STEVE DUANE MOXLEY v. STATE OF MISSOURI

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Moxley was charged in the Circuit Court of Boone County with the Class C Felony of

driving while intoxicated. The trial court made a finding that Moxley was properly charged with

a Class C Felony as an aggravated-DWI offender due to his three previous DWI convictions.

Moxley was tried by jury on March 20, 2014. The jury found Moxley guilty and he was

sentenced to four years’ imprisonment. Moxley’s conviction was affirmed by this court in State v.

Moxley, 459 S.W.3d 509 (Mo. App. 2015).

On July 2, 2015, Moxley timely filed a pro se Rule 29.15 motion for post-conviction

relief, accompanied by a forma pauperis affidavit and a request that counsel be appointed. Four

days later, on July 6, the motion court made the following entry: “[c]ause referred to State Public

Defender. Upon entry by Public Defender or passage of 30 days, cause to trial request docket.

KC/III (mln).” On July 21, 2015, an attorney from the public defender’s office filed an entry of

appearance and moved for an extension of time to file an amended motion. The motion for

extension of time was granted by the court that same day without a hearing. The amended motion

was filed on October 19, 2015. On December 31, 2015, the trial court issued findings of fact and

conclusions of law denying relief. The motion court did not address the timeliness of the

amended motion. This appeal follows.

Discussion

The State argues that Moxley’s amended Rule 29.15 motion was untimely. If true, we have

no jurisdiction to address the merits of Moxley’s ineffective assistance of counsel claim on

appeal. “It is [the] duty of [the] Court of Appeals to determine sua sponte whether it has

jurisdiction before addressing issues on appeal in a post-conviction relief matter.” Geiler v. State,

921 S.W.2d 74, 75 (Mo. App. 1996). In order to determine whether this court has jurisdiction to

touch the merits of Moxley’s claim, we must first address the timeliness of Moxley’s amended

motion for post-conviction relief. Frazee v. State, 480 S.W.3d 442, 444 (Mo. App. 2016). Rule

29.15(g) governs when an amended motion must be filed:

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 counsel that is not appointed but enters an appearance on behalf of movant.



In order to establish whether Moxley’s amended 29.15 motion was filed within the

ninety-day limit2, we must determine the date on which counsel was appointed. The record

demonstrates that on July 6, 2015, the motion court made a finding that Moxley was indigent and

indicated that notice was sent to the public defender’s office. While notice was sent by certified

mail to the public defender’s office on July 6, 2015, a formal entry of appearance did not take

place until fifteen days later, on July 21, 2015.

The effective date of appointment of counsel is the date on which the office of the public

defender is designated rather than the date of counsel’s entry of appearance. Price v. State, 500

S.W.3d 324, 327 (Mo. App. 2016). In Price, this court held that the date that the pro se motion

was sent to the public defender’s office and the motion court made a docket entry indicating so

was the date of appointment, rather than counsel’s later entry of appearance.

Upon review of the record on appeal, we see no material disparity between the facts

present here and those in Price. Therefore, we hold that counsel was appointed for Moxley on

July 6, 2015, when the motion court granted Moxley leave to proceed forma pauperis and sent

notice of the pro se 29.15 motion to the public defender’s office. Under Rule 29.15(g), Moxley’s

amended motion was due, at the latest, on October 4. 2015. Because Moxley’s amended motion

was not filed until October 19, 2015, it was filed out of time.

Because Moxley’s motion was untimely, the motion court was under the duty to make

an independent inquiry to determine if abandonment occurred. Moore v. State, 458 S.W.3d 822,

825 (Mo. banc 2015). “If…the amended motion filed by appointed counsel is untimely, but there

has been no independent inquiry into abandonment, then the case should be remanded to the

motion court for such inquiry.” Price, 500 S.W.3d at 327. No such inquiry was made by the

motion court, and as a result, we remand for an abandonment inquiry.3