In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
PAUL GITTEMEIER, ) No. ED103189
)
Appellant, ) Appeal from the Circuit Court
) of Warren County
vs. )
) Honorable Wes|ey Clay Dalton
STATE OF MISSOURI, )
)
Respondent. ) FILED: September 20, 2016
introduction

Appellant Paul Gittemeier (“Glttemeier”) appeals from thejudgment of the motion court
denying his motion for post-conviction relief. Gittemeier filed a timely pro-se motion under
Rule 29.15.l Gittemeier’s privately retained counsel subsequently filed an amended motion for
post-conviction relief, but the amended motion was filed alter the mandatory deadline as
clarified in Stanley v. State, 420 S.W.3d 532 (Mo. banc 2014). Because the amended motion
was untimely filed, we consider only the issues raised by Gittemeier in his pro-se motion. On
appeal, Gittemeier does not challenge the motion court’s decision relating to his pro-se claim, but
focuses solely on the motion coult’s judgment relating to the claims raised in his amended
motion. Since we cannot consider Gittemeier’s amended motion, we deny each point on appeal

Our resolution of this appeal would normally result in an affirmance of the motion coui't’s

 

' All rule references are to Mo. R. Crim. P. (20|5).

 

judgment, but in light of the importance of the issue presented and for guidance regarding the
applicability of the abandonment doctrine in cases where an amended motion for post-conviction
relief is filed untimely by counsel not appointed by the motion court, but counsel privately
retained by the movant, we order this case transferred to the Missouri Supreme Court pursuant to
Missouri Rule of Civil Procedure 83.02.

Factual and Procedural Historv

The State charged Gittemeler with one count of felony driving while intoxicated and one
count of misdemeanor first-degree trespassingl A jury convicted Gittemeler on both counts, and
the trial court sentenced him to fifteen years in prison. We affirmed on direct appeal2 and issued
our mandate On July 18, 2013.

On October 15, 2013, Gittemeler filed a timely pro-se motion for post-conviction relief
under Rule 29.15. The pro-se motion alleged, “Trial counsel was ineffective for failing to
challenge whether an ATV is a motor vehicle pursuant to RSMo. 577.010.”

On October 17, 2013, the motion court appointed post-conviction counsel. Appointed
counsel requested and received an extension of an additional thirty days to file an amended
motion for post-conviction relief`. Thus, the amended motion was due on January 15, 2014.

On January 7, 2014, eight days before the amended motion was due, private counsel
entered an appearance on behalf of Gittemeler and requested another extension of time to file an
amended motion. On January 9, 2014 the motion court entered an order rescinding the
appointment of counsel, allowed assigned counsel to withdraw from the case, and granted tile
extension of time allowing Gittemeler until March 16, 2014 to file his amended motion to vacate

SCHt€DC€.

 

2 State v. Gittemeier, 400 S.W.3d 838 (Mo. App. E.D. 2013).

2

 

On March 14, 2014, private counsel for Gittemeler filed an amended motion to vacate
sentence. The amended motion restated Gittemeler’s pro-se claim, asserting that “[t]rial counsel
and [a]ppellate counsel failed to challenge whether an ATV is a motor vehicle pursuant to
RSMo. 577.010, thus conceding to a material element of the offense charged.” The amended
motion included twenty-one additional claims of ineffective assistance of counsel and one claim
of prosecutorial misconduct not raised in Gittemeier’s pro-se motion.

The motion court held an evidentiary hearing and subsequently denied Gittemeier’s

amended motion in its entirety. This appeal follows.

Points on Appeal

Gittemeier raises two points on appeal. First, Gittemeier argues that the motion court
clearly erred in denying his amended motion because trial counsel was ineffective for failing to
(a) prosecute a motion to suppress, (b) impeach a witness, and (c) endorse an expert witness.
Second, Gittemeier argues that the motion court clearly erred in concluding that trial counsel’s
“failures and obvious shortcomings were part of a coherent trial strategy.”

Discussion

Each of Gittemeier’s points on appeal relate to claims of ineffective assistance of counsel
asserted only in the amended motion filed by his retained counsel. Before we address the merits
of Gittemeler’s appeal, we must determine whether his amended motion was timely filed.

