 

In the Missotnri Court of Appeals

Eastern Dtstrict
DIVISION FOUR
LOUIS JAMES ADAl\/IS, ) No. EDlO2837
)
Appellant, ) Appeal from the Circuit Court
) of St. Charles County
vs. )
)
STATE OF MISSOURI, ) Hon. Nancy L. Schneider
)
Respondent. ) FILED: Marcll 15, 2016

introduction

Appellaiit Louis J ames Adains ("Adams") appeals from thejudgment of the motion court
denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing The
record before us suggests that Adalns’s amended motion for post-conviction relief was untimely
filed. Because the motion court did not inake an independent inquiry into whether Adams was
abandoned by post-conviction counsel as a result of the untimely filing, we are compelled by the
Suprelne Court’s holding in Moore v. State to reverse the motion court’s judgment and remand
the case to the motion court to determine whether Adains was abandoned by post-conviction
counsel.

Factual and Procedllral History

Adams was charged in the Ci1'cuit Court of St. Charles County with the class B felony of

driving while intoxicated as a chronic offender (Count l), the class D felony of driving while

license revoked (Count Il), and the class D felony of leaving the scene of a motor vehicle

 

     

accident (Count lll). Adams pleaded guilty to these charges and was sentenced by the trial court
as a prior and persistent offender to 15 years’ ilnprisomneiit on Count I, l0 years’ imprisonment
on Count Il, and 7 years’ iniprisoiiiiient on Count III. The trial court ordered the sentences to run
concurrent with each other, but consecutive to a l2-year sentence Adams received in a separate
case in St. Charles County. Adams received a sentence totaling 27 years’ imprisonment

Adams filed a timely pro-se motion for post-conviction relief. Post-conviction counsel
was appointed and subsequently entered her appearance on April ll, 2012. At that time, post-
conviction counsel requested 30 additional days to file an amended motion pursuant to Rule
24.045(g). The transcript from Adarns’s guilty plea hearing was filed on September 21, 2012.
On December 20, 2012, post-conviction counsel filed the amended motion.

On March ll, 2015, the motion court issued its "Findings of Fact, Conclusions of Law
and Jtldgernent" denying Adams’s amended motion without an evidentiary liearing. While the
motion court decided the amended motion on the inerits, it made no reference to whether the
aniended motion had been timely filed. The record shows that the motion court siniply noted
"[o]n July 20, 2011, Movant filed a Motion to Vacate, Set Aside or Correct Sentence, and an
amended motion was filed by counsel on Movant’s behalf on Deceinber 20, 2012." This appeal
follows.

Points on Appeal

Adams raises two points on appeal. First, Adams contends the motion court clearly erred
in denying Adams’s Rule 24.035 motion for post-conviction relief without an evidentiary
liearing because Adains alleged facts that if proven would entitle him to relief`, and which raised
niatters not conclusively refuted by the record. Specifically, Adams argues post-conviction

counsel was ineffective for advising Adains that if he pleaded guilty, he would be sentenced to

   

 

10 to 12 years of total impi'isoninent, to run concurrent witli his sentence in a separate St. Charles
County case. Second, Adams avers the motion court clearly erred in failing to include Findings
of Fact and Coiiclusions of Law in its order and judgment addressing one of the claims made by
Adams in his amended motion-tliat post-conviction counsel was ineffective for failing to
advocate for a more favorable sentencing disposition at Adams’s sentencing heariiig.
Standai‘d of Review

Appellate review of the denial of a Rule 24.035 post~conviction motion is liiiiited to a
determination of whether the motion coui't’s findings, conclusions, and judgment are clearly
erroneous Wooldridge v. State, 239 S.W.Bd l5l, 153-54 (Mo. App. E.D. 200'7). The motion
cotiit’s findings and conclusions are presumptively correct and will be overturned only when this
Coui‘t, after reviewing the entire i‘ccord, is left with a “defiiiite and firm impression that a inistake
has been made." Wortliiiigton v. State, 166 S.W.?)d 566, 572 (l\/Io. banc 2005). Attei' a guilty
plea, our review is limited to a determination of whether the inovant’s plea was knowing and
voiuntary. Loiideriiiilk v. State, 973 S.W.2d 55l, 553 (Mo. App. E.D. 1998).

To obtain an evidentiary hearing under Rule 24.035 on a claim of ineffective assistance
of cotinsel, the movant must raise facts, not conclnsions, warranting i'elief; the facts alleged must
raise inattei's not refuted by the record; and the iiiatters inust have resulted in prejudice to the
movant. May v. State, 309 S.W.3d 303, 306 (Mo. App. E.D. 2010). If an examination of the
guilty plea proceedings directly refutes that the inovant’s plea was involuntary, the movant is not

entitled to an evidentiary hearing. Watt v. State 835 S.W.Zd 404, 406 (Mo. App. E.D. 1992).

