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Milner v. State

Court of Appeals of Missouri, Eastern District, Second Division

November 21, 2017

LOWELL CLYDE MILNER, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Madison County 16MD-CC00057 Honorable Sandra Martinez

          LISA P. PAGE, PRESIDING JUDGE .

         Lowell Milner ("Movant") appeals from the dismissal of his Rule 24.035 (Mo. Sup. Ct. R. 2016) motion for post-conviction relief, contending the motion court erred in failing to rule on his amended motion and in dismissing his original pro se motion. The judgment of the motion court is reversed and the matter is remanded with instructions to conduct an independent inquiry, on the record, on abandonment.

         BACKGROUND

         On September 14, 2014, Movant pleaded guilty to two counts of failing to register as a sex offender, in violation of Sections 589.400 and .425 (RSMo Cum. Sup. 2014). The court sentenced Movant to 8 years of imprisonment, suspended execution of his sentence, and placed him on 5 years of probation. On February 4, 2016, Movant's probation was revoked, his sentence was executed; he was delivered to the Department of Corrections the next day.

         On April 11, 2016, Movant timely filed his pro se motion for post-conviction relief, pursuant to Rule 24.035. Movant alleged three grounds for relief: (1) a claim as to the State's recommended sentence during his guilty plea; (2) a claim of bias on the part of the plea court; and (3) a vague claim concerning the effectiveness of his plea counsel.

         The same day, counsel ("PCR Counsel") was appointed for Movant. On April 29, 2016, PCR Counsel entered her appearance. The transcript from the guilty plea and sentencing hearing was filed on May 24, 2016. On September 30, 2016, the State requested the motion court dismiss Movant's pro se motion. On October 5, 2016, PCR Counsel requested a continuance, which the motion court granted.

         On November 2, 2016, PCR Counsel filed an amended motion for post-conviction relief ("Amended Motion"), presenting a claim of ineffective assistance of plea counsel for failing to present a defense to the failing-to-register charges because Movant was hospitalized, as well as a claim that his sentences should have been reduced by the time spent in pre-trial incarceration. PCR Counsel also requested the Amended Motion be filed out of time, alleging the delay in its filing was due to PCR Counsel's inability to timely obtain the hospital records which were destroyed by plea counsel. PCR Counsel contended the hospital records would vindicate Movant by demonstrating that Movant was hospitalized and unable to register as a sex offender on the date of the offenses, and she therefore needed to obtain the records directly from the hospitals. The hospital records were ultimately submitted to the motion court on January 5, 2017.

         On March 2, 2017, the motion court denied Movant's request to file the Amended Motion out of time, without a hearing, and dismissed Movant's pro se motion.

         This appeal follows.

         DISCUSSION

         In both of his points on appeal, Movant contends the motion court erred in denying his request to file the Amended Motion out of time, by way of its finding that Movant was not abandoned by PCR Counsel. Specifically, Movant maintains the reason for the late filing of the Amended Motion was not due to his inadvertence, but was due solely to PCR Counsel's ineffectiveness. Movant asserts he was thereby deprived of his right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. We agree.

         Points I and II-Evidentiary Hearing on Abandonment Is Required

         Standard ...


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