                        In the Missouri Court of Appeals
                                Eastern District
                                              DIVISION TWO


    TOUSAINT E. RICHARD,                                   )   No. ED102776
                                                           )
           Appellant,                                      )   Appeal from the Circuit Court of
                                                           )   Perry County
    vs.                                                    )
                                                           )   Honorable William L. Syler
    STATE OF MISSOURI,                                     )
                                                           )
           Respondent.                                     )   Filed: April 19, 2016

                                                 Introduction

          Tousaint Richard (Movant) appeals the judgment of the Circuit Court of Perry County

denying his Rule 24.0351 motion for post-conviction relief. On appeal, Movant presents two

points of error. Because Movant’s amended motion was filed untimely and the motion court

made no independent abandonment inquiry, we reverse and remand.

                                            Factual Background

          In October 2012, Movant pleaded guilty to possession of marijuana with the intent to

distribute.    Movant was sentenced, pursuant to a plea agreement, to 120 days “shock”

imprisonment, with a 15-year suspended execution of sentence.2 Movant was not released from

prison after serving 120 days because the sentencing court received an unfavorable report from

1
  Unless otherwise noted, all references to Rules are to Missouri Supreme Court Rules (2015).
2
  Movant would be released from prison after 120 days if the sentencing court received a favorable report from the
Department of Corrections. If the sentencing court did not receive a favorable report, Movant would serve the
fifteen-year sentence.
the Department of Corrections. Movant filed a timely pro se Rule 24.035 motion for post-

conviction relief on April 9, 2013. Counsel was appointed June 26, 2013, and the transcript of

the guilty plea and sentencing hearings was filed July 19, 2013. Pursuant to Rule 24.035(g),

appointed counsel was required to file an amended motion within sixty days of the transcript

being filed. On August 20, 2013, appointed counsel filed a motion requesting a thirty-day

extension to file the amended Rule 24.035 motion. The motion court never entered an order

ruling on or granting the extension. Appointed counsel filed the amended motion on October 10,

2013, which was outside of the statutory deadline, but would have been timely if the motion

court had granted appointed counsel’s extension.

       The motion court conducted an evidentiary hearing on Movant’s amended motion on

November 15, 2013. That same day, the motion court denied Movant’s Rule 24.035 motion.

The motion court issued its written order and judgment over a year later, on December 29, 2014.

This appeal follows.

                                         Abandonment

       Before this Court can review the merits of the case, we must first determine whether we

are required to remand the case back to the motion court to conduct an abandonment inquiry.

When post-conviction counsel is appointed to an indigent movant, an amended motion filed

beyond the statutory deadline in Rule 24.035(g) can constitute abandonment of the movant. See

Price v. State, 422 S.W.3d 292, 298 (Mo. banc 2014). 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
       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.




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          If appointed counsel files an untimely amended motion, then the motion court has a duty

to undertake an independent inquiry to determine if the movant was abandoned. Vogl v. State,

437 S.W.3d 218, 228-29 (Mo. banc 2014); Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc

1991). If the motion court finds that the movant has been abandoned by counsel, then the motion

court should permit the filing of the late amended motion. However, if the motion court finds

that the movant has not been abandoned, and that the late filing was due to the movant’s

negligence or intentional failure to act, then the motion court should not permit the filing of the

amended motion, and instead should adjudicate the movant’s initial pro se motion. Luleff, 807

S.W.2d at 498.

          The Missouri Supreme Court recently took up the issue of abandonment in Moore v.

State, 458 S.W.3d 822 (Mo. banc 2015). In Moore, the movant’s appointed counsel filed an

amended motion for post-conviction relief past the statutory sixty-day deadline. Id. at 824. The

motion court considered the merits of the movant’s amended motion without first making any

inquiry regarding abandonment. Id. Our Supreme Court held that when 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 (citing Vogl v. State, 437 S.W.3d 281, 228-29

(Mo. banc 2014)). The Court held that “the motion court is the appropriate forum to conduct

such an inquiry[,]” and because the motion court did not do so, the Court reversed the motion

court’s judgment and remanded the matter for the court to conduct an abandonment inquiry. Id.

at 826.

          In the present case, the parties do not dispute that Movant’s amended motion was filed

past the statutory sixty-day deadline. Movant argues that this Court must remand the case back

to the motion court to conduct an abandonment hearing because the motion court never ruled on




                                                 3
appointed counsel’s thirty-day extension request. Respondent asserts the motion court provided

a basis to conclude that it had granted appointed counsel’s extension request, and therefore we

should not remand. Respondent notes that the motion court, in its written judgment, referred to

Movant’s amended motion as “timely.”3 Respondent argues that the motion court’s description

of the amended motion as “timely” indicates the motion court granted appointed counsel’s thirty-

day extension request, and therefore an abandonment inquiry is unnecessary.

            Respondent cites Adams v. State, 2016 WL 1086487 (Mo. App. E.D. March 15, 2016) in

support of its argument. In that case, the movant’s appointed counsel filed an untimely amended

Rule 24.035 motion. Id. at *1. Appointed counsel previously requested a thirty-day extension to

file the amended motion, but the motion court never ruled on the extension request. Id. The

motion court did rule on the merits of the amended motion, however, which it denied. Id. On

appeal, this Court remanded the case back to the motion court because “the motion court’s

judgment contained no explicit reference to an extension of time or the timeliness of the

amended motion,” and there was no indication anywhere in the record that a thirty-day extension

had been granted. Id. at *3. Respondent argues that because the motion court’s judgment in the

present case explicitly mentioned the timeliness of the amended motion, this case is

distinguishable from Adams.

           We disagree, and conclude that Adams supports Movant’s argument that the case must be

remanded. In the present case, as in Adams, the motion court’s judgment did not acknowledge

that Movant’s amended motion was filed outside the statutory deadline, and it did not mention

appointed counsel’s thirty-day extension request or explain why the request was never ruled on.

Furthermore, at the evidentiary hearing, neither the parties nor the court discussed the

untimeliness of the amended motion. Although the motion court stated in its judgment, “This
3
    In reference to Movant’s amended motion, the motion court stated, “This Motion, as amended, timely followed.”


                                                          4
Motion, as amended, timely followed,” the docket sheet is devoid of any ruling on appointed

counsel’s extension request. As we held in Adams, “extensions will not be presumed to have

been granted without a record thereof.” Id. (citations omitted). The record in the present case is

insufficient to demonstrate that the motion court granted appointed counsel’s thirty-day

extension request. As such, Movant’s amended motion was filed untimely, and the motion court

was required to conduct an independent abandonment inquiry.

       We briefly note that 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.” Frazee v. State, 2016 WL 313219, at *2 (Mo. App. W.D. Jan. 26, 2016) (quoting Childers

v. State, 462 S.W.3d 825, 827 (Mo. App. E.D. 2015)).       In this case, Movant’s pro se motion

contained a claim that counsel failed to warn him that his prior criminal history made him

ineligible to complete the 120-day “shock” sentencing program. This claim was not adjudicated

by the motion court. Therefore, in accordance with Moore, we must reverse the motion court’s

judgment and remand the matter to the motion court for a determination of abandonment and for

further proceedings consistent with the motion court’s inquiry.

                                            Conclusion

       The judgment of the motion court is reversed and the case is remanded for further

proceedings consistent with this opinion.


                                             _______________________________
                                             Philip M. Hess, Presiding Judge


Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.




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