                 IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT
DONNY LEE COX,                             )
                                Appellant, )
                                           )
v.                                         )       WD76549
                                           )
STATE OF MISSOURI,                         )       FILED: October 14, 2014
                               Respondent. )

                     Appeal from the Circuit Court of Buchanan County
                         The Honorable Daniel F. Kellogg, Judge

     Before Division Two: Victor C. Howard, P.J., and Alok Ahuja and Gary D. Witt, JJ.

        Donny Cox pled guilty to statutory sodomy in the first degree and sexual exploitation of a

minor. He filed a pro se motion for post-conviction relief under Supreme Court Rule 24.035 in

the Circuit Court of Buchanan County. His appointed counsel later filed an amended motion.

The circuit court denied Cox’s amended motion following an evidentiary hearing, and Cox

appeals. He argues that his amended post-conviction relief motion was untimely under Rule

24.035(g), and that the circuit court therefore erred in addressing the merits of his claims.

Because Cox has failed to establish that he was prejudiced by the motion court’s ruling on the

merits of his amended motion, we affirm.

                                       Factual Background

        On September 28, 2010, Cox pled guilty to statutory sodomy in the first degree and

sexual exploitation of a minor. On November 4, 2010, the court sentenced him to forty years’
imprisonment for the sodomy offense, and to ten years for sexual exploitation. The court

ordered the sentences to run consecutively.

        Cox filed a pro se Motion to Vacate, Set Aside, or Correct the Judgment or Sentence

under Rule 24.035 on May 2, 2011. The motion court appointed the public defender to represent

Cox on May 10, 2011. The transcript of Cox’s guilty plea and sentencing was filed in the circuit

court on November 30, 2011. Cox’s appointed counsel filed an amended motion for post-

conviction relief on June 11, 2012.

        Cox’s amended motion alleged that his plea counsel was ineffective because counsel:

(1) failed to advise Cox that the Court was not required to follow the sentencing

recommendations contained in the plea agreement; (2) failed to advise Cox that he could

withdraw his guilty plea; and (3) failed to advise Cox of available defenses should he choose to

go to trial.

        The circuit court held an evidentiary hearing on Cox’s amended motion on December 19,

2012, at which Cox’s plea counsel testified. On December 20, 2012, the motion court entered its

judgment denying Cox’s amended motion on the merits. This appeal followed.

                                              Analysis

        Cox raises a single claim on appeal: that the motion court erred in ruling on the merits of

his amended motion for post-conviction relief, because the amended motion was untimely. Cox

asks this Court to vacate the judgment of the motion court, so that he can then file a new motion

for post-conviction relief based on the contention that he was abandoned by post-conviction

counsel due to the untimely filing of the amended motion. See, e.g., Moore v. State, 328 S.W.3d

700, 702 (Mo. banc 2010) (noting that “abandonment traditionally excuses a late filing in two

situations: (1) when post-conviction counsel fails to file an amended motion and the record




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shows the movant was deprived of meaningful review of the claims; or (2) when post-conviction

counsel files an untimely amended motion”).

          Rule 24.035(g) provides that, where no direct appeal is taken, an amended motion for

post-conviction relief must be filed:

          within sixty days of the earlier of: (1) 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 or (2) the date both a complete transcript has been
          filed in the trial court and an entry of appearance is filed by any counsel that is not
          appointed but enters an appearance on behalf of movant.

Rule 24.035(g) authorizes the motion court to grant one extension of time, not to exceed thirty

days, for the filing of an amended motion.

          In this case, the motion court appointed the public defender’s office to represent Cox on

May 10, 2011. Cox’s guilty plea and sentencing transcripts were filed on November 30, 2011.

Accordingly, Cox’s amended motion was due on January 30, 2012 (since no extension of time

was requested or granted). The amended motion was not filed, however, until June 11, 2012,

133 days later. Although the amended motion was filed more than four months late, the motion

court held an evidentiary hearing on the motion, and ultimately denied Cox’s claims on their

merits.

          The State did not argue in the circuit court that Cox’s amended motion was untimely. As

Cox points out, however, the filing deadlines contained in the post-conviction relief rules are

mandatory, and cannot be waived. Dorris v. State, 360 S.W.3d 260, 270 (Mo. banc 2012). “It is

the court’s duty to enforce the mandatory time limits and the resulting complete waiver in the

post-conviction rules – even if the State does not raise the issue.” Id. at 268.

