Rodden v. State

¶1concurring in result.

¶2For the following reasons, I concur with result reached by the majority.

¶3This was a brutal murder of the woman, Terry Trunnell, on December 3, 1983, who was tortured and mutilated in a vicious assault. Appellant not only stabbed the victim many times but one severe cut from a butcher knife pierced her arm and broke the humerus. After Trunnell’s death, he attempted to dispose of her body by setting it afire. Additionally, the crime was perpetrated while appellant was engaged in the commission of the capital murder of Joseph Arnold, for which he was convicted and sentenced to life imprisonment without eligibility for probation or parole for fifty (50) years. Suffice to say the abundant proof of Rodden’s crime fully supported the jury’s verdict.

¶4At arraignment, appellant was provided appointed counsel and entered a plea of not guilty. Thereafter, he contacted Lee Nation, a private attorney, who represented him in both murder proceedings which were tried serially and in separate counties, the Arnold murder in Phelps County and the Trunnell murder in Clay County on March 25, 1985, and sentenced June 25 of that year. Both convictions were appealed, the Arnold murder to the court of appeals, which affirmed the conviction and sentence, State v. Rodden, 713 S.W.2d 279 (Mo.App.1986), and the Trunnell murder to this Court, which affirmed the conviction and sentence of death, State v. Rodden, 728 S.W.2d 212 (Mo. banc 1987). In each instance, Mr. Nation represented appellant.

¶5On July 21, 1987, a pro se Rule 27.26 motion was filed attacking the judgment in Trunnell; however, this motion was neither signed nor verified by appellant. Apparently it was filed by Mr. Nation for it was he who signed the motion “James Rodden by Lee Nation.” This filing was accomplished, according to appellant’s testimony *398at the 27.26 hearing, without his knowledge or consent.

¶6The court appointed counsel for appellant after this pro se filing and on July 21,1988, a first amended Rule 27.26 motion was filed, which too was neither signed nor verified by appellant. The only signature appearing on this document is that of appellant’s appointed counsel. An evidentia-ry hearing was held on these motions on May 20, 1989, at which both Mr. Nation and the appellant testified. On August 81 of that year, appellant’s appointed counsel filed a second amended Rule 27.26 motion, which again was neither signed nor verified by appellant, and on that day the hearing court issued findings of fact and conclusions of law, ruling against appellant on the merits.

¶7I believe the hearing court, though correct in its denial of appellant’s motions, need not have reached the merits.

¶8As noted above, Rodden filed his first 27.26 motion on July 21, 1987, the first amended motion one year later, July 21, 1988, and a second amended motion August 8, 1989. Because his original motion was pending January 1, 1988, it was governed by the provisions of Rule 29.15(m), which specifies that such “shall continue to be governed by the provision of Rule 27.26 in effect on the date the motion was filed.” For appellant, this meant compliance with Rule 27.26(c) (repealed January 1, 1988), which read:

A motion to vacate a sentence must be submitted on a form substantially in compliance with the form appended hereto. The motion shall include every ground known to the prisoner for vacating, setting aside, or correcting his conviction and sentence. The prisoner shall verify the correctness of the motion, including the fact that he has recited all claims known to him.

¶9(Emphasis added.)

¶10The form employed by appellant pro se for the July 21, 1987, filing1 contained on its first page this instruction:

In order for this motion to receive consideration by the Circuit Court, it shall be in writing (legibly handwritten or typewritten), signed by the petitioner and verified (notarized), and it shall set forth in concise form the answers to each applicable questions.

¶11(Emphasis added.) Further, the form bore a signature line below which appeared the printed instruction, “Signature of Petitioner.” The affidavit section of the form provides a signature line with the words below, “Signature of Affiant.” In both instances, Mr. Nation rather than appellant signed in the designated spaces. Rodden to this date has never signed nor verified nor sought to sign or verify any of his 27.26 motions.

¶12Contrary to the majority’s opinion, I feel the verification requirement of Rule 27.-26(c) is substantially the same as that of Rule 29.15 and the filing of an unverified Rule 27.26 motion has long been held unacceptable and a ground for dismissal. State v. Rector, 547 S.W.2d 525, 526 (Mo.App.1977); Riley v. State, 588 S.W.2d 738, 741 (Mo.App.1979). These provisions of the rules are clear and unambiguous. Any lingering question as to the necessity for verification of such postconviction motions has been dispelled by a number of recent decisions of this Court and our court of appeals. In Mills v. State, 769 S.W.2d 469 (Mo.App.1989), the dispositive facts were essentially the same as those at bar. Neither the pro se nor an amended Rule 27.26 motion were verified by movant and the court of appeals when dismissing the claims properly held that such verification was mandatory and jurisdictional. Id. at 470. Shortly thereafter, the western district in Quinn v. State, 776 S.W.2d 916 (Mo.App.1989), also held that verification was jurisdictional for both the pro se motion and any amended motion filed on behalf of the movant. Id. at 918. Similarly the southern district of the court of appeals correctly determined verification to be jurisdictional and mandatory in Batson v. *399State, 774 S.W.2d 882, 885 (Mo.App.1989) in a case under a Rule 24.035 2 motion. In Reynolds v. State, 783 S.W.2d 500 (Mo.App.1990), the southern district held that the correct course for trial courts faced-with unverified motions under Rule 29.15 in which the time limit for filing a new motion had passed is summary dismissal of the motion.

¶13Any lingering question concerning the plain language of the rule was dispelled with this Court’s holding last term that unverified motions are a nullity. Kilgore v. State, 791 S.W.2d 393 (Mo. banc 1990) (holding that for purposes of Rule 29.15 the verification requirement “is an essential element of the postconviction motion”).

¶14The verification requirement is not a shallow gesture of form over substance. It provides a base for perjury prosecution of those who attempt to mislead courts and is designed to discourage frivolous and unfounded allegations which the movant knows are false or those who make brash, unfounded statements not knowing or caring if they are true. The rules contemplate limiting the proliferation of baseless post-conviction remedy motions, Mills v. State, 769 S.W.2d 469, 470 (Mo.App.1989), and to require verification of pro se and amended motions places no undue burden on the movant who need only sign and have his signature acknowledged. It gives pause to those who would mislead the court or abuse the system but creates no bar to those with reasonable bases for such claims.

¶15In that appellant has failed to meet the scheduled deadlines set forth in Rule 29.-15(m) for the filing of a proper motion, he has waived his right to proceed under that rule. Day v. State, 770 S.W.2d 692, 696 (Mo. banc 1989). I would hope that the bar and litigants would be constrained to follow the rule requirements governing post-conviction proceedings.

¶16I concur in the result reached by the majority.