Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Boone County, Missouri The
Honorable Kevin Crane, Judge
James E. Welsh, Presiding Judge, Anthony Rex Gabbert, Judge,
Edward R. Ardini, Jr., Judge.
Anthony Rex Gabbert, Judge.
Duane Moxley ("Moxley") appeals from a judgment
denying his Rule 29.15motion for post-conviction relief seeking
to set aside his conviction for the Class C Felony of driving
while intoxicated. Moxley claims that his trial counsel was
ineffective for failing to cross examine a primary witness
about prior criminal convictions, and that, as a result, he
suffered prejudice. We find Moxley's 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 Moxley was abandoned by post-conviction counsel.
Because no such inquiry was made, we lack the authority to
rule on the merits of Moxley's ineffective assistance of
counsel claim and remand the case back to the motion court
for an abandonment inquiry.
and Procedural History
was charged in the Circuit Court of Boone County with the
Class C Felony of driving while intoxicated. The trial court
made a finding that Moxley was properly charged with a Class
C Felony as an aggravated-DWI offender due to his three
previous DWI convictions. Moxley was tried by jury on March
20, 2014. The jury found Moxley guilty and he was sentenced
to four years' imprisonment. Moxley's conviction was
affirmed by this court in State v. Moxley, 459
S.W.3d 509 (Mo. App. 2015).
2, 2015, Moxley timely filed a pro se Rule 29.15
motion for post-conviction relief, accompanied by a forma
pauperis affidavit and a request that counsel be
appointed. Four days later, on July 6, the motion court made
the following entry: "[c]ause referred to State Public
Defender. Upon entry by Public Defender or passage of 30
days, cause to trial request docket. KC/III (mln)." On
July 21, 2015, an attorney from the public defender's
office filed an entry of appearance and moved for an
extension of time to file an amended motion. The motion for
extension of time was granted by the court that same day
without a hearing. The amended motion was filed on October
19, 2015. On December 31, 2015, the trial court 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.
State argues that Moxley's amended Rule 29.15 motion was
untimely. If true, we have no jurisdiction to address the
merits of Moxley's ineffective assistance of counsel
claim on appeal. "It is [the] duty of [the] Court of
Appeals to determine sua sponte whether it has
jurisdiction before addressing issues on appeal in a
post-conviction relief matter." Geiler v.
State, 921 S.W.2d 74, 75 (Mo. App. 1996). In order to
determine whether this court has jurisdiction to touch the
merits of Moxley's claim, we must first address the
timeliness of Moxley's amended motion for post-conviction
relief. Frazee v. State, 480 S.W.3d 442, 444 (Mo.
App. 2016). Rule 29.15(g) governs when an amended motion must
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
counsel that is not appointed but enters an appearance on
behalf of movant.
29.15(g) also permits the motion court to grant an extension
for a period not to exceed thirty days.
order to establish whether Moxley's amended 29.15 motion
was filed within the ninety-day limit, we must determine the date
on which counsel was appointed. The record demonstrates that
on July 6, 2015, the motion court made a finding that Moxley
was indigent and indicated that notice was sent to the public
defender's office. While notice was sent by certified
mail to the public defender's office on July 6, 2015, a
formal entry of appearance did not take place until fifteen
days later, on July 21, 2015.
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. Price v.
State, 500 S.W.3d 324, 327 (Mo. App. 2016). In
Price, this court held that the date that the
pro se motion was sent to the public defender's
office and the motion court made a docket entry indicating so
was the date of appointment, rather than counsel's later
entry of appearance.
review of the record on appeal, we see no material disparity
between the facts present here and those in Price.
Therefore, we hold that counsel was appointed for Moxley on
July 6, 2015, when the motion court granted Moxley leave to
proceed forma pauperis and sent notice of the
pro se 29.15 motion to the public defender's
office. Under Rule 29.15(g), Moxley's amended motion was
due, at the latest, on ...