                        In the Missouri Court of Appeals
                                Eastern District
                                        DIVISION FOUR

WILLIAM S. MILLER,                            )      No. ED102641
                                              )
          Movant/Appellant,                   )      Appeal from the Circuit Court of
                                              )      the City of St. Louis
          vs.                                 )
                                              )
STATE OF MISSOURI,                            )      Honorable John F. Garvey, Jr.
                                              )
          Respondent.                         )      Filed: December 22, 2015

                                            OPINION

          William Miller appeals the judgment of the Circuit Court of the City of St. Louis

denying, without an evidentiary hearing, his Rule 29.15 motion for post-conviction relief. We

affirm.

          The facts relevant to the merits of Miller’s motion are as follows. Miller was charged

with one count of kidnapping and two counts of second-degree domestic assault after beating his

girlfriend repeatedly for over an hour. Count II alleged that Miller pummeled the victim. Count

III alleged that Miller hit the victim with a chair. In a bench trial, the victim testified that the

assault began in the couple’s living room, where Miller kicked, punched, and slapped the victim.

She attempted to escape twice but Miller caught her by hair and arm. Subsequently, Miller

retrieved a wooden chair from the kitchen and hit the victim with the chair. Miller was convicted

on all three counts.
        The dates relevant to the timeliness of Miller’s motion are as follows. Miller was

convicted May 15, 2013. On June 6, the court sentenced Miller to concurrent prison terms of

twelve years, three years, and three years, respectively. On July 16, Miller filed a consolidated

pro se motion requesting both a new trial, challenging the sufficiency of the evidence, and post-

conviction relief on multiple claims of ineffectiveness of counsel. On September 24, Miller’s

counsel entered an appearance, requested an additional 30 days to file an amended motion, and

moved to stay the post-conviction case pending resolution of Miller’s direct appeal. This court

affirmed Miller’s conviction and sentence and issued its mandate October 28, 2014. State v.

Miller, 444 S.W.3d 532 (Mo. App. E.D. 2014). Miller’s amended motion was due December 29,

2014. Miller’s counsel filed the motion on that date, but it was rejected by the court clerk on

December 30 for failure to submit the motion and corresponding request for an evidentiary

hearing as separate documents in the court’s electronic filing system. Counsel re-filed them as

separate documents on January 2, 2015.

        In the amended motion, Miller claimed that his trial counsel was ineffective for: (1)

failing to object to his convictions on two counts of second-degree domestic assault on the basis

of double jeopardy and (2) inducing Miller to waive his Fifth Amendment right not to testify.

The motion court denied the motion on the merits without an evidentiary hearing. The timeliness

of the motion was not discussed. Miller now appeals and asserts that the motion court clearly

erred by denying relief on the basis of counsel’s failure to object to Miller’s convictions on

grounds of double jeopardy.1




1
 Miller does not appeal the motion court’s denial of his second claim based on his Fifth Amendment right
not to testify.


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                                            Timeliness

       As a threshold matter, “we are compelled under State v. Moore to first examine the

timeliness of amended motions in each post-conviction case on appeal, even if the issue is not

raised by either party.” Lomax v. State, No. ED 101809, 2015 WL 3961195, at *1 (Mo. App.

E.D. June 30, 2015), citing State v. Moore, 458 S.W.3d 822 (Mo. 2015).

       Rule 29.15(g) governs the time limits for filing an amended post-conviction motion. It

provides, in pertinent part, that where a movant appeals the judgment sought to be vacated, set

aside, or corrected, “the amended motion shall be filed within sixty days of the earlier of: (1) the

date both the mandate of the appellate court is issued and counsel is appointed or (2) the date

both the mandate of the appellate court is issued and an entry of appearance is filed by any

counsel that is not appointed but enters an appearance on behalf of movant.” Rule 29.15(g).

       An amended motion filed beyond the deadline in Rule 29.15(g) can constitute

abandonment of the movant. Moore v. State, 458 S.W.3d 822, 826 (Mo. banc 2015).

Abandonment by post-conviction counsel extends the time limitations for filing an amended

Rule 29.15 motion. Id. Thus, when post-conviction counsel files an untimely amended motion,

“the motion court has a duty to undertake an ‘independent inquiry ...’ to determine if

abandonment occurred.” Id. If the motion court finds that a movant has not been abandoned, then

the motion court should not permit the filing of the amended motion and should proceed with

adjudicating the movant's initial motion. Id. If the motion court determines that the movant was

abandoned by post-conviction counsel's untimely filing of an amended motion, then the court

should permit the untimely filing. Id.

