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May
2020
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Case summaries for Apr. 24 - Apr. 30

Summary

Each week, The Missouri Bar provides links to all hand downs published online during the past seven days by the Supreme Court of Missouri and the Missouri Court of Appeals. The Missouri Bar has created headings and summaries for each case. Summaries are not part of the opinions of the Court. They have been prepared for the convenience of the reader and should not be quoted or cited.

ADR | Appellate | Criminal | Employment Security | Legislative | Post-Conviction | Workers' Compensation

ADR

Arbitrators Can Determine Their Own Authority
Courts presume the scope of an arbitration agreement to favor arbitration of any matter, except the matter of who determines arbitrability, which requires “clear and unmistakable intent to delegate the issue of arbitrability to the arbitrator.” Appellate courts review the ruling on a motion to compel arbitration de novo. Sales contract included an arbitration agreement, which incorporated the rules of a private arbitration association, which allowed an arbitrator to determine the issues subject to arbitration. The incorporated rules specifically applied to the transactions at issue, so the incorporation by reference was sufficiently specific. Arbitration rules “then-applicable” are the rules in effect when the arbitration occurs. A challenge to the delegation provision, making the same claims as a challenge to the arbitration agreement as a whole, is not sufficiently direct to raise any claim against the delegation provision.
Tina and Paul Fogelsong, et al vs. Joe Machens Automotive Group Inc., et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD82705

Appellate

Deficiencies in Appellant’s Brief Require Dismissal
Appellant’s brief failed to comply with rules on the table of cases, authorities cited, statement of facts, citations to the record on appeal, and points relied on. The appeal is “unreviewable” so the Court of Appeals dismisses it.
Eric Burnette, Appellant, vs. Aramark Services, Inc., and Division of Employment Security, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108017

Warrantless Protective Search Okay
“Once a traffic stop [wa]s complete, the [arresting] law enforcement officer [wa]s required to allow the [appellant driver] to ‘proceed without further questioning unless specific, articulable facts created an objectively reasonable suspicion that the individual was involved in criminal activity.’” The officer articulated no such facts, but his testimony included facts that supported a search to protect himself from appellant, which would have supported a warrantless search had he based a search on those facts. Therefore, the circuit court erred in granting appellant’s motion to suppress.
State of Missouri, Appellant, vs. Jeffrey Randall Lindsay, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108332

Criminal

No Enhancement in Case Pending When Bazell Issued
In Bazell, the Missouri Supreme Court held that a statute, enhancing the degree of offenses having as an element the value of property, did not apply to stealing because the value of property was not an element of that offense. Bazell supported relief, the Missouri Supreme Court also held, not only to “those [cases] pending on direct appeal [,]” but also “to proceedings in cases not yet final at the time [the earlier opinion] was decided [.]” When Bazell was decided, proceedings in appellant’s stealing case were not final because sentence was suspended pending probation, so Bazell barred an enhanced sentence. Statute allows an appeal to any defendant on final judgment with no exception for a defendant who entered a guilty plea. Rules on post-conviction relief do not, and cannot constitutionally, add any such restriction. A guilty plea waives error that occurred before the plea, but not after, so defendant did not waive a claim of excessive sentencing. Reversed and remanded for re-sentencing without enhancement.
Heather Hamilton, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC97881

No Enhancement in Case Pending When Bazell Issued
When the circuit court imposed its sentence, the law treated stealing as a misdemeanor under Bazell. Bazell supported relief, the Missouri Supreme Court also held, not only to “those [cases] pending on direct appeal [,]” but also “to proceedings in cases not yet final at the time [the earlier opinion] was decided [.]” When Bazell was decided, proceedings in appellant’s stealing case were not final because sentence was suspended pending probation, so Bazell barred an enhanced sentence. Reversed and remanded for re-sentencing without enhancement..
State of Missouri, Respondent, vs. Jason Russell, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC97916

Mental Incompetence Not Shown
On a claim of actual innocence, petitioner’s proffered evidence supported only the impeachment of State fact witness and expert witness. “[I]t does not exculpate him or inculpate another.” On a claim of mental incompetence, the United States Constitution and Missouri statute bar execution of any person who does not understand what is happening, why it is happening, and why it arguably should not happen. But petitioner’s evidence shows that petitioner understands all those matters despite “significant impairments in executive function, problem solving, attention, concentration, working memory, and abstract reasoning [.]” Petition for writ of habeas corpus denied.
State ex rel. Walter Barton, Relator, vs. William Stange, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98343