          While courts may have an obligation to enforce the filing deadlines found in Rules

24.035 and 29.15 on their own motion, this presumes that a live controversy exists concerning




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whether the movant is entitled to post-conviction relief. In this case, however, Cox does not

argue that he is legally entitled to post-conviction relief. He does not contend that the claims

asserted in his amended motion were meritorious. Nor does Cox assert that, because the

amended motion was untimely, the motion court should have instead considered, and granted

relief on, the claims asserted in his original pro se motion. Thus, Cox’s appellate briefing does

not argue that he is entitled to post-conviction relief either because the motion court erroneously

rejected a meritorious claim, or because it erroneously failed to consider a meritorious claim.

Cox merely argues that the motion court erred in considering the claims asserted in his amended

motion at all.

       To be successful on appeal, a party must do more than simply assert that the trial court

committed error. An assertion of error without a showing of how that error prejudiced the

appellant does not warrant reversal. Supreme Court Rule 84.13 makes this explicit: “No

appellate court shall reverse any judgment unless it finds that error was committed by the trial

court against the appellant materially affecting the merits of the action.” See also, e.g.,

Precision Elec., Inc. v. Ex-Amish Specialties, Inc., 400 S.W.3d 802, 812 (Mo. App. W.D. 2013)

(quoting Furlong Cos.v. City of Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006)). Cox has

raised no claim of prejudice, because he has not argued on appeal that he is entitled to withdraw

his guilty plea based on the claims asserted in either his original or amended post-conviction

relief motions. By failing to demonstrate that he was prejudiced by the motion court’s

disposition of the claims in his amended motion, Cox has failed to establish any basis for

reversal of the motion court’s judgment.

       Cox argues that he is entitled to vacatur of the motion court’s judgment, because it would

allow him to return to the circuit court and argue that he was abandoned by his appointed post-




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conviction counsel. Cox suggests that, if he were able to establish abandonment due to counsel’s

untimely filing of the amended motion, “a proper remedy for that abandonment [would be] the

appointment of new counsel and the filing of a new amended motion.”

       Cox is mistaken concerning the nature of an abandonment claim, and the relief to which

he would be entitled if the motion court found that he had been abandoned by post-conviction

counsel. Cox appears to contend that he was abandoned simply because of appointed counsel’s

untimely filing of the amended motion, even though the motion court actually considered the

amended motion on its merits. He also asserts that he would be entitled to the appointment of

new counsel, and the filing of an entirely new amended motion, based on that abandonment.

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. Thus, even if this Court vacated

the existing judgment and Cox attempted to establish abandonment, he would end up exactly

where he is now: with a denial of the ineffective assistance of counsel claims asserted in the

amended motion filed on June 11, 2012.

       The Missouri Supreme Court has made clear that “[i]f a court finds that a movant has

been abandoned, then the proper remedy is to put the movant in the place where the movant

would have been if the abandonment had not occurred.” Crenshaw v. State, 266 S.W.3d 257,

259 (Mo. banc 2008); accord, Stanley v. State, 420 S.W.3d 532, 543 & n.8 (Mo. banc 2014).

Appointment of new counsel may be an appropriate remedy where appointed counsel completely

fails to perform his or her obligations; where the abandonment consists solely of filing an

amended motion too late, however, “the motion court need only treat the tardy amendment as

timely in order to restore the intended effect of Rule 29.15(e)[, which is substantively identical to




                                                 5
Rule 24.035(e)].” Price v. State, 422 S.W.3d 292, 298 (Mo. banc 2014); see also, e.g., Gasa v.

State, 415 S.W.3d 141, 144 (Mo. App. S.D. 2013) (citing Sanders v. State, 807 S.W.2d 493, 495

(Mo. banc 1991)).

       Applying these principles, Morgan v. State, 296 S.W.3d 1 (Mo. App. E.D. 2009), held

that a movant claiming abandonment based on the late filing of an amended motion was not

entitled to relief because the motion court had already addressed the amended motion on the

merits. In Morgan, appointed post-conviction counsel attempted to file an amended motion by

facsimile on the last date for filing. Id. at 3. Facsimile filing was ineffective under the circuit

court’s local rules, however. Id. at 4. A copy of the amended motion was physically filed at the

court two days later, out of time; but the motion court addressed the merits of the amended

motion nonetheless. Id. at 3. In these circumstances, the Eastern District concluded that the

movant had not established any right to relief for abandonment, because the motion court had

already considered the merits of his untimely amended motion. The court explained:

       Having concluded that Appellant was abandoned by post-conviction counsel's
       failure to file a timely, verified amended motion, we must consider the available
       remedies. Depending on the circumstances of the case, a cause generally can be
       remanded with instructions either: (1) for the appointment of new counsel for the
       filing of an amended motion; or (2) for the motion court to treat the amended
       motion as timely filed. . . .

