                    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.

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           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



                                                4
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.




                                                         5
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




                                                6
Mary K. Hoff, P.J., and
Sherri B. Sullivan, J., concur.




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