John C. Duvall v. State of Missouri ( 2014 )

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
JOHN C. DUVALL, ) No. ED100738
)
Appellant, ) Appeal from the Circuit Court
) of Marion County
vs. )
) Hon. John J. Jackson
STATE OF MISSOURI, )
) Filed:
Respondent. ) June 17, 2014
John Duvall was convicted in 2001 after a jury trial on three counts of statutory sodomy;
the judgment on those convictions was affirmed on direct appeal. See State v. Duvall, 90
S.W.3d 503 (Mo. App. E.D. 2002). In 2003, Duvall filed a pro se Rule 29.15 motion, and
counsel was appointed and filed a timely amended motion. Thereafter, private counsel was
retained and appeared at the evidentiary hearings on Duvall’s motion. The motion was denied.
On appeal from that judgment, Duvall claimed that the motion court erred in denying his motion
because he had been abandoned by post-conviction counsel and also claimed that the motion
court should not have allowed counsel to appear at the evidentiary hearings because Duvall had
fired him. We found no merit in these claims of error and affirmed. See Duvall v. State, 201
S.W.3d 67 (Mo. App. E.D. 2006). Then, in 2013, Duvall filed the instant motion to re-open his
Rule 29.15 proceedings, again claiming abandonment by post-conviction counsel on the grounds
that he did not consent to the actions taken on his behalf by appointed or private counsel. The
motion court denied Duvall’s motion in a docket entry and did not enter findings or conclusions.
Duvall appeals, claiming that the motion court erred by failing to enter findings and conclusions.
He requests remand, but does not otherwise challenge the correctness of the motion court’s
denial.
The State points out that Duvall has failed to preserve his challenge to the form of this
judgment because he did not first file a motion in the motion court seeking to amend the
judgment to include specific findings or conclusions. “In all cases, allegations of error relating
to the form or language of the judgment, including the failure to make statutorily required
findings, must be raised in a motion to amend the judgment in order to be preserved for appellate
review.” Rule 78.07(c); Gerlt v. State, 339 S.W.3d 578, 584-85 (Mo. App. W.D. 2011) (Rule
78.07(c) applicable to post-conviction proceedings). But in this case, no findings and
conclusions were required because—despite being called an abandonment claim—Duvall’s
motion does not sufficiently state a cognizable post-conviction claim. See Sneed v. State, 412
S.W.3d 903, 903-904 (Mo. App. E.D. 2013) (listing exceptions to Rule 29.15(j) requirement of
findings and conclusions).
Abandonment is the complete failure to act. Gehrke v. State, 280 S.W.3d 54, 58 (Mo.
banc 2009). There can be no abandonment by post-conviction counsel when counsel has
actually filed a timely amended Rule 29.15 motion. Eastburn v. State, 400 S.W.3d 770, 773-75
(Mo. banc 2013). Duvall alleges in his motion to re-open that counsel filed an amended Rule
29.15 motion and appeared at evidentiary hearings on his behalf; his complaint is that counsel
took these actions without Duvall’s consent and without conferring with Duvall. But counsel’s
actions did not deprive Duvall of meaningful review of the merits of his claims for post-
conviction relief—those claims was timely filed, fully heard and finally ruled on by the motion
court. Even the allegation that post-conviction counsel acted without Duvall’s consent has been
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reviewed previously by this Court and found to be without merit. See Duvall, 201 S.W.3d at
67.
Duvall’s motion to re-open is an attempt to file an impermissible successive post-
conviction motion. His complaints about counsel are not true abandonment claims, but rather
ineffective assistance of post-conviction counsel claims, which are “categorically unreviewable.”
Eastburn, 400 S.W.3d at 774. Having failed to state a cognizable basis for re-opening his post-
conviction proceedings, the motion court properly denied Duvall’s motion and was not required
to issue findings and conclusions. Remanding for the issuance of findings and conclusions
would serve no purpose in this case, as the correctness of the motion court’s denial is clear. See
Weekley v. State, 265 S.W.3d 319, 323 (Mo. App. S.D. 2008).
The judgment is affirmed.
______________________________________
ROBERT G. DOWD, JR., Judge
Lawence E. Mooney, P.J. and
Sherri B. Sullivan, J., concur.
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