I. Timeliness of the Amended Motion

Where, as here, the movant filed a direct appeal of a conviction, an amended motion must
be filed “within sixty days of the earlier of: (1) the date both the mandate of the appellate court is
issued and counsel is appointed or (2) the date both the mandate of the appellate court is issued
and an entry of appearance is filed by any counsel that is not appointed but enters an appearance

on behalf of movant.” Rule 29.15(g). Further, a motion court “may extend the time for filing the

3

 

amended motion for one additional period not to exceed thirty days.” § The time limits for
filing a Rule 29.15 motion for post-conviction relief are mandatory. Eastburn v. State, 400
S.W.Bd 770, 773 (Mo. banc 2013). Failure to conform to the filing deadlines generally operates
as a complete waiver. §

Here, we issued our mandate in Gittemeier’s direct appeal on July 18, 2013, and the
motion court appointed counsel on October l7, 2013. Appointed counsel requested and received
an additional thirty days to file an amended motion; thus, Gittemeier had ninety days from
October 17 , 2013, to file his amended motlon. The amended motion was due on January 15,
2014.

Private counsel retained by Gittemeier entered an appearance in this matter on January ?,
2014, eight days before Gittemeier’s amended motion was due. Upon private counsel’s entry,
the trial court granted a second extension to file the amended motion for post-conviction relief.
However, the motion court lacked authority to grant this extension. Once the time limit to file an
amended Rule 29. 15 motion begins to run, the time limit does not start and restart should new
counsel subsequently enter an appearance Stanley v. State, 420 S.W.3d 532, 540-41 (Mo. banc
2014). Hence, when the time limit on Gittemeier’s amended motion began to run on October 17,
2013, the motion court was without authority to extend the sixty-day period beyond “one
additional period not to exceed thirty days.” Rule 29.15(g). A|lowing appointed counsel to
withdraw and subsequent counsel to enter an appearance did not restart the time period permitted

to file under Rule 29.15(g) because “the date of first appointment of counsel controls the time for

 

filing an amended motion, regardless of whether the court later appoints new counselor allows
new counsel to enter an appearance.” Sta_nley, 420 S.W.3d at 541 .3

Because Gittemeier’s amended motion for post-conviction relief was not filed until
March 14, 2014, well after the deadline of .lanuary 15, 2014, the amended motion was untimely
filed.

II. Al)andonment Doctrine

Having determined that Gittemeier’s amended motion was untimely, we must consider
whether the abandonment doctrine may be invoked to allow a further extension of the filing
deadline for Gittemeier’s amended motion. “[W]hen post-conviction counsel is appointed to an
indigent movant, an amended motion filed beyond the deadline in Rule 29.15(g) can constitute
‘abandonment’ of the movant.” Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 20l5).
Abandonment by post-conviction counsel extends the time limitations for filing an amended
Rule 29.i5 motion. i_d. Here, the motion court did not inquire as to whether post-conviction
counsel abandoned Gittemeier and improperly proceeded to substantively consider the amended

motion. Following the direction of Moore, we normally would remand this matter to the trial

 

court for an independent inquiry into abandonment to determine whether the issues raised in the
pro-se motion for post-conviction relief or the amended motion define the scope of the motion
court’s post-conviction review. I_d. at 826. The State argues, however, that remand here is
inappropriate because the abandonment doctrine applies only to post-conviction proceedings
where the movant is represented by appointed counsel, and that the remedy crafted for matters of

abandonment does not extend to post-conviction proceedings where the movant has retained

 

3 At the time the motion cotnt granted Gittemeier a second extension of time to file an amended post-conviction
motion, the Missouri Supreme Court had not yet handed down Stanley. Prior to the Court's ruling in Stanley,
counsel could reasonably rely upon the motion court’s exercise of its purported authority to grant additional
extensions of time beyond the initial thirty-day extension

5

 

private counsel. After thoroughly reviewing the underlying rationale for the abandonment
doctrine as recently articulated by the Supreme Court, we agree with the State and hold that the
abandonment doctrine recognized by our courts provides relief only to movants in post-
conviction proceedings represented by court-appointed counsel.

