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Maguire v. State

Court of Appeals of Missouri, Eastern District, Second Division

October 3, 2017

BRYAN M. MAGUIRE, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Franklin County Cause No. 11AB-CC00143 Honorable Gael D. Wood

          OPINION

          Colleen Dolan, Judge.

         Bryan M. Maguire ("Movant") appeals the motion court's denial of his amended motion for post-conviction relief, arguing that his trial counsel was ineffective. The amended motion was filed outside the time limits of Missouri Supreme Court Rule 29.15(g).[1] Additionally, as Movant retained private counsel to represent him in the post-conviction relief proceedings, he could not invoke the abandonment doctrine to allow the motion court to consider his untimely amended motion. Thus, we find the motion court was without authority to rule on the merits of the amended motion, and it did not render a final, appealable judgment on Movant's pro se motion for post-conviction relief. Accordingly, we must dismiss the appeal.

         I. Standard of Review

         "Time limits for post-conviction relief motions are mandatory." Greenleaf v. State, 501 S.W.3d 911, 912 (Mo. App. E.D. 2016) (citing Stanley v. State, 420 S.W.3d 532, 540 (Mo. banc 2014)). This Court is required to enforce the mandatory rules created by the Supreme Court of Missouri. Id. "Failing to abide by the Rule's confines generally functions as a complete waiver." Norman v. State, 509 S.W.3d 846, 848 (Mo. App. E.D. 2017). As stated in Rule 29.15(g), "[t]he court may extend the time for filing the amended motion for one additional period not to exceed thirty days." (emphasis added). Our Supreme Court has made it clear that "[a] motion court has no authority to extend [the] time limit for filing an amended motion" beyond what the rules allow. Stanley, 420 S.W.3d at 541.

         II. Factual and Procedural Background

         Movant was convicted of murder in the first degree (Count I) and armed criminal action (Count II) on December 21, 2009. He received a life sentence without the possibility of parole on Count I, with a concurrent term of thirty years' imprisonment on Count II. Movant made a direct appeal to our Court. We issued the mandate in Movant's direct appeal on March 10, 2011. Following an unsuccessful appeal to this Court, Movant timely filed a pro se motion for post-conviction relief under Rule 29.15 on May 31, 2011.[2]

         Initially, counsel was appointed on June 16, 2011, and granted one 30-day extension of time to file an amended motion. This appointment and the issuance of our Court's mandate in Movant's direct appeal triggered the start of the time limits imposed by Rule 29.15(g), [3] making the amended motion due on September 14, 2011.[4] After initially using appointed counsel, Movant hired private counsel, who filed an entry of appearance on July 25, 2011. Appointed counsel filed a motion to rescind their appointment on August 5, 2011, which the court granted August 9, 2011. On September 26, 2011, Movant's retained counsel filed a motion to extend the time in which it could file an amended motion to October 14, 2011. The motion court granted the extension on the same day. However, this request was made after Movant's mandatory deadline of September 14, 2011. Further, the trial court does not have the authority to exceed the deadlines prescribed by the Missouri Supreme Court Rules. Stanley, 420 S.W.3d at 541.

         The amended motion was filed on October 14, 2011. Under Rule 29.15, arguments raised in a time-barred motion cannot be considered by our Court; we may only consider the most current timely motion (the pro se motion in this case). See Stanley, 420 S.W.3d at 540 (Mo. banc 2014). Thus, Movant's pro se motion was the proper motion for the motion court to consider. However, the motion court's judgment was based on the allegations in Movant's amended motion. No judgment was rendered on the pro se motion.

         Movant raises three points concerning trial and appellate counsels' ineffectiveness based on his amended motion. However, because an untimely motion for post-conviction relief is procedurally barred from consideration, and the motion court did not render a final judgment on Movant's pro se motion, we must dismiss the cause.

         III. Discussion

         Movant acknowledges the amended motion was untimely filed. Whether the motion court may consider Movant's untimely amended motion hinges on whether the abandonment doctrine solely applies to indigent movants with appointed counsel or whether it also applies to movants with retained, private counsel. The abandonment doctrine "was created to excuse the untimely filing of amended motions by appointed counsel under Rule 29.15(e)." Id. at *8 (quoting Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014)). If a court determines Movant has been "abandoned" by counsel for failure to file a timely amended motion, the court may consider the untimely-filed motion. Wilson v. State, 495 S.W.3d 827, 829 (Mo. App. E.D. 2016). "The motion court is the appropriate forum to conduct… an [abandonment] inquiry." Id. However, this exception is not available to Movant.

         Recently, the Supreme Court of Missouri "expressly addressed whether retained counsel can abandon a movant by failing to timely file an amended motion for post-conviction relief, " and it concluded that the doctrine only applies to appointed counsel. Gittemeier at *5. In the case before us, Movant retained private counsel; thus, he is not afforded the exception to Rule 29.15 granted by the abandonment doctrine.

         If a movant files an untimely amended motion for post-conviction relief, and the movant has not been abandoned, "the motion court should not permit the filing of the amended motion and should proceed with adjudicating the movant's initial motion." Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015). Here, the "initial motion" is Movant's pro se motion. Thus, the proper motion for the motion court to assess is the pro se ...


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