion is “relatively informal” and serves to notify the circuit court, the appellate court, and the state that the movant intends to seek post-conviction relief. Bullard v. State,
In Hendrickson v. State,
Delivery to the Department of Corrections
Watson argues that, because he was never delivered to the department of corrections his untimely filing is excused. Watson maintains he did not believe the filing period began to run because he was never delivered to the department of corrections. The circuit court informed Watson he had 180 days from the date of his delivery to the department of corrections to file a claim. This information was incorrect in that the 180-day deadline only applied if Watson did not appeal his conviction.
“Both Rule 24.035 and Rule 29.15 utilize the time at which the movant is ‘delivered to the custody of the department of corrections’ to mark the beginning of the time during which a motion for relief may' be filed.” Self v. State,
In Dougan v. State,
Right to Rely on the Circuit Court’s Representations
Finally, Watson relies on Bergdoll v. State,
Additionally, other cases have granted defendants relief when they have relied on a circuit court’s erroneous representations during sentencing to their detriment. In State v. Rowan,
The circuit court is presumed to know and be guided by the applicable rules of civil procedure. See Lane v. Lensmeyer,
Watson’s case presents a unique factual scenario that does not fit squarely into the third-party active interference exception recognized in Price because the circuit court is not a party and cannot be said to actively interfere with a movant's filing. Instead, this Court holds this case presents a new, limited exception in which an untimely post-сonviction motion will be excused when the circuit court misinforms a defendant about the appropriate deadlines to file his or her motion during the sentencing colloquy. Accordingly, this Court holds that, although Watson filed an untimely Rule 29.15 motion, the untimeliness is excused because the circuit court misinformed him about the appropriate deadlines to file his motion during his sentencing colloquy and he was entitled to rely upon this misinformation when determining the filing deadline. This Court next addresses the merits of Watson’s Rule 29.15 motion.
Watson argues the motion court clearly erred in overruling his Rule 29.15 motion without an evidentiary hearing because he alleged facts, not refuted by the record, which if true, warrant relief. Watson argues trial counsel was ineffective for failing to submit a lesser-included offense instruction for second-degree robbery or for felony stealing. Watson maintains he was prejudiced by trial counsel’s ineffectiveness because, but for this error, there is a reasonable probability the outcome of his trial would have been different.
To be entitled to post-conviction relief for ineffective assistanсe of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test. Strickland v. Washington,
Watson must overcome the strong presumption that trial counsel’s conduct was reasonable and effective. Johnson v. State,
To prevail on a claim that counsel was ineffective for failing to request a lesser-included offense instruction, Watson must demonstrate “the evidence would have required the trial court to submit the instruction had one been requested, that the decision not to request the instruction was not reasonable trial strategy, and that prejudice resulted.” McCrady v. State,
Section 569.020, RSMo 2000,
Second-degree robbery is a nested lesser-included offense of first-degree robbery because “ ‘it is impossible to commit the greater without necessarily committing the lesser.” Id. at 404 (quoting State v. Derenzy,
Watson’s amended Rule 29.15 motion alleged he “trusted trial counsel” to request all instructions relevant to his defense, including lesser-included offense instructions if applicable. Watson stated he would testify at an evidentiary hearing that trial counsel never advised him that he could submit a lesser-included offense instruction. Watson further alleged trial counsel would testify he did not submit the lesser-included offense instructions and had no reasonable trial strategy for failing to do so. However, in the next sentence, Watson claimed he anticipates trial counsel would testify the defense strategy utilized at trial was that the state failed to meet its burden of proof on an essential element of first-degree robbery because Watson did not have a gun and did not display what appeared to be a dangerous instrument or deadly weapon.
During closing argument, trial counsel repeatedly asserted Shull was mistaken about seeing a gun and argued videotaped surveillance refuted her .testimony. Trial counsel argued Watson did not commit an essential element of first-degree robbery because the state did not meet its burden of proving Watson displayed or threatened the use of what appeared to be a deadly weapon or dangerous instrument. Trial counsel conceded the state proved the first two elements of robbery, but then argued the state’s case failed because no gun was used during the robbery. Trial counsel further argued that Watson was not guilty of armed criminal action because no weapon was used during the commission of the robbery. The jury acquitted Watson оf the armed criminal action charge.