We begin with a brief history. Because individuals convicted of state crimes have no
federal constitutional right to a state post-conviction proceeding, Missouri has broad discretion to
determine the extent of post-conviction procedures it will provide. Price v. State, 422 S.W.3d
292, 296 (Mo. banc 2014) (internal citations omitted). Rule 29.15 embodies the full “discretion”
exercised by Missouri in allowing post-conviction relief following a trial. I_d. Concurrent with
the adoption of court rules granting convicted felons certain rights in post-conviction
proceedings, the Supreme Court steadfastly has rejected the notion that claims of ineffective
assistance of counsel may be raised to challenge the effectiveness of post-conviction counsel.
Barnett v. State, 103 S.W.3d 765, 773 (Mo. banc 2003) (citing State v. Hunter, 840 S.W.Zd 850,
871 (Mo. banc 1992)) (“a post-conviction movant has no right to effective assistance of
counsel”).

Against this backdrop, the Supreme Court articuiated the doctrine of abandonment in two
companion cases: Luieff v. State, 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State, 807
S.W.Zd 493 (Mo. banc 1991). ln both cases, attorneys appointed by the motion court under Rule

29.15(e)“ failed to timely file amended motions for post-conviction relief. The requirements for

 

4 Rule 29.15(e) states, in full:
(e) Pro Se Motion ~ Appointment of Connscl _ Amended Motiou, Requiretl ercn. eren
an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the
movant. Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the
motion and whether the movant has included all claims known to the movant as a basis for
attacking the judgment and sentence Ifthe motion does not assert sufficient'facts or include ail
claims known to the movant, counsel shall file an amended motion that sufficiently alleges the
additional facts and claims. If counsel determines that no amended motion shall be filed, counsel

 

appointed counsel in post-conviction proceedings is set forth in Rule 29. l S(e). When an indigent
person files a pro-se motion, the motion court must appoint counsel. Ruie 29.l S(e). Appointed
counsel must then ascertain whether the pro-se motion was sufficient. § if the pro-se motion
was inadequate, Rule 29.15(e) requires appointed counsel to file an amended motion. l_d. if
appointed counsel determines that no amended motion is needed, appointed counsel must file a
statement with the motion court “demonstrating what actions were taken" to ensure that the pro-
se motion was adequate § By its plain language, Rule 29.15(e) outlines the parameters and
procedures that both the motion court and appointed counsel must follow to ensure a minimum
level of representation of indigent persons The plain language of Rule 29.15(e) does not refer to
privately retained counsel.

In M`, counsel appointed by the motion court under Rule 29.15(e) took no action on
behalf of the movant. 807 S.W.2d at 497. The Court explained that the purpose of Ruie 29.15(e)
was frustrated because appointed counsel’s failure to effectively represent the movant did not
meet the “minimal level of assistance contemplated by the postconviction rules.” I_d_. The
Supreme Court has reasoned that appointed counsel’s performance is essential to the post-
conviction process because the limited scope of our appellate review in Rule 29.15(])~\ve only
reverse if a motion court’s decision was clearly erroneous-assumes that “the motion court and

appointed counsel will comply with all provisions of the rule.” Price, 422 S.W.3d at 298

 

(quoting Luieff, 807 S.W.2d at 497~98). Appointed counsel’s failure to review the pro-se

 

motion for post-conviction relief and file either the required statement or amended motion on

 

shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all
facts supporting the claims are asserted in the pro se motion and (2) all claims known to the
movant are alleged in the pro se tnotion. The statement shall be presented to the movant prior to
filing. The movant may file a reply to the statement not later than ten days alier the statement is
filed.

 

behalf of the indigent movant in a Rule 29.15 proceeding created a unique problem. Despite the
Supreme Court’s resolve to provide counsel for indigent individuals in post-conviction
proceedings, its unyielding disallowance of claims for ineffectiveness of post-conviction counsel
deprived a movant of a viable remedy should counsel appointed under Rule 29.15(e) take no
action following his or her appointment Pr_ice, 422 S.W.3d at 297.

