             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

PAULA McCULLOUGH,                                 )
                                                  )
                                    Appellant,    )
                                                  )   WD78344
v.                                                )
                                                  )   OPINION FILED:
                                                  )   January 26, 2016
STATE OF MISSOURI,                                )
                                                  )
                                 Respondent.      )


                 Appeal from the Circuit Court of Vernon County, Missouri
                           The Honorable James R. Bickel, Judge

                  Before Division II: Cynthia L. Martin, Presiding Judge, and
                      Mark D. Pfeiffer and Karen King Mitchell, Judges

       Paula McCullough (“McCullough”) appeals the judgment of the Circuit Court of Vernon

County, Missouri (“motion court”), denying her motion for post-conviction relief pursuant to

Rule 29.15 following an evidentiary hearing. Because her amended motion was not timely filed,

and the motion court made no findings as to whether the late filing was due to abandonment of

McCullough by her appointed post-conviction counsel, we reverse the judgment and remand to

the motion court for further proceedings consistent with this opinion.
                                      Factual and Procedural Background

          McCullough was charged by information with four counts of receiving stolen property;

she was tried by the Circuit Court of St. Clair County in a bench trial and was convicted of all

four counts. Her convictions were affirmed on appeal, State v. McCullough, No. SD31777 (Mo.

App. S.D. Jan. 25, 2013), and final mandate issued on May 1, 2013. McCullough filed a timely

pro se Rule 29.15 motion for post-conviction relief in St. Clair County on June 3, 2013. On the

same day, the circuit court appointed the State Public Defender as McCullough’s post-conviction

counsel and granted an additional thirty-day extension of time beyond the sixty-day deadline for

filing the amended motion. Thus, any amended motion for post-conviction relief was due on

September 3, 2013.1              On July 23, 2013, venue was transferred to Vernon County.     On

September 24, 2013, McCullough’s amended motion was filed in Vernon County. The amended

motion sought different claims for post-conviction relief than McCullough’s originally filed

pro se motion.

          The motion court held an evidentiary hearing on the merits of the amended motion and

denied the merits of the claims made in the amended motion, without having made any findings

as to whether the untimely filing of the amended motion was attributable to McCullough’s

negligence or inaction or whether it was, instead, due to McCullough having been abandoned by

her post-conviction counsel. Likewise, the motion court’s judgment did not consider or rule

upon the claims for post-conviction relief included in McCullough’s originally filed pro se

motion. McCullough appeals the denial of her amended motion for post-conviction relief on its

merits.




          1
              See Rule 29.15(g). All rule references are to the Missouri Court Rules (2015).


                                                             2
                                           Analysis

       At the outset, the State correctly argues that we must remand this matter to the motion

court for a determination as to whether McCullough was abandoned by post-conviction counsel.

       In Moore v. State, 458 S.W.3d 822 (Mo. banc 2015), the Missouri Supreme Court held

that, “[w]hen an untimely amended motion is filed, the motion court has a duty to undertake an

‘independent inquiry . . .’ to determine if abandonment occurred.” Id. at 825 (quoting Vogl v.

State, 437 S.W.3d 218, 228-29 (Mo. banc 2014)). “When the independent inquiry is required but

not done, [the reviewing] court will remand the case because the motion court is the appropriate

forum to conduct such an inquiry.” Id. at 826.

       As a reviewing appellate court, “we are compelled under Moore v. State to first examine

the timeliness of amended motions in each post-conviction case on appeal.” Childers v. State,

462 S.W.3d 825, 827 (Mo. App. E.D. 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.” Id. “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. (quoting Moore, 458 S.W.3d at 826).

       Rule 29.15(g) states that,

       [i]f 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.

       Here, the mandate from McCullough’s direct appeal issued on May 1, 2013.

McCullough timely filed a pro se Rule 29.15 motion for post-conviction relief on June 3, 2013.

On that same date, the circuit court appointed post-conviction counsel for McCullough and



                                                 3
granted an additional thirty-day extension of time beyond the sixty-day deadline for filing an

amended motion. Thus, after accounting for the weekend (deadline) and Monday holiday (Labor

Day), McCullough’s amended motion was due on Tuesday, September 3, 2013. The amended

motion was not filed until September 21, 2013.2 Thus, the amended motion was untimely, the

motion court’s judgment on the merits of the amended motion must be reversed, and the matter

must be remanded for the motion court to conduct an independent inquiry into whether appointed

counsel abandoned McCullough.

        “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 (footnote

omitted). “If the motion court finds that a movant has not been abandoned, the motion court

should not permit the filing of the amended motion and should proceed with adjudicating the

movant’s initial motion.” Blackburn v. State, 468 S.W.3d 910, 913 (Mo. App. E.D. 2015). On

the other hand, “[i]f the motion court determines that the movant was abandoned by

post-conviction counsel’s untimely filing of an amended motion, the court should permit the

untimely filing” and adjudicate the amended motion. Id. Though a remand is unnecessary

“where all of the claims in both the pro se and amended motion have been adjudicated with

written findings of fact and conclusions of law,” Childers, 462 S.W.3d at 828, that is not the case

before us.

        Here, the claims in the amended motion were distinct from those in the pro se motion,3

and the pro se claims were neither incorporated into the amended motion nor considered by the



        2
            The motion court must determine the reason that an amended motion is not timely filed, even if the
timeliness of the amended motion is not raised by either party. Moore v. State, 458 S.W.3d 822, 825 (Mo. banc
2015) (citing Luleff v. State, 807 S.W.3d 495, 498 (Mo. banc 1991)).
          3
            The amended motion asserted different claims for relief under Rule 29.15 than the original pro se motion.
In fact, the amended motion specifically asserted that, “No other similar claim from this Motion has been previously
asserted.” L.F. 27.


                                                         4
motion court in its express conclusions of law forming its judgment. Accordingly, it is possible

that the motion court considered the wrong motion, and a remand is necessary to resolve the

abandonment question.

                                          Conclusion

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

court to conduct an independent inquiry into whether McCullough was abandoned by

post-conviction counsel, and to conduct further proceedings consistent with our ruling today

after the motion court has made its determination on the abandonment inquiry.




                                            Mark D. Pfeiffer, Judge

Cynthia L. Martin, Presiding Judge,
and Karen King Mitchell, Judge, concur.




                                               5
