BRETT ALLEN YELTON,                                 )
                                                    )
           Movant-Appellant,                        )
                                                    )
vs.                                                 )         No. SD34313
                                                    )
STATE OF MISSOURI,                                  )         Filed: December 7, 2016
                                                    )
           Respondent-Respondent.                   )

             APPEAL FROM THE CIRCUIT COURT OF WEBSTER COUNTY

                                Honorable Kenneth F. Thompson

REVERSED AND REMANDED

           Brett Allen Yelton ("Movant") appeals from the motion court's denial of

his Rule 24.035 motion for post-conviction relief after an evidentiary hearing.1

Movant raises two points on appeal: (1) that the motion court clearly erred in

failing to conduct an independent inquiry under Moore v. State, 458 S.W.3d

822 (Mo. banc 2015), into whether Movant was abandoned by post-conviction

counsel when post-conviction counsel filed an untimely amended motion and (2)

that the motion court clearly erred in denying Movant's oral motion for a

continuance made at the beginning of the post-conviction evidentiary hearing.

1   All rule references are to Missouri Court Rules (2016).
The State concedes reversal and remand is required based on Movant's first

point. We agree. Consequently, we need not address Movant's second point. We

reverse and remand, so the motion court can conduct an independent inquiry

into whether Movant was abandoned by post-conviction counsel.

                     Factual and Procedural Background

         We recount only those facts necessary to our review. Movant pleaded

guilty to one count of first-degree assault and one count of child abuse without

the benefit of a plea agreement. See § 565.050, RSMo (2000); § 568.060, RSMo

Cum. Supp. (2013). The trial court sentenced Movant to consecutive terms of life

imprisonment for first-degree assault and seven years' imprisonment for child

abuse.

         Movant was delivered to the Department of Corrections on January 8,

2015. Movant filed a pro se motion for post-conviction relief on February 2,

2015. The motion court appointed the public defender to represent Movant on

February 6, 2015, and the transcript of the guilty plea and sentencing

proceedings was filed on May 13, 2015. Appointed counsel did not request and

the motion court did not grant an extension of time in which to file the amended

motion for post-conviction relief. Movant's amended motion for post-conviction

relief was filed on September 9, 2015.

         The motion court held a hearing regarding the claims raised in Movant's

amended post-conviction motion on November 6, 2015. The motion court issued

findings of fact and conclusions of law denying Movant's amended motion for

post-conviction relief on December 7, 2015. The findings and conclusions do not



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discuss the untimely filing of the amended motion or whether Movant was

abandoned by post-conviction counsel. This appeal follows.

                                   Discussion

       Under Moore, appellate courts must sua sponte "determine whether

appointed counsel complied with the requirements of Rule 24.035(e), which

delineates the mandatory time limits for filing amended post-conviction

motions." Price v. State, 489 S.W.3d 358, 360 (Mo. App. S.D. 2016). Where,

as here, the movant did not appeal the judgement or sentence, the rule provides:

       the amended motion shall 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). Here, post-conviction counsel was appointed on February 6,

2015, and the transcript was filed on May 13, 2015. Thus, the time period began

to run on May 13, 2015, and the amended motion was due on Sunday, July 12,

2015. Pursuant to Rule 44.01(a), since the time period ended on a Sunday, the

time for filing the amended motion was automatically extended until the end of

Monday, July 13, 2015. As stated above, Movant's amended motion for post-

conviction relief was filed on September 9, 2015. Movant's amended motion for

post-conviction relief was untimely.

       "When appointed post-conviction counsel files an amended motion

outside the proscribed time limits, a presumption of abandonment occurs

'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

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amended motion timely.'" Price, 489 S.W.3d at 361 (quoting Moore, 458

S.W.3d at 825). In such circumstances, the motion court must complete an

independent inquiry to determine whether the movant was abandoned by post-

conviction counsel. Id. Here, there is nothing in the record to show the motion

court engaged in the required inquiry.

      The inquiry is essential because it "will determine which post-conviction

motion—Movant's pro se motion or the amended motion—should be adjudicated

by the motion court." Id. "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." Moore, 458

S.W.3d at 825. "If the motion court determines that the movant was abandoned

by appointed counsel's untimely filing of an amended motion, the court is

directed to permit the untimely filing." Id. at 826.

      Movant's first point is granted.

                                    Decision

      The motion court's judgment is reversed. The case is remanded for further

proceedings consistent with this opinion.


MARY W. SHEFFIELD, C.J. – OPINION AUTHOR

JEFFREY W. BATES, P.J. – CONCURS

DON E. BURRELL, J. – CONCURS




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