                   In the Missouri Court of Appeals
                           Eastern District
                                      DIVISION TWO


 BRIAN MANN,                                     )   No. ED102368
                                                 )
        Movant/Appellant,                        )   Appeal from the Circuit Court of
                                                 )   the City of St. Louis
 vs.                                             )
                                                 )   Honorable Thomas C. Grady
 STATE OF MISSOURI,                              )
                                                 )
        Respondent.                              )   Filed: November 10, 2015

                                        Introduction

       Brian Mann (Movant) appeals the judgment of the Circuit Court of the City of St. Louis

denying his Rule 29.15 motion for post-conviction relief. In his sole point on appeal, Movant

claims that the motion court clearly erred by denying his post-conviction motion without an

evidentiary hearing because he pleaded facts unrefuted by the record that trial counsel was

ineffective for failing to retain a blood splatter expert, whose testimony would have enhanced

Movant’s alibi defense. Because the amended motion was untimely filed and the motion court

made no independent “abandonment” inquiry, we reverse and remand.

                                        Background

       Movant’s convictions for two counts of first-degree murder, first-degree assault, first-

degree robbery, and four counts of armed criminal action arose from an armed robbery on May

12, 2008. On that date, Movant and two accomplices entered a wholesaler store and took money
from the clerk working behind the counter. When the owner and store manager, who were in a

nearby office behind the counter, came to the office door after the robbery began, Movant and

his accomplices began shooting. The gunfire killed the owner and manager and struck the clerk

in the legs. Video surveillance showed Movant armed with a MAC-type semiautomatic firearm

and wearing a camouflage jacket. Movant was apprehended and Vidyasagar Gado, a store clerk

present at the robbery, identified Movant as one of the robbers. Movant raised an alibi defense

that he was at his mother’s house at the time of the shooting. After a jury trial, the trial court

sentenced Movant as a prior and persistent offender to five life sentences, two without the

possibility of parole, and three twenty-year sentences. This Court affirmed his convictions and

sentences on direct appeal, State v. Mann, 347 S.W.3d 615 (Mo. App. E.D. 2011), and entered its

mandate on October 17, 2011.

       Movant filed a timely pro se Rule 29.15 motion for post-conviction relief. The motion

court entered an order appointing counsel on April 10, 2012. Counsel entered his appearance on

April 19, 2012 and, on June 12, 2012, moved for a 30-day extension to file an amended motion.

The motion court never entered an order ruling on or granting the extension. Then, on July 13,

2012, appointed counsel filed an amended motion.          Ultimately, the motion court denied

Movant’s amended motion without an evidentiary hearing, finding that Movant “failed to allege

facts which are not refuted by the record and which entitle him to relief.” Movant appeals.

                                         Abandonment

       Movant recognizes that this Court is required to examine the timeliness of amended

motions in post-conviction cases. According to Movant, the amended motion was not timely

filed and, therefore, he was abandoned by counsel. Despite the motion court’s failure to address

the issue of abandonment, Movant requests that we find that counsel abandoned Movant, deem




                                                2
the amended motion to have been timely filed, and consider the merits of Movant’s appeal.

Alternatively, Movant requests that we stay this appeal pending a remand to the motion court for

it to inquire whether Movant was abandoned. The State concurs with Movant’s request.

        Rule 29.15(g) governs the time for filing an amended motion and provides, in relevant

part:

        If an 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 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. The court may extend the time for filing the amended
        motion for one additional period not to exceed thirty days.

        Here, counsel was appointed on April 10, 2012, after this Court entered its mandate.

Thus, Movant’s amended motion was due sixty days from that date, or June 11, 2012.1 Counsel,

however, did not file an amended motion on or before that date and, instead, one day later, filed a

motion for a 30-day extension on June 12th. The motion court never ruled on that motion.

Subsequently, counsel filed Movant’s amended motion on July 13, 2012, which, had the motion

court granted the 30-day extension, was several days after that deadline.

        The parties do not dispute that Movant’s amended motion was untimely filed and that the

motion court, in considering Movant’s post-conviction motion, did not make an independent

inquiry into whether post-conviction counsel abandoned Movant. Both Movant and the State

request this Court to find that counsel abandoned Movant and to consider the merits of Movant’s

appeal. Our Supreme Court’s recent decision in Moore v. State, 458 S.W.3d 822 (Mo. banc

2015), however, dictates otherwise.




