In the Missouri Court of Appeals
Eastern District
DIVISION THREE
ANTHONY WALLACE, ) No. ED103125
)
Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. ) 1322-CC09064
)
STATE OF MISSOURI, ) Honorable Margaret M. Neill
)
Respondent. ) Filed: April 12, 2016
Anthony Wallace (“Movant”) appeals the judgment denying his Rule 29.151 motion for
post-conviction relief without an evidentiary hearing. Because Movant’s amended motion for
post-conviction relief was untimely filed and the motion court made no independent inquiry into
whether Movant was abandoned by post-conviction counsel, we reverse and remand the case to
the motion court for such an inquiry.
I. BACKGROUND
Following a bench trial, Movant was convicted of first-degree assault, second-degree
robbery, attempted forcible rape, attempted forcible sodomy, and kidnapping. The trial court
sentenced Movant as a prior offender to a total sentence of life imprisonment plus thirty years of
imprisonment.2 Movant then filed a direct appeal. This Court affirmed his convictions and
1
All references to Rules are to Missouri Supreme Court Rules (2015).
2
The trial court sentenced Movant to concurrent sentences of thirty and fifteen years of imprisonment for the assault
and robbery counts, to be served consecutively with concurrent life sentences for the attempted rape and sodomy
counts, and to a fifteen-year sentence for kidnapping to be served concurrently with all other sentences.
sentences in State v. Wallace, 399 S.W.3d 921 (Mo. App. E.D. 2013), with the mandate being
issued on June 28, 2013.
Movant timely filed a pro se Rule 29.15 motion for post-conviction relief on July 30,
2013.3 On August 29, 2013, the motion court designated the office of the public defender to
represent Movant. Then, on October 4, 2013, an assistant public defender (“Counsel”) entered
her appearance on behalf of Movant and filed a request for a thirty-day extension of time to file
Movant’s amended motion for post-conviction relief. The parties agree there is nothing in the
record indicating that the motion court ever ruled upon Counsel’s request for a thirty-day
extension.
Counsel filed an amended Rule 29.15 motion for post-conviction relief on January 2,
2014. Movant’s amended Rule 29.15 motion alleged, (1) his trial counsel was ineffective for
failing to present mitigating evidence at sentencing; and (2) his appellate counsel was ineffective
for failing to raise two sufficiency of the evidence claims in Movant’s direct appeal.
The motion court subsequently entered a judgment considering the merits of the claims in
Movant’s amended Rule 29.15 motion and denying the motion without an evidentiary hearing.
Movant appeals.
II. DISCUSSION
In this case, Movant raises three points on appeal arguing the motion court clearly erred in
denying his amended motion for post-conviction relief because trial counsel and appellate counsel
were ineffective for the reasons asserted in his motion.
Before we can potentially address the merits of a movant’s amended motion for post-
3
Movant’s pro se Rule 29.15 motion was filed thirty-two days after our Court issued the mandate in Movant’s direct
appeal. Therefore, Movant’s pro se motion was filed within the ninety-day time limit set forth in Rule 29.15(b). See
Rule 29.15(b) (providing that “[i]f an appeal of the judgment or sentence sought to be vacated, set aside or corrected
was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued
affirming such judgment or sentence”).
2
conviction relief, we are compelled under Moore v. State, 458 S.W.3d 822 (Mo. banc 2015) to
first determine whether the amended motion was timely filed. Federhofer v. State, 462 S.W.3d
838, 841 (Mo. App. E.D. 2015). If this Court finds that an amended motion for post-conviction
relief filed by appointed post-conviction counsel was untimely filed, but there has been no
independent inquiry into whether movant was abandoned by post-conviction counsel, we must
reverse and remand the case to the motion court for such an inquiry. Moore, 458 S.W.3d at 825-
26; Federhofer, 462 S.W.3d at 841. If, after making an independent inquiry into abandonment,
the motion court determines the movant was not abandoned by post-conviction counsel, the court
should adjudicate the movant’s initial pro se motion for post-conviction relief. Silver v. State,
477 S.W.3d 697, 698 (Mo. App. E.D. 2015). If, however, the motion court concludes the movant
was abandoned by post-conviction’s counsel untimely filing of an amended motion for post-
conviction relief, the court must adjudicate the amended motion. Id. at 698-99.
