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Date: 09-22-2019

Case Style:

STEVEN BRUNNWORTH vs. STATE OF MISSOURI

Case Number: ED107071

Judge: Robert M. Clayton III

Court: MISSOURI COURT OF APPEALS EASTERN DISTRICT

Plaintiff's Attorney: Eric S. Schmitt and Shaun J. Mackelprang

Defendant's Attorney:

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Missouri Court of Appeals



Movant was charged with one count of the class C felony of stealing relating to an
incident that occurred in between January 4, 2015 and March 25, 2015. Movant appeared in
court with plea counsel on June 3, 2016 to enter a guilty plea pursuant to a plea agreement with
the State. On that date, the plea court accepted Movantís guilty plea and sentenced Movant in a

1 Unless otherwise indicated, all references to Rules are to Missouri Supreme Court Rules (2016), which was the version of the Rules in effect at the time Movantís pro se Rule 24.035 motion for post-conviction relief was filed on September 13, 2016.
2
manner consistent with the Stateís recommendation. Specifically, the plea court: sentenced
Movant to five years of imprisonment; ordered the sentence to run concurrently with a sentence
Movant was serving in another case in which Movant was receiving long-term drug treatment pursuant to section 217.362 RSMo Supp. 2004;2 and ordered long-term drug treatment pursuant to section 217.362, so Movant could continue in the program he had already started.3
Movant timely filed a pro se Rule 24.035 motion for post-conviction relief on September 13, 2016.4 On September 27, 2016, an assistant public defender (ďCounselĒ) entered his
appearance on behalf of Movant. The transcript of Movantís guilty plea and sentencing hearing
was then filed with the motion court on October 4, 2016. Thereafter, on October 7, 2016, the
motion court appointed the office of the public defender (and by extension, Counsel) to represent
Movant on October 7, 2016. Counsel subsequently filed a request for a thirty-day extension of
time to file Movantís amended motion for post-conviction relief, which the motion court granted.
On February 6, 2017, Counsel filed an amended Rule 24.035 motion for post-conviction
relief alleging that, inter alia, Movantís plea counsel was ineffective for failing to advise Movant
of a viable defense. The motion court subsequently entered a judgment considering the merits of
the claims in Movantís amended Rule 24.035 motion and denying the motion following an
evidentiary hearing. Movant appeals.



2 All references to section 217.362 RSMo are to RSMo Supp. 2004, which incorporates amendments through 2003 and is the latest version of the statute. 3 The plea court also ordered Movant to pay restitution to the victim in the amount of $16,315.00. 4 Movantís pro se Rule 24.035 motion was filed ninety-seven days after he was delivered to the custody of the department of corrections on June 8, 2016, and therefore, the motion was filed within the 180-day time limit set forth in Rule 24.035(b). See Rule 24.035(b) (providing that if no appeal of the judgment or sentence sought to be vacated, set aside, or corrected was taken, ďthe motion shall be filed within 180 days of the date the person is delivered to the custody of the department of correctionsĒ).
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II. DISCUSSION In this case, Movant raises one point on appeal arguing the motion court clearly erred in
denying his amended motion for post-conviction relief because his plea counsel was ineffective for
failing to advise Movant of a viable defense.
Before our Court can consider the merits of a movantís amended motion for post
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. Baker v. State, 565 S.W.3d 733,
736 (Mo. App. E.D. 2018). If we find that an amended motion for post-conviction relief was
untimely filed by appointed post-conviction counsel, but there has been no independent
inquiry made into whether the 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; Baker, 565 S.W.3d at 736, 737.5 If, after making an independent inquiry into
abandonment, the motion court concludes the movant was not abandoned by post-conviction
counsel, the court should adjudicate the movantís initial pro se post-conviction motion. Baker,
565 S.W.3d at 736. On the other hand, if the motion court determines the movant was abandoned
by post-conviction counselís untimely filing of the amended post-conviction motion, the court
must adjudicate the amended post-conviction motion. Id.
Rule 24.035(g) governs the filing of an amended post-conviction motion that is filed on
behalf of a movant convicted of a felony after a guilty plea. See generally Rule 24.035(a) and
(g); see also Baker, 565 S.W.3d at 736. Rule 24.035(g) specifically provides that where, as in

5 ďOur Court has acknowledged an exception to this rule applies where all of the claims in a movantís pro se motion for post-conviction relief have been incorporated into and fully adjudicated along with the amended motion for postconviction relief.Ē Baker, 565 S.W.3d at 736 n.4 (citing Guerra-Hernandez v. State, 548 S.W.3d 368, 371 (Mo. App. E.D. 2018) and Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015)). This exception does not apply here, however, because all of the claims in Movantís pro se Rule 24.035 motion for post-conviction relief have not been incorporated into and fully adjudicated along with his amended Rule 24.035 motion. See id.
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this case, a movant files a motion for post-conviction relief after a guilty plea from which no
direct criminal appeal was taken, the amended motion must 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.

In addition, ď[t]he court may extend the time for filing the amended motion for one additional
period not to exceed thirty days.Ē Rule 24.035(g).
In this case, it is unnecessary for us to determine whether Rule 24.035(g)(1) or Rule
24.035(g)(2) applies in determining when Movantís amended motion was initially due because,
as discussed below, Movantís amended post-conviction motion filed on February 6, 2017 was
untimely under both subsections of the Rule.
First, assuming arguendo that Rule 24.035(g)(1) and the triggering events therein apply
to the determination of when Movantís amended motion was initially due, Counsel was
appointed by the trial court on October 7, 2016, after the complete transcript had been filed in the
trial court. Accordingly, Movantís amended motion would have been initially due sixty days
after October 7, 2016, i.e., on Tuesday, December 6, 2016. See Rule 24.035(g)(1). However,
Counsel filed a request for a thirty-day extension of time pursuant to Rule 24.035(g), which the
trial court granted. Therefore, Movantís amended motion would have been due on or before
thirty days from December 6, 2016, i.e., on or before Thursday, January 5, 2017. See id.
In addition, assuming arguendo that Rule 24.035(g)(2) and the triggering events therein
apply to the determination of when Movantís amended motion was initially due, the complete
transcript of Movantís guilty plea and sentencing hearing was filed with the trial court on
October 4, 2016, after Counsel entered his appearance on behalf of Movant. Sixty days from
5
October 4, 2016 fell on Saturday, December 3, 2016. Accordingly, Movantís amended motion
would have been initially due on or before Monday, December 5, 2016. See Rule 44.01(a); see
also Rule 24.035(g)(2). However, Counsel filed a request for a thirty-day extension of time
pursuant to Rule 24.035(g), which the trial court granted. Therefore, Movantís amended motion
would have been due on or before thirty days from December 5, 2016, i.e., on or before
Wednesday, January 4, 2017. See id.
In sum, whether Movantís amended motion was due on January 5, 2017 or January 4,
2017, the amended motion was untimely filed on February 6, 2017. Moreover, because 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. See Moore, 458
S.W.3d at 825-26; Baker, 565 S.W.3d at 736, 737.

Outcome: The motion courtís judgment is reversed and the case is remanded to the motion court for further proceedings consistent with this opinion.

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