In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
JOSHUA S. MILLER, ) ED103988
)
Appellant, ) Appeal from the Circuit Court
) of Ralls County
v. ) l3RL-CV00322
)
STATE OF MISSOURI, ) Honorable Rachel B. Shepherd
)
Respondent. ) Filed: February 7, 2017

Introduction
Joshua S. Miller (Movant) appeals the motion court’s denial of his motion for post-
Conviction relief under Rule 24.035' after an evidentiary hearing Movant argues that the
motion court erred in failing to conduct an independent inquiry into Whether Movant Was
abandoned, and that the motion court erred in failing to find his counsel Was ineffective for
failing to advise him that his guilty pleas to multiple counts of unlawful possession of a
firearm violated his protection from double jeopardy We aft'n'ni.
Background
In 2011, prior to the charges that are the subject of this appeal, the State_ charged

Movant with 28 counts of forgery Pursuant to a plea agreement, Movant pled guilty to

 

1 All rule references are to Mo. R. Crim. P. (2014) unless otherwise indicated

 

three counts of forgery, and the State dismissed the remaining counts. The plea court
accepted Movant’s pleas and sentenced Movant to three consecutive five-year sentences,
suspended execution of those sentences, and placed Movant on probation, all in accordance
with the plea agreementl

in 2013, during Movant’s probationary period, the State charged Movant in three
different cases as a prior and persistent offender with the following crimes: two counts of
second-degree burglary, eight counts of stealing a firearm, six counts of stealing, eight
counts of unlawful possession of a firearm, and eight counts of receiving stolen property.
Due to double jeopardy concerns, the State amended some counts and dismissed several
others. Movant ultimately entered blind pleas of guilty to one count of second-degree
burglary and one count of stealing for entering a church unlawfully and appropriating a
credit card and a safe valued between 3500 and $25,000; two counts of stealing for
appropriating several power tools from a residence on December 7, 2012; and one count
of second-degree burglary, one count of stealing a firearm, and eight counts of unlawful
possession of a tirearm, for entering a residence on December iO, 2012, and appropriating
eight firearms, one of which was a pellet gun.2

At a later sentencing hearing, the plea court revoked Movant’s probation on his
prior forgery convictions and ordered execution of his three consecutive five-year
sentences The plea court then sentenced Movant to an additional two consecutive five-
year sentences for the two counts resulting from the church burglary and two consecutive
five-year sentences resulting from the theft of power toois, all consecutive with each other,

for a total of 35 years. Finally, the plea court sentenced l\/iovant to concurrent five-year

 

2 Defendant also pled guilty to a burglary charge from Marion County at the same plea |tearing, but this
conviction is not at issue on appeal.

 

sentences for each of the 10 remaining counts associated with the theft of firearms, to be
served concurrently with the other sentences, leaving a total sentence of 35 years.3

Movant filed a pro se motion under Rule 24.035 raising several ciaims of
ineffective assistance of plea counsei. Appointed counsel later filed an amended motion,
arguing as relevant for this appeal that Movant’s plea counsel was ineffective for failing to
advise Movant that the eight counts of unlawful possession of a firearm violated his right
to be free from double jeopardy Movant also asserted in his amended motion that there
was an insufficient factual basis for l\/iovant’S guilty plea to the count of unlawful
possession of a weapon involving a pellet gun.

The motion court held an evidentiary hearing regarding the claims in Movant’s
amended inotion. At this hearing, Movant’s post-conviction counsel informed the motion
court that he filed the motion out of time because his attempted timely filing was
unsuccessful due to the unavailability of electronic filing or facsimile filing in Ralls
County. The motion court granted Movant leave to file his amended motion out of tiine.
After the hearing, the motion court vacated Movant’s conviction for unlawful possession
of a firearm involving a pellet gun, but the court denied Movant’s motion in all other
respects, finding that double jeopardy concerns were not implicated given the statutory
language for the offense of unlawful possession of a firearm. This appeal follows

Standard of Review
Our review of the denial of a motion for post-conviction relief under Rule 24.035

is “limited to a determination of whether the findings and conciusions of the [motionl court

are clearly erroneous.” Rule 24.035(k). Findings and conclusions are clearly erroneous

 

3 The plea court also gave Movant a concurrent five-year sentence for the conviction in Marion County.

3

 

only when, upon review of the record, we are “left with a definite and firm impression that
a mistake has been made.” Mackley v. State, 331 S.W.3d 733, 734 (Mo. App. E.D. 2011).
Movant bears the burden of proving the claims in his motion by a preponderance of the
evidencel Rule 24.035(i).
Discussion

Movant raises two points on appeal. First, he argues that the motion court erred in
ruling on his motion without conducting an independent inquiry into whether he was
abandoned by counsel due to the untimely filing of his amended motion. Second, I\/Iovant
argues that the motion court clearly erred in concluding that his plea counsel was not
ineffective for failing to advise him that the eight_separate counts of unlawful possession
of a firearm violated his protection from double jeopardy We discuss each in turn.

