Jendro v. State

680 S.W.3d 585

Jeffrey D. JENDRO, Appellant,

v.STATE of Missouri, Respondent.

No. SD 37537

Missouri Court of Appeals, Southern District, In Division.

Filed: December 6, 2023

APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY, Honorable James Nichols, Judge

Appellant’s attorney: Lisa M. Stroup, St. Louis, Missouri.

Respondent’s attorneys: Andrew Bailey, Attorney General, and Justin Earl Davis, Assistant Attorney General, Jefferson City, Missouri.

JACK A. L. GOODMAN, C.J.

Jeffrey Jendro appeals the denial of his Rule 29.15¹ motion for postconviction relief. We affirm the order in regard to points I, II, and III on appeal and dismiss points IV and V.

Background

Movant Jeffrey Jendro was convicted by a jury of statutory rape in the first degree and statutory sodomy in the first degree. This court affirmed his convictions. State v. Jendro, 242 S.W.3d 752 (Mo. App. 2007).² He raised two points in that appeal, both challenging portions of the prosecution’s closing arguments to the jury. Id. at 754. First, Jendro claimed the trial court committed plain error in failing to stop the prosecution from making statements that Jendro was an "animal" that should be "caged." Id. Second, he claimed that the trial court committed plain error in failing to intervene sua sponte to prevent the prosecutor from urging the jury to convict Jendro because he posed a future danger. Id. In its review for plain error, this court held that Jendro failed to show that the purported errors resulted in a manifest injustice or miscarriage of justice because the challenged arguments "had no decisive effect on the outcome of the trial." Id. at 754-55.

This court issued its mandate on January 15, 2008. On March 10, 2008, Jendro filed a pro se motion to vacate, set aside, or correct judgment or sentence pursuant to Rule 29.15 in which he asserted 34 claims for postconviction relief. On the same day, the motion court ordered the Missouri State Public Defender ("Public Defender") to represent Jendro on his motion for postconviction relief and granted 60 days to file an amended motion. On March 26, 2008, counsel ("first counsel") entered his appearance and requested an additional 30 days to file an amended motion, which the trial court granted on March 31, 2008, extending the deadline for filing of the amended motion to June 9, 2008. First counsel filed the amended motion for postconviction relief on June 6, 2008. It contained three new claims and none of Jendro’s pro se claims. See Jendro v. State, 453 S.W.3d 333, 334 (Mo. App. 2014).

The motion court’s docket sheet reflects that no activity occurred in the case until July 14, 2009, when Jendro, independently and unbeknownst to his counsel, filed a motion requesting that first counsel be required to file a second amended motion that included Jendro’s original pro se claims, or that first counsel be removed from the case and another attorney appointed who would be allowed to file a second amended motion to include those pro se claims. In response to the motion court’s order, first counsel responded to Jendro’s motion on August 19, 2009. He admitted he did not provide Jendro with a copy of the amended motion before he filed it, although he did correspond with Jendro regarding potential claims. First counsel also stated that he did not include Jendro’s pro se claims in the amended motion for postconviction relief, but that he "attempted to identify meritorious claims demon- strating prejudice to Movant in the underlying criminal case, after completing a thorough review of the underlying criminal case." Citing Rule 29.15(g), first counsel also stated, "Additional amended motions cannot be filed at this late of date. Undersigned counsel believes the Court would not have jurisdiction to entertain additional amended motions at this time."

Despite counsel’s assertion regarding the filing of subsequent amended motions, on March 22, 2010, the motion court ruled in a docket entry, without explanation, that Jendro had been abandoned by counsel. The motion court then allowed first counsel to withdraw from the case and again appointed the Public Defender ("second counsel") to represent Jendro. On August 15, 2011, second counsel filed a second amended motion. It comprised the three claims raised by first counsel in the first amended motion plus the 34 hand-written claims from Jendro’s original pro se motion.

The motion court held an evidentiary hearing, receiving evidence and testimony on the second amended motion on August 19, 2011. The matter was continued until November 22, 2011, for further hearing. No hearing was held on that date, and the court’s docket shows that it was subsequently continued multiple times. In May 2012, Jendro filed, independently and without assistance from counsel, a "Motion for Order of Specific Performance or in the Alternative for Substitution of Counsel," in which he argued that second counsel had "[n]eglected to [s]ubpoena, [d]epose or [i]nterview all [p]arties [r]elevant to [p]etitioner’s [c]laims." Second counsel filed a motion to withdraw; a third attorney entered the case for Jendro.