Straw Was Paraphernalia
Plain visibility of controlled substance residue in a straw specially cut for insufflation, and false statements about the straw’s use, supported an inference that appellant knew what the residue was and knowingly possessed the straw as drug paraphernalia.
State of Missouri vs. Steven H. Gehring II
(Overview Summary)
Missouri Court of Appeals, Western District - WD82508

Brady Violation Supports Habeas Corpus
Generally, “claims not raised on direct appeal or in a timely filed post-conviction motion are procedurally defaulted,” but exceptions include cause and prejudice, meaning a cause external to the defense that prevented the defense from raising the claim, and prejudice from not raising the claim. On a writ of certiorari, the circuit court’s factual findings are binding on appellate courts, which review the record for excess or abuse of authority only. Circuit court found that the State failed to disclose exculpatory evidence to petitioner, in that the State disclosed that it had a fingerprint not belonging to petitioner but did not disclose that neither did the fingerprint belong to victim. “The State's reliance on untruthful trial testimony to argue that [petitioner] should have known at the time of trial about an undisclosed fingerprint report establishing that an unknown person left an identifiable fingerprint at the crime scene borders on the incredulous.” Given the weakness of the State’s case, including untruthful testimony, “suspect or incomplete investigative work,” and the growth over time of victim’s ability to identify his attacker, suppressing the fingerprint damaged the defense. Finding no ruling in abuse or excess of authority, the Court of Appeals denies State’s request to quash the record on which the circuit court vacated the conviction of petitioner. Court of Appeals orders either retrial or discharge of petitioner ten days from mandate’s issuance.
State of Missouri ex rel Eric S. Schmitt vs. The Honorable Daniel R. Green, and Dawnel Davidson
(Overview Summary)
Missouri Court of Appeals, Western District - WD83688

Employment Security

Bad Judgment Was Not Misconduct
Court of Appeals reviews the decision of the Labor and Industrial Relations Commission on any matter only if appellant raised that matter to the Commission. Employer’s grounds for denying benefits did not match employer’s grounds for termination. Under either reason, statutes deny benefits to claimants who commit misconduct or insubordination, which includes violations of employer rules, but such rules must be more specific than “poor performance” and the violation must be more than careless.
Mark Wayne vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD83132

Statute Does Not Allow Late Filing
Statute allowing the Labor and Industrial Relations Commission to reconsider its own ruling does not excuse an untimely appeal from an administrative law judge’s ruling to the Commission. Court of Appeals reviews points relied on, though they do not comply with rules, ex gratia because they are “easily discern[ible.]” Failure to develop an argument in support of a point relied on abandons the point relied on.
Meana Ward vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD82713, WD82715 and WD82716

Legislative

Repeal Not Retroactive
Statute provides that the substantive law applicable to respondent’s conduct is the substantive law in effect when the conduct occurs, including sentencing, notwithstanding changes to the substantive law. A bill, repealing the ban on probation and parole for respondent’s offenses, did not alter the sentences imposed before the bill’s effective date. Court of Appeals enters judgment as the circuit court should have and denies respondent’s petition for a declaratory judgment that respondent is eligible for parole.
Jason Norman vs. Missouri Department of Corrections
(Overview Summary)
Missouri Court of Appeals, Western District - WD82057

Repeal Not Retroactive
Statute provides that the substantive law applicable to respondent’s conduct is the substantive law in effect when the conduct occurs, including sentencing, notwithstanding changes to the substantive law after final adjudication of criminal charges. A bill, repealing the ban on probation and parole for respondent’s offenses, did not alter the sentences imposed before the bill’s effective date. Court of Appeals enters judgment as the circuit court should have and denies respondent’s petition for a declaratory judgment that respondent is eligible for parole.
Kevin E. Riley vs. Missouri Department of Correction
(Overview Summary)
Missouri Court of Appeals, Western District - WD81743

