Randy Belcher, Appellant, v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Randy Belcher, Appellant, v. State of Missouri, Respondent. Case Number: WD68990 Handdown Date: 06/30/2008 Appeal From: Circuit Court of Livingston County, Hon. Stephen K. Griffin Counsel for Appellant: Party Acting Pro Se Counsel for Respondent: Jamie P. Rasmussen Opinion Summary: Randy Belcher appeals the denial of his motion for post-conviction DNA testing under section 547.035, RSMo. In 1989, Belcher pled guilty to one count of rape and was sentenced to life imprisonment. In 2006, Belcher moved for state-funded DNA testing of physical evidence supporting the rape conviction. The circuit court overruled his motion. He argues the circuit court failed to make statutorily required findings of fact and conclusions of law, and, consequently, the case must be remanded. AFFIRMED. Division Four holds: We affirm the circuit court's judgment. Belcher signed the initial motion, however, it was not signed under oath nor was a sworn affidavit describing the underlying facts of his claim attached to it. Because Belcher neglected to allege any facts under oath, as required by statute, his motion was defective and ineffective. Therefore, we need not remand for additional findings of fact and conclusions of law.

Citation: Opinion Author: Victor C. Howard, Chief Judge Opinion Vote: AFFIRMED. Lowenstein and Smart, JJ., concur. Opinion: Randy Belcher appeals the denial of his motion for post-conviction DNA testing under section 547.035.(FN1) He claims that the circuit court failed to make statutorily required findings of fact and conclusions of law, and, consequently, the case must be remanded. In 1989, Belcher pled guilty to one count of rape and was sentenced to life imprisonment. In 2006, Belcher filed a motion for state-funded DNA testing of physical evidence supporting the rape conviction. After the circuit court entered a judgment, Belcher filed this appeal, claiming that the circuit court failed to make sufficient findings of fact and conclusions of law as required by section 547.035.8. We affirm the circuit court's judgment. The underlying facts of the current case are well summarized in a published opinion of the Southern District of this Court. See State v. Belcher, 805 S.W.2d 245, 246-248 (Mo. App. S.D. 1991). They need not be repeated here. Nearly seventeen years after pleading guilty to rape, Belcher filed a motion for DNA testing pursuant to section 547.035. Belcher signed the motion. However, it was not signed under oath nor was a sworn affidavit describing the underlying facts of his claim attached to it. The trial court denied DNA testing without issuing findings of fact and conclusions of law, and this appeal follows. When ruling on motions for post-conviction DNA testing the motion court must "issue findings of fact and conclusions of law whether or not a hearing is held." Section 547.035.8. "Although there is no requirement that the motion court issue specific itemized findings of facts and conclusions of law, the findings of fact and conclusions of law must allow meaningful appellate review." Clayton v. State, 164 S.W.3d 111, 115 (Mo. App. E.D. 2005).

Furthermore, insufficient findings of fact and conclusion of law may warrant a remand. Id. at 116. Nevertheless, even assuming that the findings and conclusions here are statutorily deficient, we need not remand the case where the initial motion was defective. State v. Waters, 221 S.W.3d 416, 419 (Mo. App. W.D. 2006). Here the initial motion was defective because it did not "allege facts under oath" as required by the statute. The motion was signed by the movant and nothing more. Section 547.035 provides procedures for seeking the DNA testing provided therein. The statute states: 2.The motion must allege facts under oath demonstrating that: (1)There is evidence upon which DNA testing can be conducted; and (2)The evidence was secured in relation to the crime; and (3)The evidence was not previously tested by the movant because: (a)The technology for the testing was not reasonably available to the movant at the time of the trial; (b)Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or

(c)The evidence was otherwise unavailable to both the movant and movant's trial counsel at the time of trial; and (4)Identity was an issue in the trial; and (5)A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing. Section 547.035.2 (emphasis added). While this court has never examined the phrase "must allege facts under oath,"

we take it to require more than the mere signature of the movant.(FN2) Missouri statutes provide notary publics with the power to administer oaths. See section 486.250(2). The power is also extended to every "judge, justice and clerk thereof, notaries public, certified court reporters and certified shorthand reporters" in certain circumstances. Section 492.010. Here, the record does not indicate that Belcher swore any facts to any of these statutorily designated persons.(FN3) Because Belcher neglected to allege any facts under oath, his initial 547.035 motion was defective and ineffective. Therefore, we need not remand for additional findings of fact and conclusions of law. The judgment is affirmed. All concur. Footnotes: FN1. All citation to statutes refers to Missouri Revised Statutes 2000. FN2. "In its broadest sense, an oath is any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. It involves the idea of calling on God to witness what is averred

as truth, and it is supposed to be accompanied with an invocation of His vengeance, or a renunciation of His favor, in the event of the falsehood." Bench Book for Missouri Trial Judges, Civil section 91.4.1 FN3. Moreover, "[t]o make a valid oath, there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath." Bench Book for Missouri Trial Judges, Civil section 91.4.3. The absence of a second party to administer the oath is relevant to our conclusion that a mere signature is insufficient to "allege facts under oath." Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.