Date: 11-28-2015

Case Style: Dominic Lamar Hawkins vs. State of Missouri

Case Number: ED102065

Judge: Mary K. Hoff

Court: In the Missouri Court of Appeals Eastern District

Plaintiff's Attorney: Unavailable

Defendant's Attorney: Unavailable

Description: A jury convicted Movant of two counts of first-degree assault and two counts of armed
criminal action. Movant was sentenced to four concurrent terms of 18 years’ imprisonment.
Movant appealed to this Court, and we affirmed his convictions and sentences in State v.
Hawkins, 327 S.W.3d 626 (Mo. App. E.D. 2010). On January 12, 2011, this Court issued its mandate in Movant’s direct appeal. On April 11, 2011, Movant filed his pro se motion for post-conviction relief asserting several claims of ineffective assistance of his trial counsel and violations of his due process rights. On June 7,
2001, the court appointed post-conviction counsel to represent Movant. On June 15, 2011, post
conviction counsel entered an appearance on behalf of Movant and requested 30 additional days
to file an amended PCR motion. On June 20, 2011, the motion court granted the request. Post
conviction counsel did not file the amended PCR motion until February 6, 2012.
In the amended PCR motion, Movant also alleged that his trial counsel was ineffective
for promising the jury during his opening statement that the jury would hear Movant’s testimony
even though trial counsel was aware that Movant did not plan to testify unless a particular
witness also would testify. Movant alleged that when trial counsel made the statement, he knew
he had not secured the presence of the witness and, thus, he knew Movant’s decision to testify
was uncertain. Movant alleged that, when he subsequently did not testify, he was prejudiced
because the jury was allowed to infer that his testimony would have been unfavorable. The
amended PCR motion also requested an evidentiary hearing.
On January 24, 2014, the motion court held a hearing on the amended PCR motion in
which Movant and his trial counsel testified. The motion court subsequently issued its findings
of fact, conclusions of law, and judgment denying Movant’s requests for post-conviction relief.
This appeal followed.
Standard of Review
This Court’s review of the denial of a motion for post-conviction relief is limited to
determining whether the motion’s court’s findings of fact and conclusions of law are clearly
erroneous. Rule 29.15(k). “Findings and conclusions are erroneous if, after reviewing the entire
record, we are left with the definite impression that a mistake has been made.” Blackburn v.
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State, 2015 WL 5135192 *2 (Mo. App. E.D. 2015), citing Zink v. State, 278 S.W.3d 170, 175
(Mo. banc 2009).
Discussion
In his sole point on appeal, Movant claims the trial court erred in denying his PCR
motion because the record reflects that Movant’s trial counsel was ineffective for promising
during opening statement that the jury would hear Movant’s testimony. Movant argues that trial
counsel’s statement constituted ineffective assistance because, when he made this promise,
counsel was aware that the decision about whether Movant would testify was uncertain. Movant
further argues that counsel was ineffective in making the statement and then allowing the jury to
draw a negative inference when Movant did not testify and that such ineffectiveness prejudiced
him in that the jury inferred that Movant’s testimony would have been unfavorable. Movant
requests that we grant him a new trial.
In response, the State argues that Movant’s amended PCR motion was not timely filed
and that the record does not reveal any finding by the motion court that Movant was abandoned
by post-conviction counsel; thus, this Court should remand Movant’s case so that the motion
court can determine whether the untimely filing of Movant’s amended PCR motion was due to
abandonment by post-conviction counsel.
Rule 29.15(g) governs the filing of an amended post-conviction motion. It provides, in
pertinent part, that if an appeal of the judgment sought to be vacated, set aside, or corrected is
taken, then the amended post-conviction 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).
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“The court may extend the time for filing the amended motion for one additional period not to
exceed thirty days.” Id.
“[W]hen post-conviction counsel is appointed to an indigent movant, an 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 appointed counsel extend[s]
the time limitations for filing an amended Rule 29.15 motion.” Moore, 458 S.W.3d at 825
(internal quotation omitted). “When an untimely amended motion is filed, the motion court has a
duty to undertake an independent inquiry . . . to determine if abandonment occurred.” Id.
(internal quotation omitted). The motion court should not permit the filing of the amended
motion and should proceed with adjudicating the initial post-conviction motion if the court finds
that the movant has not been abandoned. Id. On the contrary, if the motion court finds that the
movant was abandoned by appointed counsel’s untimely filing of the amended motion, the court
is directed to permit the untimely filing. Id. at 826.
Here, the motion court appointed post-conviction counsel on June 7, 2011, so Movant’s
amended PCR motion was due August 6, 2011, which was 60 days after both the mandate of the
appellate court had been issued and post-conviction was appointed. August 6, 2011, was a
Saturday, so the due date for the amended PCR motion fell to the next business day, Monday,
August 8, 2011. As the State notes in its responsive brief, the motion court granted post
conviction counsel’s request for an additional 30 days to file the amended PCR motion;
therefore, the motion was due on September 7, 2011. However, the amended PCR motion was
not filed until February 6, 2012.
This untimely filing of the amended PCR motion gave rise to the motion’s court’s duty to
undertake an independent inquiry to determine if abandonment of post-conviction counsel had
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occurred. Moore, 458 S.W.3d at 825. In its findings of fact, conclusions of law, and judgment,
the motion court did not make the independent inquiry. “When the independent inquiry is
required but not done, this Court will remand the case because the motion court is the
appropriate forum to conduct such an inquiry.” Id. “The result of the inquiry into abandonment
determines which motion – the initial motion or the amended motion – the court should
adjudicate.” Id. Accordingly, we reverse and remand the case without deciding the merits of
Movant’s appeal.
Conclusion

Outcome: For the foregoing reasons, the motion court’s judgment denying Movant’s amended PCR motion is reversed and the case is remanded for an independent inquiry to determine whether Movant was abandoned by post-conviction counsel and for further proceedings consistent with the outcome of the court’s inquiry.

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