Michael M. Pennell v. State of Missouri

Sin the mtafiuurt Court of appeals;
(Eastern fliatrttt
MICHAEL M. PENNELL, ) ED101708
)
Appellant, ) Appeal from the Circuit Coult
) of Marion County
v. ) Case No. 13MM-CV00190
)
STATE OF MISSOURI, ) Honorable Rachel Bringer Shepherd
)
Respondent. ) Filed: May 19, 2015
Introduction
Michael M. Pennell (Movant) appeals from the motion court’s judgment denying his
motion under Rule 29.151 for post-conviction relief after an evidentiary hearing. Movant
challenges the motion court’s denial, asserting he was abandoned by his post-conviction counsel
and his trial counsel was ineffective for failing to properly challenge the trial court’s jurisdiction.
We affirm.
Background
A jury convicted Movant of one count of the class B felony of distribution, delivery, or
sale of a controlled substance, in Violation of Section 195.211, RSMo. (Cum. Supp. 2012). The
court sentenced Movant to fifteen years’ imprisonment in the Missouri Department of
Corrections. This Court affirmed Movant’s conviction and sentence on appeal. State V. Pennell,
399 S.W.3d 81 (M0. App. ED. 2013).
1 All ruie references are to M0. R. Criln. P. 2014. unleSS otherwise indicated.
Movant subsequently filed a pro se Rule 29.15 Motion asserting ineffective assistance
from his pre-trial counsel, his trial counsel, and his appellate counsel. He asserted five grounds
of ineffective assistance by his trial counsel, Jim McConnell (McConnell), four grounds of
ineffectiveness by appellate counsel, Alexa Pearson (Pearson), and two grounds of
ineffectiveness by pre-trial counsel. The motion court appointed counsel on July 31, 2013. On
August 23, 2013, Cinda Eichler (Eichler) entered her appearance as appointed counsel for
Movant in this matter and requested an extension of time, which the motion court granted. 011
October 24, 2013, Movant filed a pro se motion for abandonment, asserting Eichler had a
conflict of interest, in that she knew both McConnell and Pearson because she worked in the
same office as McConnell (the public defender’s office in Columbia, Missouri) and used to work
with Pearson. On November 5, 2013, Eichler filed a Statement in Lieu of Filing a Rule 29.15
Amended Motion (Statement), in which she asserted that, having reviewed the record and
discussed the case with Movant, there were no additional claims to be raised. The motion court
set the case for a hearing on all pending matters.
At the evidentiary hearing, the motion court first took up Movant’s motion for
abandonment. Movant repeated his assertion of a conflict of interest and argued that the
Statement constituted abandonment. He claimed that although Eichler had stated she had
reviewed the record and found no additional claims, he had since reviewed the record and found
an additional 10—12 claims, which he had sent to Eichler and the motion court in a letter dated
October 6, 2013 (October 6 letter). Moreover, he claimed his pro se Rule 29.15 motion had
“touch[ed] on” a meritorious jurisdictional issue in the context of another claim, which Eichler
should have expanded. In addition, Movant asserted Eichler’s Statement was untimely filed.
The State called McConnell, who testified he did not work in the same office as Eichler, but was
diligence of a reasonably competent attorney under similar circumstances, and that counsel’s
deficient performance prejudiced Movant, meaning that there is a reasonable probability that but
for counsel’s errors, the result of the proceeding would have been different. Baumruk v. State,
364 S.W.3d 518, 525 (Mo. banc 2012) (citing Strickland v. Washington, 466 U.S. 668, 687-92
(1984)). We “presume[] that counsel’s conduct was reasonable and effective,” and that any
challenged action was part of counsel’s reasonable trial strategy. Anderson v. State, 196 S.W.3d
28, 33 (Mo. banc 2006); see also Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003). A
movant must satisfy both prongs of this test, and should the lnovant fail to establish either the
performance or prejudice prong, we need not consider the other. Smith v. State, 276 S.W.3d
314, 317 (Mo. App. ED. 2008).
Missouri courts lack the authority to prosecute for violations of Missouri law unless the
conduct, or some substantial portion of it, occurred within Missouri. E State v. Taylor, 238
S.W.3d 145, 149 (Mo. banc 2007) (citing State V. Kleen, 491 S.W.2d 244, 245 (Mo. 1973)).
