Destynie Wright v. State of Missouri

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
DESTYNIE WRIGHT, )
)
Appellant, )
)
v. ) WD84046
)
STATE OF MISSOURI, ) Opinion filed: October 19, 2021
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
THE HONORABLE SANDRA MIDKIFF, JUDGE
Special Division: Thomas N. Chapman, Presiding Judge,
Edward R. Ardini, Jr., Judge, and W. Douglas Thomson, Judge
Destynie Wright (“Wright”) appeals the denial of her Rule 29.15 motion for post-
conviction relief by the Circuit Court of Jackson County (“motion court”) following her
convictions for involuntary manslaughter, assault in the second degree, and armed criminal action.
Because Wright’s amended motion was untimely filed by her appointed counsel, we reverse and
remand to the motion court to conduct an abandonment inquiry.
Factual and Procedural Background
In the underlying criminal case, Wright was charged as an accomplice with one count of
murder in the first degree and one count of assault in the first degree. Wright was also charged
with two counts of armed criminal action and one count of tampering with physical evidence. The
evidence at trial established:1
On December 31, 2015, Wright drove herself and her friend Kierra Ramsey
(“Ramsey”) to a New Year’s Eve party at a dance hall in Kansas City. In the early
hours of January 1, 2016, Ramsey’s ex-boyfriend, Sederick Jones (“Jones”), arrived
at the party, intent on encouraging Ramsey to leave with him. Jones followed
Wright and Ramsey into the women’s restroom, blocking their exit until a member
of the cleaning crew forced them to leave the building. Outside, Jones continued
pressing Ramsey to leave with him, and was arguing with Wright. Wright and
Ramsey tried to leave in Wright’s car, but Jones got into the backseat. Jones
continued to argue with Wright and Ramsey for about an hour. During that time,
Wright was using her cell phone to text her boyfriend, Ramon Boyd (“Boyd”), in
relevant part as follows:
Boyd: Keep [Jones] there.
Wright: Okay.
Wright: He is in my car.
Wright: Come get him now.
Boyd: Okay, pulling up.
Wright: Parking lot.
Boyd: Okay
Wright: NOW!!!!!!!!!!!!!!!!
Boyd: Is he still there?
Wright: YES TK[2] COME GET HIM
Boyd: I am. I got you.
Wright: PASSENGER SIDE
Wright: Now, TK
1
We quote the facts from this Court’s opinion in Wright’s direct appeal. State v. Wright, 585 S.W.3d 360, 364-66
(Mo. App. W.D. 2019).
2
Boyd went by the nickname “TK.”
2
Wright: )U007
Boyd: Ok. 2 mins
Wright: he gotta gun dude come the fuck on
Boyd: Here.
Shortly after this exchange, Jones and Ramsey exited Wright’s vehicle. Boyd shot
Jones four times, killing Jones. Ramsey was shot twice. Gunfire shattered a window
on Wright’s vehicle.
Wright fled the scene in her car. Boyd called Wright moments after the shooting,
but Wright did not initiate any calls, including to 911. Wright drove to her sister’s
house, and parked the car. Boyd met her there. The two retreated to Boyd’s home,
where Wright stayed until she returned to her sister’s house the next morning.
The next morning, Kansas City Police Detectives Jeremy Wells (“Wells”) and
Darin Penrod (“Penrod”), were looking for Wright as they knew she had been a
witness to the shooting. They were contacted by Wright’s sister, who told them that
Wright was now at her house. . . . Wells and Penrod asked Wright if she would be
willing to go to the police station to provide a statement. Wright agreed to do so.
...
At the beginning of the interview, Wright verbally consented to the Detectives’
request to search her cell phone for any information that might be helpful to the
investigation.
