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Allen v. State

Court of Appeals of Missouri, Western District, Second Division

July 18, 2017

SAMUEL N. ALLEN, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal 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.

          James Edward Welsh, Judge

         Samuel 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.

         Allen 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.

         Allen 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.

         The 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.

         Our 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 2014).

         In his 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.

         Rule 29.15(g) establishes the time limits for filing an amended motion for post-conviction relief and provides in relevant part:

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.[1]

         The 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.

         An 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. 2015).

         Allen 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 ...


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