Section 541.191 provides that:
This state has jurisdiction over an offense that a person commits by his
own conduct if:
(1) Conduct constituting any element of the offense or a result of such
conduct occurs within this state; or
(2) The conduct outside this state constitutes an attempt or conspiracy
to commit an offense within the state and an act in furtherance of
the attempt or conspiracy occurs within this state .
Section 541.191.1(l)-(2), RSMo. (2000).
Here, Movant, a resident of Kansas, mailed a box containing methamphetamine and
marijuana Via UPS to Jake Humphrey in Palmyra, Missouri. A detective with the Northeast
Missouri Drugs Task Force (NEMO Task Force) testified he was contacted by Kansas City,
Missouri police officers who said they had intercepted a package containing controlled
ll
substances and wanted the NEMO Task Force to perform a controlled delivery. The NEMO
Task Force attempted delivery twice but was unsuccessful both times. While the detective did
not know who had intercepted the drugs or where the drugs were intercepted, the receipt for the
package indicated it was recovered at 223 North James Street, W.V. County, which listed a
telephone number with a 913 area code. The detective was unable to confirm whether W.V.
County was short for Wyandotte County, Kansas or whether 913 is the area code for Kansas
City, Kansas.
After Movant was arrested, he admitted to police that he had on several occasions sold
methamphetamine and marijuana to Jake Humphrey in Palmyra, Missouri by mailing the
controlled substances via UPS, and that he received packages of money from Humphrey in
return. Movant admitted he had shipped the package at issue to Humphrey: he stated he mailed
approximately nine ounces of methamphetamine and two pounds of marijuana in a Pampers box
addressed to Humphrey at an address in Palmyra, Missouri, but there was a problem with
delivery. Movant further informed the police he had been tracking the package after he delivered
it to UPS and believed there was a problem, and thus he called Humphrey and told him not to
accept the package. While Movant was on the telephone with Humphrey, Movant could hear
someone knocking on the door in an attempt to deliver the package, and he instructed Humphrey
not to accept it.
Movant asserts on appeal that because the package containing the controlled substances
was intercepted in Kansas, Missouri lacks jurisdiction to prosecute him under Missouri law, in
that no part of the crime actually occurred in Missouri and no detrimental effect actually
occurred in Missouri because the police were not able to complete delivery. He then argues that
because Missouri was without jurisdiction, his trial counsel was ineffective for failing to file a
12
motion specifically objecting to the trial court’s jurisdiction. Movant claims reasonable counsel
would have raised the issue and he was prejudiced by McConnell’s failure to do so, because the
jurisdictional challenge would have required dismissal of the charge against him. At the
evidentiary hearing on Movant’s pro se Rule 29.15 motion, McConnell testified he did not file a
motion objecting to jurisdiction because he believed the State already had the burden to prove
some element of the crime occurred in Missouri, which would satisfy the jurisdictional element.
The motion court found that Movant was not prejudiced by McConneli’s failure to object to the
trial court’sjurisdiction. We agree with the motion court.
Section 541.191.1(2) authorizes Missouri courts to prosecute criminal conduct that
originates outside the State if that conduct constitutes an attempt to commit an offense within the
State and an act in furtherance of the attempt occurs within this State. We find that Movant’s
conduct here falls within this section. There is no question that Movant attempted to commit an
offense within the State: he knowingly delivered methamphetamine, a controlled substance, to a
person in Palmyra, Missouri in violation of Section 195.211. Delivery is defined as “the actual,
constructive, or attempted transfer from one person to another ...,” Section l95.010(8), RSMo.
(Cum Supp. 2011) (emphasis added), and thus it is of no importance that Movant’s package was
intercepted before delivery was physically completed. Under the express terms of the statute,
criminal liability for delivery attaches once the attempt was made. fl Accordingly, Movant’s
conduct met the first of Section 541.191.1(2)’s two requirements. Thus, the question for us to
decide on appeal is whether an act in furtherance of the attempt occurred in Missouri. We find
that it did.
