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Edwards v. State

Court of Appeals of Missouri, Eastern District, Second Division

March 21, 2017

DEMETRIUS EDWARDS, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of St. Louis County Cause No. 13SL-CC02797 Honorable Michael T. Jamison

          OPINION

          Colleen Dolan, Judge.

         Demetrius Edwards ("Movant") was convicted following a jury trial of one count forcible rape under § 566.030, two counts forcible sodomy under § 566.060, one count class B felony of burglary in the first degree under § 569.160, and one count class B felony of robbery in the second degree under § 569.030.[1] Movant was sentenced to twenty-five years in the Missouri Department of Corrections on the first three counts and consecutive terms of fifteen years on the remaining two counts for a total sentence of forty years. This Court affirmed the convictions and sentences in State v. Edwards, 398 S.W.3d 121, 122 (Mo. App. E.D. 2013). Movant now appeals the denial of his Rule 29.15 amended motion for post-conviction relief.[2] Because the amended motion was untimely, we reverse and remand to the motion court to determine whether Movant was abandoned by post-conviction counsel.

         DISCUSSION

         Movant argues the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. In his amended motion, Movant asserted he was denied effective assistance of counsel on the grounds that trial counsel failed to call him to testify at the motion to suppress hearing and failed to address Movant's claims that during his interrogation Movant made numerous requests for an attorney and was threatened by police officers. We cannot proceed to the merits of Movant's appeal, however, because we must first address the timeliness of Movant's amended motion.

         I. Timeliness of post-conviction relief motions.

         When an appeal of a judgment or sentence is taken following a jury trial, a movant must file a pro se motion within 90 days after the date the appellate court issues the mandate affirming the judgment or sentence. Rule 29.15(b). The timeline for filing an amended post-conviction relief motion is triggered after an appellate court issues the mandate and either "[c]ounsel is appointed or an entry of appearance is filed by any counsel who is not appointed, " whichever occurs earlier. Rule 29.15(g). Once these activating events have occurred, a movant has 60 days to file an amended motion and this statutory countdown cannot be restarted. Wilson v. State, 495 S.W.3d 827, 829-30 (Mo. App. E.D. 2016). A court may extend the 60-day deadline only one time, by no more than 30 days, making an amended motion due at most 90 days from the date counsel is appointed or non-appointed counsel files an entry of appearance. Rule 29.15(g).

         This Court issued its mandate on May 29, 2013, making any pro se motion due on or before August 27, 2013. Movant timely filed a pro se motion for post-conviction relief on August 1, 2013. The motion court appointed counsel on April 30, 2014, triggering the 60-day statutory clock. On May 23, 2014, motion counsel requested a 30-day extension to file an amended motion, which the motion court granted, making the amended motion due on or before July 29, 2014, 90 days after the day the motion court appointed counsel.

         On July 8, 2014, motion counsel filed a motion for continuance of a status conference, which was set for July 14, 2014, and erroneously referred to May 29, 2013, the date of the mandate, as the triggering event, rather than the correct date April 30, 2014, the date counsel was appointed.[3] Three times in the motion for continuance, motion counsel erroneously indicated that the amended motion was due on or before August 27, 2014, presumptively counting one year and ninety days from the date of the mandate rather than from the date of appointment.[4] The motion court and parties appear to have proceeded on the assumption that this date was the correct deadline for filing the amended motion under Rule 29.15(g). The actual deadline for the amended motion passed on July 29, 2014. On August 27, 2014, out of time, motion counsel filed the amended motion for an evidentiary hearing and post-conviction relief on the grounds of ineffective assistance of counsel.

         The parties appeared on October 30, 2014, and the motion court denied Movant's request for an evidentiary hearing. On March 1, 2016, the court ruled on the amended motion, denying the request for an evidentiary hearing and denying post-conviction relief. The motion court did not address and the parties did not raise the issue of whether the amended motion was filed timely, or whether Movant was abandoned by motion counsel.

         II. Courts must make an independent finding of abandonment when amended motions for post-conviction relief are filed untimely.

         "The time limits for filing a post-conviction motion are mandatory." Shields v. State, 482 S.W.3d 461, 463 (Mo. App. E.D. 2016) (quoting Stanley v. State, 420 S.W.3d 532, 540 (Mo. banc 2014)). Rule 29.15(g) states:

[T]he amended motion shall be filed within sixty days…of: (1) the date both the mandate of the appellate court is issued and counsel is appointed[.]…The court may extend the time for filing the amended motion for one additional period not to exceed thirty days.

         "When appointed counsel fails to file an amended motion before the deadline, abandonment is presumed." Id. (citing Vogl v. State, 437 S.W.3d 218, 228 (Mo. banc 2014)). When appointed counsel files the amended motion out of time, "the motion court must conduct an independent inquiry of whether movant was abandoned by post-conviction counsel." Johnson v. State, 491 S.W.3d 310, 312 (Mo. App. E.D. 2016) (citing Vogl, 437 S.W.3d at 229) (emphasis added). If we determine on appeal that an amended motion was filed untimely and no independent inquiry into abandonment was made by the motion court then we must remand the case to the motion court to conduct the inquiry. Adams v. State, 483 S.W.3d 480, 483 (Mo. App. E.D. 2016). The inquiry may be informal, but a sufficient record must be made. Vogl, 437 S.W.3d at 228. "When the motion court fails to conduct this ...


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