STEWART R. HOPKINS, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J.
Johnson, Circuit Judge
Steffen Rahmeyer, J.
R. Hopkins ("Movant") appeals the motion
court's denial without an evidentiary hearing of his
request for post-conviction relief under Rule
29.15. In his first point, Movant now asserts,
and the State appears to agree, that (1) Movant's amended
motion for post-conviction relief was filed untimely because
an order of notification by the motion court was an
appointment of counsel, (2) Movant's pro se
motion for post-conviction relief contained claims not
included in Movant's amended motion for post-conviction
relief, and (3) the motion court did not conduct an
independent inquiry into whether motion counsel had abandoned
Movant. The motion court's judgment adjudicates only
Movant's amended motion, and, though Movant's pro
se motion is difficult to understand fully, we agree
that the pro se motion appears to include claims
that are not included in the amended motion. There also is no
indication in the record that the motion court undertook an
independent inquiry to determine if Movant was abandoned by
motion counsel. Both parties request that we reverse and
remand the case to the motion court for an independent
inquiry into whether motion counsel abandoned Movant.
order of notification at issue in this appeal stated:
the Court orders the Circuit Clerk to notify the Central
Appellate Division for the State Public Defender of the
filing of this 24.035 [sic] action and to provide
the State Public Defender with a copy of Movant's Form
The Circuit Clerk is ordered to furnish to the State Public
Defender any and all pleadings from this file or the
underlying criminal case that the State Public Defender may
parties inform us that the issue of whether a notification to
counsel is an appointment of counsel where the notification
fails to expressly state it is not an appointment of
the counsel to whom it is directed, as in this case, is
currently pending before the Supreme Court in State v.
Creighton, SC95527 (transferred by the Supreme Court
after opinion by the Eastern District in State v.
Creighton, No. ED102030, 2015 WL 9240967 (Mo.App. E.D.
Dec.15, 2015)). In the Eastern District's now vacated
opinion,  the Eastern District treated a
notification that appears similar to the order of
notification in this case as an appointment. We choose to
follow the Eastern District's reasoning, and treat the
order of notification in this case as an appointment of
result, Movant's amended motion for post-conviction
relief was filed untimely under Rule 29.15(g). Our mandate in
Movant's direct appeal issued May 21, 2014, and, under
Rule 29.15(b), Movant's pro se motion for
post-conviction relief filed July 16, 2014, was timely. The
order of notification (which we treat as an appointment of
counsel) was entered August 18, 2014, and, on October 1,
2014, the motion court granted an additional thirty days to
file an amended motion for post-conviction relief. Under Rule
29.15(g), an amended motion was due ninety days after August
18, 2014, or November 16, 2014, except that November 16 was a
Sunday so November 17 was the actual deadline for an amended
motion pursuant to Rules 29.15(a) and 44.01(a). Motion
counsel filed an amended motion, but did not do so until
December 26, 2014.
recently observed in the related context of a request for
post-conviction relief under Rule 24.035:
When appointed post-conviction counsel files an amended
motion outside the proscribed time limits, a presumption of
abandonment occurs "because the filing of the amended
motion indicates that counsel determined there was a sound
basis for amending the initial motion but failed to file the
amended motion timely." Moore [v.
State], 458 S.W.3d [822, ] 825 [Mo. banc 2015]
Where there exists a presumption of abandonment, the motion
court is required to undertake an independent inquiry to
determine whether Movant was in fact abandoned by appointed
counsel. Id. Such an inquiry will determine which
post-conviction motion-Movant's pro se motion or
the amended motion-should be adjudicated by the motion
court. Id. at 826. There is nothing in the record
here to indicate that the required independent inquiry into
the issue of abandonment was undertaken by the motion court,
thus remand is appropriate.
Price v. State, 489 S.W.3d 358, 361 (Mo.App. S.D.
2016) (internal footnotes omitted). If, on remand, the motion
court determines Movant was not abandoned, the motion court
should not consider Movant's amended motion and
adjudicate Movant's pro se motion. If, on the
other hand, the motion court determines on remand that Movant
was abandoned, the motion court should adjudicate
Movant's amended motion. Moore v. State, 458
S.W.3d 822, 825-26 (Mo. banc 2015).
motion court's judgment is reversed, and the case is
remanded for further proceedings as required by
Moore. And, in light of the fact the issue of
whether a notification is an appointment of counsel where the
notification fails to expressly state it is not an
appointment of counsel is currently pending before the
Supreme Court, we order that this case be transferred to the
Supreme Court pursuant to Rule 83.02.
E. Scott, J. - Concurs William W. ...