The state argues trial counsel’s argument demonstrates he pursued an “all-or-nothing” defense in which trial counsel’s strategy was to deny the jury the opportunity to compromise between first-degree robbery and an acquittal by failing to offer a lesser-included instruction. “All-or-nothing” defenses have been upheld as sound trial strategy. See Love v. State,
“To establish relief under Strickland, a movant must prove prejudice.” Johnson,
Watson’s case is strikingly similar to McNeal I, in which this Court held the movant was entitled to an evidentiary hearing to determine whether trial counsel was ineffective when he effectively conceded the defendant committed a lesser-included offense but failed to request an instruction on the lesser-included offense in the hopes of obtaining an acquittal on the greater offense. This Court explained the movant suffered prejudice, even though he had been convicted of the greater offense:
[T]he underlying rationale is that the failure to provide the jury with the option, of a lesser-included offense deprives the defendant of a fair trial, even if the jury ultimately convicts the defendant of the greater offense. Without a trespass instruction, the jury was left with only two choices: conviction of burglary or acquittal. When one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. Even though juries are obligated as a theoretical matter to acquit a defendant if they do not find every element of the offense beyond а reasonable doubt, there is a substantial risk that the jury’s practice will diverge from theory when it is not presented with the option of convicting of a lesser offense instead of acquittal. Therefore, under the facts of this case, the jury’s decision to convict on a greater offense does not foreclose all possibility that the jury would have convicted the defendant of the lesser offense. The jury’s decision may make it difficult for a post-conviction movant to prove prejudice, but it does not necessarily preclude a finding of prejudice as a matter of law such that a movant .., never can obtain an evidentiary hearing.
Id. at 892 (internal quotations and citations omitted).
Just as in McNeal I, Watson alleged facts, not clearly refuted by the record, demonstrating he was prejudiced by trial counsel’s failure to request lesser-included offense instructions in that there was a reasonable basis in the evidence for acquitting him of first-degree robbery and convicting him of second-degree robbery. Watson is entitled to an evidentiary hearing.
Conclusion
The circuit court’s judgment is reversed, and the case is remanded for an evidentia-ry hearing.
Notes
. This Court has not had occasion to resolve whether a circuit court’s silence regarding the filing deadlines runs afoul of its obligations under Rule 29.07, and it neеd not do so here.
. The state did not respond to this argument in its brief.
. While the-dissenting opinion insists the circuit court made correct statements concerning the filing deadline that would apply to most defendants, there is no doubt that the deadline recited did not apply to Watson. The dissenting opinion dismisses Watson’s reliance on the circuit court's misinformation as an unfortunate choice and places upon him the burden to independently verify the circuit court’s misinformation without citation to any caselaw that requires him to do so. Concurrently, the dissenting opinion recognizes that the vast majority of defendants undoubtedly benefit from the circuit court’s advisement of the filing deadlines. Under this logic, a mov-ant who relies upon fortuitously correct and complete information is undoubtedly benefited, while a movant who relies upon misinformation is deemed to have chosen incorrectly and is entitled to no remedy. This cannot be the case when the circuit court is presumed to know the law and generally takes care to inform movants properly of their rights.
. This opinion should not be read to encourage sentencing courts to remain silеnt or omit all reference to the filing deadlines during the Rule 29.07 colloquy. Contrary to the dissenting opinion’s assertion, a prudent sentencing court should either provide the defendant with a copy of Rule 29.15 or Rule 24.035 or recite the precise language contained in Rule 2 9.15 (b) regarding the deadlines.
.While the dissenting opinion expresses concern about sentencing courts taking the risk of' accidentally stating a deadline that does not apply to a particular defendant, this Court notes only Francis and Talley have presented such a circumstance, demonstrating that virtually all sentencing courts properly advise defendants of their rights and the appropriate deadlines. Notably, Talley does not cite Francis or any other case to support its proposition that, when a circuit court misinforms the movant about the filing deadlines, the movant must demonstrate he would follow an erroneous instruction to excuse the untimely filing. Further, Talley has not been cited for this proposition by any other appellate court, and the movant in Talley did not file an application for transfer with this Court when the case was decided.
. All statutory references are to RSMo 2000.
. The dissenting opinion claims this Court's opinion in McNeal v. State,
Dissenting Opinion
dissenting.
