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Jones v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

May 9, 2017

MAURICE JONES, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis 1422-CC09996 Honorable Julian L. Bush

          OPINION

          James M. Dowd, Presiding Judge

         Maurice L. Jones was convicted by a jury of first-degree burglary, kidnapping, second-degree domestic assault, and third-degree domestic assault arising out an argument with his girlfriend, A.W. ("Victim"). The argument escalated when Jones broke into Victim's sister's apartment, beat Victim, and dragged her to his car where he continued to assault her as he drove until she escaped and flagged down the police for help. Jones was sentenced to concurrent terms of imprisonment totaling eighteen years. His convictions were affirmed on direct appeal in State v. Jones, 440 S.W.3d 591 (Mo.App.E.D. 2014).

         Jones now appeals the denial of his Rule 29.15[1] motion for post-conviction relief following an evidentiary hearing. Jones alleges four claims of ineffective assistance of counsel. In his first point on appeal, Jones contends that appellate counsel should have challenged on direct appeal the sufficiency of the evidence for his first-degree burglary conviction because the State failed to prove that his entry into Victim's sister's apartment was unlawful. In his second, third, and fourth points, Jones asserts that trial counsel should have endorsed, subpoenaed, and called witnesses Adrian Dansbury, Antonio Thompson, and Reva Thompson. Finding no clear error, we affirm.

         Standard of Review

         Appellate review of the denial of a Rule 29.15 motion is limited to a determination of whether the motion court's findings, conclusions, and judgment are clearly erroneous. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). Findings and conclusions are clearly erroneous if after a review of the entire record we are left with the definite and firm impression that a mistake has been made. Id. We presume that the motion court's findings are correct. Id.

         Discussion

          A, Jones's amended motion was timely.

         Before addressing the merits, we must first determine whether Jones's amended motion was timely. See Moore v. State, 458 S.W.3d 822 (Mo. banc 2015). The State contends that because there is nothing in the record to indicate when counsel was appointed and therefore when the amended motion was due, this case should be remanded to the motion court to determine whether the amended motion was timely.

         Rule 29.15(g) states that if an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within 60 days of the earlier of the date both the mandate of the appellate court is issued and (1) counsel is appointed, or (2) an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of the movant. The court is permitted to extend the time for filing once, for a period not to exceed 30 days. Thus, the time limit to file an amended motion in a post-direct appeal case is controlled by the date of the initial appointment of counsel or of an unappointed counsel's entry of appearance, whichever comes first. Stanley v. State, 420 S.W.3d 532, 541 (Mo.banc 2014).

         This court's mandate was issued on October 3, 2014. On November 3, 2014, Jones's pro se Rule 29.15 motion was timely filed. To file such a motion, Rule 29.15(b) provides 90 days after the date the mandate of the appellate court is issued. On December 22, 2014, an attorney from the public defender's office filed her entry of appearance on behalf of Jones and filed a motion pursuant to Rule 29.15(g) for additional time to file Jones's amended motion. On February 5, 2015, the court granted the motion for additional time. On March 23, 2015, Jones's amended motion was filed.

         To determine whether Jones's amended motion was timely filed, we must determine when the time to file it began to run. The Missouri Supreme Court recently issued its decision in Creighton v. State, No. SC95527, ___ S.W.3d ___ (Mo. banc April 25, 2017), which addresses the timelines of amended post-conviction relief motions and controls our analysis. In Creighton, the Court held that a public defender who has not been appointed but who enters an appearance unquestionably qualifies as "any counsel that is not appointed but who enters an appearance on behalf of movant." ___ S.W.3d ___ (quoting Rule 29.15(g)). Thus, the Court held that the time limit applicable to the filing of an amended Rule 29.15 motion commenced in that case when the movant's public defender entered his appearance. ___ S.W.3d ___ .

         We find that Creighton is directly on point, and we hold that the entry of appearance filed by the public defender on December 22, 2014 triggered the commencement of the 60-day time limit for Jones to file his amended Rule 29.15 motion. Thus, Jones initially had until February 20, 2015, to file his amended motion. When the court granted Jones's motion for an additional 30 days as permitted by Rule 29.15(g), the due date for Jones's amended motion became March 23, 2015.[2] Thus, Jones's amended motion filed on March 23, 2015 was timely.

         We find that our holding is supported also by Laub v. State,481 S.W.3d 579 (Mo. App.S.D. 2015), which decision the Missouri Supreme Court found supported its conclusion in Creighton. In Laub, 481 S.W.3d at 582, the movant timely filed a pro se Rule 29.15 motion on April 1, 2014, and the trial court on April 11, 2014 notified the public defender's office via letter that the movant had filed a pro se motion. The letter stated that that court was not at that time appointing the public defender's office, but requested that the public defender's office assign an attorney as soon as possible. Id. On April 18, 2014, the motion court made the following docket entry: "PD office notified and will enter appearance when workload permits." Id. On June 25, 2014, an attorney from the public defender's office entered his appearance on behalf of the movant and moved to extend the time to file the amended motion from 60 days ...


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