Court of Appeals of Missouri, Southern District, First Division
LUCAS L. CAMPBELL, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin
Holden, Circuit Judge
JEFFREY W. BATES, P.J. - OPINION AUTHOR
Campbell (Movant) appeals from the denial of his pro
se motion to allow the untimely filing of an amended
motion in his Rule 29.15 post-conviction proceeding due to
alleged abandonment by appointed counsel. Because the motion
court's order denying the motion was not clearly
erroneous, we affirm.
was charged in the Circuit Court of Greene County with
committing murder in the first degree. After a jury trial, he
was found guilty of that offense on June 20, 2006. On July
21, 2006, he was sentenced to serve life in prison without
the possibility of parole.
direct appeal, Movant's conviction and sentence was
affirmed by this Court on April 22, 2008. See State v.
Campbell, 254 S.W.3d 203 (Mo. App. 2008). Mandate issued
on May 9, 2008.
23, 2008, Movant timely filed a pro se Rule 29.15
motion for post-conviction relief (PCR). See Rule
29.15(b). This 41-page motion, accompanied by seven exhibits,
contained extremely detailed factual and legal grounds in
support of the 11 claims for relief. On July 25, 2008, the
motion court appointed the Public Defender's Office to
represent Movant. Movant's appointed PCR counsel entered
his appearance on August 5, 2008. On October 27, 2008, PCR
counsel filed a verified statement in lieu of an amended
motion. In relevant part, PCR counsel stated the following
In the preparation of movant's postconviction relief
case, counsel has discussed this case with movant over the
telephone, corresponded with trial counsel about the case,
and has reviewed the following: trial and sentencing
transcripts from the underlying criminal case, relevant court
documents from the criminal case, the trial and appeal files
created by movant's former trial and appellate attorney
including police reports, medical reports, pre-trial
depositions, correspondence, research, appellate briefs,
appellate opinion, and the pro se Form 40 motion and
attachments filed by movant in the postconviction case. Based
on this review, counsel has determined that all facts
supporting the claims are asserted in the pro se
motion and all claims known to the movant are alleged in the
pro se motion. Counsel apprised movant of his intent
to not file an amended motion by phone conversation on
October 23, 2008 and by mailing a copy of this statement on
October 23, 2008. Pursuant to Rule 29.15(e), Movant may file
a reply to this statement by counsel not later than ten days
after this statement is filed.
filed no reply. On November 13, 2008, the motion court
conducted an evidentiary hearing on the pro se
motion at which PCR counsel appeared and participated. On
October 1, 2009, the motion court entered an order denying
relief, accompanied by detailed findings of fact and
conclusions of law.
appealed. On November 23, 2010, this Court affirmed the
denial of Movant's post-conviction motion in an
unpublished order and statement. Campbell v. State,
January 2016, Movant filed a pro se motion to
"open his original" post-conviction proceeding due
to alleged abandonment by counsel. The motion alleged that
Movant was abandoned by PCR counsel because he filed a
statement in lieu, rather than an amended motion. In March
2016, the motion court denied Movant's motion to reopen
due to abandonment. This appeal followed.
review the motion court's denial of a motion for
post-conviction relief due to abandonment for clear error.
Scott v. State, 472 S.W.3d 593, 596 (Mo. App. 2015).
In Point 1, Movant contends he was abandoned by PCR counsel
because that attorney filed a statement in lieu, rather than
an amended motion. We disagree. PCR counsel stated under oath
in his statement that he: (1) discussed the case with Movant
and trial counsel; (2) reviewed the relevant case records;
and (3) determined that all facts and claims were asserted in
the pro se motion. PCR counsel also stated that he
"apprised movant of his intent to not file an amended
motion by phone conversation on October 23, 2008 and by
mailing a copy of this statement on October 23, 2008."
After receiving such notice, Movant did not file a reply as
permitted by Rule 29.15(e).
as relevant here, abandonment occurs when appointed counsel
fails "to file an amended motion or a statement
setting out the facts demonstrating that no motion need
be filed …." Barton v. State,
486 S.W.3d 332, 337 (Mo. banc 2016) (italics added). It is
well settled that, when post-conviction counsel complies with
Rule 29.15(e) and files a statement in lieu of an amended
motion, there is no abandonment. See, e.g.,
Mason v. State, 488 S.W.3d 135, 140 (Mo. App. 2016);
Scott, 472 S.W.3d at 596-97; Pennell v.
State, 467 S.W.3d 367, 374-75 (Mo. App. 2015); Bain
v. State, 407 S.W.3d 144, 147-48 (Mo. App. 2013);
Dean v. State, 314 S.W.3d 402, 406 (Mo. App. 2010).
By investigating the case and filing a statement complying
with Rule 29.15(e), PCR counsel did not abandon Movant. Point
1 is denied.
Point 2, Movant contends the motion court lacked
subject-matter jurisdiction because the State did not file a
written felony information charging Movant with a crime.
Because this allegation was unrelated to any alleged
abandonment by counsel, the motion court could not consider
This new claim was waived by not being included as part of
the 11 claims set out in Movant's original pro
se motion, and Movant could not raise it in a successive