In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
EZELL ROBERTS, ) No. ED101956
)
Appellant, ) Appeal from the Circuit Court of
) St. Louis County
vs. )
)
STATE OF MISSOURI, ) Honorable Michael T. Jamison
)
Respondent. ) Filed: November 3, 2015
Introduction
Ezell Roberts (Movant) appeals the judgment of the Circuit Court of St. Louis County
denying, after an evidentiary hearing, his Rule 29.15 motion for post-conviction relief. We
reverse and remand for an inquiry into whether Movant was abandoned by post-conviction
counsel.
Factual and Procedural Background
A jury convicted Movant of fifteen counts of statutory rape and statutory sodomy
perpetrated against his step-daughter over the course of several years, beginning when she was
nine years old. The trial court sentenced Movant to nine 30-year prison terms and six 7-year
prison terms, all to run concurrently. This court affirmed Movant’s convictions and sentences.
State v. Roberts, 388 S.W.3d 584 (Mo. App. E.D. 2012).
On April 4, 2013, Movant filed a timely pro se motion for post-conviction relief asserting
seven claims of ineffectiveness of counsel. On May 16, Movant’s counsel entered an appearance
and requested additional time to file an amended motion. The court granted that request May 20.
Movant’s amended motion was due August 14 (i.e., ninety days after counsel’s May 16 entry of
appearance and request for time). Counsel filed the motion out of time on August 20. In the
amended motion, Movant claimed that his trial counsel was ineffective for failing to: (1) adduce
into evidence the victim’s diary; (2) investigate and interview certain potential witnesses; and (3)
adequately cross-examine the victim about a letter she wrote to Movant that was not disclosed to
the State and thus not admitted at trial.
On January 24, 2014, the motion court held a hearing on Movant’s motion. The
untimeliness of the motion was not discussed, and the motion court denied the motion on the
merits. Movant now appeals and asserts that the court clearly erred by: (1) failing to make an
independent inquiry whether Movant’s post-conviction counsel abandoned him by filing his
amended motion out of time; and (2) denying Movant’s claim that counsel was ineffective for
failing to disclose the victim’s letter so that it could be adduced at trial.
Standard of Review
Appellate review of the denial of a motion for post-conviction relief is limited to a
determination of whether the motion court’s findings of fact and conclusions of law are clearly
erroneous. Mo. Sup. Court Rule 29.15(k). The motion court’s findings and conclusions are
clearly erroneous only if a review of the entire record leaves this court with the definite and firm
impression that a mistake has been made. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009).
Discussion
In his first point, Movant asserts that the motion court erred by failing to inquire whether
Movant’s counsel abandoned him by filing his amended motion out of time. The State concedes
this point and agrees that we should remand the case to the motion court for that inquiry.
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Rule 29.15(g) governs the time limits for filing an amended post-conviction motion. It
provides, in pertinent part, that where a movant appeals the judgment sought to be vacated, set
aside, or corrected, “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.” Rule 29.15(g).
“[A]n amended motion filed beyond the deadline in Rule 29.15(g) can constitute
‘abandonment’ of the movant.” Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015).
Abandonment by post-conviction counsel “extend[s] the time limitations for filing an amended
Rule 29.15 motion.” Id. Thus, when post-conviction counsel files an untimely amended motion,
“the motion court has a duty to undertake an ‘independent inquiry ...’ to determine if
abandonment occurred.” Id. If the motion court finds that a movant has not been abandoned, then
the motion court should not permit the filing of the amended motion and should proceed with
adjudicating the movant's initial motion. Id. If the motion court determines that the movant was
abandoned by post-conviction counsel's untimely filing of an amended motion, then the court
should permit the untimely filing. Id.
If we determine that post-conviction counsel untimely filed an amended Rule 29.15
motion and the motion court did not conduct an independent inquiry into abandonment, then we
must remand the case to the motion court for such an inquiry. Blackburn v. State, 2015 WL
5135192, at *2 (Mo.App.E.D. September 1, 2015). “It is our duty to enforce the mandatory
timelines in the post-conviction rules, but the motion court is the appropriate forum to conduct
such an inquiry into abandonment.” Id. (quotation omitted).
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The record confirms that post-conviction counsel filed the amended motion six days after
it was due, but the record lacks any indication that the motion court inquired into whether
counsel thereby abandoned Movant. “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. The result of that inquiry determines which motion
(the initial motion or the amended motion) the court should adjudicate. Id.
Movant’s first point is granted and is dispositive.
Conclusion
The motion court's judgment is reversed, and the case remanded for the motion court to
conduct an independent inquiry to determine if Movant was abandoned and for further
proceedings consistent with the outcome of that inquiry.
Patricia L. Cohen, Judge
Sherri B. Sullivan, P.J., and
Kurt S. Odenwald, J., concur.
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