M

In Movant’s first point on appeal, he argues that the motion court erred in failing to
conduct an independent inquiry into whether Movant was abandoned by post-conviction
counsel. We disagree

In Sanders v. State, the Missouri Supreme Court held that the failure of appointed
counsel to timely file an amended motion for post-conviction relief can constitute
abandonment by post-conviction counsel. 807 S.W.Zd 493, 494-95 (Mo. banc 1991).
When a motion court determines counsel was at fault for such untimely filing, it must
consider the motion timely filed and proceed to adjudicate the amended motion, but if the
untimely filing was the fault of the movant, then the motion court should not permit the
late filing. _I_d_. at 495. Recently, in Moorc v. State, the Missouri Supreme Court held that

if a motion court fails to undertake an independent inquiry into whether the movant was

 

abandoned before ruling on an untimely amended motion, their the appellate court must
remand to the motion court for a determination as to whether the movant was abandoned
by appointed counsel. 458 S.W.3d 822, 826 (Mo. banc 2015). The l\/lissouri Supreme
Court reasoned as follows:

When the independent inquiry is required but not done, this

Court will remand the case because the motion court is the

appropriate forum to conduct such an inquiry. rl`he result of the

inquiry into abandonment determines which motion_the initial

motion or the amended motion~the court should adjudicate.
I_d. 'l`hus, the purpose of remand is essentially for the motion court to determine who is at
fault for the untimely filing, and thereby erich motion is properly before the court.

I-Iere, Movant argues We must remand to the motion court because the motion court
made no finding regarding abandonment before ruling on Movant’s amended motion.
Movant’s amended motion was due l\/Iay 12, 20]4, but was not filed until l\/lay 23, 2014.
erile it is true the motion court failed to explicitly find Movant was abandoned, the record
reflects the motion court made the necessary substantive finding by which it determined
the proper motion to adjudicate. At the evidentiary hearing, Movant’s post-conviction
counsel informed the court of the untimely filing, giving the following explanation:

[l]t was due May 12. lean tell the Court l tried to file it on May
12, but I learned on [the court’s website] that just because when
you pull up a docket of a case at the top it says e-file in this case,
that doesn’t necessarily mean the county has e-frle capability,
and so that’s when l learned that[.] The error was mine, and . . .
this county doesn’t accept fax filings So after that, a few days
later, I mailed it.

After the State informed the motion court it did not object, the motion court stated it would

grant the late filing of Movant’s amended motion.

 

We find this suffices as a finding of abandonment in substance, though not stated
by the motion court. The purpose of conducting an abandonment inquiry is to determine
whether the movant or appointed counsel was at fault for the untimely filing and to thereby
determine which motion to adjudicate. E Mqo”r;e, 458 S.W.3d at 826. rl`he motion court
here heard Movant’s counsel take responsibility for the late filing and proceeded to permit
the untimely filing, in accordance with the process afier a finding of abandonment set forth
in Sere_l§. 807 S.W.Zd at 495. Thus, remand for an abandonment hearing is unnecessary
here. Point denied.

M

Movant argues that the motion court clearly erred in failing to find his plea counsel
ineffective for not advising Movant that the eight separate counts of unlawful possession
of a firearm violated his right to be free from double jeopardy, because the statute is
ambiguous and therefore limits prosecution to one charge for any number of firearms in a
defendant’s possession We disagree

in the context of guilty pleas, claims of ineffective assistance of counsel are
“irumaterial except to the extent that it impinges upon the voluntariness and knowledge
with which [a movant’s] pleas were made.” Bivens v. State, 37 S.W.3d 395, 396 (Mo.
App. E.D. 2001). To prove a claim of ineffective assistance of counsel, Movant had to
establish two elements by a preponderance of the evidence: (l) that counsel’s performance
did not conform to the degree of skill and diligence of a reasonably competent attorney;
and (2) that Movant was prejudiced thereby Hackman v. State, 492 S.W.3d 669, 672 (Mo.
App. E.D. 2016) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Zink v. State,

278 S.W.3d 170, 175-76 (Mo. banc 2009)). There is a strong presumption that counsel’s

 

performance was reasonable and effective Hackman, 492 S.W.3d at 672 (citing M, 278
S.W.3d at 176). Additionally, in order to show prejudice, Movant must show that there
was a reasonable probability that but for counsel’s alleged errors, he would not have pled
guilty but would have insisted on going to trial. Whiteley v. State, 501 S.W.3d 531, 535
(Mo. App. E,D. 2016). lf Movant fails to satisfy either element, we need not consider the
other, and his claim of ineffective assistance of counsel fails Smith v. State, 276 S.W.3d
314, 317 (Mo. App. E.D. 2008).