I respеctfully dissent. Watson was required to allege facts showing both that his untimely initial motion “falls within a recognized exception to the time limits” and that he is entitled to relief on the substantive claim in his amended motion. Dorris v. State,
Watson’s Untimely Motion is Not Excused by a Recognized Exception
There are only two exceptions that excuse the untimely filing of a Rule 29.15 motion: “(1) when post-conviction counsel abandons the movant; and (2) when rare circumstances outside the movant’s control justify late receipt of the motion.” Moore v. State,
Accepting that Watson does not fall under any recognized exception, the principal opinion endeavors to create a third exception to excuse Watson’s untimely filing. In dоing so, the principal opinion strays from the basic justification underlying both established exceptions: that the motion was untimely through no fault of the movant. This is why the first exception, abandonment by counsel, does not apply when “counsel’s apparent inattention results from movant’s negligence or intentional failure to act.” Luleff v. State,
Moreover, as the principal opinion recognizes, Rule 29.07(b)(4) does not require a sentencing court to advise of the filing
Watson Did Not Plead Facts Warranting Relief
Even if Watson’s untimeliness were excusable, he is not entitled to an evidentiary hearing on his motion. To be entitled to an evidentiary hearing, a movant must plead facts that, if true, would warrant relief. Goodwin v. State,
The principal opinion erroneously holds Watson hаs met the pleading requirement by merely alleging his trial counsel would testify he had no strategy in foregoing the lesser-included offense instructions. The principal opinion recognizes a reasonable attorney may have foregone the instructions but nevertheless suggests the performance prong of the Strickland test depends on whether Watson’s trial counsel confirms or denies at an evidentiary hearing that he consciously employed a strategy in foregoing the instructions. This is not how the Strickland test works. Watson received the same performance—foregoing the instructions—regardless of whether it was the result of strategy or inadvertence. This is why “[t]he relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.” Roe v. Flores-Ortega,
Although courts may not indulge “post hoc rationalization” for counsel’s deci-sionmaking that contradicts the available evidence of counsel’s actions, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a “strong presumption” that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than “sheer neglect.” After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.
Harrington v. Richter,
That the Strickland test of objective reasonableness does not turn on trial counsel’s subjective reasons—or lack thereof— in rendering performance is undoubtedly well-established.
The fallacy in the principal opinion is its reliance on McNeal v. State (McNeal I),
Notably, aside from McNeal II, the principal opinion makes no effort to dispute or distinguish the cases cited herein. This includes this Court’s opinion in Dorsey, which mirrors the holding of McNeal II and is just as irreconcilable with the principal opinion. Instead, the principal opinion clings to the aberration of McNeal I, ignoring the mountain of authority against it. Apparently, the principal opinion believes this Court should even ignore the Supreme Court on this issue. Certainly, the majority in McNeal I did not intend to do so. But none of the Supreme Court cases cited herein (other than Strickland) were acknowledged in McNeal I, nor were any of them cited in the briefs before this Court. Given that these Supreme Court cases have now been brought to this Court’s attention, there is no logical justification for perpetuating McNeal I’s departure from settled law.
“If anything turned on counsel’s precise thought process, we would remand for an evidentiary hearing, but in this case none is necessary. The Strickland test, as already noted, is an objective one; as long
. The second exception "arises out of the practical reality that an inmate cannot comply with Rule 29.15 without relying on a third party to some extent.” Price,
. At sentencing, the circuit court stated: "In order to obtain review of your conviction and sentence, you must file a verified Criminal Procedure Form Number 40 within 180 days after your delivery to the Missouri Department of Corrections; otherwise, you waive or give up your rights under Rule 29.15.” The circuit court's statement was incomplete because the stated deadline applies only when an appeal is not taken. See Rule 29.15(b).
. "The time limits in Rules 24.035 and 29.15 serve the legitimate end of avoiding delay in the processing of prisoner's claims and prevent the litigation of stale claims.” Dorris,
. Watson's counsel argued at trial that Watson did not commit onе of the elements of first-degree robbery because he did not display or threaten the use of what appeared to be a deadly weapon or dangerous instrument, He repeatedly reminded the jury that it was necessary to find all the elements and, because the State did not prove this particular element, the juty had to find Watson not guilty. Consistent with this argument, any attorney acting reasonably in the same circumstances could have foregone the lesser-included offense instructions in the hopes of outright acquittal, rather than submit the instructions and practically ensure a conviction based on the undisputed elements.
. See, e.g., Yarborough v. Gentry,