1 CRAIG A. HILL, ) ) Movant-Appellant, ) ) vs. ) No. SD34092 ) STATE OF MISSOURI, ) Filed: June 23, 2016 ) Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF PEMISCOT COUNTY Honorable W. Keith Currie, Associate Circuit Judge REVERSED AND REMANDED Craig A. Hill (“Movant”) appeals the motion court’s deni al without an evidentiary hearing of his request for post-c onviction relief under Rule 24.035, Missouri Court Rules (2016). In a single point relied on, Movant asserts th at the motion court “clearly erred in denying [Movant] an evidentiary hearing” on his claim th at plea counsel “was ineffective for failing to request a mental evaluation” of Movant. Movant and the St ate now agree that Movant’s amended motion for post-conviction relief was f iled after the time permitted by Rule 24.035(g), and request that the case be remanded to the mo tion court. We agree, and reverse the motion court’s judgment and remand the case to the motion court for further proceedings as required by Moore v. State , 458 S.W.3d 822, 825-26 (Mo. banc 2015).2 Movant’s sentence was executed in Janua ry 2013, and he was delivered to the Department of Corrections on January 28, 2013. Movant timely filed a pro se motion for postconviction relief on May 15, 2013. Rule 24.035(b). C ounsel was appointed and the transcript of Movant’s plea and sentencing hearing was filed in the trial court on May 17, 2013. The record does not reveal a request for, or a grant of, an extension of time to file an amended motion for post-conviction relief with the result that any amended motion was required to be filed within sixty days after May 17, 2013. Ru le 24.035(g). Appointed counsel filed an amended motion for post-conviction relief, but did not do so until February 24, 2014.
Movant’s pro se motion included claims that (1) Mova nt’s “rights to confrontation and Due process” were “violated by a standing order of [the trial court] barring the release of pertinent videos,” and (2) the trial court er red in “accept[ing Movant’s] Plea with no factual basis.” These claims were not included in Movant’s amended motion, and the motion court’s judgment adjudicates only the clai ms set forth in the amended mo tion. There is no indication in the record that the motion cour t undertook an independent inquiry to determine if Movant was abandoned by appointed counsel. As we recently observed: When appointed post-conviction coun sel files an amended motion outside the proscribed time limits, a presumpti on of abandonment occurs “because the filing of the amended motion indicates that counsel determined there was a sound basis for amending the initial motion but fa iled to file the amended motion timely.” Moore , 458 S.W.3d at 825 (citations omitted). Where there exists a presumption of abandonment, the motion court is required to undertake an i ndependent inquiry to determine whether Movant was in fact abandoned by appointed counsel. Id . Such an inquiry will determine which post-conviction motion—Movant’s pro se motion or the amended motion—should be adjudicated by the motion court. Id . at 826. There is nothing in the record here to indicate that the required independent inquiry into the issu e of abandonment was undertaken by the motion court, thus remand is appropriate.3 Price v. State , No. SD34063, 2016 WL 2864452, at *2 (Mo. App. S.D. May 13, 2016) (internal footnotes omitted). If, on remand, the motion c ourt determines Movant was not abandoned, the motion court should not consid er Movant’s amended motion and adjudicate Movant’s pro se motion. If, on the other hand, the motion cour t determines on remand that Movant was abandoned, the motion court should adj udicate Movant’s amended motion. Moore , 458 S.W.3d
at 825-26. The motion court’s judgment is revers ed, and the case is remanded for further proceedings as required by Moore

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Nancy Steffen Rahmeyer, J. - Opinion Author Gary W. Lynch, J. - Concurs William F. Francis, Jr., J. - Concurs

1 We do note that, in the event on remand the motion co urt determines that Movant was abandoned and again adjudicates Movant’s amended motion, the motion court’s findings in paragraphs 14 through16 of its judgment do not appear to be addressed in th e record that was provided us.