Court of Appeals of Missouri, Western District, Second Division
SAMUEL N. ALLEN, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Boone County, Missouri The
Honorable Robert Jeffrey Harris, Judge
Before: Thomas H. Newton, P.J., James Edward Welsh, and Karen
King Mitchell, JJ.
Edward Welsh, Judge
N. Allen appeals from the circuit court's judgment
denying his amended Rule 29.15 motion for post-conviction
relief after an evidentiary hearing. Allen asserts that the
circuit court erred in failing to independently determine
whether he was abandoned by his post-conviction counsel's
alleged late filing of the amended motion and that the case
should be remanded to the circuit court for an independent
inquiry into whether he was abandoned by appointed
post-conviction counsel. The State agrees with Allen that
this case should be remanded. In light of recent Missouri
Supreme Court precedent, however, we conclude that
Allen's amended motion was timely filed because it was
filed within the applicable time period following
counsel's entry of appearance. We, therefore, affirm the
circuit court's judgment.
was convicted of tampering in the first degree and resisting
arrest, for which he was sentenced to 10 years and 5 years in
prison, respectively. This court affirmed Allen's
convictions and sentences in a per curiam order and
memorandum issued pursuant to Rule 30.25(b) on September 29,
2015. State v. Allen, 471 S.W.3d 396 (Mo. App.
2015). We issued our mandate on October 21, 2015.
timely filed with the circuit court his pro se Motion to
Vacate, Set Aside or Correct the Judgment or Sentence under
Rule 29.15 on November 17, 2015. The motion was accompanied
by an affidavit of indigency. On November 18, 2015, the
circuit court issued an order notifying the public defender
to "determine eligibility." According to the docket
sheet, the order stated: "PCR having been filed, Public
Defender hereby notified to determine eligibility. Counsel
Status hearing 1-25-16 9am II. CC of this order to State and
Public Defender." On December 14, 2015, an assistant
public defender entered an appearance on behalf of Allen and
requested an additional thirty days to file an amended
motion. On January 1, 2016, the circuit court granted the
assistant public defender a 30-day extension to file the
amended motion. The assistant public defender filed the
amended motion on March 14, 2016.
circuit court held an evidentiary hearing on June 24, 2016.
On July 15, 2016, the circuit court issued its judgment
denying the claim raised in the amended motion. In its
judgment, the circuit court noted that the amended motion had
been filed on March 14, 2016, but made no mention of the
timeliness of the motion. Allen appeals.
review of the denial of a Rule 29.15 motion is limited to
determining whether or not the circuit court's findings
and conclusions are clearly erroneous. Rule 29.15(k). "A
judgment is clearly erroneous when, after reviewing the
entire record, the court is left with the definite and firm
impression that the motion court made a mistake."
Barton v. State, 432 S.W.3d 741, 748 (Mo. banc
sole point on appeal, Allen contends that the circuit court
clearly erred in failing to independently determine whether
he was abandoned by post-conviction counsel. Allen asserts
that the amended motion was filed more than 90 days after the
date post-conviction counsel was appointed and granted an
extension to file the amended motion.
29.15(g) establishes the time limits for filing an amended
motion for post-conviction relief and provides in relevant
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.
rule also provides that the circuit court may extend the
60-day deadline for "one additional period not to exceed
thirty days." Thus, a movant can have up to 90 days to
timely file an amended motion for post-conviction relief.
amended motion filed beyond the deadline in Rule 29.15(g),
however, can constitute abandonment of the movant. Moore
v. State, 458 S.W.3d 822, 825 (Mo. banc 2015).
Abandonment by appointed counsel extends the time limitations
for filing an amended Rule 29.15 motion. Id. Thus,
when appointed counsel files an untimely amended motion,
"the motion court has a duty to undertake an
'independent inquiry . . .' to determine if
abandonment occurred." Id. If appointed counsel
untimely files an amended motion and the circuit court does
not conduct an independent inquiry into abandonment, we must
remand the case to the circuit court for such an inquiry.
Miller v. State, 478 S.W.3d 530, 533-34 (Mo. App.
contends, and the State concurs, that post-conviction counsel
was appointed by the circuit court on November 18, 2015. We,
however, find no such appointment before us on the record. In
support of their contention that the circuit court appointed
post-conviction counsel on November 18, 2015, both Allen and
the State rely on this order by the circuit court, which was
recounted in the court's docket sheets: "PCR having
been filed, Public Defender hereby notified to determine
eligibility. Counsel Status hearing 1-25-16 9am II. CC of
this order to State and Public Defender." The circuit
court's order, however, did not state that the court was
appointing the public ...