               Remanding to allow new counsel to file an amended motion is appropriate
       in situations where appointed counsel filed no motion nor took any action on
       behalf of the movant, which is not the case before us. Although Appellant takes
       issue with the sufficiency of the motion’s factual allegations, he does not argue in
       his Motion to Reopen that counsel failed to raise any known issues. Hence, it can
       only be said that Appellant was abandoned with regard to the timing of the motion
       and its verification, but not to the motion’s actual content. As such, the best
       remedy available to Appellant would be to remand the cause with instructions for
       the court to treat the previously filed motion as timely.

              Remanding in this case, however, would serve no purpose because the
       motion court already addressed the merits of the issues raised in the pro se and
       amended motions in its original order denying Appellant post-conviction relief. .
       . . Because the motion court fully considered the points raised in both the pro se


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        and amended motion, Appellant was not prejudiced by his counsel’s failure to
        timely file or verify the amended the motion.

Id. at 5 (citations omitted).1 Other cases reach the same result: a post-conviction relief movant

is not entitled to relief on the basis of abandonment if the motion court considered the merits of

an untimely filing.2

        Under these decisions, even if the untimely filing of Cox’s amended motion established

abandonment, Cox would only be entitled to have the amended motion reinstated, and addressed

on the merits. But that has already occurred, and Cox makes no claim that the motion court’s

merits ruling on the claims asserted in his amended motion is erroneous. A finding that the

amended motion was a nullity because it was untimely, and any subsequent finding that that

untimeliness resulted from counsel’s abandonment, would change nothing. Because Cox has

failed to establish that he was prejudiced by the circuit court’s consideration of the merits of the


        1
                 Morgan, and several of the cases cited in footnote 2, below, treat the questions of
abandonment by counsel, and prejudice to the movant as a result of abandonment, as distinct issues.
Thus, Morgan suggests that the movant was “abandoned” by the late filing of an amended motion, even
though the motion court considered the amended motion on the merits. We question this analytical
approach. The foundation of the “abandonment” doctrine has been to respond to situations in which the
actions or inactions of counsel have forfeited a movant’s right to meaningful review of his or her post-
conviction claims. Where a movant has in fact received a meaningful review of his or her claims despite
counsel’s actions or inactions, it would seem that no “abandonment” has occurred – not simply that
movant suffered no prejudice from an “abandonment.” This nuance does not affect the outcome of this
case, however, and we do not further address it.
        2
                 Kreidler v. State, 419 S.W.3d 870, 874-75 (Mo. App. S.D. 2013) (despite claim of
abandonment based on counsel’s untimely filing of original post-conviction relief motion, “[n]o remand is
necessary here because it would grant Movant what he has already received – an evidentiary hearing and
a merit-based ruling on the original motion”); Ballard v. State, 408 S.W.3d 327, 330-31 n.2 (Mo. App.
E.D. 2013) (“When an untimely amended motion for post-conviction relief is treated as timely and
addressed on the merits by the motion court, movant is not prejudiced by counsel’s failure to timely file
the motion and remand is not necessary.”); Harper v. State, 404 S.W.3d 378, 385-86 (Mo. App. S.D.
2013) (“when the abandonment alleged concerns only the timing of any filing, the best remedy is remand
with instructions to treat the filing as timely. Where the motion court has already treated the filing as
timely and ruled on the merits of the postconviction motion, remand would serve no purpose.” (citations
omitted)); Morgan v. State, 51 S.W.3d 550, 552-53 (Mo. App. E.D. 2001) (although circuit court’s docket
sheet did not reflect that amended motion was formally filed, the court addressed the merits of the claims
asserted in the amended motion; therefore, movant was not prejudiced by counsel’s apparent failure to
timely file the amended motion).


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claims asserted in his amended motion for post-conviction relief, it is unnecessary for this court

to address the timeliness issue. 3

                                              Conclusion

        The circuit court’s judgment, which denied Cox’s amended motion for post-conviction

relief, is affirmed.




                                                        Alok Ahuja, Judge
All concur.




        3
                 This case is distinguishable from cases like Miller v. State, 386 S.W.3d 225 (Mo. App.
W.D. 2012), and Oliver v. State, 196 S.W.3d 643 (Mo. App. S.D. 2006). In those appeals, the movants
argued that the motion court’s rejection of their post-conviction claims was erroneous. Before addressing
the merits of the post-conviction claims, however, the courts in Miller and Oliver held that it was
necessary to determine whether the movants’ post-conviction relief motions had been timely filed. In this
case, by contrast, Cox makes no merits argument at all; it is therefore unnecessary to resolve the
timeliness issue as a prerequisite to addressing his substantive claims.


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