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Carter v. State

Court of Appeals of Missouri, Western District, Fourth Division

February 27, 2018

BRYAN S. CARTER, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Daviess County, Missouri The Honorable Thomas N. Chapman, Judge

          Before Mark D. Pfeiffer, Chief Judge, and Victor C. Howard and Cynthia L. Martin, Judges.

          Mark D. Pfeiffer, Chief Judge.

         Mr. Bryan Carter ("Carter") appeals from the judgment of the Circuit Court of Daviess County, Missouri ("motion court"), denying his Rule 24.035[1] amended motion for post-conviction relief ("Amended Motion"). Carter had pleaded guilty to the class A felony of assault in the first degree and the class D felony of incest. Following an evidentiary hearing on his Amended Motion, the motion court denied Carter's claims. Carter now raises two points on appeal. First, Carter argues that the motion court erred in failing to conduct an abandonment inquiry because his Amended Motion was untimely filed. Second, Carter argues the motion court erred in denying the merits of the ineffective assistance of counsel claims made in his Amended Motion. Because the motion court was required to conduct an abandonment inquiry and failed to do so, we reverse and remand.

         Factual Background

         Carter pleaded guilty to the class A felony of assault in the first degree and the class D felony of incest for knowingly causing serious physical injury to his four-month-old daughter by inserting his hand into her rectum resulting in a large tear. Following his sentencing hearing, the court sentenced Carter to life imprisonment for the charge of first-degree assault and four years of imprisonment for the charge of incest, with the sentences to run consecutively.

         Carter filed his pro se motion to vacate, set aside, or correct the judgment or sentence on June 3, 2015. Carter's pro se motion alleged the following: (1) he was promised he could plead guilty to the class B, not A, felony of assault, but the B felony was changed to an A felony the day before the plea hearing; (2) there was insufficient evidence to support the first-degree assault charge; (3) after Carter had accepted the plea agreement, he learned his mother had been threatened; (4) the plea court erroneously permitted certain testimony at the sentencing hearing; and (5) the State provided no reason for its decision to increase the assault charge to the class A felony of first-degree assault.

         Appellate counsel was appointed to represent Carter with respect to his post-conviction claims on the same day that Carter filed his pro se motion, June 3, 2015. On June 19, 2015, appointed counsel moved for an extension of thirty days in which to file Carter's amended post-conviction motion. There is no record, however, that the motion court ever granted or denied counsel's motion for an extension. The transcript of the guilty plea and sentencing hearings was filed with the court on July 22, 2015.

         Carter's Amended Motion was filed on October 20, 2015. Carter's pro se motion was not attached to the Amended Motion and the claims asserted in the pro se motion were not included in the Amended Motion. The Amended Motion raised the following claims: (1) ineffective assistance of counsel for failing to present mitigating evidence regarding Carter's prior physical and sexual abuse as a child; (2) ineffective assistance of counsel for failing to present mitigating evidence regarding Carter's history of serious mental illness; and (3) ineffective assistance of counsel for failing to present mitigating evidence that Carter sought immediate medical attention for his child after committing the underlying offense.

         Following an evidentiary hearing, the motion court denied Carter's claims in his Amended Motion. The motion court made no findings regarding whether the Amended Motion was timely filed and made no findings regarding abandonment by counsel. Carter appeals.

         Standard of Review

         Our review of a motion court's ruling denying a Rule 24.035 motion is limited to a determination of whether the motion court's judgment was clearly erroneous. See Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009); Rule 24.035(k). The motion court's judgment is clearly erroneous only if, after reviewing the entire record, "the appellate court is left with the definite and firm impression that a mistake has been made." Roberts, 276 S.W.3d at 835.

         Analysis

         In his first point on appeal, Carter argues that the motion court clearly erred in failing to conduct an abandonment inquiry, violating Carter's rights to due process and effective assistance of counsel, in that the Amended Motion was untimely filed and created a presumption of abandonment on the record. The State agrees that the motion court ...


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