Wright then provided a statement. Wright explained that she and Ramsey had gone
out for the evening; that Ramsey and Jones had been arguing on the phone earlier
in the evening; that Jones showed up unexpectedly at the dance hall and began
harassing them; and that Jones entered the backseat of her car as she and Ramsey
were attempting to leave. Wright told the Detectives that Jones was flashing a gun,
and that when Ramsey finally agreed to leave with Jones, she heard gunshots as
they exited Wright’s car. Wright described seeing Jones and Ramsey fall to the
ground, but said she had no idea who shot them. Wright told the Detectives she
“blacked out,” and fled the scene out of fear. Wright made no mention of Boyd or
of his involvement in the shooting. Wright first told the Detectives that she drove
away from the scene without checking on the victims, went walking, and eventually
sat outside until morning before resetting her phone around 6:00 a.m. Later in the
interview, Wright said that she drove to her sister’s house after leaving the scene,
parked her car, and then walked with no particular destination before ending up at
an unknown driveway where she sat and waited for several hours before returning
to her sister’s house the next morning. . . .
3
The Detectives then asked Wright to sign a written form verifying her consent to
search her cell phone. Wright again told the Detectives she had been required to
hard reset her phone the night before because it had gotten too cold while she was
out walking. Wright asked if she could have a lawyer review the consent form.
Wright was advised that she did not have to sign the form if she did not want to.
Wright did not sign the consent form.
Wells and Penrod took a break from the interview, leaving Wright alone in the
unlocked interview room. When they returned, their questioning of Wright
remained cordial, but became more aggressive. . . .
When Penrod continued to press Wright to tell the truth, Wright requested an
attorney[.] . . .
In total, Wright’s interview lasted about two hours. When the interview concluded,
Wright was not arrested, and was taken back to her sister’s house. The Detectives
told Wright at the end of her interview that they would be retaining her cell phone
and securing a warrant to search its contents. As a result of that search warrant, the
texts exchanged with Boyd prior to the shooting were discovered.
The jury found Wright guilty of the lesser-included offenses of involuntary manslaughter and
assault in the second degree, in addition to tampering with physical evidence, and both counts of
armed criminal action. On December 15, 2017, the trial court sentenced Wright to seven years in
the Department of Corrections for each offense except the tampering with physical evidence count
for which she received a sentence of four years. The sentences were ordered to run consecutive to
each other.
Wright appealed her convictions, which were affirmed by this Court. State v. Wright, 585
S.W.3d 360 (Mo. App. W.D. 2019). Our mandate issued on October 30, 2019. Wright filed her
pro se motion for post-conviction relief under Rule 29.15 on January 29, 2020. Post-conviction
counsel was appointed on March 23, 2020, and, following a thirty-day extension granted by the
motion court, the amended motion was due on June 22, 2020. Post-conviction counsel later sought
and received an additional thirty-day extension, resulting in the amended motion being due by July
21, 2020. Appointed counsel filed Wright’s amended motion on July 21, 2020.
4
In the amended motion, post-conviction counsel raised five claims, each of which differed
from those raised in Wright’s pro se motion. Following an evidentiary hearing, the motion court
denied the claims asserted in Wright’s amended motion for post-conviction relief. Wright appeals
from the denial of her amended post-conviction motion.
Discussion
Wright raises a single point on appeal asserting that the motion court erred in denying her
post-conviction claim that she received ineffective assistance of trial and appellate counsel through
the failure to lodge an objection at trial, and raise claims on appeal, directed at verdict director 11
(involuntary manslaughter) and verdict director 23 (assault in the second degree), arguing that
there lacked substantial evidence to support those verdict directors and that they did not comply
with MAI-CR3d and its Notes on Use. However, before we consider this claim of error, we must
address the State’s argument that Wright’s amended motion for post-conviction relief was not
timely filed.
“‘Time limits for post-conviction relief motions are mandatory[,]” and “we must ‘enforce
the mandatory rules created by the Supreme Court of Missouri.’” Briggs v. State, 621 S.W.3d 614,
617 (Mo. App. W.D. 2021) (quoting Maguire v. State, 536 S.W.3d 247, 248 (Mo. App. E.D. 2017))
(additional citation omitted). “‘Failing to abide by the Rule’s [time limits] generally functions as
a complete waiver’ of the right to seek review.” Id. (quoting Maguire, 536, S.W.3d at 248)
(additional citation omitted) (alteration in Briggs).