The motion court entered an order on September 18, 2013, finding that second counsel did not abandon Jendro. The order did not resolve any of Jendro’s postconviction claims. Jendro filed a notice of appeal from the court’s order denying his motion. This court held that Jendro’s appeal was premature because the order appealed from was not a final judgment. See Jendro, 453 S.W.3d 333. In the opinion dismissing that appeal, this court made two holdings that are significant here. First, we held that first counsel’s motion was timely filed. Id. at 334. Second, we held that "[f]irst counsel … correctly informed the motion court that it could not ‘entertain additional amended motions’ beyond the maximum of 90 days permitted by Rule 29.15(g) for the filing of an amended motion." Id. at 335. We also acknowledged the complicated procedural history of the case as it stood at that time. Id. ("At this point—as often occurs when movants who are represented by counsel begin filing their own pleadings—the procedural posture of the case begins to get complicated.").

After dismissal of the appeal, the case languished on the motion court’s docket for over seven years. During this interim period, Jendro was represented, sequentially, by three additional attorneys, his case was reassigned to three different judges, and he filed numerous motions pro se. The continued hearing on his second amended motion for postconviction relief was scheduled, canceled, and rescheduled multiple times. That second portion of the hearing was finally held on September 16, 2021, ten years after it began. The motion court entered its amended findings of fact and conclusions of law on January 21, 2022, denying all of Jendro’s claims, both those filed by counsel in the first amended motion, and those filed by Jendro pro se.

Jendro now appeals the motion court’s amended findings of fact and conclusions of law, raising five points. First, he alleges the motion court clearly erred in finding that his trial counsel was not ineffective in failing to object to the victim’s purportedly prejudicial testimony on cross-examination regarding a mobile phone Jendro had given her. Second, he alleges the motion court clearly erred in finding his trial counsel was not ineffective for failing to object to the prosecutor’s statements in closing argument suggesting that Jendro should be imprisoned to prevent him from endangering others in the future. Third, he alleges clear error in the motion court’s finding that he was not denied due process or a fair trial when jurors recommended, and the trial court imposed, a 40-year sentence when the instructed maximum sentence was only 30 years. Points I, II, and III were raised in the motion court in the first amended motion.

Fourth, Jendro alleges the motion court clearly erred in finding that the prosecution did not violate his rights by failing to produce Jendro’s booking photograph, which Jendro argued could have been used to impeach the victim’s testimony that she attempted to hit him in the face. Fifth, he alleges the motion court erred in finding his due process rights were not violated when he was required to wear an electronic stun cuff under his pant leg during the trial. Claims IV and V were not raised in counsel’s first amended motion. Respondent argues that Claims IV and V were not timely filed and are therefore barred from this court’s review.

Timeliness

Legal Principles

[1–4] Because filing deadlines in a Rule 29.15 review are constitutional and mandatory, we first analyze for timeliness. Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014). "Appellate courts have a duty to enforce the mandatory time limits for post-conviction claims." Owens v. State, 673 S.W.3d 839, 842 (Mo. App. 2023) (citing Price, 422 S.W.3d at 297). "A motion court has no authority to extend this time limit for filing an amended motion." Stanley v. State, 420 S.W.3d 532, 541 (Mo. banc 2014). "[T]he date of first appointment of counsel controls the time for filing an amended motion, regardless of whether the court later appoints new counsel or allows new counsel to enter an appearance." Id. Arguments raised in a second amended motion filed after the time limit in Rule 29.15(g) has passed are "barred from consideration." Id. at 540-41.

[5-7] Rule 29.15(i) provides that a hearing on a motion for postconviction relief is limited to the claims raised "in the last timely filed motion." Tinsley v. State, 258 S.W.3d 920, 927 (Mo. App. 2008). The filing of an amended motion within the time allowed supersedes a movant’s pro se motion, rendering it a nullity. Id. Claims for postconviction relief that are not timely filed are waived, meaning they are procedurally barred from consideration by the court. Dorris v. State, 360 S.W.3d 260, 266-68 (Mo. banc 2012). See also Norville v. State, 83 S.W.3d 112, 114 (Mo. App. 2002) ("[I]ssues that were set forth...