Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Louis County 16SL-CC03383.
Honorable Kristine A. Kerr Judge.
M. CLAYTON III, PRESIDING JUDGE.
Brunnworth ("Movant") appeals the judgment denying
his Rule 24.035 motion for post-conviction relief
following an evidentiary hearing. Because Movant's
amended motion for post-conviction relief was untimely filed
and the motion court made no independent inquiry into whether
Movant was abandoned by post-conviction counsel, we reverse
and remand the case to the motion court for such an inquiry.
was charged with one count of the class C felony of stealing
relating to an incident that occurred in between January 4,
2015 and March 25, 2015. Movant appeared in court with plea
counsel on June 3, 2016 to enter a guilty plea pursuant to a
plea agreement with the State. On that date, the plea court
accepted Movant's guilty plea and sentenced Movant in a
manner consistent with the State's recommendation.
Specifically, the plea court: sentenced Movant to five years
of imprisonment; ordered the sentence to run concurrently
with a sentence Movant was serving in another case in which
Movant was receiving long-term drug treatment pursuant to
section 217.362 RSMo Supp. 2004; and ordered long-term drug
treatment pursuant to section 217.362, so Movant could
continue in the program he had already started.
timely filed a pro se Rule 24.035 motion for post-conviction
relief on September 13, 2016. On September 27, 2016, an
assistant public defender ("Counsel") entered his
appearance on behalf of Movant. The transcript of
Movant's guilty plea and sentencing hearing was then
filed with the motion court on October 4, 2016. Thereafter,
on October 7, 2016, the motion court appointed the office of
the public defender (and by extension, Counsel) to represent
Movant on October 7, 2016. Counsel subsequently filed a
request for a thirty-day extension of time to file
Movant's amended motion for post-conviction relief, which
the motion court granted.
February 6, 2017, Counsel filed an amended Rule 24.035 motion
for post-conviction relief alleging that, inter
alia, Movant's plea counsel was ineffective for
failing to advise Movant of a viable defense. The motion
court subsequently entered a judgment considering the merits
of the claims in Movant's amended Rule 24.035 motion and
denying the motion following an evidentiary hearing. Movant
case, Movant raises one point on appeal arguing the motion
court clearly erred in denying his amended motion for
post-conviction relief because his plea counsel was
ineffective for failing to advise Movant of a viable defense.
our Court can consider the merits of a movant's amended
motion for post-conviction relief, we are compelled under
Moore v. State, 458 S.W.3d 822 (Mo. banc 2015) to
first determine whether the amended motion was timely filed.
Baker v. State, 565 S.W.3d 733, 736 (Mo. App. E.D.
2018). If we find that an amended motion for post-conviction
relief was untimely filed by appointed post-conviction
counsel, but there has been no independent inquiry made into
whether the movant was abandoned by post-conviction counsel,
we must reverse and remand the case to the motion court for
such an inquiry. Moore, 458 S.W.3d at 825-26;
Baker, 565 S.W.3d at 736, 737. If, after making
an independent inquiry into abandonment, the motion court
concludes the movant was not abandoned by post-conviction
counsel, the court should adjudicate the movant's initial
pro se post-conviction motion. Baker, 565 S.W.3d at
736. On the other hand, if the motion court determines the
movant was abandoned by post-conviction counsel's
untimely filing of the amended post-conviction motion, the
court must adjudicate the amended post-conviction motion.
24.035(g) governs the filing of an amended post-conviction
motion that is filed on behalf of a movant convicted of a
felony after a guilty plea. See generally Rule
24.035(a) and (g); see also Baker, 565 S.W.3d at
736. Rule 24.035(g) specifically provides that where, as in
this case, a movant files a motion for post-conviction relief
after a guilty plea from which no direct criminal appeal was
taken, the amended motion must be filed:
within sixty days of the earlier of [ ] (1) the date both a
complete transcript consisting of the guilty plea and
sentencing hearing has been filed in the trial court and
counsel is appointed or (2) the date both a complete
transcript has been filed in the trial court and an entry of
appearance is filed by any counsel that is not appointed but
enters an appearance on behalf of movant.
addition, "[t]he court may extend the time for filing
the amended motion for one additional period not to exceed
thirty days." Rule 24.035(g).
case, it is unnecessary for us to determine whether Rule
24.035(g)(1) or Rule 24.035(g)(2) applies in determining when
Movant's amended motion was initially due because, as
discussed below, Movant's amended post-conviction motion