DocketNumber: No. SD 34409
Judges: Author, Coneurs, Francis, Lynch, Rahmeyer
Filed Date: 2/14/2017
Status: Precedential
Modified Date: 11/14/2024
Joshua Daniel Hewitt (“Movant”) timely appeals the motion court’s denial of his amended Rule 24.035 motion for post-conviction relief.
At a probation violation hearing held on April 9, 2013, Movant admitted that he violated conditions of his probation, and the court ordered the previously imposed sentences to be executed. Defendant was advised of his Rule 24.035 right to file a motion for post-conviction relief at that time. Movant was thereafter delivered to the DOC.
Movant timely filed, on June 19, 2013, a Rule 24.035 motion to vacate, set aside, or correct the judgment or sentence. Because the chronology and timing of procedural events thereafter is critical to the resolution of this appeal, we relate those events in table format for clarity and ease of reference, as follows:
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If no 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 a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and counsel is appointed or (2) the date both a complete transcript has been filed in the trial court and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.
Rule 24.035(g). “ ‘The time limits for filing a post-conviction motion are mandatory. The movant is responsible for timely filing the initial motion, and appointed counsel must timely file either an amended- motion or a statement that the pro se motion is sufficient.’” Moore v. State, 458 S.W.3d 822, 827 (Mo. banc 2015) (quoting Stanley v. State, 420 S.W.3d 532, 540. (Mo. banc 2014)).
The State contends in its brief that Mov-ant’s amended motion was originally due by July 9, 2014 (ninety days after the transcript of the guilty plea and sentencing was filed in the motion court on April 9, 2014, because counsel previously had been appointed on July 8, 2013) and, “[ajssum-ing that the reappointment of counsel [on September 3, 2014,] was a de facto-finding of abandonment and that it restarted the time for filing an amended motion, the new date for filing of an amended motion was December 3, 2014.” Therefore, the State argues that the amended motion filed on July 6, 2015, was not timely.
Movant’s reply brief contends that the amended motion was timely filed because Rule 24.035(g) requires a “complete transcript consisting of the guilty plea and sentencing hearing[]” and the transcript of Movant’s sentencing hearing was not “complete” until the transcript of Movant’s April 9, 2013 probation revocation hearing was filed on April 6, 2015. In support of this argument, Movant relies on Rule 29.07(b)(4), which requires the court to inform a defendant of the right to proceed under Rule 24.035.
Movant’s reasoning fails because his first premise is incorrect. Rule 29.07(b)(4) does not require that a defendant be given notice of his right to proceed under Rule 24.035 at the conclusion of every final sentencing. Rule 29.07 reads, in pertinent part: “If a defendant has a right to proceed under Rule 24.035 or Rule 29.15, the court at the conclusion of final sentencing shall advise the defendant of such right[.]” Rule 29.07(b)(4) (emphasis added). A defendant’s right to proceed under Rule 24.035 only arises, however, when he is
Here, with the thirty-day extension granted by the motion court as allowed by Rule 24.035(g),
After counsel is appointed to represent a movant in a post-conviction proceeding, appointed counsel’s failure to timely file an amended motion “can constitute ‘abandonment’ of the movant.” Moore, 458 S.W.3d at 825. See also Sanders v. State, 807 S.W.2d 493, 494-95 (Mo. banc 1991).
“Abandonment occurs when (1) post-conviction counsel takes no action on a mov-ant’s behalf with respect to- filing an amended motion and as such the record shows that the movant is deprived of a meaningful review of his claims; or (2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner."
Taylor v. State, 254 S.W.3d 856, 858 (Mo. banc 2008) (quoting Barnett v. State, 103 S.W.3d 765, 773-74 (Mo. banc 2003)). “ ’The absence of a record of post-conviction counsel’s attention to the pro se motion ‘creates a presumption that counsel failed to comply with the rule.’” Moore, 458 S.W.3d at 825 (quoting Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991)).
Here, there is nothing in the record to indicate that the required independent inquiry into the issue of abandonment as to any appointed counsel was undertaken by the motion court. “When the independent inquiry is required but not done, this [c]ourt will remand the case because the motion court is the appropriate forum to conduct such an inquiry.” Moore, 458 S.W.3d at 826. Accordingly, remand to the motion court for an independent inquiry into whether Movant was abandoned by appointed post-conviction counsel or counsels is appropriate here.
The motion court’s judgment denying Movant’s untimely amended motion for post-conviction relief is reversed, and the case is remanded to the motion court with directions that it conduct an independent inquiry into whether Movant was abandoned by any or all of his appointed counsels and for further proceedings consistent with the outcome of those inquiries.
. Rule references are to Missouri Court Rules (2016).
. Statutory references are RSMo Cum.Supp. 2011.
. Movant cites three cases in support of this argument: Johnson v. State, 407 S.W.3d 63 (Mo.App. 2013), Eichelberger v. State, 134 S.W.3d 790 (Mo.App. 2004), and Sutton v. State, 966 S.W.2d 337 (Mo.App. 1998). None of these cases support Movant's argument that the transcript of the probation revocation proceedings are part of the sentencing where sentence has been imposed but the execution of the sentence suspended.
. Rule 24.035(a) states:
A person convicted of a felony on a plea of guilty and delivered to the custody of the department of corrections who claims .that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States ... may seek relief in the sentencing court pursuant to the provisions of this Rule 24.035.
(Emphasis added.)
. Rule 24.035(g) provides in relevant part, “The court may extend the time for filing the amended motion for one additional period not to exceed thirty days.”
. Rules 29.15(e) and (g) mirror tíre language set out in Rules 24.035(e) and (g), respectively, in. proscribing post-conviction counsel’s duties and the time for filing an amended post-conviction motion following appointment of counsel. Cases analyzing Rules 29.15(e) and (g) are applicable here. See Price v. State, 422 S.W.3d 292, 298 (Mo. banc 2014),
. The State provides no authority for its position that reappointment of counsel is a de facto finding- of abandonment and we are aware of none. The trial court must conduct