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Federhofer v. State

Court of Appeals of Missouri, Eastern District, Third Division

June 2, 2015

MICHAEL S. FEDERHOFER, Appellant,
v.
STATE OF MISSOURI, Respondent

Page 839

Appeal from the Circuit Court of St. Louis County. Hon. Robert S. Cohen.

FOR APPELLANT: Amy E. Lowe, St. Louis, MO.

FOR RESPONDENT: Chris Koster, Attorney General, Adam S. Rowley, Asst. Attorney General, Jefferson City, MO.

ROBERT G. DOWD, JR., Judge. Kurt S. Odenwald, P. J. and Gary M. Gaertner, Jr., J., concur.

OPINION

ROBERT G. DOWD, JR., Judge.

Page 840

Michael Federhofer (" Movant" ) appeals from the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant argues the motion court clearly erred in denying his motion without an evidentiary hearing because his plea counsel was ineffective for: (1) informing him he had to plead guilty to all of the charges if he wanted to plead guilty to any of the charges; and (2) failing to inform him of the option of entering an Alford[1] plea. We find the motion court's findings of fact and conclusions of law are not clearly erroneous and affirm.

Movant was pulled over and was being arrested for an outstanding warrant. When the police engaged him, he was uncooperative. A verbal confrontation escalated into a physical confrontation in which Movant struck a police officer. Movant later knowingly caused offensive physical contact with a security officer at St. Anthony's Hospital.

Movant was charged with resisting arrest, Section 575.150, RSMo 2000,[2] second-degree assault of a law enforcement officer, Section 565.082, driving while suspended, Section 302.321, and third-degree assault, Section 565.070. Movant pled guilty to the charges and was sentenced to four years of imprisonment for resisting arrest, seven years for second-degree assault, one year for driving while suspended, and fifteen days for third-degree assault.[3] All terms were to run concurrently.

Page 841

Thereafter, Movant filed a pro se Rule 24.035 motion for post-conviction relief. The motion court appointed counsel, and an amended motion was filed. The motion court entered findings of fact and conclusions of law, denying Movant's motion without an evidentiary hearing. This appeal follows.

Before addressing the merits, we are compelled under Moore v. State 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. 458 S.W.3d 822, 2015 WL 1735533 (Mo. banc April 14, 2015). If it is determined that an amended motion filed by appointed counsel is untimely, but there has been no independent inquiry into abandonment, then the case must be remanded to the motion court for such inquiry. Id. It is our duty to enforce the mandatory timelines in the post-conviction rules, but " the motion court is the appropriate forum to conduct such an inquiry" into abandonment. Id.

Rule 24.035(g) provides that where, as here, no 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 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." The court has authority to grant one thirty-day extension under Rule 24.035(g). In this case, counsel was appointed to represent the movant on October 21, 2013, and the transcript was filed on October 28, 2013. Therefore, the amended motion was due on December 27, 2013. Counsel filed her request for a thirty-day extension of time on January 9, 2014.[4] The State points out that this was filed after the initial sixty-day filing period and was therefore untimely and demonstrates abandonment by counsel. But the thirty-day extension of time was ultimately granted. Thus, as long as the amended motion was ultimately filed within the extension period, it is immaterial that the request for that extension was filed after the initial sixty-day period. Volner v. State,253 S.W.3d 590, 592 (Mo. App. S.D. 2008) (approving of request filed ...


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