                       In the Missouri Court of Appeals
                               Eastern District
                                        DIVISION FOUR

BRIAN M. MARTIN,                              )      No. ED107773
                                              )
         Appellant,                           )      Appeal from the Circuit Court of
                                              )      Marion County
vs.                                           )      18MR-CV00094
                                              )
STATE OF MISSOURI,                            )      Honorable David C. Mobley
                                              )
         Respondent.                          )      Filed: August 18, 2020


James M. Dowd, P.J., Gary M. Gaertner, Jr., J., and Robin Ransom, J.

                                            OPINION

         This is an appeal from the January 4, 2019 amended judgment of the Circuit Court of

Marion County that granted in part Appellant Martin’s Rule 24.0351 amended motion for post-

conviction relief. Because the record before us fails to demonstrate that Martin’s appointed

counsel’s request for extension of time to file his amended motion was granted, we must reverse

and remand this case to the motion court to conduct an inquiry into whether the late filing of the

amended motion was the result of appointed counsel’s abandonment of Martin.

                                           Background

         Martin was originally charged with one count of felony drug trafficking for attempting to

distribute 30 grams or more of methamphetamine within two thousand feet of a school and one


1
    All references are to Missouri Supreme Court Rules (2019).
count of felony possession of methamphetamine with the intent to distribute. On August 15,

2017, pursuant to plea negotiations, the State filed an amended information removing from the

drug trafficking count the allegation that Martin was within close proximity to a school, a change

which had the effect of making Martin parole eligible during the course of serving his sentence.

No change was made to the other count. Martin pled guilty to the State’s amended information

and the court entered judgment and forwarded it to the Missouri Department of Corrections.

       Martin filed a timely Rule 24.035 motion for post-conviction relief claiming, inter alia,

that plea counsel was ineffective for failing to conduct sufficient discovery in this case in that

counsel withheld from Martin and the court certain exculpatory evidence regarding his physical

and psychological state, left inappropriate voicemail messages with his family members, and

threatened or coerced Martin to plead guilty. Thereafter, the court granted Martin leave to add

additional claims to his initial Rule 24.035 motion in which he argued that while the State in its

amended information removed the allegation that he was within two thousand feet of a school

when he committed the drug trafficking offense, it failed to make the corresponding changes to

the charge description and charge code causing Martin to unknowingly and unintentionally plead

guilty to the drug trafficking offense with the sentence-enhancing element of proximity to a

school2. Martin’s supplemental pleading also alleged that the court had no factual basis to accept

Martin’s plea to drug trafficking near a school, that Martin’s guilty plea was made involuntarily,

and that he received ineffective assistance of counsel.

       Post-conviction counsel was appointed and subsequently entered his appearance on

Martin’s behalf on April 27, 2018. The transcript from Martin’s guilty plea and sentencing



2
 While we doubt that Rule 24.035 permits Martin to supplement his initial pro se motion, we
need not decide that issue since we are remanding this case for an abandonment inquiry
concerning Martin’s amended motion which included these supplemental bases for relief.
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hearing was filed on August 9, 2018 which meant that Martin’s amended Rule 24.035 motion

was due on October 8, 2018.        Post-conviction counsel requested 30 additional days or to

November 7, 2018 to file an amended motion. The record on appeal does not reflect whether

this request was ever explicitly ruled upon by the motion court. Nevertheless, post-conviction

counsel filed an amended motion on October 23, 2018 alleging that the court’s clerical error in

listing the wrong charge description and charge code for Martin’s guilty plea denied Martin the

benefit of his plea bargain and his right to be considered for parole and that no factual basis

existed for the court’s judgment that Martin was guilty of drug trafficking near a school.

       On January 4, 2019, following an evidentiary hearing, the motion court granted Martin’s

amended motion on the basis of the plea court’s error in listing the wrong charge description and

charge code for the drug trafficking offense to which Martin intended to plead guilty and on its

finding that there was no factual basis for Martin’s guilty plea to drug trafficking near a school.

The court amended the judgment on Martin’s convictions to reflect the proper charge description

and charge code for drug trafficking without the enhancing element of proximity to a school.

