Ellen H. Flottman, Esquire

 Movant was not abandoned by counsel who filed untimely postconviction pleading on his behalf, limiting the holding of McFadden v. StatePrice v. State, No. 93120 (Mo. banc, February 25, 2014), Wilson, J.

State’s appeal from the grant of a motion for postconviction relief which vacated the movant’s conviction. The State claims that the motion court erred in granting relief on a motion filed after the time limits allowed by Rule 29.15(b).

Held:  Reversed.
Although movant had retained counsel to file a motion for him, it was not abandonment for that counsel to fail to file a timely motion on movant’s behalf. Counsel’s failures did not amount to “active interference” with the timely filing of an initial pleading by movant. To the extent that McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008) implies otherwise, it should no longer be followed.

Finding of no prejudice on instructional error on direct appeal means, under these facts, that there is no reasonable probability that the jurors were confused or misled by the challenged instruction; no relief in this postconviction challenge. Harrell v. State, No. 32710 (Mo. App. S.D., February 24, 2014), Bates, J.

Postconviction movant challenges the denial of his motion for postconviction relief after a jury trial. He had been convicted of burglary while armed with a deadly weapon. In his direct appeal, movant had challenged the incorrect definition of dangerous instrument in the verdict director; here, he challenges the ineffective assistance of counsel he claimed received in counsel’s failing to object to the incorrect definition in the verdict director.

Held: Affirmed.
Because the court of appeals determined on direct appeal that there was no prejudice from the instructional error, there is no reasonable probability under Strickland that the jurors were confused or misled by the verdict director.  

No abandonment by postconviction counsel who filed a timely amended motion; therefore, successor counsel could not file a second amended motion after the initial time period for filing had run.  Stanley v. State, No. 93121 (Mo. banc, February 4, 2014), Breckenridge, J.

Postconviction movant challenges the denial of his motion for postconviction relief after a guilty plea. His successor postconviction attorney sought to file a second amended motion, claiming the first postconviction attorney abandoned movant.

Held:  Affirmed.
  The filing of a timely amended motion by the first postconviction attorney, despite claimed deficiencies, bars a claim of abandonment by the second attorney. It does not matter that the first attorney was permitted to withdraw and the second attorney permitted to enter by the motion court.

Rosalynn Koch, Esquire

Defendant resisted arrest in fleeing two of the three arresting officers, even though he was unable to break free of the third. State v. Sonnier, No. 98875 (Mo. App. E.D., February 11, 2014), Van Amburg, P.J.

When arrested, the defendant struggled and dragged one of the officers a short distance. He was convicted of resisting arrest by fleeing.

Held:  Affirmed.
  Defendant “ran away from” two of the officers, albeit with the third in tow.

Defendant did not forcibly steal when he handed a bank teller a note, “Fifties, hundreds, no bait money, and bottom drawer” but never threatened her or implied that he was armed. State v. Brooks, No. 99427 (Mo. App. E.D., February 18, 2014), Van Amburg, P.J.

Defendant handed a bank teller a note demanding money. When she walked away, he slammed his hand down hard on the counter and told her to “get back here.”  Defendant was convicted of second degree robbery.

Held:  Robbery conviction vacated, stealing conviction entered
. Nothing defendant said or did implied that he had a weapon or would harm the bank teller. There were neither implicit nor explicit threats of physical force.

Gaertner, J., dissenting
:  Defendant wore a wig, hat, and sunglasses in violation of the bank’s policy regarding attire in the lobby. He slammed his hand on the counter and watched the teller’s movements closely. A reasonable interpretation of the actions is that they were a threat of immediate physical force, as a bank is an environment that is a regular target of robberies.