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Milner v. State

Supreme Court of Missouri, En Banc

July 17, 2018

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

          APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY The Honorable Sandy Martinez, Judge

          GEORGE W. DRAPER III, JUDGE.

         Lowell Clyde Milner (hereinafter, "Milner") appeals from a judgment dismissing his Rule 24.035 motion for post-conviction relief without an evidentiary hearing.[1]Milner's amended motion for post-conviction relief was filed untimely, and the motion court failed to make an independent inquiry into whether Milner was abandoned by his appointed counsel. Because the determination of whether Milner was abandoned determines which post-conviction motion should be reviewed and there was no record available for review of the motion court's determination, this Court reverses the motion court's judgment and remands the case with instructions for the motion court to make an independent inquiry to determine whether Milner was abandoned.

         Factual and Procedural History

         Milner pleaded guilty to two counts of failing to register as a sex offender. The circuit court sentenced Milner to four years' imprisonment for each count to run consecutively. The circuit court suspended execution of Milner's sentence, and placed him on five years' probation. Subsequently, Milner's probation was revoked, his sentence was executed, and he was delivered to the department of corrections.

         Milner timely filed his pro se motion for post-conviction relief, pursuant to Rule 24.035, on April 11, 2016. Post-conviction relief counsel (hereinafter, "Counsel") was appointed that same day.

         The transcript from Milner's guilty plea and sentencing hearing was filed May 24, 2016. Counsel filed a motion requesting an extension of time to file the amended motion for post-conviction relief; the motion court granted this motion. Milner's amended motion for post-conviction relief was due September 22, 2016. Rule 24.035(g).

         However, Counsel did not file an amended motion for post-conviction relief until November 2, 2016, raising additional claims other than those asserted in the pro se motion for post-conviction relief. Counsel requested the amended motion be filed out of time because she was unable to obtain records that were destroyed by Milner's plea counsel. Prior to the motion court ruling on Counsel's request to file out of time, the state filed a motion to dismiss Milner's pro se motion for post-conviction relief.

          The motion court did not adjudicate Milner's amended motion and entered a judgment dismissing Milner's pro se post-conviction motion without an evidentiary hearing. Milner appeals.

         Discussion

         "Appellate review of judgments disposing of Rule 24.035 motions is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous." Hall v. State, 528 S.W.3d 360, 361 (Mo. banc 2017); Rule 24.035(k). "Findings and conclusions are clearly erroneous if, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made." Barton v. State, 486 S.W.3d 332, 336 (Mo. banc 2016) (quoting Eastburn v. State, 400 S.W.3d 770, 773 (Mo. banc 2013)).

         An amended motion for post-conviction relief must be filed within sixty days of the date both a complete transcript of the guilty plea and sentencing hearing is filed and counsel is appointed. Rule 24.035(g). The motion court "may extend the time for filing the amended motion for one additional period not to exceed 30 days." Id. "Rule 24.035(g) filing deadlines are mandatory." Bearden v. State, 530 S.W.3d 504, 506 (Mo. banc 2017).

         When appointed post-conviction counsel fails to comply with the mandates of Rule 24.035, the movant may have been abandoned by counsel.[2] There are two categories of abandonment claims: (1) when "post-conviction counsel takes no action on movant's behalf with respect to filing an amended motion" and (2) "when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner." Barton, 486 S.W.3d at 338 (quoting Barnett v. State, 103 S.W.3d 765, 774 (Mo. banc 2003)). "Claims of abandonment are reviewed carefully to ensure that the true claim is abandonment and not a substitute for an impermissible claim of ineffective assistance of post-conviction counsel." Taylor v. State, 254 S.W.3d 856, 858 (Mo. banc 2008).

         Here, Milner's amended motion for post-conviction relief was due September 22, 2016, but it was not filed until November 2, 2016. Milner and the state concede ...


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