David Glenn Latham v. State of Missouri

In 2010, the state filed a criminal complaint against Mr. Latham alleging he

possessed six or more grams of cocaine base on June 6, 2010. In 2011, Mr. Latham was

charged with the class A felony of trafficking drugs in the second degree, section 195.223.

The information charged that Mr. Latham “possessed 6 grams or more of a mixture or

substance containing a cocaine base, a controlled substance, knowing of its presence and

nature.” Mr. Latham subsequently pleaded guilty and was sentenced to 15 years in prison.

The plea court suspended execution of his sentence and imposed a five-year term of

supervised probation. On August 12, 2013, the plea court found Mr. Latham violated his

probation and ordered execution of his 15-year sentence.

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On November 20, 2013, Mr. Latham timely filed his pro se Rule 24.035 motion for

postconviction relief. His pro se motion alleged three claims: (1) counsel was ineffective

for failing to investigate why his preliminary hearing3 was waived; (2) counsel was

ineffective for failing to spend sufficient time with him to defend him at the revocation

hearing; and (3) counsel was ineffective in that she misled him into believing she would

request long-term drug treatment at his sentencing hearing. On December 11, 2013, the

motion court appointed the public defender’s office4 to represent Mr. Latham. Because the

transcript of his guilty plea was filed on March 25, 2014, Mr. Latham’s amended motion

was due May 27, 2014.5

Mr. Latham’s postconviction counsel did not file an amended motion by the 60-day

deadline in Rule 24.035(g). Instead, on June 20, 2014, postconviction counsel filed a

statement in lieu of an amended motion. In the statement, postconviction counsel said he

had requested all pertinent documents for review, including transcripts, motions, and case

files. He further stated his associate interviewed Mr. Latham by phone on May 21, 2014.

Counsel concluded by stating, although he originally believed Mr. Latham might have an

ineffective assistance of counsel claim regarding “the elements of the crime charged,”



3 From the record, it appears Mr. Latham is referencing waiver of his section 217.722 preliminary hearing following his probation violation. 4 The record reflects that, on January 9, 2014, the public defender’s office contracted with a private attorney to represent Mr. Latham. The private attorney did not enter his appearance in the case until February 17, 2014. 5 The 60-day period for filing the amended motion ended Saturday, May 24, 2014. The following Monday, May 26, 2014, was Memorial Day. Pursuant to Rule 20.01(a) and Rule 44.01(a), the 60-day period was extended until Tuesday, May 27, 2014.

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further research proved Mr. Latham “was sentenced under the old law prior to the change

becoming effective.”

Three days later, on June 23, 2014, Mr. Latham filed a pro se pleading titled

“Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request

for Evidentiary Hearing.” In the pleading, Mr. Latham stated he filed the pleading

“because counsel refused to amend said motion” and alleged “[c]ounsel did not send

movant a statement allowing him the opportunity to reply to it, so in the alternative, movant

has filed this Amended Motion Pro Se.” The pro se pleading alleged 16 claims of

ineffective assistance of counsel, including plea “counsel failed to investigate and prove,

for the sake of instructing [him] to offer a Guilty Plea, both the Possession prong and the

Knowledge prong in this case for Trafficking.”

The motion court conducted an evidentiary hearing on the claims alleged in both

Mr. Latham’s initial pro se motion and his subsequent pro se pleading.6 At the hearing,

Mr. Latham’s plea counsel was asked whether she discussed with him that the laboratory

report showed the substance in his possession was cocaine salt but he was charged with

trafficking cocaine base and did not possess enough cocaine salt to be charged with a class

A trafficking felony under section 195.223.7 Mr. Latham’s plea counsel testified she would



