ANN MARGARET WILLIAMS,                              )
                                                    )
        Movant-Appellant,                           )
                                                    )
v.                                                  )        No. SD34223
                                                    )
STATE OF MISSOURI,                                  )        Filed: Nov. 10, 2016
                                                    )
        Respondent-Respondent.                      )

             APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

                                    Honorable Laura J. Johnson

REVERSED AND REMANDED

        Ann Margaret Williams (“Movant”) was convicted after a jury trial in 2011 for

promoting prostitution in the first degree and endangering the welfare of a child in the

first degree. See sections 567.050 and 568.045.1 Movant now appeals the “judgment”

denying her amended motion for post-conviction relief (“the amended motion”) after an

evidentiary hearing. See Rule 29.15(k). Her sole point claims the motion court erred in




1
 Movant’s convictions were affirmed on direct appeal in an unpublished opinion. State v. Williams, No.
SD31560, slip op. at 1 (Mo. App. S.D. Feb. 8, 2013) (per curiam). References to section 567.050 are to
RSMo 2000, and references to section 568.045 are to RSMo Cum. Supp. 2006. All rule references are to
Missouri Court Rules (2016).


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finding her trial counsel not ineffective for “failing to make an offer of proof when the

trial court sustained objections to questioning about appellant’s past.”

        We cannot reach the merits of Movant’s claim because we cannot determine from

the record whether the amended motion was timely filed. The judgment is reversed, and

the cause is remanded for further proceedings consistent with this opinion.

                                     Procedural History

        The mandate affirming Movant’s conviction was issued on February 26, 2013.

Her pro se motion was timely filed on May 24, 2013. See Rule 29.15(b). The pro se

motion alleged five separate claims for vacating Movant’s convictions based upon

allegations of: (1) evidence that the victim recanted some testimony; (2) a biased jury;

(3) the denial of a change in venue; (4) the failure to present five witnesses on Movant’s

behalf; and (5) insufficient evidence that Movant promoted prostitution. In her pro se

motion, Movant requested leave to proceed in forma pauperis, and she completed a

supporting affidavit attesting to her inability to pay the costs of her motion and declaring

her entitlement to “relief as a poor person.”

        The next recorded activity on the docket sheets is the May 31, 2013 entry of an

“Order of Notification” (“the notification order”). The notification order does not appear

in either the legal file or the trial transcript, no other docket entry expressly references the

appointment of counsel, and the legal file does not contain any written order of

appointment. The next activity listed in the docket sheets is the filing of an entry of

appearance by “STEPHEN J HARRIS” (“Movant’s counsel”) on July 18, 2013. A copy

of that written entry of appearance is not included in the legal file.




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            A docket entry dated September 17, 2013 notes: “Took file to Judge to look at

order for additional time to file amended motion.”2 Counsel for the State entered an

appearance. The next docket entry, dated September 23, 2013, bears the heading

“Order” and a subheading of “Amended Motion/Petition Filed[,]” but it contains no

other information. The amended motion in the legal file bears a file-stamp date of

September 23, 2013 next to a file-stamp date of September 16, 2013 that has been

crossed-out.

            As earlier noted, the amended motion raises a single claim: Movant received

ineffective assistance of counsel when “Movant’s trial counsel failed to make an offer of

proof when the trial court sustained the [p]rosecutor’s objections to direct examination

questioning about her past which may support her defense of lack of knowledge of the

sexual abuse perpetrated by” a third party against the victim.

            The transcript of the evidentiary hearing identifies Movant’s counsel as a member

of the “State Public Defender System[.]” The findings of fact and conclusions of law in

the judgment denying the amended motion stated that “[c]ounsel was appointed by this

Court and Movant’s appointed counsel timely filed [the amended motion].” While the

findings of fact included specific date references for the issuance of the mandate and the

filing of the pro se motion, no dates for the appointment of counsel, an extension of time

to file an amended motion, or the filing of the amended motion were included. Movant’s

notice of appeal identified the address for Movant’s counsel as the “Office of State Public

Defender[.]”