To address this inequity, the Luleff court crafted the doctrine of abandonment,

 

announcing that abandonment of the movant by appointed counsel is tantamount to the failure of

the motion court to appoint counsel under Ruie 29.15(e). Price, 422 S\W.3d at 298 (interpreting

 

M, 807 S.W.2d at 498). Hence, the abandonment doctrine was introduced by the Court as a
specific enforcement mechanism for subsection (e), which required the motion court to appoint
counsel to represent an indigent movant. Importantly, the abandonment doctrine did not open
the floodgates to general claims of ineffective assistance of post-conviction counsel E §

Upon finding abandonment by appointed counsel, Luleff allowed the motion court to enforce

 

subsection (e) by appointing new counsel and extending the time limits for filing the amended
motion. Luleff, 807r S.W.2d at 498.

in the companion case of Sanders, appointed counsel undertook to represent the indigent

 

movant upon appointment, but filed the amended motion after the required deadline. Price, 422

S.W.Bd at 298 (citing Sanders, 807 S.W.2d at 494~95). “Sanders holds that the purposes ofRule

 

 

29. l 5(e) are frustrated as much by appointed counsel’s failure to follow through with a timely

amendment as by the ‘comp|ete absence of performance’ in Luleff.” Price, 422 S.W.3d at 298.

 

Thus, the abandonment doctrine was applied to excuse an amended motion filed untimely by

 

appointed counsel. §§_e_ Sanders, 807 S.W.2d at 495.

 

While Luleff and Sanders remain the origin of the abandonment doctrine, the Supreme

 

Court in Price recently clarified the doctrine’s rationale (as stated above) and, in so doing,
expressed a distinct limitation on the application of the doctrine:

Accordingly, the rationale behind the creation of the abandonment doctrine in
l_,uleff and Sanders was not a newfound willingness to police the performance of
postconviction counsel generally. Instead, the doctrine was created to further the
Court’s insistence that Rule 29.l 5(e) be made to work as intended. Extensions of
this doctrine that do not serve this same rationale must not be indulged.

Price, 422 S.W.Bd at 298.

We acknowledge that the focus of Price was on the timeliness of the initial motion for

 

post-conviction relief and not the filing of an amended motion. However, given the explicit
language of_l_)_r_ig_e as to the purpose of the abandonment doctrine, we find that factual distinction
insignificant Gittemeier urges this Court to look past the cautionary language of §rj_c§ as dicta
and proceed in accordance with this Court’s prior decisions in Castor v. State, 245 S.W.3d. 909
(Mo. App. E.D. 2008) and Silver v. State, 477 S.W.3d 697 (Mo. App. E.D. 2015). We are not
persuaded that the language in &'_i_c_e_ is dicta, as such language is an integral part of Price’s

holding. The Supreme Court in Price made clear that courts have seen “a proliferation of

 

abandonment claims well beyond its intended scope” and reaffirmed “that the abandonment

doctrine created in Luleff and Sanders is limited to appointed counsel and the timeliness of

 

amended motions under Rule 29.15(e) and (g).” M, 422 S.W.3d at 307. The E_r;ip§ Court
clearly and unequivocally stated that “the abandonment doctrine was created to excuse the
untimely filing of amended motions by appointed counsel under Rule 29.15(e).” § at 297
(original emphasis removed). The plain language of Rule 29.15(e) does not refer in any manner
to counsel privately retained in post-conviction proceedingsl Following the clear direction of
l_’ri_ce, extending the abandonment doctrine beyond appointed counsel does not “further the

Court’s insistence that Rule 29.15(e) be made to work as intended.” _S_e_e § at 298. According

9

 

to P§'ic_§, any extension of the abandonment doctrine that does not serve this original rationale
“must not be indulged.” § Extending the abandonment doctrine to post-conviction filings by
privately retained counsel does not serve the original rationale of the abandonment doctrine,
which was to provide a mechanism to address the failure of appointed counsel.

