Court of Appeals of Missouri, Eastern District, Fourth Division
CHARLES K. MOORE, Movant/Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Francois County 12SF-CC00096
Honorable Sandra Martinez Judge.
K. HOFF, JUDGE.
K. Moore ("Movant") appeals from the motion
court's "Findings of Fact, Conclusions of Law, and
Judgment" ("Judgment") denying his Rule 29.15
motion without an evidentiary hearing. We reverse and remand.
and Procedural Background
2010, following a jury trial, Movant was convicted of
second-degree assault of a probation or parole officer, in
violation of Section 565.082, RSMo 2000. The trial court
later sentenced Movant as a persistent felony offender to
fifteen years' imprisonment. Movant appealed his
conviction and sentence to this Court, which issued its
per curiam order and memorandum in State v.
Moore, 362 S.W.3d 509 (Mo. App. E.D. 2012), affirming
Movant's conviction. The mandate issued on April 18,
20, 2012, Movant timely filed his pro se Rule 29.15
motion, and on the same day the motion court appointed
counsel to represent Movant.
counsel untimely filed Movant's amended motion and
request for evidentiary hearing on or about September 18,
2012, in which he alleged that his trial attorneys were
ineffective for (1) filing a motion for an automatic change
of judge and then withdrawing it against his wishes; and (2)
failing to seek a change of judge because the judge presiding
over his trial previously worked as a prosecuting attorney
and was "involved" in a prior robbery prosecution
of him in 1998.
December 10, 2012, the motion court denied Movant's Rule
29.15 motion without an evidentiary hearing. Movant appealed,
and, on April 14, 2015, the Missouri Supreme Court reversed
and remanded Movant's cause for an independent inquiry
into whether Movant was abandoned by post-conviction counsel.
Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc
4, 2015, post-conviction counsel filed a motion requesting
that the motion court permit the untimely amended motion and
alleged that the amended motion was untimely because
"counsel or someone in counsel's office" failed
to request an extension of time and that "Movant played
no role in the amended motion filing date calculation, and
any late filing was due to counsel."
5, 2015, the motion court conducted its inquiry, and
post-conviction counsel reiterated that she was at fault for
the untimely filing. The motion court found that "it was
not Movant's fault" that an extension was not
requested and that it "was counsel's fault, "
thereby reviving the amended motion.
20, 2016, the motion court again denied Movant's amended
motion. The motion court stated that it was denying
Movant's motion "for the same reasons enunciated in
December 2012" and restating the findings of fact and
conclusions of law from the December 20, 2012 judgment in
2012 judgment, the motion court found that the trial court
had asked Movant at sentencing about his allegation that he
wanted the judge disqualified. The motion court observed that
defense counsel had stated at sentencing that the motion for
change of judge had been withdrawn. Indeed, the sentencing
transcript reflects that defense counsel stated: "At the
time that [Movant's first attorney] talked to him she
indicated in the file that he did not request a change of
judge." The motion court then found that its own file
indicated that "the motion to withdraw [sic] was
withdrawn in [Movant's] presence and with his consent in
open court September 3, 2010." A docket entry on that
date indicated that Movant was present in court, and it
stated, "Defendant's Motion to Withdraw, Motion for
Change of Judge, sustained." The motion court also found
that Movant had failed "to allege prejudice sufficient
to trigger relief." The motion court observed that
"cases have repeatedly held that simply because a trial
judge may have received knowledge of facts through prior
court hearings involving the defendant, the judge need not
disqualify themselves for cause." The motion court
concluded that Movant had not alleged "any objective
facts that would necessitate disqualification." This
facts pertinent to the points on appeal will be adduced as
necessary in the discussion section below.