Rule 29.15(g) governs the filing of an amended motion for post-conviction relief. The
Rule provides that where, as in this case, an appellant files a motion for post-conviction relief
after a direct criminal appeal and does not retain private counsel, the amended motion must be
filed within sixty days of “(1) the date both the mandate of the appellate court is issued and
counsel is appointed.” Rule 29.15(g). In addition, “[t]he court may extend the time for filing
the amended motion for one additional period not to exceed thirty days.” Id.
In this case, after the mandate in Movant’s appeal was issued, the motion court
designated the office of the public defender to represent Movant on August 29, 2013 and
Counsel entered her appearance on Movant’s behalf on October 4, 2013. Assuming arguendo
that the later date (the date of Counsel’s entry of appearance) triggered the time limits for the
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filing of Movant’s amended motion under Rule 29.15(g),4 Movant’s amended Rule 29.15 motion
for post-conviction relief was due on or before December 3, 2013 but was not filed until January
2, 2014. Although Counsel filed a request for a thirty-day extension of time pursuant to Rule
29.15(g), the parties agree there is nothing in the record indicating that the court ever ruled upon
the request for a thirty-day extension. “[E]xtensions will not be presumed to have been granted
without a record thereof.” Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015).
Accordingly, our Court cannot find that the sixty-day deadline of Rule 29.15(g) had been
extended in this case, and without such an extension, Movant’s amended motion filed on January
2, 2014 was untimely. See Adams v. State, 2016 WL 1086487 at *3 (Mo. App. E.D.) and
Childers, 462 S.W.3d at 827-28 (similarly holding). Because Movant’s amended motion was
untimely filed and the motion court made no independent inquiry into whether Movant was
abandoned by Counsel, we must reverse and remand the case to the motion court for such an
inquiry. Moore, 458 S.W.3d at 825-26; Federhofer, 462 S.W.3d at 841.
4
We need not explicitly determine whether the date of Counsel’s entry of appearance or the date the motion court
designated the public defender’s office triggers the time limits for the filing of Movant’s amended motion under the
circumstances of this case because either way, Movant’s amended motion was untimely. However, we note
Missouri appellate courts have differed on the issue under particular circumstances and the Missouri Supreme Court
recently accepted transfer of this Court’s Creighton decision. Compare Laub v. State, 2015 WL 9311602 at *3-4
(Mo. App. S.D.) (holding the date of counsel’s entry of appearance triggered the time limits for the filing of
movant’s amended motion under Rule 29.15(g) where the motion court filed a memorandum which notified the
public defender’s office of movant’s pro se motion and which stated the court was not appointing the office at that
time) (application for transfer denied by the Missouri Supreme Court on March 1, 2016 and case mandated on
March 2, 2016, No. SD33759) and State v. Creighton, 2015 WL 9240967 at *1-3 (Mo. App. E.D.) (holding the date
the motion court designated the public defender’s office triggered the time limits for the filing of movant’s amended
motion under Rule 29.15(g) where the motion court filed a memorandum which notified the office of movant’s pro
se motion and indigency, apparently with no further explanation) (application for transfer sustained by the Missouri
Supreme Court on April 5, 2016, No. SC95527) and Harris v. State, 474 S.W.3d 600, 603 n.2, 602-03 (Mo. App.
E.D. 2015) (finding the date the motion court “appoint[s] [ ] the public defender’s office, not when an individual
attorney is designated by the public defender’s office” triggered the time limits for the filing of movant’s amended
motion under Rule 29.15(g) and opinion was silent regarding the details of the appointment of the office).
4
III. CONCLUSI
C ION
The ment is reverrsed and the case is remaanded to the motion courrt for
T motion court’s judgm
further prroceedings consistent
c wiith this opiniion.
___
ROBERT M. CLAYT
TON III, Pressiding Judgee
Lawrence E. Mooneyy, J., and
James M.
M Dowd, J., concur.
c
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