                          In the Missouri Court of Appeals
                                  Eastern District
                                                 DIVISION TWO

MICHAEL A. MAHONE,                                          )        No. ED102976
                                                            )
           Appellant,                                       )        Appeal from the Circuit Court of
                                                            )        St. Louis County
vs.                                                         )
                                                            )
STATE OF MISSOURI,                                          )        Honorable Carolyn C. Whittington
                                                            )
           Respondent.                                      )        Filed: May 17, 2016

                                                  I. Introduction

           Michael A. Mahone (“Movant”) appeals from the motion court’s denial of his Rule

24.035 post-conviction relief (“Rule 24.035 motion”) after an evidentiary hearing. Movant pled

guilty to one count of the class C felony of forgery, in violation of Section 570.090, RSMo

(2000). 1 In his Rule 24.035 motion, Movant claims his plea counsel was ineffective for failing

to advise him that the court could grant credit for time served on probation, but only when that

probation was revoked. Movant further claims his plea counsel was ineffective for failing to

advise him that he would be required to serve a minimum of eighty percent of his sentence

before becoming eligible for parole. However, Movant’s amended Rule 24.035 motion was filed

untimely.       Because the motion court did not conduct an independent inquiry into whether

Movant was abandoned by post-conviction counsel as a result of the untimely filing, we are

compelled by the Supreme Court’s holding in Moore v. State, 458 S.W.3d 822 (Mo. banc 2015),


1
    All further statutory references are to RSMo 2000 as supplemented, unless otherwise indicated.

                                                           1
to reverse the motion court’s judgment and remand the case to the motion court to determine

whether Movant was abandoned by post-conviction counsel.

                            II. Factual and Procedural Background

       On April 7, 2010, the State charged Movant with the class C felony of forgery in Case

No. 08SL-CR01376-01. On July 30, 2013, Movant appeared in court with counsel (“plea

counsel”) to plead guilty pursuant to a plea agreement. After the court found that there was a

factual basis for the charge and that Movant’s guilty plea was made voluntarily, intelligently, and

with a full understanding of the charge, the court accepted Movant’s plea.           Movant also

expressed satisfaction with plea counsel’s representation. Movant was sentenced, in accordance

with the plea agreement, to a seven-year suspended sentence with five years of probation and a

special condition of probation requiring him to complete 90 days in the Choices program with

the Department of Justice Services.

       Approximately two years later, on October 4, 2012, Movant appeared in court, with

different counsel, for a probation revocation hearing. Before the probation revocation hearing,

the court proceeded with two other cases, Case Nos. 11SL-CR04174 and 11SL-CR02864. In

both cases Movant was charged with felony stealing. Movant pled guilty to both offenses. The

State recommended seven- and four-year sentences in those cases, “concurrent with any and all

sentences that [Movant] is currently serving in the Department of Corrections[.]” Movant

confirmed he understood the State’s recommendation. The court accepted Movant’s pleas and

sentenced him in accordance with the recommendation.

       The court then proceeded with the probation revocation in the underlying case. Movant

admitted violating a condition of probation. The court revoked Movant’s probation and executed

the previously-imposed seven-year sentence. The court exercised “its discretion pursuant to



                                                2
Section 559.036[] 2 and grant[ed] [Movant] credit against the sentence imposed.” The court

granted “60 days of the time spent on probation from July 30, 2010, to September 30, 2010.”

The court inquired into the effectiveness of Movant’s counsel and Movant expressed satisfaction

with counsel’s representation. Movant was delivered to the Department of Corrections on

October 28, 2012.

           Movant subsequently filed a pro se motion for post-conviction relief under Rule 24.035

on April 15, 2013. The transcript from Movant’s guilty plea and sentencing hearing was filed on

May 2, 2013. The transcript from the probation revocation hearing was filed on May 6, 2013.

Post-conviction counsel was appointed on May 7, 2013 and requested additional 30 days to file

an amended motion. The motion court granted the request. On August 27, 2013, the amended

motion was untimely filed. Following an evidentiary hearing, the motion court denied all relief.

This appeal follows.

                                             III. Standard of Review

           Our review of the denial of a Rule 24.035 motion is “limited to a determination of

whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k);

Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). The findings and conclusions are deemed

clearly erroneous only if, after reviewing the entire record, we are left with the definite

impression that a mistake has been made. Brooks v. State, 242 S.W.3d 705, 708 (Mo. banc

2008). A movant has the burden to show by a preponderance of the evidence that the motion

court clearly erred in its ruling. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009).

           To show ineffective assistance of counsel, a movant must demonstrate: (1) that counsel’s

performance failed to conform to the degree of skill, care, and diligence of a reasonably


2
    Section 559.036 provides guidelines regarding duration and revocation of probation.


                                                           3
competent attorney under similar circumstances; and (2) that counsel’s deficient performance

prejudiced the defense by showing a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different. Worthington v. State, 166 S.W.3d 566, 572–

73 (Mo. banc 2005) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). When a

movant enters a guilty plea, ineffective assistance of counsel remains relevant only to the extent

it affected the voluntariness of the movant’s plea. Conger v. State, 398 S.W.3d 915, 919 (Mo.