But the court did not dispose of the numerous ineffective assistance of counsel claims raised by

Martin in his pro se motion. Additionally, the court made no reference to the timeliness of the

amended motion and the record on appeal fails to reflect any inquiry by the motion court

regarding whether Martin had been abandoned by post-conviction counsel.

                                            Discussion

       Because we find based on the record before us that Martin’s amended motion was

untimely filed, this matter must be remanded to the motion court for a determination as to the

disposition of Martin’s motion for extension of time to file his amended motion and whether

Martin was abandoned by post-conviction counsel.



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

filed beyond the statutory deadline in Rule 24.035(g) may constitute abandonment of the movant

by his counsel. Richard v. State, 487 S.W.3d 504, 506 (Mo. App. E.D. 2016). Rule 24.035(g)

provides that where, as here, no direct appeal of the judgment has occurred, the amended motion

must 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.

       Here, the transcript of Martin’s guilty plea and sentencing hearing was filed on August 9,

2018, after post-conviction counsel was appointed and entered his appearance on Martin’s

behalf. Therefore, the amended motion was due on or before October 8, 2018. But Martin’s

counsel did not file the amended motion until October 23, 2018.

       When an amended motion is untimely filed, the motion court has a duty to undertake an

independent inquiry to determine if abandonment occurred. Moore v. State, 458 S.W.3d 822,

825 (Mo. banc 2015). The result of the abandonment inquiry determines which motion—the

initial motion or the amended motion—the court should adjudicate. Id. at 826. Where, as here,

it has been determined that an amended motion filed by appointed counsel was untimely, but

there has been no independent inquiry to determine if abandonment occurred, then the case must

be remanded to the motion court for such inquiry. Lomax v. State, 471 S.W.3d 358, 359 (Mo.

App. E.D. 2015). While it is our duty to enforce the mandatory timelines in the post-conviction

rules, the motion court is the appropriate forum to conduct such an inquiry into abandonment.

Id.



                                                 4
       Moreover, Martin’s request for an extension of time to file the amended motion did not

relieve him of the 60-day statutory deadline because said request was never explicitly ruled upon

by the motion court. Rule 24.035(g) provides that “[t]he court may extend the time for filing the

amended motion . . . with no extension exceeding 30 days individually and the total of all

extensions not to exceed 60 days.” But when post-conviction counsel requests additional time to

file an amended motion, the motion court must expressly grant or deny said request. Huffman v.

State, 493 S.W.3d 892, 895 (Mo. App. E.D. 2016) (citing Adams v. State, 483 S.W.3d 480, 484

(Mo. App. E.D. 2016)). Although “motions for extensions of time are routinely and almost

always automatically granted if requested, . . . extensions will not be presumed to have been

granted without a record thereof.” Frazee v. State, 480 S.W.3d 442, 445 (Mo. App. W.D. 2016)

(quoting Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015)). While the motion court

may have intended to grant post-conviction counsel's request for additional time, the record

before us lacks any basis from which we can make that determination. Specifically, no signed

copy of the motion for extension exists in the record, and the record contains no docket entry

indicating that the motion court ruled on the request. Therefore, without the court’s explicit

ruling on the motion for extension of time, Martin’s amended motion is deemed untimely filed

and we are compelled under Moore to remand this case to the motion court for a determination

of abandonment.

       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, 480 S.W.3d at 445 (quoting Childers, 462 S.W.3d at 828). In this case, the

motion court’s judgment did not adjudicate any of the ineffective assistance of counsel claims set

forth in Martin’s pro se motion. Given that these claims were neither incorporated into the



                                                5
amended motion nor considered by the motion court, it is possible that the motion court

considered the wrong motion. Moore, 458 S.W.3d at 826. Therefore, a remand is necessary to

resolve the abandonment issue.

                                          Conclusion

       Accordingly, the judgment is vacated and the cause is remanded with directions to

conduct an abandonment inquiry.




                                                       ______________________________
                                                       James M. Dowd, Presiding Judge


Gary M. Gaertner, Jr., J., and
Robin Ransom, J. concur.




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