# In the Missouri Court of Appeals **Eastern District** DIVISION ONE PAUL C. WHITE, ) No. ED103768 ) Movant/Appellant, ) App eal from the Circuit Court ) of St. Charles County vs. ) 1411-CC00538 ) STATE OF MISSOURI, ) Honorable Richard Zerr ) Respondent. ) FILED: December 13, 2016

OPINION Paul C. White (“Movant”) appeals from the motion court’ s entry of judgment denying, after an evidentiary hearing, his amended Rule 29.15 motion for post-convi ction relief. Because the motion court did not conduct an independent abandonment inquiry, we reverse and remand. Procedural Background After a 2012 jury trial, Mova nt was found guilty of first-de gree murder (in violation of Section 565.020, RSMo 2000 1 ) and one count of first-degr ee robbery (Section 569.020). On September 17, 2012, the trial court sentenced Movant , as a prior offender, to consecutive life sentences. Movant took a direct appeal, and this court affirmed the trial court’s judgment. See State v. White, 421 S.W.3d 560 (Mo. App. E.D. 2014). Our mandate issued on March 19, 2014. Pursuant to Rule 29.15, which allows a convict ed offender to challenge his conviction or sentence after trial, Movant filed a pro se motion on June 2, 2014. On June 12, 2014, the motion

1 All further statutory re ferences are to RSMo 2000.2 court appointed the public defe nder to represent Movant. Mova nt’s post-conviction attorney entered his appearance on Augus t 6, 2014, and filed a contempor aneous motion for a 30-day

extension of time in which to file an amende d motion. The motion court made no express ruling

on the motion. Post-conviction counsel filed an amended Rule 29.15 motion on September 10,

2014. In July 2015, the motion court held an ev identiary hearing on th e amended motion. On September 29, 2015, the motion court denied the am ended motion in its entirety. This timely appeal followed.

Discussion The time limits for filing a Rule 29.15 moti on for post-conviction relief are mandatory. Eastburn v. State, 400 S.W.3d 770, 7 73 (Mo. banc 2013). Failing to abide by the Rule’s confines generally functions as a complete waiver. Id.; see also Harper v. State, 404 S.W.3d 378, 385 (Mo. App. S.D. 2013) (“[W]here a post-conviction motion is untimely filed, the motion court has no authority to consider it, and it must be dism issed.”). Rule 29.15(b) re quires that an initial motion for post-conviction relief be filed within 90 days after the date of the appellate court’s mandate affirming the judgment or sentence. The proscription against untimely amended motions for post-conviction relief is found in Ru le 29.15(g), which provides in pertinent part: . . . If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, 2 the amended motion shall be filed with in 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 appe llate counsel is issued and an entry of appearance is filed by any couns el that is not appointed but enters an appearance on behalf of the movant. The court may extend the tim e for filing the amended motion for one additional period not to exceed thirty days. Rule 29.15(g) (emphasis here).

2 A separate deadline is in place for post-convicti on motions where no appeal of the judgment is taken. Rule 29.15(g).3 The Supreme Court of Missouri has rec ognized a narrow exception to Rule 29.15’s deadlines. When post-conviction co unsel is appointed to an indi gent movant, an amended motion filed beyond the Rule 29.15(g) d eadline can constitute “abandonm ent” of the movant. Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015). Aba ndonment by appointed counsel extends the time limitations for filing an amended Rule 29.15 motion. Id. If post-conviction counsel untimely

filed an amended Rule 29.15 motion and the motion court did not conduct an independent inquiry into abandonment, then we must remand th e case to the motion court for such an inquiry. Miller v. State, 478 S.W.3d at 533–34 (Mo. A pp. E.D. 2015). “The motion court is the appropriate forum to conduct such an inquiry.” Moore, 458 S.W.3d at 826. Here, Movant’s amended motion was untimely filed. Our mandate in his direct appeal was issued on March 19, 2014. Movant timely filed his pro se motion on June 2, 2014 and his post-conviction attorney was appointed ten days later, setting the deadline for his amended motion as August 11, 2014. Though post-conviction c ounsel moved for an extension of time, none was ever granted. We have held that “[w] hen post-conviction counsel requests additional time to file an amended motion, the motion court must expressly grant or deny said request.” Huffman v. State, 493 S.W.3d 892, 895 (Mo. A pp. E.D. 2016) (citing Adams v. State, 483 S.W.3d 480, 484 (Mo. App. E.D. 2016)) (emphasis added). We cannot presume the motion court granted an extension “without a r ecord thereof,” id., so the initia l deadline of August 11 was, for the purposes of this appeal, never extended. A ccordingly, Movant’s amended Rule 29.15 motion, filed on September 10, 2014, was untimely. Movant’s amended motion was untimely file d and the motion court did not conduct an independent inquiry regarding abandonment. As th e Supreme Court did in Moore, we reverse the4 judgment of the motion court and remand for a determination of whether abandonment

occurred. 3

Conclusion The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

____________________________ Mary K. Hoff, Judge

Robert M. Clayton III, Presiding Judg e, and Lisa P. Page, Judge, concur.

3 The State concedes that remand for an abandonment inquiry is th e correct result in this case.