6 Mr. Latham was represented at the evidentiary hearing by his postconviction counsel who filed the statement in lieu of an amended motion. 7 At the time of Mr. Latham’s offense, possession of cocaine salt constituted a class A felony of trafficking drugs in the second degree if the person possessed more than 450 grams. Section 195.223.2(2). Possession of cocaine base, however, constituted a class A felony of trafficking drugs in the second degree if the person possessed more than six grams. Section 195.223.3(2). The laboratory report identifies the substance in Mr. Latham’s possession as six grams of cocaine salt. Mr. Latham, therefore, did not possess

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have discussed that with him and advised him to plead guilty because the state could have

charged him as a prior and persistent offender and added a weapons charge for the gun

found with the drugs. Mr. Latham testified plea counsel never informed him he was

improperly charged or that there are different thresholds and penalties for trafficking

cocaine base versus cocaine salt.8

The motion court found the claims in Mr. Latham’s initial pro se motion were not

cognizable in a Rule 24.035 proceeding. The motion court also overruled the claims raised

in his subsequent pro se pleading. Mr. Latham appealed. After an opinion by the court of

appeals, the case was transferred to this Court. Mo. Const. art. V, sec. 10.

Standard of Review This Court’s review of a motion court’s ruling on a Rule 24.035 motion for

postconviction relief is “limited to a determination of whether the findings and

conclusions of the [motion] court are clearly erroneous.” Rule 24.035(k). A motion

court’s findings and conclusions “are clearly erroneous if, after a review of the entire

record, the court is left with the definite and firm impression that a mistake has been

made.” Gittemeier v. State, 527 S.W.3d 64, 67-68 (Mo. banc 2017) (internal quotation

omitted).





any cocaine base and possessed an insufficient amount of cocaine salt to be charged with a class A felony of second degree drug trafficking. The laboratory report would have supported only a class B felony of possession with intent to distribute, section 195.211, or a class C felony of possession of a controlled substance, section 195.202. 8 Since Mr. Latham was charged, the thresholds and penalties for the offense of trafficking in the second degree have been amended. See Section 579.068, RSMo 2016.

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Presumption of Abandonment

On appeal, Mr. Latham raises issues concerning his postconviction counsel’s

untimely filing of the statement in lieu of an amended motion and the timeliness of his

subsequent pro se pleading. Mr. Latham asserts his postconviction counsel’s failure to file

a statement in lieu of an amended motion within 60 days of the transcript being filed created

a presumption of abandonment. The state counters that no presumption of abandonment

arose because the time requirements for filing an amended motion in Rule 24.035(g) do

not apply to the filing of a statement in lieu of an amended motion. But the purpose for

requiring the filing of a statement in lieu of an amended motion necessitates application of

the 60-day time limitation in Rule 24.035(g).

Rule 24.035(e) sets forth postconviction counsel’s responsibilities following a

movant’s filing of a pro se motion and provides:

When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant. Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and (2) all claims known to the movant are alleged in the pro se motion. The statement shall be presented to the movant prior to filing. The movant may file a reply to the statement not later than ten days after the statement is filed.



Rule 24.035(e), therefore, requires postconviction counsel to determine whether a

movant’s pro se motion asserts sufficient facts and includes all claims known to the movant

for attacking the judgment and sentence. Upon making that determination, Rule 24.035(e)

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requires postconviction counsel to file either an amended motion or a statement in lieu of

an amended motion.

If postconviction counsel determines a statement in lieu of an amended motion is

the appropriate course of action, Rule 24.035(e) requires postconviction counsel to detail,

in the statement, the actions counsel took to ensure all facts and claims known to the

movant were asserted in the pro se motion. Accordingly, under the rule’s plain language,

the statement in lieu of an amended motion is the mechanism by which postconviction

counsel informs the motion court of counsel’s determination that an amended motion is

unnecessary because, through counsel’s actions, postconviction counsel believes all facts

and claims known to the movant are included in the pro se motion.

