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Supreme Court considers if and when counsel abandoned man

The Missouri Supreme Court will determine if and when a man’s counsel abandoned him after he was charged with driving while intoxicated in two counties, after hearing oral arguments Oct. 25.

Wesley Hatmon had two simultaneous cases with similar charges. Attorney Christian Rasmussen represented Hatmon in both cases in 2014. In Laclede County, Hatmon’s four-year sentence was suspended and he was placed on probation after he served 120 days of shock incarceration — an education program for first-time offenders to reduce their likelihood of committing another crime.

In Dallas County, where he faced another suspended sentence, Hatmon agreed to a plea bargain in which he would receive credit for his 60 days of shock incarceration in Dallas County as well as the Laclede shock incarceration.

Hatmon was found to have violated his Laclede County probation on Nov. 8, 2016. A Dallas County judgment that same day states the court sentenced Hatmon to seven years. He was in custody two days later.

After Hatmon filed a 2017 pro se motion for post-conviction relief, Appellate Public Defender Susan Hogan entered as his attorney and filed an amended motion 10 days late.

In the motion, she alleged that Hatmon’s plea counsel had caused him to “enter an unknowing, unintelligent, and involuntary plea by misadvising him” when Rasmussen, his counsel at the time, communicated to him that his Dallas County sentence would be discounted by his past incarceration in both counties, according to his brief on appeal before the high court.

In July 2020, Hatmon’s case reached the appellate level regarding whether Hogan, his post-conviction counsel, had abandoned him. The court orally ruled that Hogan had abandoned Hatmon, but its Dec. 9 order stated that no abandonment was found. The case was appealed again, and the prior order — which rejected Hatmon’s amended motion and remanded the case without instructions — was vacated.

Rosemary Percival of the Kansas City Public Defender’s Office represented Hatmon before the high court. She said during oral arguments the appellate court was not wrong in its determination of whether Hatmon timely filed his pro se motion, and the prosecution at the motion court level had stated that Hatmon’s pro se motion was filed on time.

Once on appeal before the high court, Judges Zel Fischer and W. Brent Powell both asked if the questions before them required a factual or legal determination. Questions remained whether the case required additional factual finding to ascertain if he was taken into Department of Correction custody for the Laclede case but not the Dallas case, or if he was taken into custody for both cases.

Percival said the judge had determined Hatmon timely filed his pro se motion and made no other factual findings.

“Assuming we don’t find that the law of the case applies, should we be remanding this to make factual findings as to the timeliness of the pro se motion?” Powell said.

Percival said remanding this case with instructions would be preferred.

“I think that would be fine, your honor,” Percival said. “If the court doesn’t find the law of the case applies, we would ask that the court remand it for further evidence, for further findings as per the Doris case and the Hall case.”

Evan J. Buchheim of the Jefferson City Attorney General’s Office represents the state before the Missouri Supreme Court. Judge Patricia Breckenridge once again asked him about the nature of Hatmon’s custody and the intention of the judicial direction, or lack thereof, behind it.

“So he was ordered to serve 60 days but he could have served it in the county jail, or he could have served it in the Department of Corrections,” Judge Patricia Breckenridge said. “What record of this case shows that the court intended him to serve it in the Department of Corrections?”

Buchheim cited the plea agreement. Breckenridge said that court orders are binding, not the plea agreement, and Buchheim countered that the court orally accepted the plea agreement that enabled him to serve both shock incarcerations at the same time.

“There’s nothing that prevents him from being delivered on both cases,” Buchheim said.

Breckenridge asked if any DOC record showed that he was delivered on both cases, and Buchheim did not know of any.

“Can a defendant be delivered to the Department of Corrections without a judgment that has a sentence?” Breckenridge said.

Buchheim said no, but he claimed that the statute directs that it is possible to deliver a defendant who breaks a condition in probation regardless of the existence of DOC documents or a written judgment, which was missing in this case.

The case is Hatmon v. State of Missouri, SC99591.