2
    This entry bears the initials “bss[.]”


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                           Timeliness of the Amended Motion

        “Before addressing the merits, we are compelled under Moore v. State[, 458

S.W.3d 822, 826 (Mo banc 2015),] to first examine the timeliness of amended motions in

each post-conviction case on appeal, even if the issue is not raised by either party.”

Childers v. State, 462 S.W.3d 825, 827 (Mo. App. E.D. 2015). Rule 29.15(e) requires

the motion court to appoint counsel “[w]hen an indigent movant files a pro se motion” for

post-conviction relief. The “automatic” appointment of counsel is triggered by the

indigent movant’s filing of “an affidavit of indigency with the Rule 29.15 motion.”

Bittick v. State, 105 S.W.3d 498, 502 (Mo. App. W.D. 2003). Rule 29.15(g) provides,

inter alia:

        If 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. The court may
        extend the time for filing the amended motion for one additional period
        not to exceed thirty days.

(Emphasis added.)

        Movant states in her brief that counsel’s request for an extension of time for filing

the amended motion was granted. The State responds that “[a]ppointed counsel made an

entry of appearance on July 18, 2013, and, on the same day, requested an extension of 30

days in which to file an amended motion.” Although the legal file does not include such

a request, we may treat the parties’ agreement in their briefs that there was one as though

the request were a part of the record. See Rogers v. Hester ex rel. Mills, 334 S.W.3d

528, 541 (Mo. App. S.D. 2010). Generally, however, we do not presume that an

extension under Rule 29.15 was granted. Cf., Frazee v. State, 480 S.W.3d 442, 445 (Mo.



                                              4
App. W.D. 2016) (a motion for an extension of time may be routinely granted, but we do

not presume that it was granted in the absence of such a record). Even if we could so

presume, it would be of no avail because the record in this case does not provide any

support for the motion court’s determination that the amended motion was timely filed.

       The calculation of when an amended motion is due is controlled by the earlier of:

(1) the date counsel is appointed or (2) the date “counsel that is not appointed . . . enters

an appearance[.]” See Rule 29.15(g) (emphasis added). Here, the record does not

indicate that Movant’s counsel was not appointed. Movant’s in forma pauperis affidavit

filed with her pro se motion attested to her indigency, and this circumstance triggered the

necessity of the appointment of counsel. See Bittick, 105 S.W.3d at 502 and Rule

29.15(e). The public defender is typically appointed in such instances, see Bennett v.

State, 88 S.W.3d 448, 450 (Mo. banc 2002), and Movant’s counsel is identified with the

public defender’s office. Nonetheless, there is no date of appointment identified in the

record, and the parties do not represent and agree in their briefs upon a particular date for

such an appointment. If counsel was appointed in the notification order on May 31,

2013, then the extended time for filing the amended motion would have expired on

August 29, 2013, rendering an amended motion filed on September 23, 2013 untimely.

       Moreover, if the amended motion was untimely filed, we cannot tell from the

record before us whether Movant’s counsel, in missing the deadline, had abandoned

Movant. “When an untimely amended motion is filed, the motion court has a duty to

undertake an ‘independent inquiry under Luleff [v. State, 807 S.W.2d 495 (Mo. banc

1991),]’ to determine if abandonment occurred.” Moore v. State, 458 S.W.3d 822, 825

(Mo. banc 2015). “When the independent inquiry is required but not done, this Court




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will remand the case because the motion court is the appropriate forum to conduct such

an inquiry.” Id. at 826.

         The judgment is reversed, and the matter is remanded to the motion court to make

an independent inquiry into the date upon which Movant’s counsel was appointed and

determine whether motion counsel abandoned Movant by untimely filing the amended

motion.3

DON E. BURRELL, J. – OPINION AUTHOR

JEFFREY W. BATES, P.J. – CONCURS

MARY W. SHEFFIELD, C.J. – CONCURS




         3
          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. 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 825-26 (citations omitted).


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