Kurt D. Usry v. State of Missouri

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
KURT D. USRY, ) ED103604
)
Appellant, ) Appeal from the Circuit Court of
) St. Charles County
v. ) 1411-CC00427
)
STATE OF MISSOURI, ) Honorable Richard Zerr
)
Respondent. ) Filed: September 20, 2016
Kurt Usry ("Appellant") appeals the judgment of the motion court, after an evidentiary
hearing, denying his Rule 29.15 post-conviction relief motion. We reverse and remand.
BACKGROUND
After a jury trial, Appellant was convicted and sentenced as a prior and persistent
offender for attempting to manufacture a controlled substance, possession of a controlled
substance, possession of drug paraphernalia, and tampering with physical evidence. Appellant
unsuccessfully appealed his convictions, this court's mandate being issued on February 27, 2014.
See, generally, State v. Usry, 420 S.W.3d 676 (Mo. App. E.D. 2014).
Appellant subsequently timely filed his pro se Rule 29.15 motion for post-conviction
relief on May 5, 2014. Counsel was then appointed to Appellant on May 9, 2014.1 Appellant's
counsel entered her appearance on July 3, 2014, and requested an extension of time to file an
amended motion. On July 9, 2014, the motion court granted Appellant's request for an extension
of time to file the Amended Motion, sufficiently noting such granting via a docket sheet entry.
An amended motion was filed on August 8, 2014. The amended motion raised claims for
relief that were in addition to and distinct from those claims raised in Appellant's pro se motion.
After an evidentiary hearing, Appellant was denied relief by the motion court. The motion
court's judgment did not address those claims set forth in Movant's pro se motion. Furthermore,
the record on appeal does not reflect an inquiry by the motion court regarding whether Movant
had been abandoned by counsel.
This appeal follows.
DISCUSSION
Appellant offers three points on appeal. However, the merits of this appeal may not be
addressed as we find the motion court erred in refraining to resolve whether Movant was
abandoned by counsel.
Rule 29.15(g) governs the time for filing an amended motion, and states:
If an appeal of the judgment sought to be vacated, set aside, or corrected is taken,
the amended motion shall be filed within sixty days of the earlier of: (1) the date
both the mandate of the appellate court is issued and counsel is appointed or (2)
the date both the mandate of the appellate court is issued and an entry of
appearance is filed by any counsel that is not appointed but enters an appearance
on behalf of movant. The court may extend the time for filing the amended
motion for one additional period not to exceed thirty days.
1
The motion court's docket sheets, included in the Record on Appeal, indicate post-conviction relief counsel was
appointed on May 12, 2014. However, the motion court's order appointing counsel is file-stamped May 9, 2014.
2
In the instant case, counsel was appointed on May 9, 2014. Although the motion court's
docket sheet reflects May 12, 2014 as the date post-conviction counsel was appointed, the Order,
itself, is clearly and unambiguously file-stamped May 9, 2014. Rule 29.15(g) expressly states
that an amended motion must be filed within sixty days of counsel being appointed. The order
appointing post-conviction counsel takes precedent over the motion court's docket sheet.
Additionally, this point is somewhat moot, as both parties acknowledged in their original briefs
that the Movant was appointed counsel on May 9, 2014.
Appellant's amended motion was, thus, originally due by July 8, 2014, sixty days from
the date counsel was appointed. Mo. Sup. Ct. R. 29.15(g). Appellant's counsel filed a request
for an extension of time to file the amended motion on July 3, 2014, and the motion court
granted a full thirty-day extension on July 9, 2014 (retroactive to July 8, 2014), as is allowed by
Rule 29.15(g). Appellant then had thirty days from July 8, 2014 to file the amended motion, thus
making the final due date August 7, 2014. Appellant, however, did not file the amended motion
until August 8, 2014, making it untimely by a single day.
This case closely resembles Moore v. State, 458 S.W.3d 822 (Mo. banc 2015). The
Supreme Court of Missouri held that, when an amended motion is untimely filed following the
timely filing of a pro se motion for post-conviction relief, and the motion court makes no
abandonment inquiry, a remand is required for the motion court to independently inquire whether
the movant was abandoned and to further review, consistent with that finding, movant's post-
conviction claims. Moore, 458 S.W.3d at 826; see also Mann v. State, 475 S.W.3d 208, 211
(Mo. App. E.D. 2015).
This court created an exception to Moore in Childers v. State, 462 S.W.3d 825 (Mo. App.
E.D. 2015), but that exception is inapplicable here. In Childers, this Court held that remand was
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not necessary in a similar situation because the pro se and amended motions were in essence the
same–meaning that motion court would have reached the same conclusion regardless. Id. at 468.
This court reasoned that a remand would serve no purpose because the movant had received "all
the process to which he is entitled[.]" Id. In other words, the abandonment determination would
have no effect on the relief available to the movant on remand because the motion court had
already considered all the movant's claims in the pro se and amended motions. Id.
In this case, there are significant differences between Appellant's pro se and amended
motions, and thus, the Childers exception to the Moore abandonment inquiry is inapplicable.
Here, as in Mann, we are constitutionally bound to follow Moore, holding that a remand is
"necessary for the motion court to inquire whether the [movant] had been abandoned." Mann,
475 S.W.3d at 213.
We, therefore, conclude remand is necessary for a determination of abandonment and for
further proceedings consistent with this court's determination.
CONCLUSION
The judgment of the motion court is reversed, and the case is remanded for further
proceedings consistent with this opinion.
Lisa P. Page, Judge
Robert M. Clayton III, P.J. and Mary K. Hoff, J., concur.
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