Opinion
No. ED 108454
12-01-2020
Terrell Gran JOHNSON, Appellant, v. STATE of Missouri, Respondent.
FOR APPELLANT: Steven Kratky, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101. FOR RESPONDENT: Dora A. Fichter, Eric Schmitt, P.O. Box 899, Jefferson City, Missouri 65102.
FOR APPELLANT: Steven Kratky, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.
FOR RESPONDENT: Dora A. Fichter, Eric Schmitt, P.O. Box 899, Jefferson City, Missouri 65102.
Angela T. Quigless, P.J., Kurt S. Odenwald, J., and James M. Dowd, J.
James M. Dowd, Judge Introduction
Terrell Johnson appeals from the judgment denying his Rule 29.15 motion for post-conviction relief following his criminal convictions and prison sentences after a jury trial. The motion court considered and denied each of Johnson's allegations of ineffective assistance of counsel made in his pro se motion and in his untimely amended motion. Although the motion court found that Johnson had not been abandoned by appointed counsel, the record is inadequate for us to determine whether the motion court made the mandatory independent inquiry into whether abandonment occurred so as to allow for his untimely amended motion to be considered. Therefore, we must reverse and remand this matter for the motion court to conduct such an independent inquiry on the record.
Background
In the underlying case, Johnson was charged as a prior and persistent offender with the class B felony of burglary in the first degree, the class C felony of stealing over $500, the class B misdemeanor of property damage in the second degree, and the class D felony of possession of burglar's tools. The jury acquitted Johnson of possession of burglar's tools but convicted him of the remaining charges. The trial court sentenced Johnson to twenty-five years on the burglary count in the Missouri Department of Corrections, to a concurrent term of fifteen years on the stealing count, and to time served on the property damage count. We affirmed the convictions and sentences in State v. Johnson, 461 S.W.3d 842 (Mo. App. E.D. 2015) and issued our mandate on May 6, 2015.
On July 2, 2015, Johnson timely filed his pro se motion for post-conviction relief under Rule 29.15, asserting that appointed counsel was ineffective for his "failure to call co-defendant to testify when he said he was going to." Post-conviction counsel was appointed, entered his appearance, and requested additional time to file Johnson's amended motion. However, the amended motion was not timely filed. Instead, on April 12, 2017, counsel filed Johnson's amended motion along with a motion pursuant to State v. Sanders, 807 S.W.2d 493 (Mo. banc 1991), seeking relief from the untimeliness of the amended motion based on abandonment. In the Sanders motion, counsel asserted that the untimeliness was solely caused by the Missouri Public Defender's office, not Johnson. The State did not file a response to the Sanders motion. The motion court did not hold a hearing about the issue of abandonment or otherwise conduct any inquiry into the question as far as we can discern from this record. The motion court denied the Sanders motion holding that "[t]he record does not provide a basis for a finding that movant was abandoned by motion counsel." Despite finding no abandonment, the motion court addressed all of Johnson's claims of ineffective assistance of counsel, including those appearing in the untimely amended motion. Johnson appeals.
Discussion
In his sole point on appeal, Johnson contends the motion court clearly erred in denying his claim of ineffective assistance of counsel for failing to use the transcript of his alleged co-defendant's guilty plea to impeach his testimony at trial to show he did not act with Johnson in committing the crime. In response, the State argues this Court should decline to review this point, because it was only raised in his untimely amended motion and the motion court specifically found no abandonment by post-conviction counsel. This raises the issue of the consequences of the untimeliness of the amended motion and the motion court's consideration of the claims in the untimely amended motion despite finding no abandonment by appointed counsel.
First, it is undisputed on this record that the amended motion was untimely. The motion was due on June 15, 2016 but was not filed until April 12, 2017.
The filing deadlines for post-conviction relief are mandatory and cannot be waived. Guerra-Hernandez v. State, 548 S.W.3d 368, 370 (Mo. App. E.D. 2018) ; Watson v. State, 536 S.W.3d 716, 717 (Mo. banc 2018). When a motion for post-conviction relief is untimely filed, the motion court should not reach the merits of the motion. Guerra-Hernandez, 548 S.W.3d at 370. Instead, the motion court is required to make a record of an independent inquiry into abandonment before considering the claims and evidence presented in the amended motion. Barber v. State, 569 S.W.3d 556, 559 (Mo. App. E.D. 2019) (citing Lampkin v. State, 560 S.W.3d 67, 70 (Mo. App. E.D. 2018), reh'g and/or transfer denied (Oct. 22, 2018)). The abandonment inquiry is conducted to determine if the merits of the amended motion may be considered. Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2015). If after conducting an independent inquiry into the abandonment issue, the motion court determines the movant was not abandoned by post-conviction counsel, the motion court should adjudicate only 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).
