Case Summary for November 16, 2004

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Case Summary for November 16, 2004

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, November 16, 2004
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SC86143
Darius Nicholson v. State of Missouri
Cape Girardeau and Scott counties
Timeliness of Rule 29.15 motion for postconviction relief

Following a change of venue from Scott County to Cape Girardeau County, a jury found Darius Nicholson guilty of second-degree murder, armed criminal action and first-degree robbery. Nicholson was sentenced to concurrent terms of life in prison for the murder, and 30 years each for the armed criminal action and robbery. His convictions and sentences were affirmed. State v. Nicholson, 84 S.W.3d 491 (Mo. App. 2002). The mandate issued its mandate October 9, 2003. On January 6, 2003, Nicholson sought postconviction relief in the St. Louis city circuit court, which sent his motion to the Cape Girardeau County circuit court, where it was filed January 9, 2003. The Cape Girardeau court dismissed his motion as being untimely filed, and Nicholson appeals.

Nicholson argues the motion court clearly erred and violated his constitutional rights in dismissing his motion as untimely filed. He contends the motion court's own records, as reflected on the date stamp on his pro se motion, show that he filed his motion in a timely manner on January 6, 2003, the day before it was due under the rule. He asserts that the fact he initially filed his motion in the wrong court should not render it untimely filed. Nicholson argues that, under section 476.410, RSMo 2000, and Rule 51.10, the motion court in Cape Girardeau County should have treated his motion as though it had been filed originally in that circuit. He contends that this Court's time limitations are not violated when a pro se motion is filed within the time required by the postconviction rules in a circuit court in this state.

The state responds that the motion court properly dismissed Nicholson's motion as untimely. It argues he failed to invoke the jurisdiction of the Cape Girardeau court that sentenced him within the mandatory, reasonable time limits of Rule 29.15 because he failed to file his motion there within 90 days after the court of appeals issued its mandate. The state asserts that there is no compelling reason to extend the time limits of Rule 29.15 for movants who incorrectly file their pro se motions in the wrong court.

SC86040
State ex rel. Kenneth Baumruk v. The Honorable Mark Seigel
St. Louis County
Challenge to judge following change of venue

Baumruk was charged in the shooting death of his wife and the shooting of two attorneys, a court bailiff, a police officer and a security officer during his dissolution hearing in the St. Louis County courthouse. During the shootout, Baumruk suffered two bullet wounds to the head. Following a change of venue to Macon County, Baumruk was found incompetent to proceed and was committed to the department of mental health. A jury later determined that Baumruk did not need a guardian, and the trial court dismissed the underlying criminal charges against him. In August 1992, one of the victims filed a six-count lawsuit against Baumruk in St. Louis County. The case was assigned to Judge Mark Seigel and went to a bench trial. At the conclusion of the evidence, Judge Seigel ruled in the victim's favor, awarding him $75,000 in actual damages and $25,000 in punitive damages and assessing costs against Baumruk. In March 1998, the state reinstated prosecution, filing an 18-count indictment against Baumruk in St. Louis County for one count of first-degree murder, eight counts of first-degree assault and nine counts of armed criminal action. Baumruk sought a change of judge and of venue. The court granted the change of judge, assigning the case to Judge Seigel, and denied the change of venue. Ultimately, the jury found Baumruk guilty and recommended he receive the death penalty. On appeal, this Court reversed the convictions, remanding the case to the circuit court and instructing it to grant Baumruk's request for a change of venue so the case would not be tried in the same courthouse where the shootings occurred. State v. Baumruk, 85 S.W.3d 644 (Mo. banc 2002). The case was returned to Judge Seigel. In May 2004, Seigel granted Baumruk's motion for change of venue, transferring the case to St. Charles County, but overruled Baumruk's motion to recuse himself as judge. Baumruk now seeks a writ of prohibition from this Court.

Baumruk argues a writ of prohibition is necessary to prevent the judge from proceeding as the judge in his competency hearing and criminal case. He contends the judge lacks jurisdiction. He asserts that, upon a change of venue, the receiving circuit receives full jurisdiction over a case, and the sending circuit and judge retain no jurisdiction over the case. Baumruk argues the judge's factual findings, decisions and judgments in the victim's case, which arises from the same incident as the criminal case, show the judge cannot serve in the criminal case fairly and impartially.

The state responds that prohibition is inappropriate in this case. It argues Judge Seigel has the discretion to remain on the underlying criminal case after granting a change of venue under Rule 32.04. It contends that prohibition is inappropriate for discretionary judicial acts. The state asserts that Judge Seigel has no disqualifying bias because he did not go beyond the record in awarding punitive damages in the victim's case against Baumruk.