       If this court determines that post-conviction counsel untimely filed an amended Rule

29.15 motion and the motion court did not conduct an independent inquiry into abandonment,




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then we must remand the case to the motion court for such an inquiry. Blackburn v. State,

S.W.3d 468 S.W. 3d 910, 913 (Mo. App. E.D. 2015). “It is our duty to enforce the mandatory

timelines in the post-conviction rules, but ‘the motion court is the appropriate forum to conduct

such an inquiry’ into abandonment.” Id. (quoting Moore, 458 S.W.3d at 826).

       Here, the docket sheet indicates that Miller’s amended motion, with request for

evidentiary hearing, was filed out of time on January 2, 2015.             However, the record also

suggests, and the State acknowledges, that Miller’s counsel timely filed the amended motion on

December 29, 2014, but the court clerk rejected it because Miller’s request for an evidentiary

hearing on that motion was part of the same document and not filed as a separate document.

Though not briefed by the parties, we find no legal basis for the clerk’s action. Nothing in Rule

29.15 dictates that a request for an evidentiary hearing on a Rule 29.15 motion for post-

conviction relief must be filed separate from the motion itself. On the contrary, such a request is

generally incorporated into the motion. Rule 103 governing electronic filings also provides no

basis for the rejection of Miller’s December 29 filing. Rule 103.06(f) states that, “if the clerk

accepts a document for filing, the date and time of filing entered in the case management system

shall be the date and time the electronic filing system received the document.” But again, we find

no justification for the clerk’s refusal to accept Miller’s motion in the first instance.

       We find instruction in State ex rel. Isselhard v. Dolan, 465 S.W.3d 496 (Mo. App. E.D.

2015). There, the plaintiff electronically filed a petition in proper form, but the clerk rejected it

“simply because Plaintiff failed to enter the name of the defendant and check his party status in a

box on the electronic filing page.” Id. at 499. “All of the parties were properly named on the

petition. The name and address of the defendant to be served was contained within the caption

and the body of the petition.” Id. For guidance, this court relied on State v. Ess, 453 S.W.3d 196




                                                   4
(Mo. 2015). There, a court clerk refused to accept a paper filing because the accompanying

affidavit lacked a notary stamp. Counsel asked the court to deem the motion timely, and the court

sustained the motion. On appeal, the Missouri Supreme Court opined that “the circuit clerk

refused Ess’s filing in the absence of some clear prohibition in law, court rule, or specific court

order. The circuit clerk was obligated to accept the filing.” Id. at 201. Therefore, the circuit

court’s subsequent order ruling that the motion was timely filed was not an abuse of discretion.

Id. Applying the Supreme Court’s holding in Ess to an electronic filing, this court in Esselhard

opined, “We are aware of no law, court rule, or specific court order authorizing the court clerk to

reject the filing of the petition for such a minor technical deficiency.” Id. “The petition should

have been accepted as of that date” (referring to the timely filing date). Id.

        Likewise here, Miller’s amended motion, first filed on time on December 29 with the

request for evidentiary hearing incorporated therein, did not violate any legal mandate justifying

the clerk’s rejection. The motion should have been accepted as of December 29 and was

therefore timely filed.2 Thus, we proceed to the merits of Miller’s amended motion.

                                          Standard of Review

        Our review of the denial of post-conviction relief by a motion court is limited to the

determination of whether the motion court's findings of fact and conclusions of law are clearly

erroneous. Rule 29.15(k); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). A movant bears

the burden of proving his claims by a preponderance of the evidence. Rule 29.15(i). A motion


2
  In the interest of judicial economy, the efficient approach is for defense counsel to file a motion in the
circuit court to establish the timeliness of the motion despite any minor technical defect. A circuit court’s
finding of timeliness would obviate remand under Moore and permit appellate review on the merits.




                                                      5
court’s findings of fact and conclusions of law are clearly erroneous only if the reviewing court

firmly believes that a mistake was made after it has reviewed the whole record. Kuhlenberg v.

State, 54 S.W.3d 705, 707 (Mo. App. 2001).

