                     In the Missouri Court of Appeals
                             Eastern District
                                      DIVISION FOUR

EZELL ROBERTS,                              )       No. ED101956
                                            )
       Appellant,                           )       Appeal from the Circuit Court of
                                            )       St. Louis County
       vs.                                  )
                                            )
STATE OF MISSOURI,                          )       Honorable Michael T. Jamison
                                            )
       Respondent.                          )       Filed: November 3, 2015

                                         Introduction

       Ezell Roberts (Movant) appeals the judgment of the Circuit Court of St. Louis County

denying, after an evidentiary hearing, his Rule 29.15 motion for post-conviction relief. We

reverse and remand for an inquiry into whether Movant was abandoned by post-conviction

counsel.

                             Factual and Procedural Background

       A jury convicted Movant of fifteen counts of statutory rape and statutory sodomy

perpetrated against his step-daughter over the course of several years, beginning when she was

nine years old. The trial court sentenced Movant to nine 30-year prison terms and six 7-year

prison terms, all to run concurrently. This court affirmed Movant’s convictions and sentences.

State v. Roberts, 388 S.W.3d 584 (Mo. App. E.D. 2012).

       On April 4, 2013, Movant filed a timely pro se motion for post-conviction relief asserting

seven claims of ineffectiveness of counsel. On May 16, Movant’s counsel entered an appearance
and requested additional time to file an amended motion. The court granted that request May 20.

Movant’s amended motion was due August 14 (i.e., ninety days after counsel’s May 16 entry of

appearance and request for time). Counsel filed the motion out of time on August 20. In the

amended motion, Movant claimed that his trial counsel was ineffective for failing to: (1) adduce

into evidence the victim’s diary; (2) investigate and interview certain potential witnesses; and (3)

adequately cross-examine the victim about a letter she wrote to Movant that was not disclosed to

the State and thus not admitted at trial.

        On January 24, 2014, the motion court held a hearing on Movant’s motion. The

untimeliness of the motion was not discussed, and the motion court denied the motion on the

merits. Movant now appeals and asserts that the court clearly erred by: (1) failing to make an

independent inquiry whether Movant’s post-conviction counsel abandoned him by filing his

amended motion out of time; and (2) denying Movant’s claim that counsel was ineffective for

failing to disclose the victim’s letter so that it could be adduced at trial.

                                            Standard of Review

        Appellate review of the denial of a motion for post-conviction relief is limited to a

determination of whether the motion court’s findings of fact and conclusions of law are clearly

erroneous. Mo. Sup. Court Rule 29.15(k). The motion court’s findings and conclusions are

clearly erroneous only if a review of the entire record leaves this court with the definite and firm

impression that a mistake has been made. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009).

                                               Discussion

        In his first point, Movant asserts that the motion court erred by failing to inquire whether

Movant’s counsel abandoned him by filing his amended motion out of time. The State concedes

this point and agrees that we should remand the case to the motion court for that inquiry.




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       Rule 29.15(g) governs the time limits for filing an amended post-conviction motion. It

provides, in pertinent part, that where a movant appeals the judgment sought to be vacated, set

aside, or corrected, “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.” Rule 29.15(g).

       “[A]n amended motion filed beyond the deadline in Rule 29.15(g) can constitute

‘abandonment’ of the movant.” Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015).

Abandonment by post-conviction counsel “extend[s] the time limitations for filing an amended

Rule 29.15 motion.” Id. Thus, when post-conviction counsel files an untimely amended motion,

“the motion court has a duty to undertake an ‘independent inquiry ...’ to determine if

abandonment occurred.” Id. If the motion court finds that a movant has not been abandoned, then

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

adjudicating the movant's initial motion. Id. If the motion court determines that the movant was

abandoned by post-conviction counsel's untimely filing of an amended motion, then the court

should permit the untimely filing. Id.

       If we determine that post-conviction counsel untimely filed an amended Rule 29.15

motion and the motion court did not conduct an independent inquiry into abandonment, then we

must remand the case to the motion court for such an inquiry. Blackburn v. State, 2015 WL

5135192, at *2 (Mo.App.E.D. September 1, 2015). “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. (quotation omitted).




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       The record confirms that post-conviction counsel filed the amended motion six days after

it was due, but the record lacks any indication that the motion court inquired into whether

counsel thereby abandoned Movant. “When the independent inquiry is required but not done,

this [c]ourt will remand the case because the motion court is the appropriate forum to conduct

such an inquiry.” Moore, 458 S.W.3d at 826. The result of that inquiry determines which motion

(the initial motion or the amended motion) the court should adjudicate. Id.

       Movant’s first point is granted and is dispositive.

                                           Conclusion

       The motion court's judgment is reversed, and the case remanded for the motion court to

conduct an independent inquiry to determine if Movant was abandoned and for further

proceedings consistent with the outcome of that inquiry.




                                                     Patricia L. Cohen, Judge

Sherri B. Sullivan, P.J., and
Kurt S. Odenwald, J., concur.




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