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Guerra-Hernandez v. State

Court of Appeals of Missouri, Eastern District, Second Division

March 20, 2018

LAZARO V. GUERRA-HERNANDEZ, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of St. Charles County Honorable Daniel G. Pelikan

          Philip M. Hess, Judge.

         INTRODUCTION

         Lazaro Guerra-Hernandez appeals the judgment denying his Rule 24.035[1] motion for post-conviction relief. Because we find Guerra-Hernandez's amended motion was untimely, we reverse and remand to the motion court to determine whether Guerra-Hernandez was abandoned by post-conviction counsel.

         BACKGROUND

         On June 8, 2015, Guerra-Hernandez was charged by an amended information with three counts: 1) second-degree assault of a law enforcement officer; 2) driving while intoxicated; and 3) driving while license was revoked. Guerra-Hernandez pled guilty on all counts. On July 20, 2015, judgment was entered finding Guerra-Hernandez guilty on all charges. On July 29, 2015, the court filed an amended judgment, sentencing Guerra-Hernandez as a prior and persistent offender to a total of ten years' imprisonment with all of his sentences to run concurrent to each other. Guerra-Hernandez did not file a direct appeal.

         On January 15, 2016, Guerra-Hernandez filed his pro se Rule 24.035 motion claiming: 1) trial counsel was ineffective for inducing him to plead guilty by promising his sentence would be 120-days shock treatment; and 2) he was "excessively charged with no factual basis." On January 21, 2016, the motion court entered an order appointing counsel to represent Guerra-Hernandez. On February 9, 2016, counsel entered her appearance and filed a motion for additional time to file an amended motion. The motion for additional time was never ruled upon.

         On November 28, 2016, counsel filed an amended Rule 24.035 motion, raising only the ineffective assistance claim alleged in Guerra-Hernandez's pro se motion. On March 1, 2017, the motion court entered its judgment and order, denying Guerra-Hernandez's amended motion without an evidentiary hearing. The motion court did not address the timeliness of the amended motion, whether Guerra-Hernandez was abandoned by post-conviction counsel, or Guerra-Hernandez's claim in his pro se motion that he was "excessively charged with no factual basis." Guerra-Hernandez filed a motion for leave to file a late notice of appeal which this Court granted on June 13, 2017. On June 15, 2017, Guerra-Hernandez filed his notice of appeal.

         On August 15, 2017, Guerra-Hernandez filed a motion with the trial court to consider his amended motion as timely filed. In the motion, counsel acknowledged the amended motion was untimely but asserted Guerra-Hernandez was not at fault and blamed the untimeliness on her failure to ascertain whether her motion for an extension of time to file an amended motion had been granted. The motion court granted the motion the same day by signing counsel's motion and conducting no further inquiry or hearing.

         DISCUSSION

         Before addressing the merits of Guerra-Hernandez's appeal, we must determine if this case must be remanded to address whether Guerra-Hernandez was abandoned by appointed counsel. Interestingly, Guerra-Hernandez failed to raise the issue in his brief. For its part, the State argues that a remand is unnecessary because the motion court already made a determination that Guerra-Hernandez was abandoned and therefore "no purpose" would be served by a remand. We disagree.

         It is undisputed the amended motion was untimely and the motion court's finding regarding the timeliness of the amended motion was made after the notice of appeal had been filed in this case. When a notice of appeal is filed, the trial court lost jurisdiction of the case for most purposes. General Growth Props. v. Oval Office, Inc., 670 S.W.2d 165, 166 (Mo. App. W.D. 1984). The jurisdiction which is lost is the jurisdiction to exercise any judicial functions. Id. The jurisdiction which remains is the authority the court retains over its records and the entitlement to exercise purely ministerial or executive functions. Id.

         The filing deadlines for post-conviction relief are mandatory, and cannot be waived. Watson v. State, 536 S.W.3d 716, 717 (Mo. banc 2018). When a motion for post-conviction relief is filed untimely, the motion court should not reach the merits of the motion. Id. "Failure to file either a timely amended motion or a statement in lieu of an amended motion explaining why an amended motion was unnecessary 'raises a presumption of abandonment by appointed counsel.'" Id. at 718 (quoting Vogl v. State, 437 S.W.3d 218, 230 (Mo. banc 2014)).

         When appointed counsel fails to file a timely amended motion, the motion court must conduct an independent inquiry of whether movant was abandoned by post-conviction counsel. Vogl, 437 S.W.3d at 229. This inquiry must be conducted to determine if the merits of the amended motion can be considered. Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2010). If after conducting an independent inquiry into the abandonment issue, the motion court determines the movant was not abandoned by post-conviction counsel, the motion court should ...


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