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Rice v. State

Court of Appeals of Missouri, Eastern District, First Division

March 7, 2017

MICHAEL D. RICE, Movant/Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis Honorable Elizabeth B. Hogan

          OPINION

          MARY K. HOFF, JUDGE

         Michael D. Rice ("Movant") appeals from the Judgment of the motion court ("Judgment") denying his amended Rule 29.15 motion for post-conviction relief ("Amended Motion") without an evidentiary hearing. Because the record is incomplete in that it does not note the date Movant's attorney was appointed, we reverse and remand.

         Factual and Procedural Background

         Following a jury trial, Movant was convicted of forcible rape (in violation of Section 566.030 RSMo 2000[1]), forcible sodomy (Section 566.060), kidnapping (Section 565.110), and second-degree assault (Section 565.060). The trial court sentenced Movant to a total of two consecutive terms of life imprisonment plus twenty-two years. Movant filed a direct appeal, and this Court affirmed his conviction and sentence in State v. Rice, 449 S.W.3d 831 (Mo. App. E.D. 2015).

         Subsequently, on February 26, 2015, Movant filed a timely pro se motion for post-conviction relief and a forma pauperis affidavit, requesting the appointment of an attorney. The record reflects that thereafter, on June 23, 2015, Movant's post-conviction counsel ("Counsel") entered his appearance. However, the record is silent as to the date that Counsel was appointed. Also on June 23, Counsel requested a 30-day extension to the 60 days permitted by Rule 29.15(g) in which to file an amended motion for post-conviction relief on behalf of Movant. The motion court granted the request on September 11, 2015, purportedly making the Amended Motion due on September 21, 2015, 90 days after Counsel's appearance.

         Counsel filed the Amended Motion on that day, alleging that Movant's appellate counsel was ineffective for failing to raise a claim that the trial court erred in admitting propensity evidence that Movant was a thief. In its Judgment, entered on November 2, 2015, the motion court first noted that Counsel "entered his appearance . . . on June 23, 2015, he was granted an extension of time in which to file an amended motion[, and that he] timely filed an amended motion on September 21, 2015." It then found that, because the issues raised by Movant were not preserved for appeal, and because Movant opened the door to said evidence, Movant failed to allege facts that were not refuted by the record. Thus, the motion court concluded that Movant was not entitled to an evidentiary hearing, and it denied the Amended Motion on November 2, 2015. This appeal follows.

         Point on Appeal

         In his sole point on appeal, Movant argues that the motion court erred in denying his Amended Motion without an evidentiary hearing because appellate counsel was ineffective in failing to raise a claim that the trial court plainly erred in admitting propensity evidence, over objection, that Movant researched Walmart vulnerabilities for the purpose of stealing and that Movant's occupation was that of a thief.

         Discussion

         Before we may reach the merits of Movant's claim, we must first examine whether Movant's Amended Motion was timely filed as "[i]t is the court's duty to enforce the mandatory time limits . . . in the post-conviction rules." Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012). Rule 29.15(g), which states that where

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. The court may extend the time for filing the amended motion for one additional period not to exceed 30 days.

         Rule 29.15(g) (emphasis added). The mandatory nature of post-conviction deadlines such as that contained in Rule 29.15(g) renders a movant's failure to file a post-conviction motion within the prescribed time limit a complete waiver of the claims that could be raised in the motion. Eastburn v. State, 400 S.W.3d 770, 773 (Mo. banc 2013).

         However, an exception to Rule 29.15(g)'s deadline exists. Particularly, an abandonment of the movant by post-conviction counsel "extend[s] the time limitations for filing an amended Rule 29.15 motion." Moore v. State 458 S.W.3d 822, 825 (Mo. banc 2015) (internal quotations omitted). Abandonment exists where post-conviction counsel files an amended motion beyond the Rule 29.15(g) deadline. Id. To determine whether an abandonment occurred at the untimely filing, the motion court must undertake an independent inquiry. Id. (internal quotations omitted). If the movant can demonstrate that the untimely filing was due to counsel's failure to comply with Rule 29.15 and not the result of movant's negligence or intentional conduct, the motion court will allow the untimely motion. Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc 1991). On ...


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