Description: Allen was convicted of tampering in the first degree and resisting arrest, for which he was
sentenced to 10 years and 5 years in prison, respectively. This court affirmed Allen’s convictions
and sentences in a per curiam order and memorandum issued pursuant to Rule 30.25(b) on
September 29, 2015. State v. Allen, 471 S.W.3d 396 (Mo. App. 2015). We issued our mandate
on October 21, 2015.
Allen timely filed with the circuit court his pro se Motion to Vacate, Set Aside or Correct
the Judgment or Sentence under Rule 29.15 on November 17, 2015. The motion was
accompanied by an affidavit of indigency. On November 18, 2015, the circuit court issued an
order notifying the public defender to “determine eligibility.” According to the docket sheet, the
order stated: “PCR having been filed, Public Defender hereby notified to determine eligibility.
Counsel Status hearing 1-25-16 9am II. CC of this order to State and Public Defender.” On
December 14, 2015, an assistant public defender entered an appearance on behalf of Allen and
requested an additional thirty days to file an amended motion. On January 1, 2016, the circuit
court granted the assistant public defender a 30-day extension to file the amended motion. The
assistant public defender filed the amended motion on March 14, 2016.
The circuit court held an evidentiary hearing on June 24, 2016. On July 15, 2016, the
circuit court issued its judgment denying the claim raised in the amended motion. In its
judgment, the circuit court noted that the amended motion had been filed on March 14, 2016, but
made no mention of the timeliness of the motion. Allen appeals.
Our review of the denial of a Rule 29.15 motion is limited to determining whether or not
the circuit court’s findings and conclusions are clearly erroneous. Rule 29.15(k). “A judgment is

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clearly erroneous when, after reviewing the entire record, the court is left with the definite and
firm impression that the motion court made a mistake.” Barton v. State, 432 S.W.3d 741, 748
(Mo. banc 2014).
In his sole point on appeal, Allen contends that the circuit court clearly erred in failing to
independently determine whether he was abandoned by post-conviction counsel. Allen asserts
that the amended motion was filed more than 90 days after the date post-conviction counsel was
appointed and granted an extension to file the amended motion.
Rule 29.15(g) establishes the time limits for filing an amended motion for post
conviction relief and provides in relevant part:
If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, 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.1

The rule also provides that the circuit court may extend the 60-day deadline for “one additional
period not to exceed thirty days.” Thus, a movant can have up to 90 days to timely file an
amended motion for post-conviction relief.
An amended motion filed beyond the deadline in Rule 29.15(g), however, can constitute
abandonment of the movant. Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015).
Abandonment by appointed counsel extends the time limitations for filing an amended Rule
29.15 motion. Id. Thus, when appointed counsel files an untimely amended motion, “the motion
court has a duty to undertake an ‘independent inquiry . . .’ to determine if abandonment
1Rule 29.15 was amended on May 31, 2016 with an effective date of January 1, 2017, and was amended on December 28, 2016, with an effective date of July 1, 2017. Our citation to Rule 29.15 is to the rule as it appeared in the 2016 Missouri Court Rules.

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occurred.” Id. If appointed counsel untimely files an amended motion and the circuit court does
not conduct an independent inquiry into abandonment, we must remand the case to the circuit
court for such an inquiry. Miller v. State, 478 S.W.3d 530, 533-34 (Mo. App. 2015).
Allen contends, and the State concurs, that post-conviction counsel was appointed by the
circuit court on November 18, 2015. We, however, find no such appointment before us on the
record. In support of their contention that the circuit court appointed post-conviction counsel on
November 18, 2015, both Allen and the State rely on this order by the circuit court, which was
recounted in the court’s docket sheets: “PCR having been filed, Public Defender hereby notified
to determine eligibility. Counsel Status hearing 1-25-16 9am II. CC of this order to State and
Public Defender.” The circuit court’s order, however, did not state that the court was appointing
the public defender to represent Allen. The order stated only that a post-conviction relief motion
had been filed and the public defender was “notified to determine eligibility.”2
In recent opinions handed down by the Missouri Supreme Court, the court held that a
circuit court’s notification to the public defender that a movant has filed a pro se motion for post
conviction relief is not an appointment of counsel triggering the Rule 29.15(g) timelines for
filing an amended motion. Creighton v. State, SC95527, 2017 WL 1496952, ___ S.W.3d ___
(Mo. banc April 25, 2017); Hopkins v. State, SC95916, 2017 WL 1511294, ___ S.W.3d ___
(Mo. banc April 25, 2017). In Creighton, the circuit court issued a memorandum stating: “The
Court hereby notifies [public defender] that movant Rodney Creighton has filed a post
2Rule 29.15(e) provides, “When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant.” The Missouri Supreme Court, however, has instructed that “Rule 29.15(e) . . . provides no specific time within which the court must appoint counsel. Rule 29.15(e) provides only that, at some point, the court must ensure counsel is appointed to represent an indigent movant.” Creighton v. State, discussed infra, slip op. at 8 (citation omitted). As discussed above, the circuit court’s order in this case notifying the public defender to determine eligibility is not an appointment of counsel.

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conviction motion. The motion is accompanied by an affidavit of indigency.” Creighton, slip
op. at 2. In Hopkins, the circuit court issued an “Order of Notification” stating:
The Court orders the Circuit Clerk to notify the Central Appellate Division for the State Public Defender of the filing of this 24.035 [sic] action and to provide the State Public Defender with a copy of Movant’s Form 40.

The Circuit Clerk is ordered to furnish to the State Public Defender any and all pleadings from this file or the underlying criminal case that the State Public Defender may request.

Hopkins, slip op. at 3. In both of these cases the Missouri Supreme Court held that the circuit
court’s notifications were not appointments of counsel and that the Rule 29.15(g) filing periods
commenced when the public defenders entered their appearances in the cases. Creighton, slip
op. at 5; Hopkins, slip op. at 6.
The Creighton court stated that the circuit court’s memorandum did not state that the
court was appointing the public defender to represent movant but stated only that the circuit
court “hereby notifies” the public defender that movant filed a pro se motion. Creighton, slip op.
at 5. A similar circumstance exists in this case. The circuit court’s order in this case did not state
that it was appointing the public defender to represent Allen; it merely stated that the public
defender was being “notified to determine eligibility.” Just as in Creighton and Hopkins, we find
there is no basis for concluding that the circuit court’s order to the public defender “to determine
eligibility” operates as an appointment of counsel.
Because the circuit court’s order “to determine eligibility” was not an appointment, the
Rule 29.15(g) filing period commenced when the public defender entered her appearance on
December 14, 2015. A public defender who has not been appointed but who enters an
appearance “unquestionably qualifies as ‘any counsel that is not appointed but who enters an
appearance on behalf of the movant.’” Creighton, slip op. at 9 (quoting Rule 29.15(g)). In this

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case, counsel’s amended motion was filed on March 14, 2016. Given that counsel was granted a
30-day extension to file the amended motion, the amended motion was filed within 90 days
following counsel’s entry of appearance. 3 Thus, counsel’s amended motion was timely filed
under Rule 29.15(g).

Outcome: