Criminal Law

Rosalynn Koch, Esquire

Petitioner granted habeas corpus relief, resulting in resentencing, where his attorney failed to perfect notice of appeal and petitioner did not discover the dereliction until after the deadline for filing a late appeal or postconviction action.  In re: Ewing v. Denney, No. 74807 (Mo. App. W.D., March 6, 2012), Martin, J.

Petitioner’s trial counsel assured petitioner that he would appeal his conviction. Counsel did not pay the filing fee, and a notice of dismissal was sent to counsel. Petitioner discovered counsel’s omissions too late to file a late appeal or postconviction action, and then filed a petition for habeas corpus.

Held:  Petition for habeas corpus granted
. A procedurally defaulted claim may be raised in a habeas corpus action where there has been cause and prejudice. The ineffective assistance of counsel constituted “cause” depriving petitioner of his appeal. Petitioner’s sentences vacated so that he may be resentenced and file his appeal.

Despite provision that a first-time offender convicted of unlawful use of a weapon is sentenced pursuant to a Class B felony term, the Class A sentence nevertheless applies when the offense causes injury or death to another. State v. McCrady, No. 97052 (Mo. App. E.D., March 20, 2012), Ahrens, J.

Defendant was sentenced to 20 years for his first conviction for unlawful use of a weapon, after he shot at a group of people and one person was injured. On appeal, he contended that 20 years was excessive because § 571.030.8(1) directed that a first time offender be sentenced as a Class B felon.

Held:  Affirmed
. Section 571.030.8(4) provides for a Class A felony sentence where there is injury or death and supersedes § 571.030.8(1) under those conditions.