                   MISSOURI COURT OF APPEALS
                       WESTERN DISTRICT


KENNETH PICKENS, III,                     )
                                          )   WD81459
                    Appellant,            )
    v.                                    )   OPINION FILED:
                                          )
STATE OF MISSOURI,                        )   May 28, 2019
                                          )
                     Respondent.          )


         Appeal from the Circuit Court of Buchanan County, Missouri
                    Honorable Daniel Fred Kellogg, Judge

          Before Division Three: Thomas H. Newton, Presiding Judge,
             Anthony Rex Gabbert, and Edward R. Ardini, Judges


         Mr. Kenneth Pickens appeals from the Buchanan County Circuit Court

judgment denying an amended Rule 29.15 motion, which was filed out of time.

He raises the ineffectiveness of trial counsel relating to failures to object to

certain jury instructions and the ineffectiveness of appellate counsel in f ailing to

raise certain sufficiency claims on direct appeal. We remand for the motion court

to determine whether appointed counsel abandoned Mr. Pickens.
        A Buchanan County jury convicted Mr. Pickens in December 2014 of three

counts of forgery, two counts of distribution of a controlled substance, and two

counts of possession of a controlled substance with intent to distribute. The

convictions arose from thirteen charges relating to a series of similar transactions

in late 2013 involving fraudulent prescriptions for controlled substances,

including oxycodone and alprazolam. The trial court sentenced Mr. Pickens in

March 2015 as a prior and persistent offender to a total of eighteen years’

imprisonment in the Department of Corrections. We affirmed per curiam on

direct appeal. State v. Pickens III, 496 S.W.3d 534 (Mo. App. W.D. 2016).

        The mandate was issued on June 15, 2016, and Mr. Pickens timely filed a

pro se motion to vacate, set aside or correct the judgment or sentence under Rule

29.15 on August 10, 2016. 1 The motion court appointed counsel to represent him

on August 12, 2016, and counsel sought an extension of time to file an amended

motion. The motion court granted the extension, making the amended motion

due November 10, 2016, a Thursday. 2                         The amended motion was filed




1
  The pro se Rule 29.15 motion raised six issues. Mr. Pickens claimed that (1) counsel was ineffective
for failing to impeach the State’s witnesses; (2) the trial court erred in denying the motion for judgment
of acquittal; (3) the prosecutor filed the wrong criminal charges; (4) counsel was ineffective for failing
to investigate, prepare for, and present the defendant’s case; (5) the trial court erred in failing to grant
a motion for mistrial after a juror viewed deputies escorting the defendant; and (6) the prosecut or filed
charges under a conspiracy theory despite knowledge that con spiracy is not a state charge. He failed
to elaborate on the second claim and, as to the sixth, explained, in part, “There is no evidence that
proves movant forged, or was in possession of any forged documents. Movant challenges the
sufficiency of the evidence.”
2
 Note that November 11, 2016, was Veteran’s Day, a government holiday, and the following two days
were Saturday and Sunday.


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electronically on November 14, 2016, a Monday, at 8:39 a.m. 3 Counsel then filed

a Rule 103.06 motion on November 17, 2016, asking the motion court to find the

amended motion timely filed. 4 According to this motion, the electronic filing

system was not functioning when counsel attempted to file the amended Rule

29.15 motion on the evening of November 10, 2016. 5 So counsel emailed the

amended motion to the court clerk and opposing counsel that evening, advising

them of his inability to access Case.net. The Rule 103.06 motion also asserted

counsel’s understanding that the state’s electronic filing system was “completely

unavailable” from 7 p.m., November 10, 2016, through 11 p.m., November 11,

2016. Counsel did not seek a hearing on this motion and did not raise the

timeliness question during the evidentiary hearing that the motion court

conducted in May 2017 on the amended Rule 29.15 motion. The motion court

never ruled on the Rule 103.06 motion, but stated in the judgment that the


3
  The amended Rule 29.15 motion raised twelve ne w issues and made no reference to Mr. Pickens’s
pro se motion. They involve the ineffective assistance of trial counsel for failure to object to the jury
instructions related to forgery and possession of controlled substances with intent to distribute, as well
as the ineffective assistance of appellate counsel for failure to raise instructional error and certain
sufficiency claims on direct appeal. A slight overlap with the pro se motion exists as to the latter: Mr.
Pickens raised one insufficiency claim, but did not elaborate on it, while his claim that the prosecutor
erred in bringing conspiracy charges was supported by the declaration that the evidence was
insufficient to show that the prescriptions were forged or that he was in possession of forged
documents, a matter arguably addressed in the amended motion and now before this Court on appeal.
4
  Missouri Supreme Court Rule 103.06(a) (2016), provides in part that “[i]f the electronic filing system
is unavailable at the time the user attempts to file a document, the registered user shall make reasonable
efforts to file the document as soon as the unavailability ends.” On motion by the registered user
within ten days of the first unsuccessful attempt to file the document, “the court shall deem the
document filed on the day that the user initially attempted to file the document,” if it determines that
the system’s unavailability “prevented the court from receiving the filing.” Rule 103.06(b) & (c). The
motion must indicate “why the delay was prejudic ial.” Rule 103.06(b). Counsel’s motion referred to
the strict Rule 29.15 time limits to assert prejudice.
5
 We have no reason to doubt counsel’s assertion, but, because this involves a factual finding, we are
unable to make it absent a record from the motion court.