Movant stated to the police that after mailing the package, he tracked it via UPS. In
tracking it, he determined something seemed wrong, and accordingly he called Humphrey to
13
instruct him to refuse delivery. These facts establish not only Movant’s continued participation
in the crime in Missouri but his control over the crime in Missouri. Under the circumstances
here, we find that this control constitutes “an act in furtherance” of the crime within the State,
granting Missouri criminal jurisdiction under Section 541.191.1(2).
in addition, we also find that Missouri had criminal jurisdiction under Section
541 .191 . 1(1), which states that Missouri courts have criminal jurisdiction over any offense where
“[c]0nduct constituting any element of the offense or a result of such conduct occurs within this
state.” (emphasis added) Here, while Movant placed the controlled substances in the mail in
Kansas, the “result of” of that offense occurred in Missouri when the drugs physically arrived
here. Sgg Cunnnins v. State, 912 S.W.2d 523, 524 (Mo. App. W.D. 1995) (regardless of whether
drugs were delivered in Kansas or Missouri, because drugs were transported to Missouri, “result
of” delivery was in Missouri; thus, Missouri had criminal jurisdiction under Section
541 .191.1(1)). Contrary to Movant’s apparent allegation 011 appeal that it was the police, not he,
who transported the drugs into Missouri, we find that it was Movant who legally delivered the
drugs to Missouri. S92 Sections 195.010(8) (delivery is defined as attempt to deliver), 195.211
(it is unlawful to deliver or attempt to deliver controlled substance).
That the package was intercepted by the police before delivery was physically completed
does not abrogate his crime. Impossibility is no defense to an attempt to deliver a controlled
substance. See Section 564.011.2, RSMo. (2000) (it is no defense that offense attempted was
factually or legally impossible, if actor believed offense was possible). This is not a situation
that but for police involvement, the drugs would not have ended up in Missouri. Rather, had the
police not been involved, the drugs would have been shipped via UPS to Missouri. Mailing the
14
drugs in Kansas with the intent to deliver them in Missouri constituted a completed offense in
Missouri over which Missouri courts had criminal jurisdiction.
We find that Missouri courts have jurisdiction over the crime here and therefore
McConnell was not ineffective for failing to raise this non-meritorious argument in a motion to
dismiss. flee Scott V. State, 741 S.W.2d 692, 693 (Mo. App. W.D. 1987) (counsel is not
ineffective for failing to file motion that would be doomed to fail). Because McConnell did not
fail to exercise the customary skill and diligence of a reasonably competent attorney under
similar circumstances when he failed to raise this non-111erit0rious issue, the motion court did not
clearly err in denying Movant’s Rule 29.15 motion. E m, 422 S.W.3d at 294; Baumruk,
364 S.W.3d at 525; M, 276 S.W.3d at 317 (should movant fail to establish either
performance or prejudice prong, we need not consider other). Point denied.
Conclusion
The judgment of the motion court is affirmed.
Kurt S. Odenwald, P. J ., concurs.
Robert G. Dowd, J 1:, 1., concurs.
15
a private attorney with his own law firm in Shelbina, Missouri, who occasionally takes cases
from the Missouri Public Defender system; he had never met Eichler. Eichler testified that
because she had filed the Statement, she had not abandoned Movant under the law. The court
denied Movant’s motion for abandonment, finding Eichler had no conflict.
Movant requested a continuance to combine his pro se Rule 29.15 motion and his
October 6 letter into one amended motion—and to “to make sure there [were not] more claims,”
due to Rule 29.15(l)’s bar on successive motions. The motion court denied the request, stating
Movant had had sufficient time to research and file all the issues. The court then heard
testimony on Movant’s pro se Rule 29.15 motion and the claims in his October 6 letter. Eichler
asked the court to take judicial notice of all the claims listed in Movant’s pleadings and
submitted the claims on the pleadings. Movant also challenged the jurisdiction of the trial court
to hear his underlying criminal case, because the crime was committed in Kansas, and thus
Missouri courts did not have jurisdiction to prosecute him. Eichler called McConnell and pre-
trial counsel, and submitted an affidavit from Pearson, Who was unavailable the day of the
hearing.
