               In the Missouri Court of Appeals
                                 Western District

RICHARD WESLEY WILLIAMS,          )
                       Appellant, )
v.                                )                  WD78881
                                  )
STATE OF MISSOURI,                )
                     Respondent. )                   FILED: November 8, 2016

     APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
              THE HONORABLE DANIEL F. KELLOGG, JUDGE

        BEFORE DIVISION THREE: VICTOR C. HOWARD, PRESIDING JUDGE,
         LISA WHITE HARDWICK AND EDWARD R. ARDINI, JR., JUDGES

      Richard Williams appeals the judgment denying his Rule 29.15 motion for

post-conviction relief after he was convicted of first-degree murder and armed

criminal action. He contends the motion court erred in denying his request for

post-conviction relief without first determining the timeliness of his amended

motion. He also argues the court erred in denying one of his ineffective assistance

of counsel claims. Because we find that Williams's amended motion was untimely

and the motion court did not adjudicate all of the claims raised in his pro se and

amended motions, we reverse the judgment and remand the case to the motion

court for further proceedings consistent with this opinion.
                          FACTUAL AND PROCEDURAL HISTORY

      In May 2010, Williams stabbed and killed John Joslin. After a jury convicted

Williams of first-degree murder and armed criminal action, he was sentenced to

consecutive terms of life in prison without the possibility of parole for the murder

conviction and 30 years in prison for the armed criminal action conviction. We

affirmed his convictions and sentences on direct appeal in State v. Williams, 386

S.W.3d 925 (Mo. App. 2012).

      On March 11, 2013, Williams timely filed a pro se Rule 29.15 motion

alleging 23 claims. On March 13, 2013, the motion court appointed the Office of

the Public Defender ("PCR counsel") to represent him. Ninety-one days later, on

June 13, 2013, PCR counsel filed an amended Rule 29.15 motion that raised five

new claims and incorporated nine of Williams's claims from his pro se motion.

Following an evidentiary hearing, the motion court issued findings of fact and

conclusions of law denying the claims raised and incorporated in Williams's

amended Rule 29.15 motion. Williams appeals.

                                      ANALYSIS

      In Point I, Williams contends the motion court erred in denying his request

for post-conviction relief without first determining the timeliness of his amended

motion. He argues that, if the court had considered the timeliness of the amended

motion, it would have found that the motion was untimely and that he was

abandoned by PCR counsel. Williams requests that we reverse the motion court's

judgment and remand the case to the motion court to conduct an independent

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inquiry as to whether he was abandoned by PCR counsel. The State agrees that

Williams's amended motion was untimely and that the judgment should be reversed

and remanded to the motion court to determine the issue of abandonment.

       Looking first at the issue of the timeliness of the amended motion, Rule

29.15(g) provides the time limits for the filing of an amended motion after the

judgment was directly appealed:

       [T]he 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. The
       court may extend the time for filing the amended motion for one
       additional period not to exceed thirty days.

       In this case, we issued our mandate in the direct appeal on January 9,

2013, and the motion court appointed PCR counsel on March 13, 2013.

Sixty calendar days following appointment of PCR counsel was Sunday, May

12, 2013. Because this date fell on a weekend, the amended motion was

due on the next business day, which was Monday, May 13, 2013. At PCR

counsel's request, the motion court granted a 30-day extension to file an

amended motion. With this extension, Williams's amended motion was due

on or before June 12, 2013.1 PCR counsel filed the amended motion on




1
  In the order granting PCR counsel's request for an extension, the motion court erroneously stated
that PCR counsel had until June 13, 2013, to file an amended motion. The motion court had no
authority to extend the deadline for filing an amended motion beyond the single 30-day extension
allowed in Rule 29.15(g). See Riley v. State, 945 S.W.2d 21, 23 (Mo. App. 1997).

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Thursday, June 13, 2013. Therefore, Williams's amended motion was

untimely.

      An untimely amended motion creates a presumption that PCR counsel

abandoned movant. See Moore v. State, 458 S.W.3d 822, 824 (Mo. banc

2015). Accordingly, "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)).

While it is our responsibility to enforce the mandatory timelines in post-

conviction rules, "the motion court is the appropriate forum to conduct [an

abandonment] inquiry." Id. at 826. The motion court in this case did not

conduct an independent inquiry into whether PCR counsel abandoned

Williams.

      If the amended motion was untimely and the motion court did not

make an independent inquiry into whether post-conviction counsel

abandoned movant, we should remand the case to the motion court to

conduct such an inquiry. Childers v. State, 462 S.W.3d 825, 827 (Mo. App.

2015). An exception to this rule is where a remand would be unnecessary.

Id. at 828. A remand is unnecessary where the motion court has

adjudicated all of the claims raised in both the pro se and amended motions.

Id. This is because the remedy where abandonment is found is to permit the

untimely filing of the amended motion and review the claims therein;

conversely, where no abandonment is found, review is limited to only the

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claims raised in the pro se motion. Id. If the motion court adjudicated all of

the claims raised in both the pro se and amended motions with written

findings of fact and conclusions of law, a remand would be pointless,

because the movant has "received all the process to which he is entitled."

Id. See also Bustamante v. State, 478 S.W.3d 431, 435 n.2 (Mo. App.

2015).

       Here, the motion court did not adjudicate all of the claims in Williams's

pro se motion. While the court denied relief for the nine claims from the pro

se motion that were incorporated into the amended motion, the court did not

address the remaining 14 claims that Williams raised in his pro se motion.

The remaining 14 claims from the pro se motion were distinct from those

raised or incorporated in the amended motion.2 Accordingly, it is possible

that the motion court considered the wrong motion, and a remand is

necessary to resolve the abandonment question. Frazee v. State, 480

S.W.3d 442, 446 (Mo. App. 2016). Point I is granted.




2
  While the claims raised or incorporated in the amended motion alleged ineffective assistance of
trial counsel, the remaining 14 claims from the pro se motion alleged prosecutorial misconduct, trial
court error, and ineffective assistance of appellate counsel.


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                                      CONCLUSION

       The motion court's judgment is reversed, and the case is remanded to

allow the motion court to conduct an independent inquiry into whether

Williams was abandoned by PCR counsel.3




                                                    ____________________________________
                                                    LISA WHITE HARDWICK, JUDGE
ALL CONCUR.




3
  Because we are reversing the motion court's judgment and remanding for an independent inquiry
into abandonment, we do not consider the merits of Williams's claim in Point II. See Moore, 458
S.W.3d at 826 n.4.

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