 

Rule 24.035 requires the motion court to "issue findings of fact and conclusions of law on
all issues presented." Voegtlin v. State, 464 S.W.Sd 544, 556 (Mo. App. E.D. 2015). "Wliile

there is no precise formula to which findings of fact and conclusions of law must conforin, they

must address all of the issues raised and be sufficiently specific to allow fo1' Ineaningfill appellate
review." I;d. As a general rule, where the motion court fails to make sufficient findings of fact
and conclusions of law, we are required to remand the case to the motion court for the requisite
findings and conclusions §

Discussion

Before this Court may address the nierits of Adaiiis’s claims, we must determine whether
his ainended Inotion was timely iiled. Childers v. State, 462 S.W.Sd 825, 827 (Mo. App. E.D.
201 5). "When an tlntimely ainendecl motion is filed, the motion court has a duty to undertake an
‘indepeiideiit inquiry’  to determine if abandonment occurred." Moore v. State, 458 S.W’.Bcl
822, 825 (Mo. banc 201 5). As a result, if we cleterlnilie that an amended motion filed by post-
conviction counsel is untimely, but there has been no independent inquiry into abandonment
conducted by the motion court, then the case must be reinanded to the motion court. l_d_. at 826.
While it is this Court’s duty to enforce the inandatory timelines in the post-conviction rules, the
motion court is the appropriate forum to conduct the abandonment inquiry, Blackburn v. State,
468 S.W.Sd 9]0, 913 (Mo. App. E.D. 2015). in the event a case is reinanded to the motion court
for an abandonment inquiry, the result of the inquiry determines which motion, the pro se motion
or the ainended motion, the motion court should adjudicate M@§, 458 S.W.Bd at 826.

On April l l, 2012, post-conviction. counsel electronically filed a motion with the motion
court entitled "Entry of Appearalice and Request for Additional Tinie in Which to File an
Anieiided Motioii" (“Motion for Exteiisioii"), in which post-conviction counsel forinally entered
her appearance on behalf of Adams and requested an additional 30 days’ time to file the
ainended motion pursuant to Rule 24.035(g). 'I`he Motion for Exteiision contains lines for the

motion court judge’s signature and date, both of which are blank.

Rule 24.035(g) specifies that Where, as he1'e, no direct appeal of the judgment has
occurred, the amended motion rnust be filed within sixty days of the earlier of:

(l) the date both a cornplete transcript consisting of the guilty plea ami

sentencing hearing has been filed in the trial court amd counsel is appoi)ttea' 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) (eiiiphasis added)

Rule 24.035(g) additionally states that "[t]lre court inay extend the time for filing the amended
motion for one additional period not to exceed thirty days." Rule 24.035(g) (emphasis added).
Accordingly, if post-conviction counsel’s request for an extension was granted by the motion
court, the amended motion would have been due within 90 days of September 2l, 2012 (the date
the complete transcript was filed) and therefore would have been timely filed on December 20,
2012. Ho\vever, without the grant of an extension of time, the amended motion would have been
due within 60 days of September 21, 2012, making the December 20, 2012, filing untimely.

Our careful review of the record reveals no indication that the motion court ever signed
the Motion for Extension or otherwise granted post-conviction counsel’s request for a 130-day
extension No signed copy of the Motion for Extension exists in the record, and the record
contains no docket entry indicating that the motion court ever ruled on the request Instead, the
docket entry for April 11, 2012 simply reads "Eiitry of Appearance Filed" followed by "Entry of
Appearance and Entry Reqtlest for additional time." The next docket entry is dated December
20, 20l2, and notes that Adams’s amended motion has been filed. Further, although the motion
court considered the amended motion on the merits, the motion court’s Judgiilent contained no

explicit reference to an extension of time or the timeliness of the amended motion.]

' The motion court simply noted that "[ojn July 20, 2011, Movant filed a Motion to Vacate, Set Aside or Correct
Senteiice, and an amended niotion was filed by counsel on Movant’s behaif on December 20, 20l2."

5

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 deterrnination.
"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, 2016 WL 313219, at *2 (Mo. App. W.D. Jan. 26, 2016) (quoting Childe1's 462

 

S.W.3d at 828). The record simply does not reflect that the motion court ever granted the
Motion for Extensioit or otherwise granted Adams a 30-day extension. As explained, without
such an extension, the amended motion was tlntimely. Accordingly, pursuant to the Supreme
Court’s direction in @gg:, the motion court’s judgment must be reversed, and the matter must
be remanded for the motion court to conduct an independent inquiry into whether post-
conviction counsel abandoned Adanis.
Conclusion
The motion court’s judgment is reversed and the case is remanded to the motion court for

an independent inquiry into whether Adams was abandoned by post-conviction counsel and for

further proceedings consistent with the outcome of the motion court’s inquily.

ZURT S. ODENWALD, Judge

Sherri B. Sllllivali, P.J., concurs
Lisa P. Page, J., concurs

