# In the Missouri Court of Appeals **Eastern District**

DIVISION TWO

PERVIS MCALLISTER, ) No. ED107945 ) Appellant, ) ) Appeal from the Circuit Court of ) St. Louis County

v. ) 16SL

- CC03123 ) STATE OF MISSOURI, ) Honorable David L. Vincent, III ) Respondent. ) Filed: April 28, 2020

OPINION
Pervis McAllister (“Movant”) appeals the motion court’s judgment denying his motion
for post

- conviction relief pursuant to Rule 29.15 1 following an evidentiary hearing. Because
Movant’s amended motion was untimely, we reverse and remand to the motion court to
determine whether Movant was abandoned by post

- conviction counsel.

BACKGROUND
A jury found Movant guilty of three counts of ch ild molestation in the first degree, three
counts of statutory sodomy, and one count of statutory rape in the first degree. Movant was
sentenced to concurrent sentences of 25 years. On direct appeal, our court affirmed Movant’s

1 All references to Rules are to Missouri Supreme Court Rules (2016).2 convictions and sentences in State v. McAllister , 491 S.W.3d 681 (Mo. App. E.D. 2016). On
August 22, 2016, Movant timely filed his pro se motion to vacate, set aside, or correct judgment
and sentence, alleging three claims of ineffective assistance of appellate counsel and four cl aims

of ineffective assistance of trial counsel. Post

- conviction counsel was appointed on November 8,
2016, and was granted an additional 30 days to file an amended motion on December 15, 2016,
making the amended motion due on Wednesday, February 8, 2017. 2

On February 15, 2017, post

- conviction counsel untimely filed the amended motion, and
subsequently filed a motion to permit the untimely filed amended motion alleging the
untimeliness was attributable to his heavy caseload and not due to Movant’s negli gence or
intentional conduct. On October 30, 2017, the motion court denied Movant’s Rule 29.15 motion
for post

- conviction relief. On appeal, our court remanded this case because the motion court’s
final judgment failed to address all of the claims includ ed in Movant’s amended post

- conviction

motion. McAllister v. State , 561 S.W.3d 492, 494 (Mo. App. E.D. 2018). On April 26, 2019, the
motion court entered its amended findings of fact, conclusions of law, and judgment, denying
Movant’s Rule 29.15 post

- conviction motion.
This appeal follows.

DISCUSSION
Movant asserts six points on appeal. In his first point on appeal, Movant argues the trial
court clearly erred in failing to conduct an abandonment inquiry on the untimely fi led amended

2 Because counsel was appointed on November 8, 2016, the amended motion was due on Monday January 9, 2017, as the the initial 60

- day deadline was Saturday, January 7, 2017. See Rule 29.15(g) and 44.01(a). Due to the 30

- day extension, the amended motion wa s then due on Wednesday, February 8, 2017. See Edwards v. State, 514 S.W.3d 68, 70 (Mo. App. E.D. 2017) (“[A] court should calculate the date an amended motion is due using a two

- step process, counting 60 days from the date of appointment or entry of appe arance, and then 30 days from the date the motion is initially due.”).3 motion. The additional five points on appeal assert allegations of ineffective assistance of
appellate and trial counsel. As the first point is dispositive, we do not address Movant’s
remaining points on appeal.
Analysis
The filing deadlin es established by rules for post

- conviction relief are mandatory.

Guerra

- Hernandez v. State , 548 S.W.3d 368, 370 (Mo. App. E.D. 2018). When appointed
counsel fails to file an amended post

- conviction motion before the deadline, it is presumed that

post

- co nviction counsel abandoned the defendant. Edwards v. State , 514 S.W.3d 68, 71 (Mo.
App. E.D. 2017).
When an amended motion is untimely, the motion court is required to make a record of
an independent inquiry to determine if abandonment occurred before considering the claims and
evidence presented in the amended motion. Barber v. State , 569 S.W.3d 556, 559 (Mo. App.
E.D. 2019); Moore v. State , 458 S.W.3d 822, 826 (Mo. banc 2015). 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 is given an opportunity to reply.

Guerra

- Hernandez , 548 S.W.3d at 371. Although the method of making this inquiry is left to

the discretion of the t rial court, a sufficient record must be made to demonstrate on appeal the
motion court’s determination on the abandonment issue is not clearly erroneous. Id . “Upon
review of the record, if we determine there has been no independent inquiry into abandonme nt or
no record for us to review such inquiry, then we must reverse and remand for the motion court to
conduct this inquiry.” Barber , 569 S.W.3d at 559

– 60.4 In the present case, it is undisputed Movant’s amended motion was untimely. 3

Accordingly, there was a presumption of abandonment and the trial court was required to
conduct an independent inquiry to determine whether Movant was abandoned by his
postconviction counsel before determining the merits of the amended motion. See

GuerraHernandez , 548 S.W .3d at 371; Edwards , 514 S.W.3d at 72. The record demonstrates
the motion court stamped “Leave Granted” and signed the accompanying motion to permit the
untimely filed amended motion without making findings of fact, requiring any testimony from

post

- convi ction counsel, nor ensuring Movant was informed of post

- conviction counsel’s
response or given an opportunity to reply. See Barber , 569 S.W.3d at 560

– 61; Guerra

Hernandez , 548 S.W.3d at 371. “Rubber stamping appointed counsel’s motion is not a sufficien t
inquiry and does not provide a sufficient record to demonstrate on appeal that the motion court’s
abandonment issue determination is not clearly erroneous.” Guerra

- Hernandez , 548 S.W.3d at

372; see also Barber , 569 S.W.3d at 561 (finding that simply sig ning and dating a timeliness
motion does not make a sufficient record for our review of the motion court’s inquiry into
whether postconviction counsel abandoned a defendant.).

Because the record before us is not sufficient to determine if the motion court ’s decision
to treat the amended motion as timely filed was clearly erroneous, we must reverse and remand
with instructions for the motion court to make a sufficient record of an independent inquiry into
abandonment. While we acknowledge the inconvenience abandonment issues are causing
motion courts, “the purposes served by remand are mandatory compliance with Missouri

3 Childers v. State , 462 S.W.3d 825, 828 (Mo. App. E.D. 2015) established an exception to the abandonment inquiry. In Childers , our court held remand was not necessary when a movan t’s pro se motion has been5 Supreme Court Rules and adherence to jurisdictional limitations.” Guerra

- Hernandez , 548

S.W.3d at 372.

incorporated into, and thus adjudicated along with, the amended motion. Id . However, if there are significant differences between the pro se and amended motions, the Childers exception is inapplicable. See Usry v. State , 504 S.W.3d 815, 817 (Mo. App. E.D. 2016). Here, the Childers exception does not apply as only one out of the seven claims of ineffective assistance of counsel was incorporat ed into the amended motion. CONCLUSION
Based on the foregoing, we reverse the motion court’s judgment overruling Movant’s
amended motion for post

- conviction relief and remand to the motion court for a determination of

whether motion counsel abandoned Mo vant.

Lisa P. Page, Judge

Philip M. Hess, P.J., and Kurt S. Odenwald, J., concur. ______________________________