McConnell testified, as relevant to this appeal, that he did not object to the trial court’s
jurisdiction because he did not believe the objection was appropriate, as Missouri has jurisdiction
if any portion of the alleged offense occurred here. Moreover, the State already had the burden
to prove that some element of the offense occurred in Missouri, so he did not believe a motion
was necessary. He noted that he did file a motion to dismiss and raised the issue at trial and in
his motion for new trial, and thus he believed “subject matter jurisdiction was covered as well as
it could be.” Eichler also questioned McConnell about the remainder of Movant’s claims from
the pro 39 motion and the October 6 letter.
Following the hearing, the motion court denied Movant’s pro se Rule 29.15 motion. As
relevant for appeal, the court concluded that McConnell's decision not to object to jurisdiction
did not prejudice Movant, in that he failed to show the result of the trial would have been
different. This appeal follows.
Standard of Review
Appellate review of the denial of a post-conviction motion is limited to a determination
of whether the findings and conclusions of the motion court are clearly erroneous. Rule
29.1500. The motion court’s findings of fact and conclusions of law are clearly erroneous only
if the reviewing court, having examined the entire record, is left with the definite and firm
impression that a mistake has been made. Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014).
We defer to the motion court’s superior ability to judge the credibility of witnesses. Bradley v.
State, 292 S.W.3d 561, 566 (Mo. App. ED. 2009).
Discussion
W
In his first point 011 appeal, Movant argues that the motion court erred in not complying
with Rule 29.15, in that the court did not sua sponte inquire into the performances of both
Movant and Eichler after Eiehler abandoned him by filing her Statement out of time. In point
two, he argues that the motion court erred in finding Eichler did not abandon Movant, because
Rule 29.15(e) requires appointed counsel to investigate the facts and claims in a movant’s pro 56
motion, but Eichler failed to ascertain and present justiciable claims missing from Movant’s pro
39 motion before filing her Statement and failed to show in the Statement what actions she had
taken to ensure Movant’s pro se Rule 29.15 motion included all the facts and claims it needed to.
The same analysis resolves both these points, and thus we address them together and deny both.
When a movant files a pro se motion, Rule 29.l5(e) requires that motion court appoint
counsel, who “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.” Rule 29.15(e). If the pro 39 motion is deficient,
appointed counsel must file an amended motion that sufficiently alleges the additional facts and
claims. E If, however, counsel determines an amended motion is not necessary, “counsel 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 motion.” I_d. Rule 29.15(g) sets forth a time limit for the amended
motion, granting post-conviction counsel 60 days after appointment by the motion court to file
the amended motion. The motion court may grant one extension not to exceed 30 days. Rule
29.15(g). The rule does not assign a deadline for the statement in lieu of an amended motion.
There is no right to counsel in a Rule 29.15 proceeding, and therefore claims of
ineffective assistance of post~conviction counsel are unreviewable on appeal. Howard v. State,
302 S.W.3d 739, 742 (Mo. App. ED. 2010). Where, however, the record demonstrates that the
post-conviction counsel failed to comply with Rule 29.15, this creates a presumption of
abandormtent, and we must remand the case to the motion court for a hearing to determine
whether this failure constituted abandonment. SE Moore V. State, No. SC94277, 2015 WL
1735533, at *2, 4 (Mo. banc April 14, 2015); Riley v. State, 364 S.W.3d 631, 636 (Mo. App.
W.D. 20l2). Abandonment occurs when post-conviction counsel takes no action towards filing
an amended motion and as a result the movant is denied meaningful review on his claims, or
when post-conviction counsel fails to file a necessary amended motion in a timely manner.
Howard, 302 S.W.3d at 742. “[I]f there is no record of any activity by the counsel on the
movant’s behalf,” the motion court shall inquire, sua sponte, into the performances of both
movant and counsel. I_d. Counsel who files a statement in lieu of an amended motion is not
considered to have abandoned the movant as long as the record demonstrates counsel reviewed
the record and investigated all allegations raised by the movant. I_cL When counsel files a proper
statement in lieu of an amended motion, the motion court is not required to make a sun Sponfe
inquiry into the parties’ performances. I_d.
