                      In the Missouri Court of Appeals
                              Eastern District
                                             DIVISION FOUR

CHRISTOPHER GALES,                                     )   No. ED102167
                                                       )
           Movant/Appellant,                           )   Appeal from the Circuit Court
                                                       )   of St. Louis County
v.                                                     )
                                                       )
STATE OF MISSOURI,                                     )   Honorable Mark D. Seigel
                                                       )
           Respondent/Respondent.                      )   Filed: September 15, 2015

                                                 Introduction

           Christopher Gales (Movant) appeals from the motion court’s judgment denying,

without an evidentiary hearing, his amended Motion to Vacate, Set Aside or Correct

Judgment and Sentence filed pursuant to Rule 24.0351 (post-conviction motion). We

reverse and remand.

                                   Factual and Procedural Background

           On January 7, 2014, Movant pled guilty to one count each of first-degree assault,

first-degree robbery and first-degree burglary, and three counts of armed criminal action.

On January 9, 2014, the court sentenced Movant to concurrent terms of life for assault,

robbery, and burglary, and terms of ten years for the three counts of armed criminal

action to run concurrently with each other but consecutive to the life imprisonment, for a

total term of life plus ten years.

1
    All rule references are to Mo. R. Crim. P. 2014.
        On February 24, 2014, Movant filed his timely pro se post-conviction motion

challenging his convictions and sentences. The transcript was filed on February 27,

2014. Counsel was appointed on March 11, 2014. Appointed counsel filed a motion for

extension of time to file an amended motion on March 27, 2014, which the motion court

granted. Appointed counsel filed an amended motion on June 16, 2014. On September

2, 2014, the motion court issued its Findings of Fact, Conclusions of Law, and Order

denying Movant’s post-conviction motion without an evidentiary hearing, concluding

that Movant’s guilty pleas were voluntarily made. This appeal follows.

                                              Discussion

        On appeal, Movant challenges the motion court’s denial of his post-conviction

motion without an evidentiary hearing, asserting he was denied his rights to effective

assistance of counsel and due process of law in that plea and sentencing counsel

unreasonably pressured him to plead guilty and that, but for this undue pressure, he

would have proceeded to trial.

        Before proceeding to the merits of Movant’s appeal, we are compelled under

Moore v. State, 458 S.W.3d 822 (Mo. banc 2015), to examine the timeliness of the

amended post-conviction motion.2 Appointed counsel’s untimely filing of an amended

post-conviction motion can constitute “abandonment,” which extends the time limitations

for filing an amended post-conviction motion. Id. at 825. If the amended motion was

untimely filed and there has been no independent inquiry into abandonment, the cause

must be remanded to the motion court for such inquiry. Federhofer, 462 S.W.3d at 841,


2
 Although Moore addressed post-conviction proceedings initiated under Rule 29.15, Moore’s analysis is
equally applicable to such proceedings filed pursuant to Rule 24.035. See Federhofer v. State, 462 S.W.3d
838, 841 (Mo. App. E.D. 2015).



                                                    2
citing Moore, 458 S.W.3d 825-26. “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.

       If the motion court determines that a movant has not been abandoned, the court

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

the movant’s initial motion. Moore, 458 S.W.3d at 825. If the motion court determines

that the movant was abandoned by appointed counsel’s untimely filing of the amended

motion, the court is directed to permit the untimely filing. Id. at 826.

       Rule 24.035, governing post-conviction motions after a plea of guilty, provides

that when, as here, no appeal of a 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.” Rule 24.035(g). The

motion court may extend the time for filing the amended motion for an additional 30

days. Rule 24.035(g).

       In this case, the transcript was filed on February 27, 2014 and counsel was

appointed on March 11, 2014. Counsel requested and was granted a 30-day extension to

file the amended motion. Accordingly, the amended motion was due on or before June 9,

2014, and counsel’s filing of the motion on June 16, 2014 was untimely.




                                              3
       The motion court’s judgment is reversed, and the cause remanded to the motion

court to conduct an independent inquiry to determine if Movant was abandoned by

appointed counsel.

                                       Conclusion

       The motion court’s judgment is reversed and the cause remanded for further

proceedings consistent with this opinion.




                                            Sherri B. Sullivan, P.J.

Patricia L. Cohen, J., and
Kurt S. Odenwald, J., concur.




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