App. E.D. 2013). To satisfy the “prejudice” requirement after entering a guilty plea, a movant

must show that, but for counsel’s errors, he would not have pled guilty, but would have insisted

on going to trial. Worthington, 166 S.W.3d at 573.

                                         IV. Discussion

       Pursuant to Moore v. State, we are compelled to first examine the timeliness of amended

motions in each post-conviction case on appeal. 458 S.W.3d 822 (Mo. banc 2015). “If it is

determined that an amended motion filed by appointed counsel is untimely, but there has been no

independent inquiry into abandonment, then the case should be remanded to the motion court for

such inquiry.” Childers v. State, 462 S.W.3d 825, 827 (Mo. App. E.D. 2015) (citing Moore v.

State, 458 S.W.3d 822 (Mo. banc 2015)). “It is our duty to enforce the mandatory timelines in

the post-conviction rules, but the motion court is the appropriate forum to conduct such an

inquiry into abandonment.” Id. (internal quotation and citation omitted). “The result of the

inquiry into abandonment determines which motion—the initial motion or the amended

motion—the court should adjudicate.” Moore, 458 S.W.3d at 826.

       Rule 24.035(g) provides in relevant part:

       If no appeal of the judgment sought to be vacated, set aside, or corrected is taken,
       the amended motion shall be filed within sixty days of the earlier of: (1) the date
       both a complete transcript consisting of the guilty plea and sentencing hearing has
       been filed in the trial court and counsel is appointed or (2) the date both a

                                                4
        complete transcript has been filed in the trial court and an entry of appearance is
        filed by any counsel that is not appointed but enters an appearance on behalf of
        movant. . . . The court may extend the time for filing the amended motion for one
        additional period not to exceed thirty days.

(emphasis added).

        Here, Movant timely filed a pro se Rule 24.035 motion on April 15, 2013. 3                         The

transcript of the guilty plea and sentencing in the underlying case was filed on May 2, 2013. The

transcript of the probation revocation hearing was filed on May 6, 2013. The motion court

appointed counsel for Movant on May 7, 2013. Counsel subsequently requested additional 30

days to file the amended motion, which was granted by the motion court. Accordingly, pursuant

to Rule 24.035(g), Movant’s amended motion was due August 7, 2013. Movant filed the

amended motion on August 27, 2013.

        “A motion court has no authority to extend this time limit for filing an amended motion.”

Stanley v. State, 420 S.W.3d 532, 541 (Mo. banc 2014). The time limitations imposed by Rule

24.035 are mandatory, Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), and they are to be

strictly enforced, Hall v. State, 992 S.W.2d 895, 897 (Mo. App. W.D. 1999). Therefore, by

operation of Rule 24.035, Movant’s amended motion was untimely and the motion court was

required to inquire into abandonment by post-conviction counsel. See Vogl v. State, 437 S.W.3d

218, 228–29 (Mo. banc 2014).

        However, the record before us does not indicate that the motion court conducted such

inquiry.    In addition, the motion court’s judgment contained no explicit reference to the

timeliness of the amended motion or abandonment by counsel. Furthermore, the record does not




3
 In his pro se motion, Movant challenged his forgery conviction and sentence in Case No. 08SL-CR01376. He did
not challenge any other convictions and sentences including his stealing convictions and sentences in Case Nos.
11SL-CR04174 or 11SL-CR02864.

                                                       5
show that Movant’s counsel filed a Sanders motion 4 or that the court considered the amended

motion as timely upon the filing of a Sanders motion. 5

         In the amended motion, Movant asserts the amended motion was filed timely because

“[a] complete transcript of the guilty plea and sentencing proceedings was filed on June 3,

2013,” making the amended motion due September 3, 2013.

         We note two docket entries were made under the title of “Transcript Filed[.]” One docket

entry is dated as May 2, 2013, and the other is dated as June 3, 2013. However, the certified

copy of the original transcript of the guilty plea and sentencing proceedings that is made part of

the record on appeal has a file stamp date of May 2, 2013. Also, the certified copy of the

original transcript of the probation revocation hearing has a file stamp date of May 6, 2013. We

cannot ascertain from the record, and Movant does not explain, why the date of June 3, 2013,

rather than May 2, 2013 or May 6, 2013 should be used in calculating the due date of his

amended motion.

         Pursuant to the Supreme Court’s direction in Moore, we are compelled to reverse the

motion court’s judgment and remand the matter for the motion court to conduct an independent

inquiry into whether post-conviction counsel abandoned Movant.

                                                 V. Conclusion

         The motion court’s judgment is reversed and the case is remanded to the motion court for

an independent inquiry into whether Movant was abandoned by post-conviction counsel and for

further proceedings consistent with the outcome of the motion court’s inquiry.




4
  Sanders v. State directs a motion court to permit appointed counsel’s untimely filing of an amended motion if the
motion court determines that the movant was abandoned by counsel. 807 S.W.2d 493, 495 (Mo. banc 1991).
5
  Had the record on appeal supported that the motion court conducted an abandonment inquiry, we would likely
affirm the motion court’s judgment denying Movant post-conviction relief.

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                                          _____________________________
                                          Angela T. Quigless, Judge

Philip M. Hess, P.J., and
Gary M. Gaertner, Jr., J., Concurs.




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