Case Summary for September 27, 2011

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Case Summary for September 27, 2011

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

9:30 a.m. Tuesday, September 27, 2011

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SC91652
Jesse V. Dorris v. State of Missouri
Mississippi County
Failure of state to raise issue of untimeliness of post-conviction motion timely
Listen to the oral argument:

SC91652.mp3
Dorris was represented during arguments by Gwenda R. Robinson of the public defender's office in St. Louis, and the state was represented by James B. Farnsworth of the attorney general's office in Jefferson City. Judge Robert M. Clayton III, a judge of the Missouri Court of Appeals, Eastern District, sat in this case by special designation to fill the vacancy on the Court.

Dorris untimely filed his pro se Rule 29.15 motion challenging his conviction for illegal possession of anhydrous ammonia. The motion court appointed counsel to represent Dorris, and counsel filed an amended Rule 29.15 motion. In the motion, Dorris contends that the trial court entered judgment and sentence against him before the time for filing a motion for new trial expired; as a consequence, Dorris' judgment of conviction is void, premature, and not a final, appealable judgment. After an evidentiary hearing, the motion court overruled the motion.

On appeal, the state contends the untimely motion deprives the motion court of authority to rule on the motion and grant Dorris relief. Dorris contends that the challenge to the timeliness of the motion is a non-jurisdictional, affirmative defense that the state failed to assert timely.

Dorris also contends the motion court incorrectly denied relief on his claim because, where the trial court sentences the defendant in violation of Rule 29.11( c), as in this case, the trial court's judgment and sentence is premature, void, and does not constitute a final judgment from which the defendant may appeal.

The state argues Dorris’ claim should be rejected for three reasons: (1) the claim should have been raised on direct appeal and cannot be raised in a Rule 29.15 post-conviction motion; (2) any requirement that the court delay in entering judgment to allow Dorris to file a motion for new trial was waived when counsel informed the court that Dorris was ready for sentencing immediately; and (3) Dorris cannot have been prejudiced by the court's immediate entry of judgment because counsel would not have filed a motion for new trial even if the court had waited the requisite period of time.

SC91713
Jose Luis Lopez-McCurdy, Jr. v. State of Missouri
Dent County
Failure of state to raise issue of untimeliness of post-conviction motion timely
Listen to the oral argument:

SC91713.mp3
Lopez-McCurdy was represented during arguments by Mark A. Grothoff of the public defender's office in Columbia, and the state was represented by Evan J. Buchheim of the attorney general's office in Jefferson City. Judge Robert M. Clayton III, a judge of the Missouri Court of Appeals, Eastern District, sat in this case by special designation to fill the vacancy on the Court.

Lopez-McCurdy untimely filed his pro se Rule 29.15 motion challenging his conviction for forcible rape. The motion court appointed counsel to represent Lopez-McCurdy, and counsel filed a statement in lieu of an amended Rule 29.15 motion. In the motion, Lopez-McCurdy contends that his counsel failed to properly obtain a laboratory analysis of a DNA sample collected by the police. Such an analysis would have implicated another in the crime, creating a reasonable probability that the result of Lopez-McCurdy’s trial would have been different. After an evidentiary hearing, the motion court overruled the motion.

On appeal, the state contends the untimely motion deprives the motion court of authority to rule on the motion and grant Lopez-McCurdy relief. Lopez-McCurdy contends that the challenge to the timeliness of the motion is a non-jurisdictional, affirmative defense that the state failed to assert timely.

Lopez-McCurdy also contends the motion court incorrectly denied relief on his claim because argues that he established that his trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney with respect to the DNA evidence, that he was prejudiced by his counsel's ineffectiveness, and, therefore, that he is entitled to relief.

The state asserts Lopez-McCurdy failed to prove either that his counsel was ineffective or that he was prejudiced.

SC91767
Louis W. Hill v. State of Missouri
Iron County
Failure of state to raise issue of untimeliness of post-conviction motion timely
Listen to the oral argument:

SC91767.mp3
Hill was represented during arguments by Rosalynn Koch of the public defender's office in Columbia , and the state was represented by Robert J. Bartholomew Jr. of the attorney general's office in Jefferson City. Judge Robert M. Clayton III, a judge of the Missouri Court of Appeals, Eastern District, sat in this case by special designation to fill the vacancy on the Court.

Hill pleaded guilty to statutory rape. He filed a post-conviction motion, and the parties contest whether it was timely. In any event, the motion court considered the motion on the merits and denied relief.

Hill contends that the state’s challenge to the timeliness of the motion was explicitly waived by the state and, if not waived, that he should have the opportunity to show the timely filing when he failed to do so because the state withdrew it motion to dismiss that asserted that the motion was untimely. He also contends that counsel was ineffective when counsel failed to object to the state's misstatements that the physical evidence corroborated J.I.'s claims on a crucial matter and that he was prejudiced by counsel's inaction in that the trial court relied upon the state's misrepresentation and, thus, had an incorrect factual basis for the conviction, resulting in a denial of due process.

The state contends the motion court had no subject-matter jurisdiction to consider Hill’s untimely-filed post-conviction motion. It further contends the filing and subsequent withdrawal of a motion to dismiss for lack of jurisdiction did not waive or preclude the motion court from addressing the requirement that Hill’s motion be timely filed.

With respect to the merits of the post-conviction motion, the state asserts there was a factual basis for the plea because Hill understood the nature of the charges against him and admitted that there was a substantial likelihood that a jury, upon hearing the evidence, would convict him of statutory rape in the first degree. The state argues that Hill failed to prove that he either relied on or was compelled to plead guilty due to the prosecutor’s alleged misstatement regarding the SAFE examination.

SC91696
In re: Carl Elvin Smith
Douglas County
Attorney discipline

Listen to the oral argument:

SC91696.mp3
The chief disciplinary counsel's office was represented during arguments by Nancy Ripperger of the Office of Chief Disciplinary Counsel in Jefferson City, and Smith was represented by Bruce H. Galloway of Ozark, and . Judge Robert M. Clayton III, a judge of the Missouri Court of Appeals, Eastern District, sat in this case by special designation to fill the vacancy on the Court.

The chief disciplinary counsel seeks to discipline Mr. Smith for various statements he has made against judges, lawyers and other persons. He alleges that Smith made numerous false statements about judges and public legal officers with reckless disregard as to their truth or falsity. He also alleges that these statements were made for personal gain and, therefore, seeks Smith's disbarment.

Smith contends that the statements distributed during an election campaign were protected by the first amendment because he subjectively or, in the alternative, objectively believed the facts were true. He also asserts the chief disciplinary counsel failed to plead how his speech was prejudicial to the administration of justice – a necessary pleading. He next argues that Rule 4-8.2(A), which prohibits statements a lawyer knows to be false or make with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or specified others, is unconstitutional. He alleges the rule is overbroad as it purports to regulate truthful speech. Finally he urges that probation with conditions would be a more appropriate discipline than disbarment.