The careful wording of recent Supreme Court cases further supports our conclusion that
the abandonment doctrine does not extend to privately retained counsel. When discussing the
abandonment doctrine, the B;ig§ court was careful to mention appointed counsel specifically
§ § at 297 (“the abandonment doctrine was created to excuse the untimely filing of amended
motions by appointed counsel” (emphasis in origina|)), 298 (“the Court adopted an exception
purposely limited in both its rationale and in its application (i.e., to amended motions filed
by appointed counsel).”). Lest we think the Supreme Court was imprecise with its language in

Price, the language of other recent Supreme Court cases also suggests limiting the application of

 

the abandonment doctrine to appointed counsel. § M, 458 S.W.3d at 825 (“when post-
conviction counsel is appointed to an indigent movant, an amended motion filed beyond the
deadline in Rule 29.15(g) can constitute ‘abandonment’ of the movant. Abandonment by
appointed counsel ‘extend[s] the time limitations for filing an amended Rule 29.15 motion.”’),
826 (“If the motion court determines that the movant was abandoned by appointed counsel’s
untimely filing of an amended motion, the court is directed to permit the untimely filing.”); Egl
M, 437 S.W.3d 218, 228 (l\/io. banc 2014) (“This Court has outlined when a motion court is
required to conduct an independent inquiry of a claim of abandonment of a post-conviction
movant by appointed counsel). (All emphasis ad_ded, unless otherwise noted.) We are aware of

no Missouri Supreme Court case applying the abandonment doctrine where an untimely

10

 

amended post-conviction motion was filed by anyone other than court-appointed counsel. To do
so here clearly would conflict with the strongly worded and unmistakable mandate of Price.

Finally, as noted by Gittemeier, in Castor v. State this Court held the doctrine of

 

abandonment to be “equally applicable to both appointed and retained counsel.” 245 S.W.3d
909, 912 (Mo. App. E.D. 2008).5 in reaching this holding, we correctly noted that the time limits
for filing a post-conviction motion under subsection (g) are the same for both appointed and
retained counsel, and this Court equitably found no reason to distinguish between appointed
counsel or retained counsel in matters of abandonment _I,d_= However, our holding in M
predates the cautionary clarification of the abandonment doctrine later announced in Pr`&. As
noted above, m explained that the abandonment doctrine was created specifically to enforce
subsection (e) of Rule 29.]5, and subsection (e) provides the basis for distinguishing between
appointed counsel and privately retained counsel. Because subsection (e) only directs the actions
of the motion court and appointed counsel, extending the abandonment doctrine to cases not
involving appointed counsel does not assist in implementing the requirements of subsection (e).

w Price, 422 S.W.Bd at 298. We do not lightly depart from our prior holding. But our

 

reasoning in Castor no longer reflects the current state of the law relating to the abandonment

doctrine as explained in Price, Accordingly, we decline to follow our prior holding in Castor.6

 

5 While Castor involved a Ruie 24.035 motion, the relevant provisions in Rule 24.035 are identical to those in Rule
29.15 (at issue here), so the holding Castor applies to each rule. E _g_gl, 437 S.W.3d at 224 n,'/. Rule 24.035(e)--
regarding appointment ofcounsei after a pro-se motion-is identical to Rule 29.]5(€). Likewise, Rule 24.035(g)_
regarding the time limits for filing amended motions-is effectively the same as Rule 29.15(g), except for the
language making clear that Ruie 24.035 applies to motions filed after a guilty plea, while Rule 29. l 5 applies to
motions filed aner a trial.

6 At least three post-Price cases have applied, without discussion, the abandonment doctrine to post-conviction
filings by non-appointed counsel. D Siiver v. State 477 S.W.Bd 697, 699-700 (Mo. App. E.D. 2015); Roberts v.
MQ, 473 S.W.3d 672, 674 (Mo. App. E.D. 2015); and Bustamante v. State, 478 S.W.3d 431, 435 11.2 (Mo. App.
W.D. 2015). Gittemeier emphasizes our recent opinion in Silver, which remanded the'post-conviction matter to the
motion court for an abandonment inquiry due to an untimely filing of an amended petition by privately retained
counsel under circumstances very similar to those presented here. Notably, the issue of whether the abandonment
doctrine applied to privately retained counsel or was limited to court-appointed counsel was not raised by the parties