To adequately review the issue of abandonment of counsel, the record must be clear enough for the appellate court to decide whether or not the motion court's finding with respect to abandonment was clearly erroneous. McDaris v. State, 843 S.W.2d 369, 371 n.1 (Mo. banc 1992). If the record demonstrates that there has been no independent abandonment inquiry, then we must reverse and remand for the motion court to conduct this inquiry. Moore, 458 S.W.3d at 826 ; see also Barber, 569 S.W.3d at 559-60.
The untimely filing of an amended motion by post-conviction counsel raises a presumption of abandonment. Watson, 536 S.W.3d at 719. The motion court must independently inquire into post-conviction counsel's claims and the movant's replies to those claims including the possibility that a movant's negligence or failure to act caused the untimely filing of the amended motion. Id. ; Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991). If a movant's negligence or failure to act caused the untimely filing, the movant is "entitled to no relief other than that which may be afforded upon the pro se motion". Luleff, 807 S.W.2d at 498 ; see also Barber, 569 S.W.3d at 560.
"The method of making this inquiry may be as formal or informal as the motion court deems necessary to resolve the question of abandonment by counsel, including, but not limited to, a written response and opportunity to reply, a telephone conference call, or a hearing. However, a sufficient record must be made to demonstrate on appeal that the motion court's determination on the abandonment issue is not clearly erroneous." McDaris, 843 S.W.2d at 371 n. 1 ; see also Barber, 569 S.W.3d at 560. Although the Court in McDaris does not provide an exhaustive list of methods of inquiry, the motion court must make a sufficient record of its inquiry. Barber, 569 S.W.3d at 560.
In light of these authorities, we are compelled to reverse and remand this case for the motion court to conduct an adequate independent inquiry into abandonment. There are only two matters in the record before the motion court on the abandonment question: (1) the presumption of abandonment created by the untimely filing of the amended motion, and (2) counsel's assertion in his Sanders motion that the responsibility for the untimely filing was the Public Defender's Office, not Johnson. This is not an adequate record of an independent inquiry from which the motion court in the exercise of its discretion could determine the abandonment issue nor is it an adequate record for us to review whether or not the motion court's determination with respect to abandonment is clearly erroneous.
The State points to Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015), in which we recognized an exception to the abandonment inquiry when the motion court does not make an abandonment inquiry or finding, but proceeds to adjudicate the movant's claims in both the pro se motion and in the untimely amended motion. In Childers, we held that remand was not necessary when a movant's pro se motion had been incorporated into and adjudicated with the amended motion. Id. We reasoned that remanding for an abandonment inquiry and 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 both the pro se and amended motions. Id.
We find Childers distinguishable from this case because here the motion court made a finding on abandonment. Unlike in Childers, in the matter sub judice the motion court specifically found that Johnson had not been abandoned. As a result, if true, the claims of ineffective assistance of counsel raised in the untimely amended motion were waived and should not have been considered, much less adjudicated, by the motion court. That was not the case in Childers where the motion court had not made any finding at all on abandonment so the motion court was not adjudicating waived claims. The critical consequence of this distinction is that Johnson's sole point on appeal concerns one of the waived claims from his untimely amended motion. If we affirmed the motion court's finding of no abandonment after such an insufficient inquiry, we would have no choice but to dismiss Johnson's appeal. Because the record contains nothing from which we can determine if the finding of no abandonment is in error, we must reverse and remand the matter to the motion court to conduct a sufficient inquiry into the issue.
Conclusion
Accordingly, we reverse and remand in order for the motion court to conduct an independent inquiry to determine whether Johnson was abandoned by appointed counsel in connection with the untimely filing of his amended motion for post-conviction relief under Rule 29.15.
Angela T. Quigless, P.J., and Kurt S. Odenwald, J., concur.