             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

LAWRENCE FRAZEE,                                  )
                                                  )
                                    Appellant,    )
                                                  )    WD77683
v.                                                )
                                                  )    OPINION FILED:
                                                  )    January 26, 2016
STATE OF MISSOURI,                                )
                                                  )
                                 Respondent.      )


                  Appeal from the Circuit Court of Clay County, Missouri
                            The Honorable Janet Sutton, Judge

                Before Division Two: Cynthia L. Martin, Presiding Judge, and
                      Mark D. Pfeiffer and Karen King Mitchell, Judges

       Lawrence Frazee appeals, following an evidentiary hearing, the denial of his Rule 29.15

motion for post-conviction relief. Frazee argues that trial counsel provided ineffective assistance

in failing to investigate the testimony of two mental health professionals and present such

testimony regarding Frazee’s mental health at Frazee’s sentencing hearing in mitigation of

punishment. Frazee argues that, had counsel presented this testimony, Frazee would have

received a lesser sentence. We cannot reach the merits of Frazee’s claim, however, because his

amended Rule 29.15 motion was not timely filed and the motion court failed to make an

independent inquiry into whether Frazee was abandoned by post-conviction counsel. Under
these circumstances, we are directed by our Supreme Court to remand the case to the motion

court for a determination as to whether the untimely filing was the result of abandonment by

Frazee’s post-conviction counsel.

                                          Background

        Frazee was convicted of one count of first-degree robbery and sentenced to 25 years’

imprisonment. His conviction and sentence were affirmed on appeal. State v. Frazee, 292

S.W.3d 594 (Mo. App. W.D. 2009). The mandate issued in his direct appeal on October 14,

2009.

        Frazee filed a pro se Rule 29.15 motion for post-conviction relief on January 11, 2010.

The record does not reflect that counsel was appointed, but an assistant public defender entered

his appearance on Frazee’s behalf on January 28, 2010. The record does not reflect any requests

for, or grants of, an extension of time in which to file the amended motion. The amended motion

was filed on April 19, 2010.

        The amended motion raised three claims for relief that were distinct from those raised in

the pro se motion, and the amended motion did not incorporate any of the pro se claims. The

motion court held an evidentiary hearing on December 18, 2013, wherein the motion court

received testimony from trial counsel, two witnesses regarding Frazee’s mental health, and the

mother of Frazee’s child. Thereafter, the motion court issued findings of fact and conclusions of

law, overruling Frazee’s amended Rule 29.15 motion. At no point during the proceedings did

the motion court inquire into whether Frazee had been abandoned by post-conviction counsel.

Frazee appeals.




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                                                    Analysis

       At the outset, the State advises that we must remand this matter to the motion court for a

determination as to whether Frazee was abandoned by post-conviction counsel. We agree.

       In Moore v. State, 458 S.W.3d 822 (Mo. banc 2015), the Missouri Supreme Court held

that, “[w]hen 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 (quoting Vogl v.

State, 437 S.W.3d 218, 228-29 (Mo. banc 2014)). “When the independent inquiry is required but

not done, th[e reviewing c]ourt will remand the case because the motion court is the appropriate

forum to conduct such an inquiry.” Id. at 826.

       As the State points out, “we are compelled under Moore v. State to first examine the

timeliness of amended motions in each post-conviction case on appeal.” Childers v. State, 462

S.W.3d 825, 827 (Mo. App. E.D. 2015). “If . . . [the] amended motion filed by appointed

counsel is untimely, but there has been no independent inquiry into abandonment, then the case

should be remanded to the motion court for such inquiry.” Id. “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. (quoting Moore, 458 S.W.3d at 826).

       Rule 29.15(g)1 states that,

       [i]f 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.

       Here, the mandate from Frazee’s direct appeal issued on October 14, 2009. The record

does not reflect when counsel was appointed, but he entered his appearance on January 28, 2010.


       1
           All rule references are to the Missouri Supreme Court Rules (2015).


                                                         3
Assuming counsel entered his appearance on the same day he was appointed, the amended

motion was due no later than March 29, 2010. The amended motion was filed on April 19, 2010,

which is outside the initial sixty-day window. But Rule 29.15(g) also provides that “[t]he court

may extend the time for filing the amended motion for one additional period not to exceed thirty

days.” Had counsel sought and received this permissive extension, the amended motion could

have been timely, depending on when counsel was appointed, as it would not have been due until

potentially as late as April 28, 2010. The record, however, does not reflect either a request for,

or a grant of, the permissive thirty-day extension.

       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.” Childers, 462 S.W.3d at 828 (internal quotation omitted). And, here, the record simply

does not reflect either that counsel requested an extension or that the court granted one on its

own motion. “Assuming that a request will be granted does not relieve counsel of the obligation

to actually make the request if additional time is needed . . . .” Id. Without the permissive

extension, the amended motion was untimely.           Thus, the motion court’s decision must be

reversed, and the matter must be remanded for the motion court to conduct an independent

inquiry into whether appointed counsel abandoned Frazee.

       “The result of the inquiry into abandonment determines which motion—the initial motion

or the amended motion—the court should adjudicate.” Moore, 458 S.W.3d at 826. “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.”

Blackburn v. State, 468 S.W.3d 910, 913 (Mo. App. E.D. 2015). On the other hand, “[i]f the

motion court determines that the movant was abandoned by post-conviction counsel’s untimely




                                                 4
filing of an amended motion, the court should permit the untimely filing” and adjudicate the

amended motion. Id.

       Of course, a remand is unnecessary “where all of the claims in both the pro se and

amended motion have been adjudicated with written findings of fact and conclusions of law.”

Childers, 462 S.W.3d at 828 (emphasis removed). But because the trial court did not rule on

Frazee’s initial pro se motion, that is not the case before us. The claims in the amended motion

were wholly distinct from those in the pro se motion, and the pro se claims were neither

incorporated into the amended motion nor considered by the motion court. Accordingly, it is

possible that the motion court considered the wrong motion, and a remand is necessary to resolve

the abandonment question.

                                          Conclusion

       The motion court’s judgment is reversed, and the matter is remanded to allow the motion

court to conduct an independent inquiry into whether Frazee was abandoned by post-conviction

counsel.




                                            Karen King Mitchell, Judge

Cynthia L. Martin, Presiding Judge, and
Mark D. Pfeiffer, Judge, concur.




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