             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT
SEAN A. PRICE,                                        )
                                                      )
                    Appellant,                        )
                                                      )
v.                                                    )          WD79020
                                                      )
STATE OF MISSOURI,                                    )          Opinion filed: October 4, 2016
                                                      )
                    Respondent.                       )

          APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI
                 THE HONORABLE CHRISTINE CARPENTER, JUDGE

                        Before Division Three: Victor C. Howard, Presiding Judge,
                       Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

           Sean Price (“Price”) appeals from a judgment denying his Rule 29.151 motion for post-

conviction relief. Price argues that his trial counsel was ineffective during closing argument and

that, as a result, he suffered prejudice. Price’s amended Rule 29.15 motion was not timely filed,

however, so the motion court was required to first make an independent inquiry into whether Price

was abandoned by post-conviction counsel. Because the motion court did not make such an

inquiry, we cannot reach the merits of Price’s ineffective assistance of counsel claim and must

reverse and remand the case to the motion court for a determination as to whether the untimely

amended motion was the result of abandonment by Price’s post-conviction counsel.



1
    All references are to Missouri Supreme Court Rules (2015).
                                     Factual and Procedural Background

           Price was tried by a jury and convicted of two counts of statutory sodomy in the first degree

under section 566.062,2 and sentenced to concurrent terms of twenty-five years imprisonment on

each count. Price was represented by appointed counsel from the public defender’s office at trial.

           Price’s convictions were affirmed by this court in State v. Price, 433 S.W.3d 472 (Mo.

App. W.D. 2014), and our mandate was issued on June 25, 2014. On September 15, 2014, Price

timely filed his pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence under

Supreme Court Rule 29.15. On September 23, 2014, the motion court made the following docket

entry: “PCR motion filed. Copy to Public Defender. Cause placed on January 2015 TSD.” On

October 28, 2014, an attorney from the public defender’s office filed an entry of appearance and a

motion for extension of time to file an amended motion. The motion for an extension of time was

granted on November 3, 2014, and the amended motion was filed on January 26, 2015.

           The amended motion raised a single claim for relief that was distinct from those raised in

the pro se motion, and the amended motion did not incorporate any of the pro se claims. The

motion court held an evidentiary hearing on the amended motion and later issued findings of fact

and conclusions of law denying Price’s amended Rule 29.15 motion. The motion court did not

address the claims in Price’s pro se motion or the timeliness of the amended motion. Price timely

appealed.

                                                      Discussion

           Before we can discuss the merits of Price’s appeal, we are compelled to first determine the

issue raised by the State that Price’s amended motion was not timely filed. McCullough v. State,

480 S.W.3d 439, 441 (Mo. App. W.D. 2016). Rule 29.15(g) states, in relevant part, as follows:



2
    All statutory citations are to the Revised Statutes of Missouri 2000, as supplemented.

                                                            2
         If an 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 the mandate of the appellate court is issued and counsel is appointed or (2) the
         date both the mandate of the appellate court is issued and 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) further provides that the motion court can extend this deadline once for a period not

to exceed thirty days. The time limit for filing an amended motion is controlled by the date of first

appointment or entry of appearance, whichever date is earliest. Stanley v. State, 420 S.W.3d 532,

541 (Mo. banc 2014).

         In order to determine whether the amended 29.15 motion was timely filed, we must first

ascertain the date that counsel was appointed.3 The record before us establishes that counsel was

appointed for Price on September 23, 2014, the day the motion court sent a copy of the pro se

29.15 motion to the public defender’s office and placed the matter on its January docket. 4 See

Johnson v. State, 491 S.W.3d 310, 312–13 (Mo. App. E.D. 2016), reh'g and/or transfer denied

(June 8, 2016); see also Stanley, 420 S.W.3d at 540 (“[T]he effective date of appointment of

counsel is the date on which the office of the public defender is designated rather than the date of

counsel’s entry of appearance.” (quoting State v. White, 813 S.W.2d 862, 864 (Mo. banc 1991)).

As a result, Price’s amended motion was due a maximum of 90 days later, or December 22, 2014.

Price’s amended motion, however, was not filed until January 26, 2015, and was thus untimely.


3
  Price requested leave to proceed in forma pauperis in his pro se 29.15 motion and the motion was accompanied by
the required affidavit. As a result, the motion court was compelled to appoint him counsel. See Bennett v. State, 88
S.W.3d 448 (Mo banc 2002). See also Bergdoll v, State, 14 S.W.3d 258 (Mo. App. S.D. 2000); Simpson v. State, 90
S.W.3d 542 (Mo. App. E.D. 2002).
4
  The notice sent by the motion court to the public defender’s office was unqualified. Compare Laub v. State, 481
S.W.3d 579 (Mo. App. S.D. 2016)(motion court specifically stated in its notice to the public defender that “I am not
appointing the Public Defender’s office at this time….”). In addition, the simultaneous placement of the case on its
January docket further evidences that the September 23, 2014, action by the motion court constituted an
appointment triggering the time deadlines of Rule 29.15. Lastly, it is logical that the motion court’s appointment of
the public defender preceded the October 28, 2014, filing of counsel’s entry of appearance. The fact that the record
in this case reflects no activity by the motion court between the sending of the notification to the public defender’s
office on September 23, 2014, and the filing of the entry of appearance, confirms our finding that the appointment of
counsel occurred on September 23, 2014.

                                                          3
       An untimely amended motion filed by post-conviction counsel appointed to an indigent

movant may constitute abandonment of the movant. Moore v. State, 458 S.W.3d 822, 825 (Mo.

banc 2015). “If…[the] 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. W.D. 2015).

       Because Price’s amended motion was untimely filed, the motion court was under a duty to

perform an independent inquiry to determine if he had been abandoned by counsel. Moore, 458

S.W.3d at 825. When such a duty is required but no inquiry is performed, then we will remand as

“the motion court is the appropriate forum to conduct such an inquiry.” Id. at 826. If, after

conducting an independent inquiry into the abandonment issue, the motion court determines the

movant was not abandoned by post-conviction counsel, then it “should not permit the filing of the

amended motion and should proceed with adjudicating the movant's initial motion.” Id. If, on the

other hand, “the motion court determines that the movant was abandoned by appointed counsel's

untimely filing of an amended motion, the court is directed to permit the untimely filing.” Id.

                                           Conclusion

       The motion court’s judgment is reversed, and the matter is remanded to allow the motion

court to conduct an independent inquiry into whether Price was abandoned by appointed counsel

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




                                             __________________________________________
                                             EDWARD R. ARDINI, JR., JUDGE

All concur.




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