In this case, the timeliness of Wright’s amended motion turns on which version of Rule
29.15 governs her post-conviction proceeding. This question is resolved by Rule 29.15(m) (2018),
which states, in pertinent part, that “[i]f sentence was pronounced prior to January 1, 2018,
postconviction relief shall continue to be governed by the provisions of Rule 29.15 in effect on the
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date the motion was filed or December 31, 2017, whichever is earlier.” Wright was sentenced on
December 15, 2017. Thus, although Wright’s post-conviction action was initiated on January 29,
2020, the proceeding is to be governed by the version of Rule 29.15 in effect on December 31,
2017.
The 2017 version of Rule 29.15(g) stated the following:
If an appeal of the judgment sought to be vacated, set aside, or corrected is taken,
the amended motion shall be filed within 60 days of the earlier of the date both the
mandate of the appellate court is issued and:
(1) Counsel is appointed, or
(2) An entry of appearance is filed by any counsel that is not appointed but enters
an appearance on behalf of movant.
The court may extend the time for filing the amended motion for one additional
period not to exceed 30 days.
Under this rule, the motion court was authorized to extend the deadline for the filing of an amended
motion one time for a “period not to exceed 30 days.” Here, the motion court exhausted this
authority when it granted a thirty-day extension at the time counsel was appointed, thereby
establishing June 22, 2020, as the deadline for the filing of the amended motion. Prior to that
deadline, the motion court purported to grant an additional thirty-day extension until July 21,
2020—the date appointed counsel later filed Wright’s amended motion. However, as explained
above, the applicable version of Rule 29.15(g) did not authorize this second extension resulting in
the amended motion being untimely.3
“‘If the amended motion was untimely, the motion court was required to make a record of
an independent inquiry into abandonment before considering the claims and evidence presented in
3
Any confusion on the part of the motion court concerning the extent of its authority to extend the due date for the
filing of the amended motion is understandable and likely traced to the fact that the version of Rule 29.15 in effect at
the time Wright’s post-conviction action was instituted permitted the motion court to grant extensions totaling sixty
days (as opposed to the thirty days allowed under the predecessor rule applicable to this action).
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the amended motion.’” Johnson v. State, 613 S.W.3d 512, 515 (Mo. App. E.D. 2020) (quoting
Barber v. State, 569 S.W.3d 556, 559 (Mo. App. E.D. 2019)). “While it is the duty of appellate
courts to enforce the mandatory timelines in the post-conviction rules, the motion court is the
appropriate forum to conduct an abandonment inquiry.” Id. (citing Blackburn v. State, 468 S.W.3d
910, 913 (Mo. App. E.D. 2015)). “Upon review of the record, if we determine the motion court
failed to make an independent inquiry or there is no record for us to review such inquiry, then we
must reverse and remand for the motion court to conduct this inquiry.” Id. (citing Brown v. State,
602 S.W.3d 846, 850 (Mo. App. E.D. 2020)).
Because Wright’s amended motion was untimely, a presumption of abandonment attaches,
and the motion court must conduct an independent inquiry to determine if abandonment occurred.
See Johnson, 613 S.W.3d at 516; Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015). Nothing
in the record indicates that the motion court conducted the required inquiry into the timeliness of
Wright’s amended motion; therefore, we must remand this case to the motion court for that
purpose.4 See Johnson, 613 S.W.3d at 516 (“[W]e must remand the case because the motion court
is the appropriate forum to conduct such an inquiry.”).
4
On remand, “a sufficient record must be made to demonstrate on appeal that the motion court’s determination on the
abandonment issue is not clearly erroneous.” Johnson, 613 S.W.3d at 517 (quoting Milner v. State, 551 S.W.3d 476,
480 (Mo. banc 2018)). “‘The result of the inquiry into abandonment determines which motion—the initial motion or
the amended motion—the court should adjudicate.’” Id. (quoting Moore, 458 S.W.3d at 826).
Although there is an exception to the requirement for remand where a motion court considered all of the claims raised
in both the pro se and amended motions, in the instant case the pro se motion and amended motion include different
claims, and the motion court only adjudicated the claims raised in the amended motion. See Childers v. State, 462
S.W.3d 825, 828 (Mo. App. E.D. 2015). Therefore, remand is required.
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Conclusion
This case is reversed and remanded for the motion court to conduct an abandonment
inquiry.
__________________________________________
EDWARD R. ARDINI, JR., JUDGE
All concur.
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