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Date: 01-17-2018

Case Style:

Terry T. Watson v. State of Missouri

Case Number: SC96103



Plaintiff's Attorney: Shaun Mackelprang of the attorney general’s office

Defendant's Attorney: Samuel Buffaloe of the public defender’s office

Description: Mr. Watson was convicted of first-degree robbery, resisting arrest, and
second-degree trafficking. He was sentenced to concurrent terms of imprisonment, the
longest of which was 18 years. The convictions and sentences were affirmed on appeal,
and on February 11, 2013, Mr. Watson filed a timely pro se motion for postconviction relief
under Rule 29.15. The motion alleged Mr. Watson received ineffective assistance of
counsel in that counsel (1) failed to notify Mr. Watson of the existence of a plea offer and
Opinion issued January 16, 2018
(2) opted to take Mr. Watson’s case to trial because of a mistaken belief that a conviction
under the first-degree robbery statute required the use of a weapon to forcibly take property
and cause bodily harm.
The motion court notified the public defender’s office that Mr. Watson had filed a
pro se motion on March 16, 2013, but did not appoint counsel. A special public defender
entered her appearance on Mr. Watson’s behalf on March 20, 2013. On April 12, 2013,
she filed a “Motion for Leave to File Amended Answer,” in which she requested “a period
of 45 days from the date of filing within which to file an amended petition.” (Emphasis
added). The motion court issued an order stating only “Motion Granted So Ordered.”
The issue now before this Court is to determine exactly when the amended motion
was due and whether an amended motion filed by the special public defender on May 30,
2013, was timely. If timely, then this Court will reach the merits. If untimely, then this
Court must remand for a determination of abandonment.
When an appellate court reviews a motion for postconviction relief, such review “is
limited to a determination of whether the motion court’s findings and conclusions are
clearly erroneous.” Eastburn v. State, 400 S.W.3d 770, 773 (Mo. banc 2013). The motion
court’s findings and conclusions are clearly erroneous only “if, after reviewing the entire
record, this Court is left with the definite and firm impression that a mistake has been
made.” Id. The filing deadlines for postconviction relief “are mandatory, and cannot be
waived.” Cox v. State, 445 S.W.3d 131, 134 (Mo. App. 2014). When a motion for
postconviction relief is filed untimely, “the motion court should not reach the merits of the
motion.” Turner v. State, 935 S.W.2d 393, 394 (Mo. App. 1996).
A. Requirements for an Amended Rule 29.15 Motion
Rule 29.15(e) requires a movant seeking postconviction relief to first file a pro se
motion. The appointment of counsel for an indigent movant or entry of appearance of
counsel for a movant triggers the running of the time for counsel to file an amended motion
under Rule 29.15(g). See Creighton v. State, 520 S.W.3d 416, 421 (Mo. banc 2017); Rule
29.15(e). Under Rule 29.15(g), the amended motion must be filed:
[W]ithin 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.
Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015), quoting, Rule 29.15(g).
At the time Mr. Watson filed his motion, Rule 29.15(g) further provided the “court
may extend the time for filing the amended motion for one additional period not to exceed
30 days.” No other extensions were permitted.1 Failure to file either a timely amended
motion or a statement in lieu of an amended motion explaining why an amended motion
was unnecessary “raises a presumption of abandonment by appointed counsel.” Vogl v.
State, 437 S.W.3d 218, 230 (Mo. banc 2014).
1 Effective January 1, 2018, the rules allow further extension of the time for filing an amended motion, “with no extension exceeding 30 days individually and the total of all extensions not to exceed 60 days.” Rule 29.15(g) (effective January 1, 2018); see also Rule 24.035(g).
Here, because no public defender was appointed, the time for filing the amended
motion began to run under Rule 29.15(g) when the special public defender filed her entry
of appearance on March 20, 2013.2 Absent the grant of an extension, her amended motion
was due 60 days later on May 19, 2013.
On April 12, 2013, more than three weeks after filing her entry of appearance, the
special public defender filed a pleading titled “Motion for Leave to File Amended
Answer,” which requested “a period of 45 days from the date of filing within which to file
an amended petition.” The motion court specifically granted the motion in an order that
stated only: “Motion Granted So Ordered.” The parties disagree as to when the amended
motion was due under the motion court’s order.
If the motion court granted the relief specifically requested – that is, leave to file an
amended motion “45 days from the date of filing” – then the amended motion was untimely
because 45 days from the date the motion for leave was filed was May 28, 2013,3 and