The requirement of making a record of whether postconviction counsel acted to

fulfill counsel’s responsibilities under the postconviction rules in the absence of a timely

filed amended motion was first articulated by this Court in Luleff v. State, 807 S.W.2d 495

(Mo. banc 1991). In Luleff, the Court found the movant’s pro se motion failed to comply

with the requirements of Rule 29.15 and, “[a]bsent some performance by appointed

counsel, the motion court cannot determine whether the pro se pleading can be made

legally sufficient by amendment or whether there are other grounds for relief known to

movant but not included in the pro se motion.” Id. at 498. The Court held:

A record that does not indicate whether appointed counsel made the determinations required by Rule 29.15(e) creates a presumption that counsel failed to comply with the rule. Where counsel determines that filing an amended motion is not warranted, counsel should make that determination a part of the record. At such time as the motion court may proceed to rule a postconviction motion and there is no record of any activity by counsel on movant’s negligence or intentional failure to act, movant is entitled to no

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relief other than that which may be afforded upon the pro se motion. If the court determines, on the other hand, that counsel has failed to act on behalf of the movant, the court shall appoint new counsel, allowing time to amend the pro se motion, if necessary, as permitted under Rule 29.15(f).



Id. (emphasis added).

After Luleff, this Court amended the postconviction rules9 to include the

requirement of a statement in lieu of an amended motion detailing the actions taken by

postconviction counsel to ensure all facts and claims known to the movant were included

in the pro se motion. In other words, the rule was amended to require postconviction

counsel to file a statement with the motion court detailing the actions that establish

postconviction counsel performed counsel’s responsibilities under the rule and, thereby,

did not abandon the movant. The purpose of a statement in lieu of an amended motion,

therefore, is to show that postconviction counsel complied with the requirements of Rule

24.035(e) so that a presumption of abandonment by postconviction counsel does not arise

in the absence of an amended motion. It follows that, under the rule, postconviction

counsel must file either an amended motion or a statement in lieu of an amended motion

or a presumption of abandonment will arise.

In light of this purpose, a statement in lieu of an amended motion must be filed by

the same deadline for filing an amended motion. At the time Mr. Latham filed his

postconviction motion, Rule 24.035(g) provided:10



9 In 1995, Rule 24.035(e) and Rule 29.15(e) were amended to include the option of filing a statement in lieu of an amended motion. The amended rules became effective in 1996. See Rule 24.035(e) (1996); Rule 29.15(e) (1996). 10 In 2017, Rule 24.035(g) was amended to expressly require that a statement in lieu of an amended motion be filed within the 60-day deadline.

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If no appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within 60 days of the earlier of the date both a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and:



(1) Counsel is appointed; or



(2) An entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.



Rule 24.035(g), therefore, expressly set forth time limitations for the filing of amended

motions but was silent as to the filing of a statement in lieu of an amended motion.

The state avers Rule 24.035(g)’s silence as to a statement in lieu of an amended

motion means such statement was not required to be filed within the 60-day deadline. But

the purpose of requiring a statement in lieu of an amended motion is to prevent the

presumption of abandonment from arising. A presumption of abandonment arises when

postconviction counsel fails to file an amended motion by Rule 24.035(g)’s 60-day

deadline. See Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015). If postconviction

counsel does not file the statement in lieu of an amended motion by the 60-day deadline

for filing an amended motion, then a presumption of abandonment arises and the purpose

of the statement is defeated. Accordingly, either an amended motion or a statement in lieu

of an amended motion must be filed by Rule 24.035(g)’s 60-day deadline to prevent a

presumption of abandonment from arising.

Consistent with such rationale, this Court has held: “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.”

Watson v. State, 536 S.W.3d 716, 718 (Mo. banc 2018). This Court has further held “a

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motion court must conduct a sufficient independent inquiry of a post-conviction movant’s

claim of abandonment” when postconviction counsel has failed to timely file an amended

motion or “a statement setting out facts that demonstrate counsel’s actions to ensure no

amended motion is needed.” Vogl v. State, 437 S.W.3d 218, 228 (Mo. banc 2014).

