The opinion
In the Missouri Court of Appeals
Eastern District
DIVISION THREE
ROY D. BROWN, ) No. ED107990
)
Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Honorable David L. Dowd
STATE OF MISSOURI, )
)
Respondent. ) Filed: June 2, 2020
The movant, Roy D. Brown, appeals the judgment of the Circuit Court of the City of St.
Louis denying his amended Rule 29.15 motion for post-conviction relief without an evidentiary
hearing. Counsel did not timely file the amended motion. The motion court did not conduct an
independent abandonment inquiry, nor did the court adjudicate the claims in the movant’s pro se
motion. Therefore, we reverse and remand for the court to conduct the required inquiry to
determine whether the movant was abandoned by post-conviction counsel.
Factual and Procedural Background
A jury convicted the movant of three counts of first-degree robbery, eight counts of
second-degree robbery, one count of attempted second-degree robbery, and one count of
resisting arrest. The movant waived jury sentencing, and the trial court on March 9, 2017
pronounced sentences totaling sixty years of imprisonment. This Court affirmed the movant’s
conviction on direct appeal in State v. Brown, 558 S.W.3d 105 (Mo. App. E.D. 2018).
The movant timely filed a pro se motion for post-conviction relief on November 9, 2018.
The pro se motion alleged twelve bases for relief, which encompassed several claims of trial-
court error as well as claims of ineffective assistance of trial counsel in failing to impeach
witnesses, failing to retain an expert, failing to object to the admission of certain evidence, and
failing to challenge the legality of license-plate reading technology used by police during the
investigation.
The motion court appointed counsel on December 3, 2018, thus making an amended
motion for post-conviction relief due sixty days later on February 1, 2019. Post-conviction
counsel entered his appearance, and on January 9, 2019 filed a motion requesting an additional
thirty days in which to file an amended motion. The court did not rule on the motion for
additional time, so the due date for the amended motion remained February 1, 2019. Counsel
untimely filed the amended motion on March 4, 2019 along with a request to permit the untimely
filing pursuant to Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991). 1 Counsel alleged that he
mistakenly assumed the court had granted his request for an additional thirty days in which to
file the amended motion.
The amended motion alleged three bases for relief: that trial counsel was ineffective for
failing to have a hearing on the motion to suppress statements, or, in the alternative, failing to
order a transcript of the suppression hearing; that trial counsel was ineffective for erroneously
advising the movant to waive jury sentencing; and that appellate counsel was ineffective for
failing to obtain a transcript of the suppression hearing.
1
If the motion court had granted counsel an additional thirty days as requested, the thirtieth day would have been
March 3, 2019. Because March 3rd fell on a Sunday, the amended motion would have become due the following
business day, on Monday, March 4, 2019.
2
The motion court denied the movant’s amended motion on March 25, 2019 without
conducting an abandonment inquiry and without an evidentiary hearing. While the court
acknowledged in its judgment that the amended motion was filed out of time, the court’s
judgment did not include findings of fact and conclusions of law regarding the abandonment
issue. The court addressed the merits of the movant’s amended motion only, and did not address
the claims contained in the pro se motion. The same day the court denied the amended motion,
counsel filed a motion requesting that the court conduct an abandonment inquiry. The court
never ruled on that motion. The movant appeals.
Discussion
The movant asserts four points on appeal. In his first point, the movant argues that the
motion court clearly erred in failing to conduct an abandonment inquiry on the untimely filed
amended motion. The additional three points on appeal assert allegations of ineffective
assistance of trial and appellate counsel. Because the movant’s first point is dispositive, we do
not address his remaining points on appeal.
A person seeking post-conviction relief after a trial shall file a motion to vacate, set aside,
or correct the judgment or sentence. Rule 29.15(b). 2 When an appeal is taken, the amended
motion must be filed “within 60 days of the earlier of the date both the mandate of the appellate
court is issued and: (1) Counsel is appointed, or (2) An entry of appearance is filed by any
counsel that is not appointed but enters an appearance on behalf of movant.” Rule 29.15(g).
Under the version of the rule applicable to the movant’s motion, the court could “extend the time
for filing the amended motion for one additional period not to exceed 30 days.” Id. We do not
2
All rule references are to Missouri Supreme Court Rules (2017).
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presume that the motion court granted an extension of time without a record of the extension.
Lampkin v. State, 560 S.W.3d 67, 70 (Mo. App. E.D. 2018).
“The filing deadlines for post-conviction relief cannot be waived.” Barber v. State, 569
S.W.3d 556, 559 (Mo. App. E.D. 2019). Counsel’s failure to timely file either an amended
motion or a statement explaining why an amended motion is not necessary raises a presumption
of abandonment by appointed counsel. Watson v. State, 536 S.W.3d 716, 718 (Mo. banc 2018).