       To prove ineffective assistance of counsel, a movant must demonstrate that counsel failed

to exercise the customary skill and diligence of a reasonably competent attorney under similar

circumstances, and counsel’s deficient performance prejudiced him. Worthington v. State, 166

S.W.3d 566, 573 (Mo. banc 2005) (citing Strickland v. Washington, 466 U.S. 668, 687-88

(1984)). To satisfy the first prong of this test, a movant must “overcome a strong presumption

that counsel provided competent representation by showing ‘that counsel’s representation fell

below an objective standard of reasonableness.’” Id. (quoting Deck v. State, 68 S.W.3d 418, 425

(Mo. banc 2002)). “Reasonable choices of trial strategy, no matter how ill fated they appear in

hindsight, cannot serve as a basis for a claim of ineffective assistance.” Id. (citing Cole v. State,

152 S.W.3d 267, 270 (Mo. banc 2004); Knese v. State, 85 S.W.3d 628, 633 (Mo. banc 2002)).

To satisfy the second prong of this test, a movant must show that, had counsel not erred, there

would be a reasonable probability that the result of the proceeding would have been different.

Id. This Court does not need to address both components of the inquiry if the movant makes an

insufficient showing on one. Strickland, 466 U.S. at 697; Sidebottom v. State, 781 S.W.2d 791,

796 (Mo. banc 1989).

       A movant is entitled to an evidentiary hearing on a motion for post-conviction relief only

if: (1) he alleges facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by

the record; and (3) the matters complained of prejudiced the movant. Rule 29.15(h). Walker v.

State, 232 S.W.3d 586, 588 (Mo. App. 2007).




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                                             Discussion

       In his sole point, Miller asserts that his trial counsel was ineffective for failing to object

to his conviction on counts II and III as a violation of the double jeopardy clause of the Fifth

Amendment. The double jeopardy clause, in addition to protecting defendants from successive

prosecutions for the same offense after an acquittal or conviction, also prohibits multiple

punishments for the same offense. State v. Heslop, 842 S.W.2d 72, 74 (Mo. 1992).                 The

prohibition against multiple punishments is designed to ensure that the trial court’s sentencing

discretion is confined to the limits established by the legislature. Id.

       Section 556.041 states that a defendant may not be convicted of more than one offense

involving a continuing and uninterrupted course of conduct. §556.041(4). Here, Miller was

convicted on count II for beating the victim with his hands and feet and on count III for

subsequently hitting her with a chair. “In assault cases, separate offenses can arise from a single

set of facts each time the defendant forms an intent to attack the victim.” State v. Garnett, 298

S.W.3d 919, 923 (Mo. App. E.D. 2009). When a defendant has time to reconsider his actions,

each assault separated by time constitutes a separate offense. Id. When a separate mens rea is

newly formed, the conduct gives rise to an additional crime. State v. Tyler, 196 S.W.3d 638, 641

(Mo. App. W.D. 2006). In Tyler, the defendant was convicted on five counts of domestic assault

for separate acts involving different forms of violence in several distinct phases. As relevant

here, Tyler punched the victim in the face, left the room to retrieve scissors, and returned to

scrape her with the scissors and punch her in the chest. The appellate court upheld the two

convictions corresponding to these separate acts, reasoning that the assault was interrupted when

Tyler left the room to retrieve the scissors. “In so doing, he clearly demonstrated renewed intent

to inflict injury by committing sequential acts….” Id. at 642.




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          Likewise here, Miller committed two separate offenses when he first punched and kicked

the victim, interrupted the assault to retrieve a chair from another room, and then with renewed

intent returned to hit the victim with the chair. Consequently, and as the motion court concluded,

Miller’s convictions on both counts II and III did not violate the double jeopardy clause, so any

objection by counsel would have been unavailing. Counsel is not ineffective for failing to make

non-meritorious objections. Johnson v. State, 369 S.W.3d 87, 92 (Mo. App. W.D. 2012). Point

denied.

                                           Conclusion

          The trial court’s findings and conclusions are not clearly erroneous.     And because

Miller’s claims are refuted by the record and do not warrant relief, no evidentiary hearing was

required. The motion court's judgment is affirmed.




                                                     _____________________________
                                                     Lisa S. Van Amburg, Chief Judge

Sherri B. Sullivan, P.J., and
Kurt S. Odenwald, J., concur.




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