1
  Sixty days from April 10, 2012, is actually June 9, 2012, a Saturday. When the last day of a period is a Saturday,
the period runs to the next day that is neither a Saturday, Sunday, nor legal holiday. See Rule 44.01(a).


                                                         3
       There, the movant filed a timely pro se motion for post-conviction relief and the

movant’s appointed counsel missed the sixty-day deadline for filing the movant’s amended

motion. Id. at 824. Counsel did not ask for an extension and the motion court did not, on its

own motion, grant such an extension. Id. at 825. When counsel filed the amended motion well

after the sixty-day deadline, the motion court considered the merits of the movant’s amended

motion without making any finding regarding abandonment. Id. at 824. On transfer from this

Court, the 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 (citation omitted). Because the motion court did not undertake such an inquiry and

because “the motion court is the appropriate forum to conduct such an inquiry[,]” the Court

reversed the motion court’s judgment and remanded the matter for the court to conduct an

inquiry whether the movant was abandoned. Id. at 826.

       As the Court explained in Moore, the significance of such a determination is that, in the

event the motion court finds that counsel abandoned movant, it will consider the merits of the

amended motion, as abandonment extends the time limitations for filing an amended motion. Id.

at 826. Alternatively, if the motion court finds that the movant has not been abandoned, but that

the missed deadline is due to the movant’s negligence or intentional failure to act, then the

motion court will adjudicate the merits of the movant’s initial pro se motion. Id. at 825; Luleff v.

State, 807 S.W.2d 495, 498 (Mo. banc 1991). Abandonment of post-conviction counsel can

occur in a number of ways, including, but not exclusively: when counsel fails to take any action

toward filing an amended motion or when counsel fails to file an amended motion in a timely

manner. See Sanders v. State, 807 S.W.2d 493, 494-95 (Mo. banc 1991).




                                                 4
           The facts of the instant matter are substantially the same as those in Moore. Because the

amended motion was untimely filed and the motion court made no abandonment inquiry, just as

in Moore, a remand is necessary for the motion court to independently inquire whether Movant

was abandoned and to further review, consistent with that finding, Movant’s post-conviction

claims. See Moore, 458 S.W.3d at 826.

           Both parties acknowledge Moore, but ask this Court to find counsel abandoned Movant

and deem the motion as timely filed. In support, the State, relying on Childers v. State, 462

S.W.3d 825 (Mo. App. E.D. 2015), asserts that remand is not necessary, despite the motion

court’s failure to make an abandonment inquiry, because the only issue appealed—failure to

retain a blood splatter expert—was alleged in both the pro se and amended motion. In Childers,

this Court concluded that remand for an abandonment inquiry was not necessary, despite the fact

that post-conviction counsel had untimely filed the amended motion. Id. at 828. Childers

distinguished Moore on the basis that, unlike in Moore where the motion court did not adjudicate

any of the movant’s pro se claims, the motion court in Childers considered all the claims raised

in both the movant’s pro se motion and amended motion. Id. Under these circumstances, the

Childers Court determined that a remand would be “pointless” as the movant had received “all

the process to which he is entitled[,]” i.e., the abandonment determination would have no effect

on the relief available to the movant on remand because the motion court had already considered

all the movant’s claims in the pro se and amended motions. Id. The Childers Court, thus,

considered the merits of the movant’s post-conviction appeal. Id. at 828-29.

           Here, Movant raised six claims in his pro se motion,2 alleging that trial counsel was

ineffective for (1) failing to object to Gado’s identification of Movant at trial because Movant

was not afforded counsel during the lineup procedure; (2) failing to call Timothy Boykins to
2
    Movant’s pro se motion lists five claims of error, but the first claim actually includes two separate claims.


