                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISION ONE

DOMINIC LAMAR HAWKINS,                       )       No. ED102065
                                             )
       Movant/Appellant,                     )       Appeal from the Circuit Court
                                             )       of the City of St. Louis
                                             )       1122-CC01635
vs.                                          )
                                             )
STATE OF MISSOURI                            )       Honorable Thomas C. Grady
                                             )
       Respondent.                           )       FILED: November 17, 2015


                                            OPINION

       Dominic Lamar Hawkins (Movant) appeals from the motion court’s entry of judgment

denying his Rule 29.15 motion for post-conviction relief. We reverse the motion court’s

judgment and remand for an inquiry into whether Movant was abandoned by his post-conviction

counsel.

                               Factual and Procedural Background

       A jury convicted Movant of two counts of first-degree assault and two counts of armed

criminal action. Movant was sentenced to four concurrent terms of 18 years’ imprisonment.

Movant appealed to this Court, and we affirmed his convictions and sentences in State v.

Hawkins, 327 S.W.3d 626 (Mo. App. E.D. 2010).

       On January 12, 2011, this Court issued its mandate in Movant’s direct appeal. On April

11, 2011, Movant filed his pro se motion for post-conviction relief asserting several claims of
ineffective assistance of his trial counsel and violations of his due process rights. On June 7,

2001, the court appointed post-conviction counsel to represent Movant. On June 15, 2011, post-

conviction counsel entered an appearance on behalf of Movant and requested 30 additional days

to file an amended PCR motion. On June 20, 2011, the motion court granted the request. Post-

conviction counsel did not file the amended PCR motion until February 6, 2012.

       In the amended PCR motion, Movant also alleged that his trial counsel was ineffective

for promising the jury during his opening statement that the jury would hear Movant’s testimony

even though trial counsel was aware that Movant did not plan to testify unless a particular

witness also would testify. Movant alleged that when trial counsel made the statement, he knew

he had not secured the presence of the witness and, thus, he knew Movant’s decision to testify

was uncertain. Movant alleged that, when he subsequently did not testify, he was prejudiced

because the jury was allowed to infer that his testimony would have been unfavorable. The

amended PCR motion also requested an evidentiary hearing.

       On January 24, 2014, the motion court held a hearing on the amended PCR motion in

which Movant and his trial counsel testified. The motion court subsequently issued its findings

of fact, conclusions of law, and judgment denying Movant’s requests for post-conviction relief.

This appeal followed.

                                        Standard of Review

       This Court’s review of the denial of a motion for post-conviction relief is limited to

determining whether the motion’s court’s findings of fact and conclusions of law are clearly

erroneous. Rule 29.15(k). “Findings and conclusions are erroneous if, after reviewing the entire

record, we are left with the definite impression that a mistake has been made.” Blackburn v.




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State, 2015 WL 5135192 *2 (Mo. App. E.D. 2015), citing Zink v. State, 278 S.W.3d 170, 175

(Mo. banc 2009).

                                           Discussion

       In his sole point on appeal, Movant claims the trial court erred in denying his PCR

motion because the record reflects that Movant’s trial counsel was ineffective for promising

during opening statement that the jury would hear Movant’s testimony. Movant argues that trial

counsel’s statement constituted ineffective assistance because, when he made this promise,

counsel was aware that the decision about whether Movant would testify was uncertain. Movant

further argues that counsel was ineffective in making the statement and then allowing the jury to

draw a negative inference when Movant did not testify and that such ineffectiveness prejudiced

him in that the jury inferred that Movant’s testimony would have been unfavorable. Movant

requests that we grant him a new trial.

       In response, the State argues that Movant’s amended PCR motion was not timely filed

and that the record does not reveal any finding by the motion court that Movant was abandoned

by post-conviction counsel; thus, this Court should remand Movant’s case so that the motion

court can determine whether the untimely filing of Movant’s amended PCR motion was due to

abandonment by post-conviction counsel.

       Rule 29.15(g) governs the filing of an amended post-conviction motion. It provides, in

pertinent part, that if an appeal of the judgment sought to be vacated, set aside, or corrected is

taken, then the amended post-conviction 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.” Rule 29.15(g).




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“The court may extend the time for filing the amended motion for one additional period not to

exceed thirty days.” Id.

       “[W]hen post-conviction counsel is appointed to an indigent movant, an amended motion

filed beyond the deadline in Rule 29.15(g) can constitute ‘abandonment’ of the movant.” Moore

v. State, 458 S.W.3d 822, 825 (Mo. banc 2015). “Abandonment by appointed counsel extend[s]

the time limitations for filing an amended Rule 29.15 motion.” Moore, 458 S.W.3d at 825

(internal quotation omitted). “When an untimely amended motion is filed, the motion court has a

duty to undertake an independent inquiry . . . to determine if abandonment occurred.” Id.

(internal quotation omitted). The motion court should not permit the filing of the amended

motion and should proceed with adjudicating the initial post-conviction motion if the court finds

that the movant has not been abandoned. Id. On the contrary, if the motion court finds that the

movant was abandoned by appointed counsel’s untimely filing of the amended motion, the court

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

       Here, the motion court appointed post-conviction counsel on June 7, 2011, so Movant’s

amended PCR motion was due August 6, 2011, which was 60 days after both the mandate of the

appellate court had been issued and post-conviction was appointed. August 6, 2011, was a

Saturday, so the due date for the amended PCR motion fell to the next business day, Monday,

August 8, 2011. As the State notes in its responsive brief, the motion court granted post-

conviction counsel’s request for an additional 30 days to file the amended PCR motion;

therefore, the motion was due on September 7, 2011. However, the amended PCR motion was

not filed until February 6, 2012.

       This untimely filing of the amended PCR motion gave rise to the motion’s court’s duty to

undertake an independent inquiry to determine if abandonment of post-conviction counsel had




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occurred. Moore, 458 S.W.3d at 825. In its findings of fact, conclusions of law, and judgment,

the motion court did not make the independent inquiry. “When the independent inquiry is

required but not done, this Court will remand the case because the motion court is the

appropriate forum to conduct such an inquiry.” Id. “The result of the inquiry into abandonment

determines which motion – the initial motion or the amended motion – the court should

adjudicate.” Id. Accordingly, we reverse and remand the case without deciding the merits of

Movant’s appeal.

                                           Conclusion

       For the foregoing reasons, the motion court’s judgment denying Movant’s amended PCR

motion is reversed and the case is remanded for an independent inquiry to determine whether

Movant was abandoned by post-conviction counsel and for further proceedings consistent with

the outcome of the court’s inquiry.



                                             _____________________________
                                             Mary K. Hoff, Judge


Robert G. Dowd, Jr., Presiding Judge and Roy L. Richter, Judge, concur.




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