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Self v. State2/10/2000
aded by Movant's argument that State v. Dowdy, 774 S.W.2d 504 (S.D. 1989), which was decided prior to Ewanchen, is applicable here and therefore must conclude that Ewanchen is also controlling in this case. The Court concludes that Movant's sentence does not exceed that provided for by law.
The motion court's findings were not clearly erroneous. Point I is denied.
Point II is directed to differences in the allegations in movant's pro se motion and the amended motion filed by movant's appointed post-conviction counsel. The amended motion did not include all the issues movant attempted to set forth in his pro se motion. The motion court, nevertheless, addressed the claims not included in the amended motion. It stated the finding that those claims did not state claims upon which relief could be granted.
Rule 24.035(g) states, "The amended motion shall not incorporate by reference material contained in any previously filed motion." Allegations in a pro se motion that are not included in a subsequently filed amended motion are not for consideration. Cross v. State, 970 S.W.2d 840, 843 (Mo.App. 1998). The motion court had no duty to respond to the allegations in movant's pro se motion that were not in the amended motion. The reference to those allegations in the motion court's findings is surplusage.
Point II contends that the motion court should have determined "whether appointed counsel had complied with counsel's duties under Rule 24.035(e)"; that it erred in failing to do so. Point II is a thinly veiled attempt to assert a claim of ineffective assistance of post-conviction counsel. State v. Hunter, 840 S.W.2d 850, 871 (Mo. banc 1992), cert. denied, 509 U.S. 926 (1993), held, "Claims of ineffective assistance of post-conviction counsel are categorically unreviewable."
A narrow exception to the holding in Hunter was later established for circumstances in which an indigent post-conviction litigant is abandoned by appointed counsel. When no amended motion is filed and no disclosure appears of record that counsel determined an amended motion was not warranted, there is a presumption that the litigant was abandoned by appointed counsel. See Moore v. State, 934 S.W.2d 289, 291 (Mo. banc 1996). In this case an amended motion was filed. There is no presumption of abandonment.
Abandonment also occurs when appointed counsel tenders a delinquent amended motion for filing. Moore explains, " s occurred in Sanders [v. State, 807 S.W.2d 493 (Mo. banc 1991)], when 'the record reflects that counsel has determined that there is a sound basis for amending the pro se motion but fails to file the amended motion [in a timely manner] as required by Rule 29.15(f)[,] he failure is, in effect, another form of 'abandonment' by post-conviction counsel.'" 934 S.W.2d at 291 [emphasis in original]. In this case a timely amended motion was filed. The facts of this case do not demonstrate abandonment by post-conviction counsel. Point II is denied. The judgment denying movant's Rule 24.035 motion is affirmed.
Separate Opinion:
None
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