Here, apart from his probation revocation for his forgery convictions, Movant was
charged with a total of 32 crimes During plea negotiations and as a result of Movant’s
counsel’s arguments regarding double jeopardy, the State combined eight counts of
stealing a firearm stemming from the theft of eight firearms in one instance into one count
of stealing a firearm, and the State dismissed eight counts of receiving stolen property
regarding those same firearms Additionally, the State reduced a combined six counts of
stealing stemming from two other instances to three counts of stealing. This left 14 total
charges The charges Defendant now argues implicated double jeopardy were eight counts
of unlawful possession of a firearm under Section 571.070.4

The statute at issue prohibits a person who has been convicted of a felony from
c‘knowingly ha[ving] any firearm in his or her possession[.]” Section 571.070.1(1). We
find no l\/fissouri precedent determining whether “any firearm” in this statute is ambiguous
and therefore precludes a separate charge under this statute for each firearm in a
defendant’s possession Additionally, Movant’s counsel’s succeeded in significantly

reducing the charges against Movant, and in this we have difficulty finding support in the

 

“ All statutory references are to RSMo. (2000) unless otherwise indicated

7

 

record for Movant’s claim that his counsel’s performance was deficient Due to the lack
of any holding interpreting the statute as ambiguous regardless of whether any attempt to
argue ambiguity would have been successful, we cannot say counsel’s actions fell below
the standard of a reasonably competent attorney here. C_f. Glass v. State, 227 S.W.3d 463,
472 (Mo. banc 2007) (“counsel’s conduct is measured by what the law is at the time of
trial”).

Regardless, we additionally find Movant was unable to show prejudice, and thus
his claim must fail. Specifically, Movant requests that we vacate his guilty pleas on all
counts, arguing that he pled guilty to them all together as one package, and he was
prejudiced because his counsel misrepresented to him the maximum total penalty he faced
at trial due to the inclusion of seven unjustified additional counts of unlawful possession
of a firearm, which induced him to plead guilty. At the time, lie faced a prison term of up
to 15 years for each of the 14 counts to which he pled guilty, for a total of 210 years on
those charges, not including the 15 for his probation revocation Had he faced only seven
counts, with potential lS-year sentences, he would have faced a maximum term of 105
years at trial for those charges He testified at the evidentiary hearing that had he known
of the potential double jeopardy violation, he would not have pled guilty and would have
insisted on going to trial.

Conversely, Movant’s trial counsel testified that if Movant had gone to trial, he
would have lost. She testified that she believed Movant would be “punished more fairly”
by pleading guilty rather than going to trial. The State had originally offered a plea
agreement recommending a 20-year sentence, apart from the probation violation, which

Movant rejected, ultimately deciding to enter a blind plea. Movant and his trial counsel

 

both testified that Movant chose to plead guilty to avoid a greater sentence at trial. The
record does not contain evidence, apart from Movant’s self-serving statement that he would
have insisted upon trial, that there was a reasonable probability he would have gone to trial
knowing lie faced a potential 105-year sentence rather than a potential 210-year sentence
at a trial his counsel testified he would lose. The motion court was free to disbelieve
Movant’s testimony Rueger v. State, 498 S.W.3d 538, 544 (Mo. App. E.D. 2016). The
record does not convince us that the motion court clearly erred in concluding Movant was
not prejudiced here. Point deniedl
Conclusion

We need not remand to the motion court for an abandonment inquiry here because
the motion court made the proper finding that counsel was at fault for the untimely filing
of Movant’s amended motion and proceeded to adjudicate the amended motion as required
by M. Regarding his claim of ineffective assistance of counsel, Movant failed to
allege facts showing a reasonable probability that but for his counsel’s failure to inform
him of the possibility of a potential double jeopardy issue, he would not have pleaded guilty
but would have insisted on going to trial facing a potential 105-year sentence. The

judgment of the motion court is affirmed

 

 

Gary M.\`Gaéjlrtner, Jr., Judge
James M. Dowd, P. J., concurs "‘
Kurt S. Odenwald, J., concurs