Court of Appeals of Missouri, Western District, Fourth Division
SCOTT W. ECKERT, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Livingston County, Missouri The
Honorable Daren L. Adkins, Judge.
Karen King Mitchell, Chief Judge, and Lisa White Hardwick and
Edward R. Ardini, Jr., Judges.
King Mitchell, Chief Judge.
Eckert appeals, following an evidentiary hearing, the denial
of his Rule 29.15 motion for post-conviction
relief. Eckert preliminarily argues that appointed
post-conviction counsel's amended Rule 29.15 motion was
untimely and, thus, the matter must be remanded for an
inquiry into whether Eckert was abandoned by his
post-conviction counsel. In his sole point on appeal, Eckert
argues that his trial counsel was ineffective in failing to
move to dismiss the charges against Eckert because the State
brought Eckert to trial after the 180-day time period
proscribed by the Uniform Mandatory Disposition of Detainers
Law. We do not reach this point, however, because we agree
with both parties that reversal and remand are required to
determine whether Eckert was abandoned by post-conviction
Eckert was convicted by a jury of three counts of the C
felony of victim tampering. State v. Eckert, 491
S.W.3d 228, 230 (Mo. App. W.D. 2016). The facts of
Eckert's crimes are thoroughly laid out in this
court's opinion in Eckert's direct appeal.
Id. at 229-30. For purposes of this appeal, the
evidence can be summarized as follows: Eckert was convicted
of the forcible rape of a seven-year-old girl. Id.
While his direct appeal of that conviction was pending,
Eckert wrote three letters to his teenage niece. Id.
at 229. In those letters, Eckert asked his niece to talk to
the rape victim and convince the victim to recant the
accusations. Id. at 229-30. Those three letters were
the basis for the three tampering charges. Id. at
Eckert's conviction, the trial court sentenced him to
consecutive terms of seven years' imprisonment on each
count. Id. at 229. This court affirmed Eckert's
convictions and sentences on direct appeal. Id. at
Eckert timely filed a pro se Rule 29.15 motion for
post-conviction relief, raising six claims of error. The
motion court appointed counsel for Eckert on August 12, 2016.
The amended motion was due on October 11, 2016. On August 19,
2016, appointed counsel entered her appearance and filed a
motion to extend the time to file her amended motion. If the
extension had been granted, the amended motion would have
been due on or before November 10, 2016. But the court never
ruled on the requested extension.
counsel filed her amended motion on November 10, 2016,
raising four claims of error. The motion court held an
evidentiary hearing on August 24, 2018, which addressed only
the claims in the amended motion. The motion court denied the
amended motion on September 19, 2019. Its judgment stated:
"WHEREFORE, being fully informed the Court denies
Movant's Amended Motion to Vacate, Set Aside or Correct
the Judgment or Sentence pursuant to Rule 29.15."
of Amended Rule 29.15 Motion
acknowledges in his brief that the amended motion was
untimely and that this case should be remanded for an
abandonment inquiry. In its brief, the State agrees. This
court also agrees.
to Rule 29.15(g), the amended motion was due sixty days after
counsel was appointed. That due date was October 11, 2016.
Appointed counsel requested a thirty-day extension, as
permitted by Rule 29.15(g). That motion, however, was never
ruled on by the motion court. "[E]xtensions will not be
presumed to have been granted without a record thereof."
Lampkin v. State, 560 S.W.3d 67, 70 (Mo. App. E.D.
2018) (internal quotation omitted) (discussing the scenario
where "[p]ost-conviction counsel filed a motion
requesting an additional thirty days, but there is no record
that the motion was granted"). Thus, the amended motion
filed on November 10, 2016, was untimely.
filing deadlines for post-conviction relief are mandatory,
and cannot be waived." Id. (quoting Watson
v. State, 536 S.W.3d 716, 717 (Mo. banc 2018)).
"Failure to timely file an amended motion raises a
presumption of abandonment and requires the motion court to
conduct an independent inquiry into whether movant was in
fact abandoned by post-conviction counsel." Id.
"The motion court must conduct this inquiry to determine
if the merits of the amended motion should be
considered." Id. "If the independent
inquiry reveals that the movant was not abandoned by