CHARLES K. MOORE, Appellant,
STATE OF MISSOURI, Respondent
Argued and Submitted November 13, 2014
APPEAL FROM THE CIRCUIT COURT OF ST. FRANCOIS COUNTY. The Honorable Sandra Martinez, Judge.
Moore was represented by Jessica M. Hathaway of the public defender's office is St. Louis.
The state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.
JUDGE Russell, C.J., Stith, Draper, and Teitelman, JJ., concur; Fischer, J., concurs in separate opinion filed; Wilson, J., dissents in separate opinion filed.
Charles K. Moore appeals the judgment overruling his amended Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Mr. Moore's amended motion was filed out of time, creating a presumption of abandonment on the record. The motion court ruled on the amended motion without an independent inquiry into whether Mr. Moore was actually abandoned by appointed counsel. Because the existence of abandonment affects whether the claims in the amended motion have been waived, the Court reverses the motion court's judgment and remands the case.
Factual and Procedural Background
In 2010, a jury convicted Mr. Moore of second-degree assault of a probation and parole officer for kicking a chair at a probation and parole officer and walking toward the officer with a clenched fist. Mr. Moore was sentenced as a persistent felony offender to a term of 15 years in prison to run consecutively to the other sentences he was serving at the time. The court of appeals issued its mandate affirming Mr. Moore's conviction on April 18, 2012. See State v. Moore, 362 S.W.3d 509 (Mo. App. 2012).
On June 20, 2012, Mr. Moore timely filed a pro se Rule 29.15 motion, and the motion court appointed post-conviction counsel to represent Mr. Moore in the proceeding. Ninety-one days later, on September 19, 2012, Mr. Moore's appointed counsel filed an amended motion alleging two claims of ineffective assistance of counsel: (1) that trial counsel was ineffective for filing a motion for change of judge and then withdrawing it against Mr. Moore's wishes; and (2) that trial counsel was ineffective for failing to seek a change of judge because the judge presiding over Mr. Moore's trial previously worked as a prosecuting attorney and was " involved" in a prior prosecution of Mr. Moore.
The motion court overruled the amended motion without an evidentiary hearing. The court found that trial counsel withdrew the motion for change of judge in Mr. Moore's presence and with his consent in open court and that Mr. Moore failed to allege prejudice " sufficient to trigger relief." Mr. Moore appeals. After an OPINION of appeals, the case was transferred to this Court. Mo. Const. art. V, sec. 10.
Presumption of Abandonment by Appointed Counsel
Rule 29.15(g) governs the filing of an amended post-conviction motion. It provides in pertinent part:
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.
Post-conviction counsel was appointed on June 20, 2012, after the mandate in Mr. Moore's appeal issued. Therefore, the amended motion was due on or before August 20, 2012. See id. While the rule allows for an extension of time up to 30 days, the record in this case fails to show that Mr. Moore's appointed counsel requested, or that the motion court on its own motion granted, an extension. Accordingly, the amended motion filed on September 19, 2012, was not timely.
Nevertheless, when 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. Price v. State, 422 S.W.3d 292, 298 (Mo. banc 2014); McDaris v. State, 843 S.W.2d 369, 371 (Mo. banc 1992); Sanders v. State, 807 S.W.2d 493, 494-95 (Mo. banc 1991). Abandonment by appointed counsel " extend[s] the time limitations for ...