Here, Eichler was appointed as post—conviction counsel on July 31, 2013, and received a
filing extension. Accordingly, the amended motion was due no later than October 29, 2013,
which was 90 days after the appointment date. E Rule 29.15(g). On November 5, 2013,
Eichler filed a statement in lieu of an amended motion, in which she asserted she “ha[d]
discussed this case with Movant over the telephone and ha[d] reviewed the following: the
transcript of the trial and sentencing proceedings, relevant court documents from Movant’s
criminal case, the files maintained by Movant’s former trial attorney including discovery from
the underlying criminal case, the files maintained by Movant’s former appellate attorney
including the appellate brief and opinion, and the pro se motion filed by Movant in the
3
postconviction case.’ She concluded that “[b]ased on this review, [she] ha[d] determined that
she [would] not file an amended motion in that there [were] no potentially meritorious claims
known to counsel, or facts in support thereof, that ha[d] been omitted from Movant’s pro se
33
motion. The motion court held a hearing on the issue of abandonment, but it did not address
whether the Statement was timely filed.
The essential issue for this Court to decide is whether filing a statement in lieu of an
amended motion past the deadline established for an amended motion creates a presumption of
abandonment, requiring a hearing on the issue of timeliness specifically. We find that it does
not.
Movant relies on the Missouri Supreme Court’s 1996 opinion in Moore v. State, 934
S.W.2d 289 (Mo banc 1996), which made multiple references to the timeliness of the statement
in lieu of an amended motion, to suggest that timeliness is a crucial factor relevant to a
determination of abandonment. The State responds that Rule 29.15(g) provides a time limit for
only the amended motion and is silent on a time limit for statements in lieu of an amended
motion. We agree with the State.
In interpreting the rules of the Supreme Court, we apply the same principles used for
interpreting statutes. Dorris v. State, 360 S.W.3d 260, 267 (Mo. banc 2012). When interpreting
statutes and rules, we ascertain the intent of the legislature or Supreme Court and give effect to
that intent as is reflected in the plain language of the statute or rule. E Huck v. State, 341
S.W.3d 136, 139 (Mo. App. ED. 2011) (statute); Scoggins v. Timmerman, 886 S.W.2d 135, 138
(Mo. App. W.D. 1994) (Supreme Court rule). Where the language of the statute or rule is clear
and unambiguous, there is no room for construction. §fi Q Accordingly, when a rule’s
meaning is clear and unambiguous, we will not interpret the rule to give a different effect than
the one articulated. See Scoggins, 886 S.W.2d at 138.
Here, Rule 29.15(e) provides two avenues for action by post-conviction counsel: filing
an amended motion or filing a statement in lieu of an amended motion. Rule 29.15(g) provides a
time limit for only one of those options: the amended motion. Thus, it appears from the
language of the rule that the Supreme Court intended for the deadline to apply to only the
amended motion and not to the statement in lieu of an amended motion. See @
Moreover, a strict construction of the time limit for amended motions does not alter this
Court’s application of Rule 29.152 or conflict with the considerations underlying the rule. The
purpose of Rule 29.15 is to achieve finality of criminal convictions without undue delay by
ensuring a thorough review of the initial motion and prompt presentation of any meritorious
claims. Eggs, 422 S.W.3d at 297. An untimely amended motion frustrates this purpose because
it “indicates that counsel determined there was a sound basis for amending the initial motion” but
then failed to present those meritorious claims to the motion court for review. Moore, 2015 WL
1735533, at *2. The same concern is not present when post-conviction counsel files a statement
in lieu of an amended motion. Such statements demonstrate on the face of the record there are
no meritorious claims to add and the initial pro se motion can proceed on its claims and facts.
C_f. n at *3 (“result of inquiry into abandonment determines which motion — the initial motion
or the amended motion ~ the court should adjudicate”).3 Because Eichler’s Statement was not
untimely under Rule 29.15(g), there was no presumption of abandonment and we are not
obligated to remand to the motion court for a hearing on this issue. Although we find there is no
presumption of abandonment here, that is not to say the motion court could not find a movant
was abandoned under different facts and circumstances: such as (1) when the statement itself
was defective by not demonstrating on its face that appointed post-conviction counsel conducted
a thorough review of the initial motion; or (2) when the statement was filed in a manner that
prevents the finality of criminal convictions without undue delay. flee Price, 422 S.W.3d at 297.
