BRETT ALLEN YELTON, )
)
Movant-Appellant, )
)
vs. ) No. SD34313
)
STATE OF MISSOURI, ) Filed: December 7, 2016
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF WEBSTER COUNTY
Honorable Kenneth F. Thompson
REVERSED AND REMANDED
Brett Allen Yelton ("Movant") appeals from the motion court's denial of
his Rule 24.035 motion for post-conviction relief after an evidentiary hearing.1
Movant raises two points on appeal: (1) that the motion court clearly erred in
failing to conduct an independent inquiry under Moore v. State, 458 S.W.3d
822 (Mo. banc 2015), into whether Movant was abandoned by post-conviction
counsel when post-conviction counsel filed an untimely amended motion and (2)
that the motion court clearly erred in denying Movant's oral motion for a
continuance made at the beginning of the post-conviction evidentiary hearing.
1 All rule references are to Missouri Court Rules (2016).
The State concedes reversal and remand is required based on Movant's first
point. We agree. Consequently, we need not address Movant's second point. We
reverse and remand, so the motion court can conduct an independent inquiry
into whether Movant was abandoned by post-conviction counsel.
Factual and Procedural Background
We recount only those facts necessary to our review. Movant pleaded
guilty to one count of first-degree assault and one count of child abuse without
the benefit of a plea agreement. See § 565.050, RSMo (2000); § 568.060, RSMo
Cum. Supp. (2013). The trial court sentenced Movant to consecutive terms of life
imprisonment for first-degree assault and seven years' imprisonment for child
abuse.
Movant was delivered to the Department of Corrections on January 8,
2015. Movant filed a pro se motion for post-conviction relief on February 2,
2015. The motion court appointed the public defender to represent Movant on
February 6, 2015, and the transcript of the guilty plea and sentencing
proceedings was filed on May 13, 2015. Appointed counsel did not request and
the motion court did not grant an extension of time in which to file the amended
motion for post-conviction relief. Movant's amended motion for post-conviction
relief was filed on September 9, 2015.
The motion court held a hearing regarding the claims raised in Movant's
amended post-conviction motion on November 6, 2015. The motion court issued
findings of fact and conclusions of law denying Movant's amended motion for
post-conviction relief on December 7, 2015. The findings and conclusions do not
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discuss the untimely filing of the amended motion or whether Movant was
abandoned by post-conviction counsel. This appeal follows.
Discussion
Under Moore, appellate courts must sua sponte "determine whether
appointed counsel complied with the requirements of Rule 24.035(e), which
delineates the mandatory time limits for filing amended post-conviction
motions." Price v. State, 489 S.W.3d 358, 360 (Mo. App. S.D. 2016). Where,
as here, the movant did not appeal the judgement or sentence, the rule provides:
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). Here, post-conviction counsel was appointed on February 6,
2015, and the transcript was filed on May 13, 2015. Thus, the time period began
to run on May 13, 2015, and the amended motion was due on Sunday, July 12,
2015. Pursuant to Rule 44.01(a), since the time period ended on a Sunday, the
time for filing the amended motion was automatically extended until the end of
Monday, July 13, 2015. As stated above, Movant's amended motion for post-
conviction relief was filed on September 9, 2015. Movant's amended motion for
post-conviction relief was untimely.
"When appointed post-conviction counsel files an amended motion
outside the proscribed time limits, a presumption of abandonment occurs
'because the filing of the amended motion indicates that counsel determined
there was a sound basis for amending the initial motion but failed to file the
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amended motion timely.'" Price, 489 S.W.3d at 361 (quoting Moore, 458
S.W.3d at 825). In such circumstances, the motion court must complete an
independent inquiry to determine whether the movant was abandoned by post-
conviction counsel. Id. Here, there is nothing in the record to show the motion
court engaged in the required inquiry.
The inquiry is essential because it "will determine which post-conviction
motion—Movant's pro se motion or the amended motion—should be adjudicated
by the motion court." Id. "If the motion court finds that a movant has not been
abandoned, the motion court should not permit the filing of the amended motion
and should proceed with adjudicating the movant's initial motion." Moore, 458
S.W.3d at 825. "If the motion court determines that the movant was abandoned
by appointed counsel's untimely filing of an amended motion, the court is
directed to permit the untimely filing." Id. at 826.
Movant's first point is granted.
Decision
The motion court's judgment is reversed. The case is remanded for further
proceedings consistent with this opinion.
MARY W. SHEFFIELD, C.J. – OPINION AUTHOR
JEFFREY W. BATES, P.J. – CONCURS
DON E. BURRELL, J. – CONCURS
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BRETT ALLEN YELTON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent.
Combined Opinion