Court of Appeals of Missouri, Western District, First Division
ANTHONY T. GRAVES, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI THE
HONORABLE KEVIN CRANE, JUDGE
Before: James E. Welsh, Presiding Judge, Anthony Rex Gabbert,
Judge and Edward R. Ardini, Jr., Judge
R. ARDINI, JR., JUDGE
Graves ("Graves") appeals from a judgment denying
his Rule 29.15 motion for post-conviction relief seeking
to set aside his convictions for second-degree murder, armed
criminal action, and unlawful use of a weapon. Graves argues
that his trial counsel was ineffective owing to a failure to
investigate and present certain evidence at trial, and that,
as a result, he suffered prejudice. We find that Graves'
amended Rule 29.15 motion was not timely filed, however,
meaning that the motion court was required to first make an
independent inquiry into whether Graves was abandoned by
post-conviction counsel. Because no such inquiry was made, we
cannot reach the merits of Graves' ineffective assistance
of counsel claim and must remand the case to the motion court
for a determination as to whether the untimely amended motion
was the result of abandonment by Graves' post-conviction
and Procedural Background
was charged in the Circuit Court of Boone County with one
count of second-degree murder, one count of armed criminal
action, and one count of unlawful use of a weapon arising
from his actions during a confrontation with a group of
individuals that resulted in the death of Deaudre Johnson.
Graves was tried by a jury in a two-day trial beginning on
April 30, 2013. The jury found Graves guilty on each count
and he was sentenced to concurrent sentences of 30 years for
second-degree murder, 20 years for armed criminal action, and
15 years for unlawful use of a weapon. Graves'
convictions were affirmed by this court in State v.
Graves, 449 S.W.3d 789 (Mo. App. W.D. 2014). Our mandate
issued on December 3, 2014.
February 25, 2015, Defendant timely filed a pro se
Rule 29.15 motion for post-conviction relief, accompanied by
an affidavit of indigency and request that counsel be
appointed. The next day, February 26, the motion court made
the following docket entry: "Defendant granted leave to
proceed in forma pauperis. Notice to Public Defender. Upon
entry by Public Defender or in 30 days, cause to trial
request docket. KC/III (mln)." On April 6, 2015, 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 April 7, 2015, and the amended motion was filed on
July 6, 2015. On November 5, 2015, the motion court conducted
an evidentiary hearing on the amended motion and later issued
findings of fact and conclusions of law denying relief. The
motion court did not address the timeliness of the amended
motion. This appeal follows.
considering the merits of Graves' appeal, we are required
to first examine the timeliness of his amended motion for
post-conviction relief. Frazee v. State, 480 S.W.3d
442, 444 (Mo. App. W.D. 2016). Under Rule 29.15(g):
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 allows the motion court to grant an
extension for a period not to exceed thirty days.
ascertaining whether the amended 29.15 motion was timely
filed, we must initially determine the date that counsel was
appointed for Graves. A review of the record reveals that the
only action by the motion court, prior to the public
defender's entry of appearance, was the docket entry of
February 26, 2015, finding Graves indigent and indicating
that notice had been sent to the public defender's
office. Consequently, the timeliness of the amended motion
hinges on whether counsel was appointed on the date this
notice was sent or the later date counsel entered their
precise issue was recently addressed by this court in
Price v. State under nearly identical facts.
Price v. State, 500 S.W.3d 324, 326 (Mo. App. W.D.
2016). Price concerned the timeliness of an amended
motion filed under Rule 29.15 and the issue was the date
counsel was appointed. Id. As in the present case,
the only indicia of the appointment of the public
defender's office in Price, prior to their entry
of appearance, was a docket entry reciting that a copy of the
pro se motion had been sent to the public defender.
Id. On that record, this court held that counsel had
been appointed on the date the motion court sent notice to
the public defender's office. Id.
examination of the record before us, we can discern no
material difference between the facts in the present case and
those in Price. Consequently, we hold that counsel
was appointed for Graves on February 26, 2015, when the
motion court granted leave to proceed in forma
pauperis and sent notice of the pro se 29.15
motion to the public defender's office. See
Price, 500 S.W.3d at 326; Johnson v. State, 491
S.W.3d 310, 312-13 (Mo. App. E.D. 2016), reh'g and/or
transfer denied (June 8, 2016); Stanley v.
State, 420 S.W.3d 532, 540 (Mo. banc 2014) ("[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.