                In the Missouri Court of Appeals
                        Eastern District
                                                  DIVISION ONE

DARON J. PARKER,                                              )          ED103798
                                                              )
           Appellant,                                         )          Appeal from the
                                                              )          Circuit Court of St. Louis County
v.                                                            )          14SL-CC03759
                                                              )
STATE OF MISSOURI,                                            )          Honorable John D. Warner, Jr.
                                                              )
           Respondent.                                        )          Filed: October 25, 2016


                                                INTRODUCTION

           Daron J. Parker ("Defendant") appeals the judgment of the motion court denying, without

an evidentiary hearing, his Rule 24.035 motion for post-conviction relief. We reverse and

remand because Defendant's amended motion was untimely filed, and the motion court did not

conduct an independent abandonment inquiry.

                                                 BACKGROUND

           Defendant was charged with one count of assault in the first degree, in violation of

Section 565.0501, and one count of armed criminal action, in violation of section 571.015. Two

attorneys (together, "Plea Counsel") entered appearances on behalf of Defendant.




1
    All statutory references are to RSMo 2000, unless otherwise indicated.
          On July 18, 2014, Defendant appeared in court with Plea Counsel and pleaded guilty to

both charges, pursuant to a plea agreement. During the plea hearing, the court questioned

Defendant about Plea Counsel's performance, and found no evidence to indicate either of the

attorneys were ineffective. Defendant was sentenced to nine years for the assault and three years

for the armed criminal action, the sentences to run concurrently.

          On October 16, 2014, Defendant timely filed a pro se Rule 24.035 motion for post-

conviction relief. On December 8, the transcripts of the guilty plea and sentencing hearing were

filed. On December 19, the motion court appointed the Missouri State Public Defender's Office

to represent Defendant. On January 9, 2015, “PCR Counsel” entered her appearance and

requested an additional thirty days to file an amended motion, which the court granted. PCR

Counsel filed the amended motion on March 25, 2015.

          The amended motion raised one claim of ineffective assistance of counsel, based on Plea

Counsel's alleged conflict of interest—a claim that was distinct from Defendant's pro se motion.

The court denied the claim without an evidentiary hearing. This appeal follows.

                                            DISCUSSION

          Defendant offers one point on appeal. However, we do not reach the merits as we reverse

and remand for the trial court to conduct an abandonment inquiry.

Abandonment

          Prior to addressing the merits regarding a movant's post-conviction appeal, this court is

obligated to, sua sponte, "first examine the timeliness of amended motions in each post-

conviction case on appeal, even if the issue is not raised by either party." Lomax v. State, 471

S.W.3d 358, 359 (Mo. App. E.D. 2015) (citing Moore v. State, 458 S.W.3d 822 (Mo. banc

2015)).



                                                   2
         A. Overview of Abandonment in Missouri

         A person convicted of a felony who claims a conviction or imposed sentence violates the

United States Constitution, the Missouri Constitution, or other Missouri law, which includes

claims of ineffective assistance of counsel, may seek post-conviction relief ("PCR") in the

sentencing court either after a plea of guilty or after trial. See, generally, Rules 24.035 and 29.15.

These rules provide the exclusive procedure by which such person may seek PCR in the

sentencing court. Id. PCR motions are otherwise governed by the rules of civil procedure. Id.

         It is well settled that ineffective assistance claims of PCR counsel are not cognizable. See

Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc 1991). However, if certain timing requirements

regarding the filing of an amended motion are not met, the motion court must examine whether

PCR counsel abandoned the movant. See, e.g., Luleff v. State, 807 S.W.2d 495, 497 (Mo. banc

1991). This is because the motion court is in a better position to "alleviate the need for appellate

courts to speculate as to what occurred in the circuit court." Id. "When the [abandonment]

inquiry is required but not done, [appellate courts] 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

the inquiry into abandonment determines which motion—the initial motion or the amended

motion—the court should adjudicate." Id. The timing requirements are mandatory and

constitutional. Price v. State, 422 S.W.3d 289, 297 (Mo. banc 2014).