We have a duty to enforce the mandatory timelines in the post-conviction rules, but the motion
court is the appropriate forum to conduct an inquiry into abandonment. Childers v. State, 462
S.W.3d 825, 827 (Mo. App. E.D. 2015).
When an amended motion is untimely, the motion court is required to conduct an
independent inquiry to determine whether abandonment occurred before considering the claims
and evidence presented in the amended motion. Moore v. State, 458 S.W.3d 822, 826 (Mo. banc
2015); Barber, 569 S.W.3d at 559. As part of its independent inquiry, the motion court should
inquire not only of post-conviction counsel, but should also ensure that the movant is informed
of counsel’s response and given the opportunity to reply. Lampkin, 560 S.W.3d at 71.
Although the method of making this inquiry is left to the motion court’s discretion, the
court must, in any event, make a sufficient record to demonstrate on appeal that its determination
on the abandonment issue is not clearly erroneous. Id. “Upon review of the record, if we
determine there has been no independent inquiry into abandonment or no record for us to review
such inquiry, then we must reverse and remand for the motion court to conduct this inquiry.”
Barber, 569 S.W.3d at 559-60.
Here, the movant timely filed his pro se motion. The motion court appointed counsel,
who sought an extension of thirty days in which to file an amended motion. The motion court did
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not grant counsel’s motion for an extension of time, and the amended motion was untimely filed.
The motion court is required to conduct an independent inquiry into post-conviction counsel’s
reasons for the late filing, and the possibility that the movant’s negligence or failure to act caused
the untimely filing of the amended motion. Id. at 560. There is no indication in the record that
the motion court conducted such an inquiry in this case. The State concedes, and we agree, that
the case should be remanded so that the motion court can make an independent finding regarding
abandonment.
Although counsel, in his request that the motion court accept the amended motion as
timely filed, claimed sole responsibility for the untimely filing, the motion court made no record
of any independent inquiry into the matter. As a result, the record before us is insufficient to
determine whether the motion court’s implicit decision to treat the amended motion as timely
filed was clearly erroneous. 3 Id. at 561.
We acknowledge the exception to the abandonment inquiry established in Childers v.
State. Guerra-Hernandez v. State, 548 S.W.3d 368, 371 (Mo. App. E.D. 2018). In Childers, we
held that remand was not necessary when all of the claims in a movant’s pro se motion have
been incorporated into and adjudicated along with the claims in the amended motion. 462
S.W.3d at 828. This exception is inapplicable in cases such as this one where there are
significant differences between the pro se and amended motions. Guerra-Hernandez, 548
S.W.3d at 371. Here, the amended motion contained three claims while the movant’s pro se
3
In Gale v. State, the motion court simply signed and dated a timeliness motion filed by post-conviction
counsel. 508 S.W.3d 128, 130 (Mo. App. S.D. 2016). However, counsel in Gale filed the timeliness motion under
oath. Id. The Southern District decided the motion court “implicitly credited” post-conviction counsel’s statements
under oath that he was solely responsible for the late filing of the amended motion. Id. We distinguish
the Gale decision from the present case, and instead follow our Court’s decisions in Lampkin, 560 S.W.3d at 71
n.1 and Barber, 569 S.W.3d at 561, where the timeliness motions were not filed under oath.
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motion contained twelve claims, only one of which arguably was encompassed in the amended
motion. Because the motion court did not make findings and conclusions on the movant’s pro
se motion, the Childers exception does not apply. Barber, 569 S.W.3d at 560 n.4.
Post-conviction counsel’s untimely filing of an amended motion creates a presumption of
abandonment. Watson, 536 S.W.3d at 719. If the motion court determines that post-conviction
counsel abandoned the movant, then it should permit the untimely filing, and consider the claims
in the amended motion. Childers, 462 S.W.3d at 828. Conversely, if the motion court determines
that counsel did not abandon the movant, then the court should not permit the untimely filing of
the amended motion, and instead should adjudicate the claims in the movant’s pro se motion. Id.
Accordingly, we must remand this case so that the motion court can conduct the
independent inquiry to determine if the movant was abandoned. Watson, 536 S.W.3d at 719
(citing Moore, 458 S.W.3d at 826). We acknowledge the inconvenience that abandonment issues
are causing motion courts. Nonetheless, “the purposes served by remand are mandatory
compliance with Missouri Supreme Court Rules and adherence to jurisdictional limitations.”
Guerra-Hernandez, 548 S.W.3d at 372.
Conclusion
Because the motion court failed to conduct an independent abandonment inquiry and did
not consider the claims asserted in the movant’s pro se motion, we must reverse and remand for
the motion court to determine whether post-conviction counsel abandoned the movant.
_______________________________
Angela T. Quigless, Judge
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Mary K. Hoff, P.J., and
Sherri B. Sullivan, J., concur.
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