Court of Appeals of Missouri, Western District, Third Division
SEAN A. PRICE, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI THE
HONORABLE CHRISTINE CARPENTER, JUDGE
Before: Victor C. Howard, Presiding Judge, Lisa White
Hardwick, Judge and Edward R. Ardini, Jr., Judge
R. ARDINI, JR., JUDGE
Price ("Price") appeals from a judgment denying his
Rule 29.15 motion for post-conviction relief. Price
argues that his trial counsel was ineffective during closing
argument and that, as a result, he suffered prejudice.
Price's amended Rule 29.15 motion was not timely filed,
however, so the motion court was required to first make an
independent inquiry into whether Price was abandoned by
post-conviction counsel. Because the motion court did not
make such an inquiry, we cannot reach the merits of
Price's ineffective assistance of counsel claim and must
reverse and remand the case to the motion court for a
determination as to whether the untimely amended motion was
the result of abandonment by Price's post-conviction
Factual and Procedural Background
was tried by a jury and convicted of two counts of statutory
sodomy in the first degree under section 566.062,
sentenced to concurrent terms of twenty-five years
imprisonment on each count. Price was represented by
appointed counsel from the public defender's office at
convictions were affirmed by this court in State v.
Price, 433 S.W.3d 472 (Mo. App. W.D. 2014), and our
mandate was issued on June 25, 2014. On September 15, 2014,
Price timely filed his pro se Motion to Vacate, Set
Aside or Correct the Judgment or Sentence under Supreme Court
Rule 29.15. On September 23, 2014, the motion court made the
following docket entry: "PCR motion filed. Copy to
Public Defender. Cause placed on January 2015 TSD." On
October 28, 2014, an attorney from the public defender's
office filed an entry of appearance and a motion for
extension of time to file an amended motion. The motion for
an extension of time was granted on November 3, 2014, and the
amended motion was filed on January 26, 2015.
amended motion raised a single claim for relief that was
distinct from those raised in the pro se motion, and
the amended motion did not incorporate any of the pro
se claims. The motion court held an evidentiary hearing
on the amended motion and later issued findings of fact and
conclusions of law denying Price's amended Rule 29.15
motion. The motion court did not address the claims in
Price's pro se motion or the timeliness of the
amended motion. Price timely appealed.
we can discuss the merits of Price's appeal, we are
compelled to first determine the issue raised by the State
that Price's amended motion was not timely filed.
McCullough v. State, 480 S.W.3d 439, 441 (Mo. App.
W.D. 2016). Rule 29.15(g) states, in relevant part, as
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.
29.15(g) further provides that the motion court can extend
this deadline once for a period not to exceed thirty days.
The time limit for filing an amended motion is controlled by
the date of first appointment or entry of appearance,
whichever date is earliest. Stanley v. State, 420
S.W.3d 532, 541 (Mo. banc 2014).
order to determine whether the amended 29.15 motion was
timely filed, we must first ascertain the date that counsel
was appointed. The record before us establishes that
counsel was appointed for Price on September 23, 2014, the
day the motion court sent a copy of the pro se 29.15
motion to the public defender's office and placed the
matter on its January docket. See Johnson v.
State, 491 S.W.3d 310, 312-13 (Mo. App. E.D. 2016),
reh'g and/or transfer denied (June 8, 2016);
see also Stanley, 420 S.W.3d at 540 ("[T]he
effective date of appointment of counsel is the date on which
the office of the public defender is designated rather than
the date of counsel's entry of appearance." (quoting
State v. White, 813 S.W.2d 862, 864 (Mo. banc
1991)). As a result, Price's amended motion was due a
maximum of 90 days later, or December 22, 2014. Price's
amended motion, however, was not filed until January 26,
2015, and was thus untimely.
untimely amended motion filed by post-conviction counsel
appointed to an indigent movant may constitute abandonment of
the movant. Moore v. State,458 S.W.3d 822, 825 (Mo.
banc 2015). "If… [the] amended motion filed by
appointed counsel is untimely, but there has been no
independent inquiry into abandonment, then the case should be
remanded to the ...