2 We note that this holding places this Court at odds with the Southern District’s decision in Harper v. State, 404
S.W.3d 378, 385 (Mo. App. SD. 2013), which held that the untimely filing of a statement in lieu of an amended
motion gives rise to presumption of abandonment. We note, however, that the Southern District focused its analysis
on the remedy for the untimely filing, and assumed without discussion that the amended motion and the statement in
lieu of an amended motion have the same filing time limit.
3 Certainly, as the purpose of Rule 29.15 is to ensure finality of criminal convictions without undue delay, post—
conviction counsel should like the statement in lieu of an amended motion on the same timeline as the amended
motion; however, we find that the failure to do so does not create a presumption of abandonment.
8
Movant also argues that Eichler’s Statement constituted abandonment because it failed to
set forth sufficient facts demonstrating what actions she took to comply with Rule 29.1503).
Here, Eichler stated she had discussed this case with Movant over the telephone and had
reviewed the record, including the trial and sentencing transcripts, relevant court documents, the
files maintained by both trial counsel and appellate counsel, and Movant’s pro se motion.
Eichler then concluded Movant’s pro se Rule 29.15 motion included all meritorious claims and
facts in support thereof. Eichler’s conclusion is not contrary to the language in Rule 29.15(e),
and while Movant would have this Court create additional requirements of specificity to Rule
29.15(e)’s requirements, we decline to do so. This Court has previously found general
statements sufficient to meet the requirements of Rule 29.15(e). Sgggg“ Howard, 302 S.W.3d
at 742 (statement that appointment counsel had “reviewed the record in the underlying criminal
case, including the transcript, the legal file and information supplied by the movant” and had
“investigated all allegations in the pro 39 motion” was sufficient to comply with Rule 29.15(e)).
Eichler’s Statement was sufficient to comply with the requirements of Rule 29.15(e), and thus
the motion court did not err in finding Eichler did not abandon Movant.4
Last, although Movant argues that Eichler’s failure to raise specific claims proves that
she did not in fact review the record as she asserted in her Statement, this contention is in
essence an allegation of ineffective assistance of post-conviction counsel, not an assertion of
abandonment. An argument that post-conviction counsel failed to assert a particular claim is in
essence a charge of ineffective assistance of post—conviction counsel, and such charges are
“categorically unreviewable.” Brice, 422 S.W.3d at 297 (“[t]he lack of any constitutional right to
counsel in post-conviction proceedings, precludes claims based on the diligence or
4 We note as well that motion courts are ofien aware of the reputation, work product, and credibiiity of appointed
post-conviction attorneys who regularly appear before them.
9
competence of post-conviction counsel and such claims are categorically unreviewable”).
Any alleged error in failing to raise a discoverable meritorious claim does not constitute
“abandonment.” Morgan V. State, 296 S.W.3d 1, 3 (Mo. App. ED. 2009) (“[a]bandonment,
however, does not encompass perceived ineffective assistance of counsel and, absent total
abandonment, movants do not have a right to the effective assistance of post-conviction
counsel”). To the extent Movant claims Eichler’s Statement denied him meaningful review on
his claims, we disagree. The motion court here held an evidentiary hearing in which it
considered not only all of the claims raised in Movant’s pro se motion but also those raised in his
supplemental October 6 letter, and the court issued a merit-based ruling on those claims. C_f.
Pope v. Stat , 87 S.W.3d 425, 429 (Mo. App. WI). 2002) (reversed and remanded for hearing on
abandonment when face of record demonstrated that counsei’s inaction denied movant
meaningful review of his claims).
Eichler’s Statement complied with the requirements of Rule 29.15(e) and (g), and thus
the motion court did not clearly err in failing sua Sponfe to hold a hearing to inquire into the
parties” performance or in concluding Eichler did not abandon Movant.
Points one and two are denied.
Point 111
In his third point, Movant argues that the trial court erred in denying his Rule 29.15
motion, because his trial counsel was ineffective for failing to challenge whether the State of
Missouri had jurisdiction to prosecute him for the crime for which he was convicted. We
disagree.
To prevail on a claim of ineffective assistance of counsel, Movant must establish by a
preponderance of the evidence that trial counsel failed to exercise the customary skill and
10