Criminal Law

Ellen H. Flottman, Esquire

Postconviction movant’s untimely filed motion is excused by the narrow McFadden exception – that counsel’s action of abandonment, not movant’s own failure to comply with Rule 29.15 – resulted in the untimely filing. Price v. State, No. 31725 (Mo. App. S.D., December 28, 2012), Burrell, J.

State appeals an order granting untimely filed postconviction motion, setting aside conviction of first degree statutory sodomy.

Affirmed. See: McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008).

John Doe was required to register as a sex offender under SORNA, so is therefore required to register under the State registration requirements; circuit court correctly ruled that Sheriff was not required to destroy Doe’s registration records or remove him from the registry. Doe v. Toelke, No. 92380 (Mo. banc, December 18, 2012), Teitelman, C.J.

Appeal from declaratory judgment.

Held: Affirmed in part and reversed in part.

Constitutional challenges to predatory sexual offender statutes were waived by guilty plea. Garris v. State, No. 92553 (Mo. banc, December 18, 2012), Fischer, J.

Constitutional challenge brought during Rule 24.035 action for postconviction relief to §§ 558.018.5(2) and 558.021.2, after a guilty plea.


Convictions of domestic assault in the first degree for attempting to cause serious physical injury and for armed criminal action for the use of a dangerous instrument both supported by evidence that defendant struck victim in the back of the head with a ceramic bowl. State v. Rousselo, No. 31799 (Mo. App. S.D., December 13, 2012), Bates, J.

Defendant was convicted of domestic assault in the first degree and armed criminal action.

Held: Affirmed.

Five counts of child pornography for five separate photographs acquired at different times does not violate double jeopardy; they are separate units of prosecution. State v. Roggenbuck, No. 92236 (Mo. banc, December 4, 2012), Teitelman, C.J.

Defendant was convicted of five counts of possession of child pornography.

Held: Affirmed.

Motion to appellate court to remand for further evidence in postconviction case denied; whether because the Rule does not support such a remand or because the motion must meet the test for newly discovered evidence, movant could not meet the requirements that the evidence must be non-cumulative and so material it would likely change the result. Turner v. State, No. 31756 (Mo. App. S.D., December 4, 2012), Scott, J.

Appeal from the denial of Rule 29.15 motion for postconviction relief.

Held: Affirmed.

Rosalynn Koch, Esquire

Section 217.690.5, which specifies that the minimum term for parole eligibility for any sentence shall not exceed that of a life sentence, applies to each of the defendant’s sentences individually, not to all sentences taken together. Langston v. Missouri Board of Probation and Parole, No. 75401 (Mo. App. W.D., December 26, 2012), Howard, J.

Defendant was sentenced to three consecutive life sentences plus 224 years. He unsuccessfully sought declaratory relief after serving 20 years, contending that he was eligible for parole after serving the minimum term of one life sentence.

Held: Affirmed
. Defendant is ineligible for parole until he has served the minimum term for each sentence.

State’s failure to disclose to the defense forensic chemist’s handwritten notes implying that blood testing excluded defendant, the fact that state’s witness had been hypnotized, and the fact that defendant had incorrectly described the crime scene in his confession undermined confidence in the outcome of the defendant’s trial, despite his confession, as the jury would have been less likely to accept the confession as reliable. State ex rel. Koster v. Green, No. 75820(Mo. App. W.D., December 26, 2012), Martin, J.

Circuit court granted habeas relief after discovery of police files that had been withheld from the prosecution and defense, including the forensic chemist’s handwritten notes indicating presence of a different type of blood than that of the defendant which contradicted his testimony at trial, the fact that a witness had been hypnotized, and the fact that the defendant had gotten many details of the crime wrong during his interrogation.

Held: Affirmed.
The evidence was material, despite the defendant’s confession, because the likelihood of a different result was substantial enough to undermine confidence in the outcome of the trial.

In response to state’s contention on appeal that movant’s second amended postconviction motion should have been disregarded as untimely, cause remanded to determine whether the untimeliness was movant’s fault. Stanley v. State, No. 97795 (Mo. App. E.D., December 4, 2012), Cohen, J.

Movant filed a 24.035 motion challenging the court’s failure to inform him of his right to withdraw his plea if the court rejected the plea agreement. Appointed counsel filed an amended motion and then withdrew, and new counsel filed an untimely second amended motion alleging prejudice. The motion court accepted the motion but nevertheless denied relief. On appeal, the state challenged the second motion as untimely.

Held: Remanded for further proceedings.
The record is silent as to why the motion court accepted the untimely amended motion. If the motion court finds that movant had been abandoned by first counsel and the untimely filing was not his fault, it should permit him to withdraw his plea.