Court of Appeals of Missouri, Eastern District, Fourth Division
Not Final until expiration of the rehearing period. See MO R RCP Rule 84.16 regarding unpublished opinions.
Appeal from the Circuit Court of St. Louis County. Honorable Michael T. Jamison.
For appellant: Gwenda R.Robinson, Assistant Public Defender, St. Louis, MO.
For respondent: Dora A. Fichter, Assistant Attorney General, Jefferson City, MO.
Patricia L. Cohen, Judge. Sherri B. Sullivan, P.J., and Kurt S. Odenwald, J., concur.
Patricia L. Cohen,
Ezell Roberts (Movant) appeals the judgment of the Circuit Court of St. Louis County denying, after an evidentiary hearing, his Rule 29.15 motion for post-conviction relief. We reverse and remand for an inquiry into whether Movant was abandoned by post-conviction counsel.
Factual and Procedural Background
A jury convicted Movant of fifteen counts of statutory rape and statutory sodomy perpetrated against his step-daughter over the course of several years, beginning when she was nine years old. The trial court sentenced Movant to nine 30-year prison terms and six 7-year prison terms, all to run concurrently. This court affirmed Movant's convictions and sentences. State v. Roberts, 388 S.W.3d 584 (Mo. App. E.D. 2012).
On April 4, 2013, Movant filed a timely pro se motion for post-conviction relief asserting seven claims of ineffectiveness of counsel. On May 16, Movant's counsel entered an appearance and requested additional time to file an amended motion. The court granted that request May 20. Movant's amended motion was due August 14 ( i.e., ninety days after counsel's May 16 entry of appearance and request for time). Counsel filed the motion out of time on August 20. In the amended motion, Movant claimed that his trial counsel was ineffective for failing to: (1) adduce into evidence the victim's diary; (2) investigate and interview certain potential witnesses; and (3) adequately cross-examine the victim about a letter she wrote to Movant that was not disclosed to the State and thus not admitted at trial.
On January 24, 2014, the motion court held a hearing on Movant's motion. The untimeliness of the motion was not discussed, and the motion court denied the motion on the merits. Movant now appeals and asserts that the court clearly erred by: (1) failing to make an independent inquiry whether Movant's post-conviction counsel abandoned him by filing his amended motion out of time; and (2) denying Movant's claim ...