                                                              5
testify, as that individual could have committed the crime; (3) entering into a stipulation not to

call the DNA expert who tested Movant’s clothing, to tell the jury that Movant’s clothing had

none of the victims’ DNA on them; and (4) failing to question an alibi witness whether Movant

was wearing a camouflage jacket on the day of the crime. Movant also alleged that appellate

counsel was ineffective for (1) failing to adequately allege that plain error occurred due to trial

counsel’s failure to object to Gado’s identification; and (2) failing to raise an argument on direct

appeal that the trial court erred in sustaining the State’s motion to exclude evidence relating to

Boykins and the circumstances under which Gado identified Movant. Comparatively, Movant’s

amended motion claimed that trial counsel was ineffective for failing to: (1) consult or hire an

expert who could testify to blood splatter patterns, which would have enhanced Movant’s alibi

defense; (2) consult a videotape expert, to call into question the veracity and accuracy of the

videotape; (3) object to Gado’s identification of Movant; and (4) conduct an adequate offer of

proof regarding the absence of the victims’ blood or DNA on Movant’s pants or shoes.

       Under these circumstances, Childers’ limited exception to Moore’s remand requirement

is not applicable. The motion court’s judgment, unlike in Childers, considered only those claims

raised in Movant’s amended motion. Consequently, while some overlap exists between the pro

se motion and the amended motion, it cannot be said, as in Childers, that the motion court

considered all the claims in the pro se and amended motions such that a remand would be

“pointless.” Because the motion court did not consider all the claims contained in movant’s pro

se motion and, instead, only considered the five claims raised in the amended motion, a remand

is necessary for the purpose of determining abandonment and, thus, which claims—those in the

pro se motion or those in the amended motion—are properly before the motion court.




                                                 6
       The State also relies on a statement from Cox v. State, 445 S.W.3d 131 (Mo. App. W.D.

2014), for the same proposition that a remand is unnecessary. Specifically, this Court stated,

“Numerous prior decisions hold, however, that a post-conviction movant is not entitled to relief

for abandonment based on the untimely filing of an amended motion if the motion court has

already considered the merits of the untimely amended motion.” Id. at 134-35. In Cox, the

amended motion was untimely filed and the motion court considered the merits of the motion

without making an abandonment inquiry. Id. at 133. On appeal, the movant argued that post-

conviction counsel had abandoned him and that he was entitled to a remand. Id. at 134. The Cox

Court determined that no remand was necessary because the relief to be awarded for

abandonment—consideration of the amended motion—would be the same that the movant had

already received. Id. at 134-36.

       Cox, and the cases cited therein, pre-date the Supreme Court’s decision in Moore and are

not controlling. The same factual pattern that existed in Cox existed in Moore: the motion court

considered and ruled on the claims in the untimely amended motion. However, contrary to Cox,

the Supreme Court held that a remand was necessary for the motion court to inquire whether the

movant had been abandoned. See Moore, 458 S.W.3d at 826. We are constitutionally bound to

follow the controlling precedent the Supreme Court established in Moore. MO. CONST., art. V,

sec. 2 (1945); Kinder v. Missouri Dep’t of Corrections, 43 S.W.3d 369, 374 (Mo. App. W.D.

2001). We therefore conclude that a remand is necessary for the purpose of conducting an

independent abandonment inquiry and we do not reach the merits of Movant’s appeal.

       Finally, both parties request that we either stay or hold this matter in abeyance pending

the outcome of the motion court’s abandonment inquiry on remand. In support, the State cites

numerous cases in which this Court has held a case in abeyance pending the results of a limited




                                               7
remand. See State v. Sanders, 16 S.W.3d 349 (Mo. App. W.D. 2000); State v. Nebbitt, 455

S.W.3d 79 (Mo. App. E.D. 2014); McQuary v. State, 241 S.W.3d 446 (Mo. App. W.D. 2007).

None of these cases concerned the issue of post-conviction counsel’s abandonment.

Accordingly, we follow the Supreme Court’s direction in Moore, and reverse the motion court’s

judgment outright, remand the matter for a determination of abandonment and for further

proceedings consistent with the motion court’s inquiry. See Lomax v. State, 2015 Mo. App.

LEXIS 688, *2-3 (Mo. App. E.D. June 30, 2015) (denying request for abeyance pending

outcome of abandonment inquiry remand consistent with Moore).

                                            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.




                                                8