         One such form of abandonment exists when PCR counsel finds reason to amend the

movant's pro se motion but fails to do so before the statutorily-mandated deadlines. Sanders v.

State, 807 S.W.2d 493, 494 (Mo. banc 1991).2 In Sanders, PCR counsel initially had 60 days to


2
  "Where counsel determines that filing an amended motion is not warranted, counsel should make that
determination a part of the record. At such time as the motion court may proceed to rule [on a PCR motion] and
there is no record of any activity by counsel on movant's behalf, the motion court shall make inquiry, sua sponte,
regarding the performances of both movant and counsel. If counsel's apparent inattention results from movant's

                                                          3
file an amended motion, and pursuant to the rules requested additional time to file. The motion

court granted a thirty-six day extension, exceeding its authority under the PCR rules; nevertheless,

PCR counsel failed to file the amended motion until seven months after the initial pro se filing.

Movant's amended motion was denied on the merits, and he appealed. The Missouri Supreme

Court remanded, holding that abandonment can occur when PCR counsel finds "a sound basis for

amending [movant's] pro se motion but fails timely to file the amended motion as required by [the

PCR rule]." Id.; see also Moore, 458 S.W.3d at 824 (Where PCR counsel filed the amended

motion between sixty and ninety days but failed to request the additional thirty days allowed by

rule, the Missouri Supreme Court remanded "[b]ecause the existence of abandonment affects

whether the claims in the amended motion have been waived."). Abandonment by appointed

counsel may extend the time limitations for filing an amended Rule 29.15 [or 24.035] motion.

Moore v. State, 934 S.W.2d 289, 290 (Mo. banc 1996).

         An exception to the abandonment-inquiry requirement exists where the pro se and

amended motions are in essence the same. Childers v. State, 462 S.W.3d 825 (Mo. App. E.D.

2015). In Childers, this Court held that remand was not necessary because the defendant's pro se

and amended motions were the same and the motion court would have reached the same

conclusion regardless of which motion was properly before it. Id. at 468. Remand would have

served no purpose because the movant had received "all the process to which he is entitled[.]"

Id. In other words, 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 amended motion. Id.



negligence or intentional failure to act, movant is entitled to no relief other than that which may be afforded upon the
pro se motion. If the court determines, on the other hand, that counsel has failed to act on behalf of the movant, the
court shall appoint new counsel, allowing time to amend the pro se motion, if necessary, as permitted under [PCR
rules]." Luleff, 807 S.W.2d at 497.

                                                           4
       B. Timing of Defendant's Amended Motion

       Having discussed the general framework of the ‘abandonment’ doctrine, we turn now to

Defendant’s case. Rule 24.035(g) governs the timing requirements:

       If no 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 date both a
       complete transcript consisting of the guilty plea and sentencing hearing has been
       filed in the trial court and counsel is appointed. [] The court may extend the time
       for filing the amended motion for one additional period not to exceed thirty days.

       On October 16, 2014, Defendant timely filed his pro se Rule 24.035 motion for post-

conviction relief. On December 8, 2014, the transcripts of the guilty plea and sentencing

hearings were filed. On December 19, 2014, the motion court appointed the Missouri State

Public Defender's Office to represent Defendant. PCR Counsel entered her appearance and

requested an additional thirty days to file an amended motion. The motion court properly

granted PCR Counsel's request. Defendant's amended motion was therefore due on March 19,

2014. Defendant, however, did not file the amended motion until March 25, 2015.

       The procedural facts of this case closely resemble those of Moore. Further, there are

significant differences between Defendant's pro se and amended motions, therefore the Childers

exception is inapplicable. Remand is "necessary for the motion court to inquire whether the

[movant] had been abandoned." Mann v. State, 475 S.W.3d 208, 213 (Mo. App. E.D. 2015).

                                            CONCLUSION

       The judgment of the motion court is reversed, and the case is remanded for further

proceedings consistent with this opinion.



                                                     ___________________________________
                                                     Lisa P. Page, Judge

Robert M. Clayton III, P.J., and Mary K. Hoff, J. concur.

                                                5