Post-Conviction

Premature Motion Deemed Filed When Ripe
On remand after direct appeal, the time to file an initial motion for post-conviction relief is when a judgment of conviction on remand becomes final. A judgment after remand is final when the circuit court has complied unerringly with the appellate court’s mandate. Circuit court did not comply with remand, so no judgment ever became final, and the time to file never started. But movant filed a motion anyway, which was premature, and case law provides that circuit court shall deem the motion filed on the date that the motion becomes ripe. Missouri Supreme Court vacates the circuit court ruling on the merits of the post-conviction motion, challenging the judgment on remand, and remands the motion to the circuit court.
Andrew Luke Lemasters, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC97878

Record Refutes Claim
Movant alleged that trial counsel coerced movant into pleading guilty by failing to prepare for trial, but movant failed to plead what trial counsel left unprepared, and movant’s statements of satisfaction with counsel at plea hearing refute movant’s claim. Those statements, and admissions that he committed the conduct alleged against him knowingly, refute movant’s other claim: that trial counsel failed to advise movant of a defense to the “knowingly” element of the offense. No evidentiary hearing was necessary for circuit court to deny those claims.
Shawn C. Haynes vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82545

Dismissal of Initial Motion Was Premature
Timely filing of an initial motion is subject to excuses on facts that movant might not be able to allege until after untimely filing of the initial motion. If so, the amended motion might be the first opportunity to plead the facts allowing untimely filing of the initial motion, and appointed counsel might be necessary to make that case. "[T]he motion 'court’s denial of [an initial] motion without appointing counsel may deprive the movant of his opportunity to allege and prove the timeliness of his motion.'" Remanded for the filing of an amended motion or statement in lieu of amended motion.
Brandon James Gilkey vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83071

Other Rules Apply
As to all appellant’s theories on why his conditions of probation are unlawful, appellant either raised them in circuit court but not in a point relied on or raised them in a point relied on but not in circuit court. Those issues are therefore unpreserved, but are still subject to review for plain error, at the Court of Appeals’ discretion. Appellant’s motion cited a rule that addresses only claims unaddressed by another rule, and other rules address an involuntary guilty plea after sentencing and commitment to the Department of Corrections, and unlawful conditions of probation.
State of Missouri, Respondent, vs. Joshua Jay Johnson, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108481

Remanded to Determine Abandonment
When an amended motion is untimely, a presumption of abandonment by counsel arises, and circuit court must independently inquire into whether abandonment excuses the untimely filing, which requires a record for review. “Rubber stamping appointed counsel’s motion [to allow late filing] is not a sufficient inquiry and does not provide a sufficient record to demonstrate on appeal that the motion court’s abandonment issue determination is not clearly erroneous.” Remanded for an independent inquiry into abandonment.
Pervis McAllister, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107945

No Prejudice Shown
Rule requires motion to plead facts that are unrefuted by the record and that, if true, entitle movant to relief. Statute requires a trial within 180 days of the filing of a motion to dispose of detainer, and movant alleged that counsel agreed to a trial date beyond that, which misled movant into pleading guilty. But the record refutes any claim of ineffective assistance of counsel on that allegation because it shows that movant was satisfied with counsel’s representation. Also, movant did not show that the trial setting misled him into pleading guilty.
Matthew D. Martin, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107883

No Relief on Issues for Direct Appeal
Post-conviction relief is unavailable for matters subject to direct appeal from the judgment in the underlying criminal case, including circuit court’s requirement that movant wear an ankle security device, which movant did not show was visible anyway. Movant did not show that trial counsel was ineffective for deciding not to call a witness whose testimony would have supported no viable defense but would have opened the door to more evidence against movant.
MELISSA YOUNGBLOOD, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36100

Workers’ Compensation

Formula For Appeal Ignored
When challenging an award of the Labor and Industrial Relations Commission as against the overwhelming weight of the evidence, appellant must show that, in the context of all the evidence and inferences, favorable and unfavorable, substantial and competent evidence does not support the award. Failure to follow the analysis set forth in case law “robs [appellants’s] arguments of any analytical or persuasive value.” Award affirmed.
THE DOE RUN COMPANY, Employer and AMERICAN ZURICH INSURANCE COMPANY, Insurer, Appellants vs. THOMAS A. FENWICK, Respondent
Missouri Court of Appeals, Southern District - SD36499