FROM THE CIRCUIT COURT OF MADISON COUNTY The Honorable Sandy
W. DRAPER III, JUDGE.
Clyde Milner (hereinafter, "Milner") appeals from a
judgment dismissing his Rule 24.035 motion for
post-conviction relief without an evidentiary
hearing.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.
and Procedural History
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Subsequently, Milner's probation was revoked, his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
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.
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).
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.
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.
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)).
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
appointed post-conviction counsel fails to comply with the
mandates of Rule 24.035, the movant may have been abandoned
by counsel. 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).
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 ...