Furthermore, the state’s position that there is no deadline for filing a statement in

lieu of an amended motion would render the mandatory deadline for filing an amended

motion meaningless. This Court has repeatedly held the time limitations on postconviction

relief motions are mandatory and cannot be extended by the motion court. Gittemeier, 527

S.W.3d at 68. This is because a postconviction proceeding “is a collateral attack on the

final judgment of a court.” Stanley v. State, 420 S.W.3d 532, 541 (Mo. banc 2014). Courts,

therefore, must strictly enforce Rule 24.035’s time limitations “to prevent duplicative and

unending challenges to the finality of a judgment.” Id. (internal quotation omitted).

A mandatory deadline for a statement in lieu of an amended motion is also necessary

because Rule 24.035(e) requires the statement to be presented to the movant prior to filing

and gives the movant 10 days to file a reply. Requiring the statement in lieu of an amended

motion to be presented to the movant ensures the movant is provided notice of

postconviction counsel’s determination that an amended motion is unnecessary. Such

notice is also a prerequisite to providing the movant a chance to file a reply. The reply

gives the movant an opportunity to respond to postconviction counsel’s assertions that all

facts and claims known to the movant are included in the pro se motion. Inherent in giving

a movant the opportunity to respond to the statement in lieu of an amended motion is the

possibility the movant has additional facts or claims that would necessitate the filing of an

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amended motion. Therefore, the purpose of the reply is to ensure no amended motion is

actually necessary.

The lack of a deadline for filing a statement in lieu of an amended motion would

delay the movant’s time for responding and the motion court’s determination regarding

whether the filing of an amended motion is necessary. Such delays would only lengthen

postconviction proceedings and needlessly extend the time period for collateral attacks on

a final criminal judgment.

In sum, both the purpose of requiring postconviction counsel to file a statement in

lieu of an amended motion and the process outlined for a movant’s reply thereafter support

the imposition of Rule 24.035(g)’s 60-day deadline on statements in lieu of amended

motions. The failure of postconviction counsel to file either an amended motion or a

statement in lieu of an amended motion within the 60-day deadline creates a presumption

of abandonment.11

Mr. Latham’s Remedy

Having determined a statement in lieu of an amended motion must be filed by the

deadline for filing an amended motion or a presumption of abandonment arises, this Court

must consider whether a presumption of abandonment arose in this case and, if so, what

remedies are available to Mr. Latham.



11 To the extent Mason v. State, 488 S.W.3d 135 (Mo. App. 2016), Scott v. State, 472 S.W.3d 593 (Mo. App. 2015), and Pennell v. State, 467 S.W.3d 367 (Mo. App. 2015), are inconsistent with such a presumption, they should no longer be followed.

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The record reflects Mr. Latham’s postconviction counsel entered his appearance on

February 17, 2014, and his guilty plea transcript was filed on March 25, 2014. The record

shows no further action by postconviction counsel until June 20, 2014, when he filed the

statement in lieu of an amended motion. Accordingly, when the 60-day deadline passed

for the filing of the amended motion on May 27, 2014, there was no performance by

postconviction counsel on the record with respect to Mr. Latham’s pro se motion. Because

postconviction counsel failed to file either an amended motion or a statement in lieu of an

amended motion within the 60-day deadline, a presumption of abandonment arose. The

motion court’s judgment, therefore, must be reversed, and the case remanded.

On remand, the motion court must conduct an independent inquiry to determine

whether Mr. Latham was actually abandoned. Moore, 458 S.W.3d at 825. In determining

whether Mr. Latham was abandoned, the inquiry must center on whether postconviction

counsel’s failure to file a timely amended motion or statement in lieu of an amended motion

was due to Mr. Latham’s negligence or intentional failure to act. Milner v. State, SC96909,

2018 WL 3432653, at *3 (Mo. banc July 17, 2018). This is because a “movant is entitled

to no additional relief” if the untimely filing of an amended motion or statement in lieu of

an amended motion is the result of a movant’s actions or inactions. Id.

