KEVIN P. WRIGHT v. STATE OF MISSOURI , 2016 Mo. App. LEXIS 489 ( 2016 )

KEVIN P. WRIGHT, )
)
Appellant, )
)
vs. ) No. SD34177
) Filed: May 11, 2016
STATE OF MISSOURI, )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY
Honorable Jack A. L. Goodman, Circuit Judge
REVERSED AND REMANDED WITH DIRECTIONS
Kevin P. Wright (“Wright”) appeals from the judgment of the motion court denying his
amended Rule 24.035 1 motion to set aside his conviction for the class D felony of a prior sex
offender residing within 1000 feet of a school. See § 566.147. 2 Because the motion court failed
to conduct an independent inquiry into whether Wright was abandoned by post-conviction
counsel following counsel’s untimely amended post-conviction motion, we reverse and remand
for further proceedings.
1
All rule references are to Missouri Court Rules (2015).
2
All references to section 566.147 are to RSMo Cum.Supp. (2011). All other references to statutes are to RSMo
2000.
We set forth only those facts necessary to complete our review. On June 4, 2013, Wright
was charged by information with the class D felony of residing within 1000 feet of a school or
child care facility as a sex offender. On July 9, 2013, Wright entered a plea of guilty to the
charge, pursuant to a plea agreement, and received a suspended imposition of sentence and five
years’ of supervised probation. On April 14, 2014, Wright’s probation was revoked and he was
sentenced to four years in the Department of Corrections.
On May 21, 2014, Wright filed his pro se “Motion to Vacate, Set Aside or Correct the
Judgment and Sentence.” We are compelled, under Moore v. State, 458 S.W.3d 822, 825
(Mo. banc 2015), to examine the issue of timeliness of Wright’s motion for post-conviction
relief. Wright’s pro se motion for post-conviction relief was timely filed. 3 Following
appointment of counsel on June 24, 2014, a complete transcript was filed June 25, 2014, starting
the 60-day time period to file an amended motion. See Rule 24.035(g). The amended motion
was due on August 25, 2014. Appointed counsel did not enter his appearance until August 26,
2014, and did not file an amended motion until October 23, 2014, making the amended motion
untimely.
Despite the untimely amended motion, the motion court held an evidentiary hearing on
Wright’s amended motion for post-conviction relief on July 7, 2015. On October 1, 2015, the
motion court entered an order denying post-conviction relief. The order correctly recited that the
amended motion was untimely, but proceeded to reject Wright’s amended motion on the merits
“[i]n the interests of justice.” However, where, as here, appointed counsel files an untimely
amended motion, a presumption of abandonment is raised per Moore. The motion court was
3
Wright’s probation was revoked on April 14, 2014, and an order was entered that same day for transport to the
Department of Corrections. Wright filed his pro se motion on May 21, 2014, which was within the 180-day
deadline. See Rule 24.035(b).
2
required to conduct an independent inquiry into whether Wright was abandoned by appointed
counsel, Moore, 458 S.W.3d at 825, which it failed to do.
Pursuant to Moore, we must “reverse the motion court’s decision outright, and remand
the matter for a determination of abandonment and further proceedings consistent with the
motion court’s inquiry.” Mann v. State, 475 S.W.3d 208 (Mo.App. E.D. 2015); accord Lomax
v. State, 471 S.W.3d 358, 359 (Mo.App. E.D. 2015).
The judgment of the motion court is reversed and remanded for further proceedings
consistent with this opinion.
WILLIAM W. FRANCIS, JR., J. – AUTHOR
NANCY STEFFEN RAHMEYER, J. - CONCURS
GARY W. LYNCH, J. - CONCURS
3