SC85896
State ex rel. Chris K. Ritz v. Missouri Court of Appeals, Western District of Missouri
Clay County
Alleged insufficient representation by postconviction appellate counsel

Chris Ritz was arrested and charged with three counts of sodomy and one count of child molestation allegedly committed against the six-year-old daughter of his landlady in Kansas City, Missouri. Following a January 2000 trial, the court granted a judgment of acquittal on one sodomy count. The jury found Ritz guilty of one count of first-degree statutory sodomy and one count of attempted first-degree sodomy but acquitted him of the molestation charge. In March 2000, the court sentenced him to 15 years in prison for the sodomy conviction and seven years in prison for the attempted sodomy conviction. Ritz's convictions and sentences were affirmed on direct appeal. State v. Ritz, 44 S.W.3d 865 (Mo. App. 2001). He subsequently sought postconviction relief. When the attorney who had filed his amended motion for postconviction relief was appointed as a judge, he withdrew from Ritz's case, and another attorney took it over. New counsel did not submit proposed findings of fact and conclusions of law, per the court's request, and in March 2003, the motion court overruled Ritz's motion for postconviction relief. His attorney appealed and filed a brief in the court of appeals on Ritz's behalf. Despite repeated requests from Ritz, the attorney chose to address only two of the points the previous counsel had presented to the motion court. Ritz then attempted to file a pro se motion to dismiss his new attorney and for leave to file an amended brief. The court of appeals did not file the motion because its special rule XVI prohibits the filing of any pro se pleading by any party represented by an attorney. In February 2004, the court of appeals allowed the motion to be filed but then overruled the motion. Ritz now seeks a writ of mandamus from this Court to require the court of appeals to permit him to file an amended or substitute appellant's brief.

Ritz argues he has been denied an effective defense and meaningful postconviction appellate review. He contends his court-appointed public defender failed and refused to brief key points of error from the trial. He asserts that this public defender failed and refused to advise Ritz in a timely manner of the status of his appeal and failed to investigate key evidentiary issues. Ritz further argues his public defender failed to file an appellate brief that set forth points of error from which rational arguments for relief could be constructed that Ritz believes will determine the outcome of his appeal.

The state responds that Ritz is not entitled to a writ of mandamus because the court of appeals has no mandatory duty either to review or to grant Ritz's pro se motion for leave to file an amended brief. The state argues that Ritz was represented by counsel and that there is no constitutional right to review the effectiveness of postconviction appellate counsel. The state contends the court of appeals, therefore, had no duty to review any claim that the postconviction appellate counsel was ineffective. The state further asserts that Ritz's counsel's representation was reasonably professional.

SC86016
State ex rel. Richard A. Cuthberton v. The Honorable John Jacobs
Ozark County
Conflict between local rule and Supreme Court rule allowing for change of judge

In December 2003 in Ozark County, Richard Cuthberton was charged with five misdemeanor counts. He made his initial court appearance before Judge John Jacobs. At that time, a plea of not guilty essentially was entered, and his case was set for trial. Cuthberton sought a trial by a jury. The motion was granted, and the case was transferred to circuit court. Pursuant to a local rule requiring the associate circuit judge who started with a case to be assigned to remain with the case even after a jury trial is granted, Cuthberton's case was set for a jury trial before Judge Jacobs. Cuthberton subsequently filed a motion for a change of judge, which the court overruled. He now seeks a writ requiring the court to grant his request.

Cuthberton argues that Judge Jacobs lacks jurisdiction to preside over his trial. He contends the plain meaning of Rule 32.07 allows a defendant to apply for a change of trial judge within 10 days of the designation of that judge if that designation occurs more than 10 days after the initial plea is entered. He asserts that, if such a motion for change of judge is filed timely, Rule 32.07 requires the judge to sustain the motion promptly. Cuthberton argues that, to the extent the court is interpreting a local circuit court rule to "pre-designate" the associate circuit judge to preside over any misdemeanor jury trial, such an interpretation is misplaced. He contends that he should have 10 days from the designation of the trial judge to file his motion, even where the trial judge assigned also was the associate circuit judge who presided over the entry of the plea. He asserts that such an interpretation is prohibited by Rule 32.07, is unduly burdensome to a defendant, and is inconsistent with Supreme Court rules and well-established law.

The state responds that neither a writ of mandamus nor of prohibition should be granted. It argues Cuthberton's application for a change of judge was untimely because it was not filed 10 days after Judge Jacobs initially was designated as the judge. The state contends the local rule requires that a case set for jury trial be transferred to the associate division of the circuit court and that the certifying associate circuit judge be assigned to follow the case and remain the trial judge. The state asserts that the court's interpretation of the local rule as not constituting a new appointment of a trial judge is correct. It responds that the rule is a standing order and does not unduly create a burden on a defendant. The state argues that, if a writ were to issue, its effect would be to create a special rule for change of judge that pertains only to circuits in which jury trials are not held in associate division courtrooms or in which centralized filing systems are not used.