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Pickens v. State

Court of Appeals of Missouri, Western District, Third Division

May 28, 2019

KENNETH PICKENS, III, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of Buchanan County, Missouri Honorable Daniel Fred Kellogg, Judge

          Before: Thomas H. Newton, Presiding Judge, Anthony Rex Gabbert, and Edward R. Ardini, Judges

          OPINION

          THOMAS H. NEWTON, PRESIDING JUDGE.

         Mr. Kenneth Pickens appeals from the Buchanan County Circuit Court judgment denying an amended Rule 29.15 motion, which was filed out of time. He raises the ineffectiveness of trial counsel relating to failures to object to certain jury instructions and the ineffectiveness of appellate counsel in failing to raise certain sufficiency claims on direct appeal. We remand for the motion court to determine whether appointed counsel abandoned Mr. Pickens.

         A Buchanan County jury convicted Mr. Pickens in December 2014 of three counts of forgery, two counts of distribution of a controlled substance, and two counts of possession of a controlled substance with intent to distribute. The convictions arose from thirteen charges relating to a series of similar transactions in late 2013 involving fraudulent prescriptions for controlled substances, including oxycodone and alprazolam. The trial court sentenced Mr. Pickens in March 2015 as a prior and persistent offender to a total of eighteen years' imprisonment in the Department of Corrections. We affirmed per curiam on direct appeal. State v. Pickens III, 496 S.W.3d 534 (Mo. App. W.D. 2016).

         The mandate was issued on June 15, 2016, and Mr. Pickens timely filed a pro se motion to vacate, set aside or correct the judgment or sentence under Rule 29.15 on August 10, 2016.[1] The motion court appointed counsel to represent him on August 12, 2016, and counsel sought an extension of time to file an amended motion. The motion court granted the extension, making the amended motion due November 10, 2016, a Thursday.[2] The amended motion was filed electronically on November 14, 2016, a Monday, at 8:39 a.m.[3] Counsel then filed a Rule 103.06 motion on November 17, 2016, asking the motion court to find the amended motion timely filed.[4] According to this motion, the electronic filing system was not functioning when counsel attempted to file the amended Rule 29.15 motion on the evening of November 10, 2016.[5] So counsel emailed the amended motion to the court clerk and opposing counsel that evening, advising them of his inability to access Case.net. The Rule 103.06 motion also asserted counsel's understanding that the state's electronic filing system was "completely unavailable" from 7 p.m., November 10, 2016, through 11 p.m., November 11, 2016. Counsel did not seek a hearing on this motion and did not raise the timeliness question during the evidentiary hearing that the motion court conducted in May 2017 on the amended Rule 29.15 motion. The motion court never ruled on the Rule 103.06 motion, but stated in the judgment that the amended Rule 29.15 motion was filed November 14, 2016. The motion court addressed only the issues raised in the amended Rule 29.15 motion and overruled it. Mr. Pickens filed this appeal, and, with our permission, filed an exhibit showing the electronic filing system's availability for the relevant time period. It purports to show that the eFiling and Case.net systems were "intermittently unavailable" from 7 p.m., November 10, 2016, through 11 p.m., November 11, 2016.

         Legal Analysis

         Mr. Pickens raises eight points relied on, but prefaces the arguments with a discussion of the timeliness of the amended Rule 29.15 motion. He suggests that this Court may decide whether it was timely filed and accordingly address the points on the merits, but acknowledges that this may be a matter for the motion court on remand. The State argues that the case must be remanded for timeliness and abandonment determinations and does not address the merits of the points relied on.

         Whether the amended Rule 29.15 motion was timely filed depends on a court determination that the electronic filing system was unavailable. Rule 103.06(c). Whether appointed post-conviction counsel abandoned Mr. Pickens will depend on whether the amended motion was late and may also depend under these circumstances on whether he made "reasonable efforts to file the document as soon as the unavailability" ended.[6] Rule 103.06(a). An abandonment determination is critical. As we stated in Sayre v. State, 493 S.W.3d 33, 35-36 (Mo. App. W.D. 2016) (citations omitted):

The result of the inquiry into abandonment determines which motion-the initial motion or the amended motion-the court should adjudicate. If the motion court finds that a movant has not been abandoned, the motion court should not permit the filing of the amended motion and should proceed with adjudicating the movant's initial motion. On the other hand, if the motion court determines that the movant was abandoned by post-conviction counsel's untimely filing of an amended motion, the court should permit the untimely filing and adjudicate the amended motion.

Under Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015), the motion court has an independent duty to determine, when an untimely amended post-conviction motion is filed, whether abandonment occurred. "When the independent inquiry is required but not done, [the reviewing court] will remand the case because the motion court is the appropriate forum to conduct such an inquiry." Id. at 826. An exception to this general rule applies "where all the claims in both the pro se and amended motion have been adjudicated [by the motion court] with written findings of fact and conclusions of law." Sayre, 493 S.W.3d at 36 (quoting Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015) (emphasis removed)). As in Sayre, however, this exception does not apply here because "[t]he claim[s] in the amended motion [are] distinct from the claims in the pro se motion, and the pro se claims were not addressed by findings of fact and conclusions of law in the Judgment." Id. As well, we indicated above that any overlap between the two motions was minor.

         Remand is required; the motion court specifically found that the amended Rule 29.15 motion was filed on November 14, 2016, or four days after the date on which it was required to be filed. Nothing in the motion court's judgment indicates that it conducted an inquiry into whether the late filing constituted an abandonment of Mr. Pickens, or indeed whether the filing was deemed timely under Rule 103.06.

         Conclusion

         Because the amended Rule 29.15 motion was untimely and the motion court did not make a timeliness or abandonment ...


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