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Eckert v. State

Court of Appeals of Missouri, Western District, Fourth Division

December 31, 2019

SCOTT W. ECKERT, Appellant,

          Appeal from the Circuit Court of Livingston County, Missouri The Honorable Daren L. Adkins, Judge.

          Before Karen King Mitchell, Chief Judge, and Lisa White Hardwick and Edward R. Ardini, Jr., Judges.

          Karen King Mitchell, Chief Judge.

         Scott Eckert appeals, following an evidentiary hearing, the denial of his Rule 29.15 motion for post-conviction relief.[1] 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 counsel.


         Scott 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 230.

         Following 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 234.

         Thereafter, 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.

         Appointed 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."

         This appeal follows.

         Timeliness of Amended Rule 29.15 Motion

         Eckert 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.

         Pursuant 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.

         "The 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 ...

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