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Brunnworth v. State

Court of Appeals of Missouri, Eastern District, First Division

September 10, 2019

STEVEN BRUNNWORTH, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of St. Louis County 16SL-CC03383. Honorable Kristine A. Kerr Judge.

          ROBERT M. CLAYTON III, PRESIDING JUDGE.

         Steven Brunnworth ("Movant") appeals the judgment denying his Rule 24.035[1] 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.

         I. BACKGROUND

         Movant 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;[2] and ordered long-term drug treatment pursuant to section 217.362, so Movant could continue in the program he had already started.[3]

         Movant timely filed a pro se Rule 24.035 motion for post-conviction relief on September 13, 2016.[4] 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.

         On 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 appeals.

         II. DISCUSSION

         In this 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.

         Before 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.[5] 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. Id.

         Rule 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.

         In 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).

         In this 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 ...


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