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Parker v. State

Court of Appeals of Missouri, Eastern District, First Division

October 25, 2016

DARON J. PARKER, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of St. Louis County 14SL-CC03759 Honorable John D. Warner, Jr. Judge.

          LISA P. PAGE, JUDGE.

         INTRODUCTION

         Daron J. Parker ("Defendant") appeals the judgment of the motion court denying, without an evidentiary hearing, his Rule 24.035 motion for post-conviction relief. We reverse and remand because Defendant's amended motion was untimely filed, and the motion court did not conduct an independent abandonment inquiry.

         BACKGROUND

         Defendant was charged with one count of assault in the first degree, in violation of Section 565.050[1], and one count of armed criminal action, in violation of section 571.015. Two attorneys (together, "Plea Counsel") entered appearances on behalf of Defendant.

         On July 18, 2014, Defendant appeared in court with Plea Counsel and pleaded guilty to both charges, pursuant to a plea agreement. During the plea hearing, the court questioned Defendant about Plea Counsel's performance, and found no evidence to indicate either of the attorneys were ineffective. Defendant was sentenced to nine years for the assault and three years for the armed criminal action, the sentences to run concurrently.

         On October 16, 2014, Defendant timely filed a pro se Rule 24.035 motion for postconviction relief. On December 8, the transcripts of the guilty plea and sentencing hearing were filed. On December 19, the motion court appointed the Missouri State Public Defender's Office to represent Defendant. On January 9, 2015, "PCR Counsel" entered her appearance and requested an additional thirty days to file an amended motion, which the court granted. PCR Counsel filed the amended motion on March 25, 2015.

         The amended motion raised one claim of ineffective assistance of counsel, based on Plea Counsel's alleged conflict of interest-a claim that was distinct from Defendant's pro se motion. The court denied the claim without an evidentiary hearing. This appeal follows.

         DISCUSSION

         Defendant offers one point on appeal. However, we do not reach the merits as we reverse and remand for the trial court to conduct an abandonment inquiry.

         Abandonment

         Prior to addressing the merits regarding a movant's post-conviction appeal, this court is obligated to, sua sponte, "first examine the timeliness of amended motions in each postconviction case on appeal, even if the issue is not raised by either party." Lomax v. State, 471 S.W.3d 358, 359 (Mo. App. E.D. 2015) (citing Moore v. State, 458 S.W.3d 822 (Mo. banc 2015)).

         A. Overview of ...


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