IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

SCOTT W. ECKERT,

Appellant,

v.

STATE OF MISSOURI,

Respondent.

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WD82214

OPINION FILED:

December 31, 2019

Appeal from the Circuit Court of Livingston County, Missouri

The Honorable Daren L. Adkins, Judge

Before Division Four: Karen King Mitchell, Chief Judge, and

Lisa White Hardwick and Edward R. Ardini, Jr., Judges

Scott Eckert appeals, following an evidentiary hearing, the denial of his Rule 29.15 motion 

for post-conviction relief.1 Eckert preliminarily argues that appointed post-conviction counsel’s 

amended Rule 29.15 motion was untimely and, thus, the matter must be remanded for an inquiry 

into whether Eckert was abandoned by his post-conviction counsel. In his sole point on appeal, 

Eckert argues that his trial counsel was ineffective in failing to move to dismiss the charges against 

Eckert because the State brought Eckert to trial after the 180-day time period proscribed by the 

Uniform Mandatory Disposition of Detainers Law. We do not reach this point, however, because 

 

1 All rule references are to the Missouri Supreme Court Rules (2018), unless otherwise noted.
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we agree with both parties that reversal and remand are required to determine whether Eckert was 

abandoned by post-conviction counsel.

Background

Scott Eckert was convicted by a jury of three counts of the C felony of victim tampering. 

State v. Eckert, 491 S.W.3d 228, 230 (Mo. App. W.D. 2016). The facts of Eckert’s crimes are 

thoroughly laid out in this court’s opinion in Eckert’s direct appeal. Id. at 229-30. For purposes 

of this appeal, the evidence can be summarized as follows: Eckert was convicted of the forcible 

rape of a seven-year-old girl. Id. While his direct appeal of that conviction was pending, Eckert 

wrote three letters to his teenage niece. Id. at 229. In those letters, Eckert asked his niece to talk 

to the rape victim and convince the victim to recant the accusations. Id. at 229-30. Those three 

letters were the basis for the three tampering charges. Id. at 230.

Following Eckert’s conviction, the trial court sentenced him to consecutive terms of seven 

years’ imprisonment on each count. Id. at 229. This court affirmed Eckert’s convictions and 

sentences on direct appeal. Id. at 234.

Thereafter, Eckert timely filed a pro se Rule 29.15 motion for post-conviction relief, raising 

six claims of error. The motion court appointed counsel for Eckert on August 12, 2016. The 

amended motion was due on October 11, 2016. On August 19, 2016, appointed counsel entered 

her appearance and filed a motion to extend the time to file her amended motion. If the extension 

had been granted, the amended motion would have been due on or before November 10, 2016. 

But the court never ruled on the requested extension.

Appointed counsel filed her amended motion on November 10, 2016, raising four claims 

of error. The motion court held an evidentiary hearing on August 24, 2018, which addressed only 

the claims in the amended motion. The motion court denied the amended motion on September 19, 
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2019. Its judgment stated: “WHEREFORE, being fully informed the Court denies Movant’s 

Amended Motion to Vacate, Set Aside or Correct the Judgment or Sentence pursuant to 

Rule 29.15.”

This appeal follows.

Timeliness of Amended Rule 29.15 Motion

Eckert acknowledges in his brief that the amended motion was untimely and that this case 

should be remanded for an abandonment inquiry. In its brief, the State agrees. This court also 

agrees.

Pursuant to Rule 29.15(g), the amended motion was due sixty days after counsel was 

appointed. That due date was October 11, 2016. Appointed counsel requested a thirty-day 

extension, as permitted by Rule 29.15(g). That motion, however, was never ruled on by the motion 

court. “[E]xtensions will not be presumed to have been granted without a record thereof.” 

Lampkin v. State, 560 S.W.3d 67, 70 (Mo. App. E.D. 2018) (internal quotation omitted) (discussing 

the scenario where “[p]ost-conviction counsel filed a motion requesting an additional thirty days, 

but there is no record that the motion was granted”). Thus, the amended motion filed on 

November 10, 2016, was untimely.

“The filing deadlines for post-conviction relief are mandatory, and cannot be waived.” Id.

(quoting Watson v. State, 536 S.W.3d 716, 717 (Mo. banc 2018)). “Failure to timely file an 

amended motion raises a presumption of abandonment and requires the motion court to conduct 

an independent inquiry into whether movant was in fact abandoned by post-conviction counsel.” 

Id. “The motion court must conduct this inquiry to determine if the merits of the amended motion 

should be considered.” Id. “If the independent inquiry reveals that the movant was not abandoned 
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by post-conviction counsel, the motion court should adjudicate only the movant’s initial pro se 

post-conviction motion.” Id.

“When the motion court fails to conduct this independent inquiry, we must reverse and 

remand for a determination of the abandonment issue.” Id. at 71. “As part of its independent 

inquiry, the motion court ‘should inquire not only of post-conviction counsel, but should also 

ensure the movant is informed of counsel’s response and be given an opportunity to reply.’” Id.

(quoting Guerra-Hernandez v. State, 548 S.W.3d 368, 371 (Mo. App. E.D. 2018)). “The method 

of making this inquiry is left to the discretion of the trial court, but a sufficient record must be 

made to demonstrate on appeal the motion court’s determination on the abandonment issue is not 

clearly erroneous.” Id. (quoting Guerra-Hernandez, 548 S.W.3d at 371).

Eckert’s evidentiary hearing proceeded only on the four claims raised in the amended 

motion, and the judgment referenced only the amended motion. The record before this court does 

not reflect that either the parties or the court addressed the untimeliness of the amended motion. 

To the contrary, it appears that the parties were unaware, at the time the evidentiary hearing was 

held, that the amended motion was untimely filed. After presenting evidence, appointed counsel 

asked the motion court to find that the amended motion was timely filed:

APPOINTED COUNSEL: And Your Honor, either now or in the findings, I would 

ask the Court, based on judicial notice of the record . . . that this Court specifically 

make a finding as to timeliness of both the pro se Rule 29.15 motion which I believe 

was filed within the 90-day time period, on August 11, 2016, and the time limits of 

the filing of the amended motion on November 12—excuse me, 10th, 2016.

THE COURT: Okay.

APPOINTED COUNSEL: Thank you, sir. That would be most helpful. And with 

that, the Movant rests.

Further, we note that “[t]here is an exception to the abandonment inquiry, and remand is 

not necessary when the claims in movant’s pro se motion are incorporated into, and thus 
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adjudicated along with, the amended motion.” Lampkin, 560 S.W.3d at 71 n.1. “This exception 

does not apply in cases like this one where there are significant differences between the pro se and 

amended motions.” Id.

Conclusion

The motion court’s judgment is reversed. The case is remanded for an independent inquiry 

into whether Eckert was abandoned by appointed counsel and for further proceedings consistent 

with the outcome of the court’s inquiry.

Karen King Mitchell, Chief Judge

Lisa White Hardwick and Edward R. Ardini, Jr., Judges, concur.