2 At the time of the events at issue in this case, Rule 29.15(e) provided, “When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant.” The rule did not provide a specific time within which the appointment of counsel needed to be made, and some courts simply notified the office of the public defender of the filing of a pro se motion but made no appointment. This Court clarified in Creighton, 520 S.W.3d at 418-19, that a motion court’s “memorandum notifying the public defender that [a m]ovant filed a pro se motion” does not constitute appointment and does not trigger the running of the time period for filing an amended motion. When no counsel is appointed, the Rule 29.15(g) filing deadlines “are measured from the date counsel … enters an appearance.” Id. at 421. This Court has implemented a rule change effective January 1, 2018, providing, “Within 30 days after an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant.” Rule 29.15(e) (effective January 1, 2018); see also Rule 24.035(e). 3 Forty-five days from the time the motion for leave was filed was actually May 27, 2013. But because May 27, 2013, was Memorial Day, the deadline was pushed back one day later to May 28, 2013. Regardless, the amended motion filed on May 30, 2013, was untimely.
counsel did not file the amended motion until May 30, 2013. This interpretation is
consistent with the plain language and wording of the motion for leave, which does not ask
for an extension of the actual filing deadline, but instead requests permission to file an
amended motion 45 days from the date “of filing.”
The State argues this Court nonetheless should interpret the motion for leave as
seeking a 45-day extension beyond May 19, 2013, which is the date the amended motion
otherwise would have been due under Rule 29.15. But at the time the special public
defender filed the motion, Rule 29.15(g) did not permit a 45-day extension. Rule 29.15(g)
expressly provided the maximum extension was 30 days from the date a post-trial motion
otherwise would be due, and only a single extension could be sought. Id. The State’s
interpretation, therefore, would require this Court to ignore the date on which the special
public defender asked the 45-day period begin to run, and either ignore the limit on the
length of extension Rule 29.15(g) permits to be granted or assume, even though the motion
court said it was granting the motion for leave, it was actually granting it only in part. This
Court would then be required to further assume the motion court sub silencio modified the
motion for leave so the time requested would begin and end on different, and unspecified,
dates than those requested. This simply is not a reasonable interpretation of what occurred.
The dissenting opinion notes the motion court has the authority to grant a 30-day
extension and argues it would be consistent with the motion court’s treatment of the motion
as timely to assume the motion court sua sponte granted a 30-day extension rather than the
nine-day extension expressly requested. The problem with this argument is the record
affirmatively shows that the motion court granted the motion filed by defense counsel. Its
order is specific: “Motion Granted So Ordered.” The order did not say the court was
granting an additional extension on its own motion, nor does the record otherwise reflect
such an extension, and to infer the court did so would be contrary to the express language
of its order that it was granting counsel’s motion. While Moore, 458 S.W.3d at 825,
suggests that a court can extend the filing deadline on its own motion, the motion court did
not do so here. This case is like Moore itself – in both cases, the record failed to show that
the motion court had “on its own motion granted an extension.” Id.
For these reasons, the only reasonable interpretation of the motion for leave is it
requested 45 days from the April 12, 2013, date on which it was filed, and the deadline it
requested was 45 days later, i.e. May 28, 2013. This is the extension the motion court
necessarily granted when it entered its order stating “Motion Granted So Ordered.”
Because the amended motion was not filed until May 30, 2013, it was untimely.
B. A Presumption of Abandonment Arose from the Failure to File a Timely Postconviction Motion
The untimely filing of an amended motion by postconviction counsel creates a
presumption of abandonment. Vogl, 437 S.W.3d at 230. Accordingly, this case must be
“remanded for the motion court to conduct the independent inquiry to determine if
Mr. [Watson] was abandoned.” Moore, 458 S.W.3d at 826; see Sanders v. State, 807
S.W.2d 493, 495 (Mo. banc 1991) (“The appropriate forum for addressing claims regarding
failure of postconviction counsel to comply with the time requirements of Rule 29.15[] is
in the circuit court where the motion is being prosecuted by movant”).

Outcome: For the reasons set out above, this Court holds Mr. Watson’s counsel untimely filed an amended motion under Rule 29.15, resulting in a presumption of abandonment. This Court remands for a determination whether Mr. Watson was abandoned.

Plaintiff's Experts:

Defendant's Experts:


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