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amended Rule 29.15 motion was filed November 14, 2016. The motion court

addressed only the issues raised in the amended Rule 29.15 motion and overruled

it. Mr. Pickens filed this appeal, and, with our permission, filed an exhibit

showing the electronic filing system’s availability for the relevant time period.

It purports to show that the eFiling and Case.net systems were “intermittently

unavailable” from 7 p.m., November 10, 2016, through 11 p.m., November 11,

2016.

                                  Legal Analysis

        Mr. Pickens raises eight points relied on, but prefaces the arguments with

a discussion of the timeliness of the amended Rule 29.15 motion. He suggests

that this Court may decide whether it was timely filed and accordingly address

the points on the merits, but acknowledges that this may be a matter for the

motion court on remand. The State argues that the case must be remanded for

timeliness and abandonment determinations and does not address the merits of

the points relied on.

        Whether the amended Rule 29.15 motion was timely filed depends on a

court determination that the electronic filing system was unavailable.       Rule

103.06(c). Whether appointed post-conviction counsel abandoned Mr. Pickens

will depend on whether the amended motion was late and may also depend under

these circumstances on whether he made “reasonable efforts to file the document




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as soon as the unavailability” ended. 6                Rule 103.06(a).         An abandonment

determination is critical. As we stated in Sayre v. State, 493 S.W.3d 33, 35-36

(Mo. App. W.D. 2016) (citations omitted):

       The result of the inquiry into abandonment determines which
       motion—the initial motion or the amended motion—the court should
       adjudicate. If the motion court finds that a movant has not been
       abandoned, the motion court should not permit the filing of the
       amended motion and should proceed with adjudicating the movant’s
       initial motion. On the other hand, if the motion court determines
       that the movant was abandoned by post-conviction counsel’s
       untimely filing of an amended motion, the court should permit the
       untimely filing and adjudicate the amended motion.

Under Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015), the motion court

has an independent duty to determine, when an untimely amended post-

conviction motion is filed, whether abandonment occurred.                             “When the

independent inquiry is required but not done, [the reviewing court] will remand

the case because the motion court is the appropriate forum to conduct such an

inquiry.” Id. at 826. An exception to this general rule applies “where all the

claims in both the pro se and amended motion have been adjudicated [by the



6
  See Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015) (citations omitted), where the court
discusses the duties of appointed post-conviction counsel under Rule 29.15(e) and the presumption
raised by an untimely filed amended motion as f ollows:

       The absence of a record of post-conviction counsel’s attention to the pro se motion
       creates a presumption that counsel failed to comply with the rule. Likewise, when an
       amended motion is untimely filed, the record creates a presumption that couns el failed
       to comply with the rule because the filing of the amended motion indicates that counsel
       determined there was a sound basis for amending the initial motion but failed to file
       the amended motion timely.

The required inquiry into whether counsel’s failure to comply with the rule constitutes abandonment
due to an untimely filed amended motion “is [thus] not merely a technical exercise.” Sayre v. State,
493 S.W.3d 33, 35 (Mo. App. W.D. 2016).

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motion court] with written findings of fact and conclusions of law.” Sayre, 493

S.W.3d at 36 (quoting Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D.

2015) (emphasis removed)). As in Sayre, however, this exception does not apply

here because “[t]he claim[s] in the amended motion [are] distinct from the claims

in the pro se motion, and the pro se claims were not addressed by findings of fact

and conclusions of law in the Judgment.” Id. As well, we indicated above that

any overlap between the two motions was minor.

      Remand is required; the motion court specifically found that the amended

Rule 29.15 motion was filed on November 14, 2016, or four days after the date

on which it was required to be filed. Nothing in the motion court’s judgment

indicates that it conducted an inquiry into whether the late filing constituted an

abandonment of Mr. Pickens, or indeed whether the filing was deemed timely

under Rule 103.06.

                                  Conclusion

      Because the amended Rule 29.15 motion was untimely and the motion

court did not make a timeliness or abandonment determination, we remand for it

to do so.

                                            /s/Thomas H. Newton
                                            Thomas H. Newton, Presiding Judge


Anthony Rex Gabbert, and Edward R. Ardini, Judges concur.




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