If postconviction counsel’s failure to timely file an amended motion or a statement

in lieu of an amended motion was the result of Mr. Latham’s action or inaction, Mr. Latham

was not abandoned, and the motion court must proceed to adjudicate only Mr. Latham’s

pro se motion. See id. If, however, Mr. Latham’s actions or inactions did not cause

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postconviction counsel’s lack of performance, the motion court must find that Mr. Latham

was abandoned. See id.

If the motion court determines Mr. Latham was abandoned, it must then consider

the available remedies. In remedying abandonment, motion courts look to whether counsel

has failed to act on the movant’s behalf – i.e. whether postconviction counsel failed to file

either an amended motion or a statement in lieu of an amended motion on the movant’s

behalf. See Barton v. State, 486 S.W.3d 332, 338 (Mo. banc 2016); Moore, 458 S.W.3d at

825; Gehrke v. State, 280 S.W.3d 54, 57 (Mo. banc 2009); Barnett v. State, 103 S.W.3d

765, 774 (Mo. banc 2003); State v. White, 873 S.W.2d 590, 599 (Mo. banc 1994). If

postconviction counsel has failed to act on movant’s behalf by failing to file any amended

motion or statement in lieu of an amended motion, the motion court should appoint new

postconviction counsel and allow new counsel time to file either an amended motion or a

statement in lieu of an amended motion. See Luleff, 807 S.W.2d at 498. If, however,

postconviction acted on movant’s behalf but did so untimely under the postconviction

rules, the motion court should treat the late-filed amended motion or statement in lieu of

an amended motion as timely. See Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc 1991).

If the motion court treats the statement in lieu of an amended motion as timely filed,

the motion court must also consider Mr. Latham’s reply to postconviction counsel’s

statement in lieu of an amended motion. Mr. Latham filed what he titled a pro se amended

motion. But Rule 24.035(e) gives a movant 10 days to file a reply to a statement in lieu of

an amended motion. In evaluating pleadings, “Missouri courts have looked not to the

nomenclature employed by the parties, but to the actual relief requested in the motion.”

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Berger v. Cameron Mut. Ins. Co., 173 S.W.3d 639, 641 (Mo. banc 2005). Missouri courts

do not concern themselves “with the title of the pleading or with a party’s citation to a

particular Rule, but . . . look instead to the substance of the pleading.” Pate v. State,

SD34672, 2017 WL 4856782, at *2 (Mo. App. Oct. 27, 2017).

Here, Mr. Latham states he filed the pro se pleading “because counsel refused to

amend said motion.” He goes on to state that, under Rule 24.035(e), a movant has 10 days

to reply to the statement. He contends “[c]ounsel did not send [him] a statement allowing

him the opportunity to reply to it, so in the alternative, [he] has filed this Amended Motion

Pro Se.” He then went on to list ineffective assistance of counsel claims that were not

included in his pro se motion. The substance of Mr. Latham’s “amended motion,”

therefore, establishes it is in reply to postconviction counsel’s filing of the statement in lieu

of an amended motion. Accordingly, Mr. Latham’s subsequent pro se pleading should be

treated as a reply to postconviction counsel’s statement in lieu of the amended motion.

After considering the statement in of lieu of the amended motion and Mr. Latham’s

reply, the motion court must determine whether Mr. Latham’s pro se motion could have

been made legally sufficient by amendment or whether there were other grounds for relief

known to Mr. Latham not included in his initial pro se motion. If so, the motion court must

direct postconviction counsel to file an amended motion within the time allotted by the

motion court.12

A presumption of abandonment arose when Mr. Latham’s postconviction counsel

failed to file either an amended motion or a statement in lieu of an amended motion within Rule 24.035(g)’s 60-day deadline. The motion court’s judgment is reversed, and the case is remanded.