 

 

 

ll

 

Gittemeier suggests that limiting the abandonment doctrine only to post-conviction
proceedings wherein the movant is represented by court-appointed counsel is an arbitrary and
capricious application that will have serious and unfair consequences to the dispensing of justice.
We agree that limiting the application of the abandonment doctrine under the instruction of m
presents a seemingly unequal treatment of post-conviction motions depending upon whether
appointed counsel or privately retained counsel filed the amended petition. We also acknowledge
the potential impact of this decision on the post-conviction process. But this distinction must be
viewed in light of the larger history and context of a felon’s right to post-conviction relief, which
as noted at the beginning of this opinion, is non-existent under the federal constitution and exists
in the states only to the extent the state, in its sole discretion, chooses to grant. Missouri has
adopted court Rules 29.15 and 24.035 as the vehicles for allowing post-conviction relief for
persons convicted of a felony after trial or upon a guilty plea. But for Rules 29.]5 and 24.035,
felons have no right to post-conviction relief in Missouri. Indeed, both Rules 29.15 and 24.035
state that they are “the exclusive procedure by which such person may seek relief in the
sentencing court for the claims enumerated.” Rule 29.15(a); Rule 24.035(a). A convicted
felon’s right in a post-conviction relief is limited to the relief provided by these two rules, as are
we, because Missouri continues to reject claims of ineffective assistance of counsel to challenge
the effectiveness of post-conviction counsel. M, 103 S.W.Bd at 773. Our opinion simply
follows the limitations on post-conviction relief as explained by the Supreme Court in w

given the plain and clear language of the Rule 29.15'3(e).7

 

in Silver or the other cases. As a result, none of these opinions considered the issue of whether the abandonment
doctrine applies to filings made by privately retained counsel.

7 Whether revisions to these rules should be considered to address the potentially unfair consequences to movants or
challenges to the public-defender system in the post-conviction process as suggested by Gittemeier is beyond the
scope of our charge in this opinion.

 

12

 

III. Gittemeier’s Pro-Se Motion

The amended motion filed by Gittemeier’s privately retained counsel was untimely and
cannot benefit from the extended time limits provided under the abandonment doctrine,
Accordingly, the motion court was limited to reviewing Gittemeier’s timely filed pro-se motion
for post-conviction relief, which was properly before the motion court.

Gittemeier raised one claim in his pro-se motion: “Trial counsel was ineffective for
failing to challenge whether an ATV is a motor vehicle pursuant to RSMo. 577.01{).”

Post-conviction counsel re-alleged nearly the same claim in his amended motion: “'l`r‘iai
counsel and Appellate counsel failed to challenge whether an ATV is a motor vehicle pursuant to
RSMo. 577.010, thus conceding to a material element of the offense charged.” While the motion
court did not expressly consider the pro-se claim, it did consider and deny Gittemeier’s claim as
it was restated in the amended motion. The motion court found that Gittemeier “failed to present
evidence to support his claim” regarding trial counsel’s failure to challenge whether an ATV is a
motor vehicle. Because the motion court considered and rejected the only claim raised in
Gittemeier’s pro-se motion, we see no merit in remanding this matter to the trial court to
reconsider that pro-se claim, _Q_fL Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015)
(finding remand for an abandonment inquiry to be “pointless,” as the motion court had already
considered and denied all claims in both the pro-se and amended motions with written findings
of fact and conclusions of law). By considering the claim raised by Gittemeier in his pro-se
motion and denying that claim with written findings, the motion court accorded Gittemeier the
process to which he was entitled. E §

On appeal, however, Gittemeier does not challenge the motion cour‘t’s ruling on his pro-

se claim, Because Gittemeier’s points on appeal relate only to additional claims raised in his

13

 

untimely amended motion and not contained within the timely filed pro-se motion, we cannot
consider those points. All points are denied.
Man

The case is transferred to the Supreme Court of Missouri pursuant to Rule 83.02.

KrjuT s. oDENwALD, range

James M. Dowd, P.J., concurs.
Gary l'\/l. Gaertner, Jr., J., concurs.

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