DocketNumber: No. SC 96909
Citation Numbers: 551 S.W.3d 476
Judges: III
Filed Date: 7/17/2018
Status: Precedential
Modified Date: 1/21/2022
Lowell Clyde Milner (hereinafter, "Milner") appeals from a judgment dismissing his Rule 24.035 motion for post-conviction relief without an evidentiary hearing.
Factual and Procedural History
Milner pleaded guilty to two counts of failing to register as a sex offender. The circuit court sentenced Milner to four years' imprisonment for each count to run consecutively. The circuit court suspended execution of Milner's sentence, and placed him on five years' probation. Subsequently, Milner's probation was revoked, his sentence was executed, and he was delivered to the department of corrections.
Milner timely filed his pro se motion for post-conviction relief, pursuant to Rule 24.035, on April 11, 2016. Post-conviction relief counsel (hereinafter, "Counsel") was appointed that same day.
*479The transcript from Milner's guilty plea and sentencing hearing was filed May 24, 2016. Counsel filed a motion requesting an extension of time to file the amended motion for post-conviction relief; the motion court granted this motion. Milner's amended motion for post-conviction relief was due September 22, 2016. Rule 24.035(g).
However, Counsel did not file an amended motion for post-conviction relief until November 2, 2016, raising additional claims other than those asserted in the pro se motion for post-conviction relief. Counsel requested the amended motion be filed out of time because she was unable to obtain records that were destroyed by Milner's plea counsel. Prior to the motion court ruling on Counsel's request to file out of time, the state filed a motion to dismiss Milner's pro se motion for post-conviction relief.
The motion court did not adjudicate Milner's amended motion and entered a judgment dismissing Milner's pro se post-conviction motion without an evidentiary hearing. Milner appeals.
Discussion
"Appellate review of judgments disposing of Rule 24.035 motions is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous." Hall v. State ,
An amended motion for post-conviction relief must be filed within sixty days of the date both a complete transcript of the guilty plea and sentencing hearing is filed and counsel is appointed. Rule 24.035(g). The motion court "may extend the time for filing the amended motion for one additional period not to exceed 30 days."
When appointed post-conviction counsel fails to comply with the mandates of Rule 24.035, the movant may have been abandoned by counsel.
Here, Milner's amended motion for post-conviction relief was due September 22, 2016, but it was not filed until November 2, 2016. Milner and the state concede Counsel's amended post-conviction motion was filed untimely.
"The untimely filing of an amended motion by post[-]conviction counsel creates a presumption of abandonment." Watson v. State ,
The method of making this inquiry may be as formal or informal as the motion court deems necessary to resolve the question of abandonment by counsel .... However, a sufficient record must be made to demonstrate on appeal that the motion court's determination on the abandonment issue is not clearly erroneous.
McDaris v. State ,
If the motion court determines appointed counsel's apparent inattention to filing an amended post-conviction motion stems from the movant's negligence or intentional failure to act, the movant is entitled to no additional relief, and the motion court should proceed upon the pro se post-conviction motion. Moore ,
"When the independent inquiry is required but not done, this Court will remand the case because the motion court is the appropriate forum to conduct such an inquiry."
In this case, the record demonstrates Counsel filed a motion to consider the untimely amended motion as timely filed pursuant to Sanders v. State,
Counsel's failure to file a timely amended post-conviction motion created a presumption of abandonment and triggered the motion court's obligation to conduct an independent inquiry to determine whether the movant was actually abandoned. There is no record demonstrating the motion court conducted an independent inquiry into whether Milner was abandoned.
The failure to conduct an independent inquiry requires this case to be remanded to the motion court for an independent abandonment inquiry, which is capable of being reviewed by an appellate court. If the motion court determines Counsel failed to file a timely amended motion due to the movant's negligence or intentional failure to act, there is no abandonment and the motion court should adjudicate the pro se post-conviction motion. Moore ,
Conclusion
The motion court's judgment is reversed. This case is remanded with instructions for the motion court to make an independent inquiry, which is capable of being reviewed by an appellate court, to determine whether Milner was abandoned by Counsel's failure to file an amended post-conviction motion timely.
All concur.
This Court acquired jurisdiction by granting transfer following an opinion by the court of appeals. Mo. Const. art. V, sec. 10.
The abandonment doctrine is limited to circumstances involving appointed post-conviction counsel. Gittemeier v. State ,