# SUPREME COURT OF MISSOURI en banc MARK D. VOGL, ) ) Appellant, ) ) v. ) No. SC93157 ) STATE OF MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY The Honorable David C. Dally, Judge Opinion issued August 19, 2014 The motion court dismissed Mark Vogl’s Rule 24.035 motion for post-conviction relief, without an independent inquiry, afte r appointed post-conviction counsel filed a motion to rescind appointment of counsel th at informed the court that Mr. Vogl’s pro se motion was stamped “filed” after the last day permitted by the rule. Thereafter, Mr. Vogl filed the motion at issue to reopen his post-con viction proceedings, claiming that his counsel abandoned him by failing to investigate the ti meliness of his post-conviction motion before counsel filed a motion to re scind appointment of counsel. The mo tion court entered judgment overruling Mr. Vogl’s motion. Mr. Vogl appeals. After an opinion by the court of appeals, this Court granted tr ansfer. Mo. Const. art. V, sec. 10. Because the record raises the presumption that Mr. Vogl was abandone d by his post-conviction counsel, the motion court clearly erred in dismissing Mr. Vogl’s motion. The judgment is reversed, and the cause is remanded. 12 Facts and Procedural Background On J une 21, 2007, Mr. Vogl pleaded guilty to two felony counts of first-degree statutory sodomy unde r section 566.062. 1 He then was sentenced by the circuit court to 15 years imprisonment on each co unt, with the sentences to run concurrently. After pronouncing the sentence, the ci rcuit court informed Mr. Vogl of his right to seek postconviction relief under Rule 24.035. On Septembe r 18, 2007, Mr. Vogl was delivered to the Missouri Department of Corrections (“DOC”) to serve his sentence. He did not appeal his conviction. Under Rule 24.035, Mr. Vogl had to file a timely Rule 24.035 motion to seek postconviction relief. 2 In light of his delivery date to the DOC, Mr. Vogl’s post-conviction motion had to be filed on or before March 17, 2008. 3 The docket sheet and file stamp on Mr. Vogl’s motion reflect that his pro se motion was filed in the Jo plin office of the Jasper County circuit clerk on March 18, 2008.

1 All statutory references are to RSMo Supp. 2013, unless ot herwise specified. 2 Rule 24.035(b) provides: A person seeking relief pursuant to th is Rule 24.035 shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40. * * * If no appeal of such judgment was take n, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections. 3 In computing the due date, the date that Mr. Vogel was delivered to the DOC is not included in the 180 days. See 44.01(a); Phelps v. State , 351 S.W.3d 269, 270-71 (Mo. App. 2011). The actual last date for Mr. Vogl’s Ru le 24.035 motion to be filed would have been Sunday, March 16, 2008. However, Rule 44.01(a) provides that if a period of time ends on a Saturday, Sunday, or legal holiday, the dead line is extended to the e nd of the next day that is not a Saturday, Sund ay, or legal holiday. Therefore, the time period for Mr. Vogl to file his Rule 24.035 motion ended on Monday, March 17, 2008.3 Upon the filing of Mr. Vogl’s post-convi ction motion, the moti on court appointed post-conviction counsel to represent Mr. Vogl in the proceeding. Thirteen days later, Stephen J. Harris, the area district defender for the Missouri State Public Defender, filed a motion requesting that the appoin tment of counsel be rescinded. In his motion, appointed counsel alleged that Mr. Vogl’s Rule 24.0 35 motion was untimely because Mr. Vogl was delivered to the department of corrections on September 18, 2007, and Mr. Vogl’s motion was stamped “filed” 182 days later. The certif icate of service indicates that the motion to rescind was served only on the prosecuting atto rney, and there is nothing in the circuit court record to indicate that Mr. Vogl received servi ce or notification of appointed counsel’s filing of the motion to rescind appointment of coun sel. Six days later, without a hearing or independent inquiry, the motion court entered an order rescinding its previous order appointing counsel and dismissi ng the case with prejudice because the court found that “[f]urther review of the file indicate s that the motion was not timely filed.” On March 17, 2011, Mr. Vogl filed a motion titled “Motion to Reinstate Postconviction Action Brought Pursua nt To Rule 24.035 On Basis of Timely Filing, And To Vacate Order Rescinded [sic] Appointment of Counsel and Dismissi ng 24.035 Action.” Specifically, the 2011 mo tion claimed that his pro se Rule 24.035 motio n was timely filed and, even if filed in the wrong court, sh ould have been considered timely filed and transferred to the proper court ra ther than dismissed. In add ition, Mr. Vogl a lleged that he had been abandoned by his appointed counsel. On November 4, 20 11, the motion court, without holding an evid entiary hearing, entered an order refusing to take any further action4 on the basi s that Mr. Vogl’s post-conviction proceedings previously had been dismissed with prejudice due to untimely filing. 4 On May 11, 2012, Mr. Vogl filed the pro se motion presently at issue requesting that the motion court adjudicate his post-convictio n proceedings because he was abandoned by his appointed counsel. 5 In his motion, Mr. Vogl request ed that the motion court hold an

4 Judge Wilson, in his dissent, would find that the disposition of Mr. Vo gl’s March 17, 2011, motion precludes consideration of Mr. Vogl ’s current motion claiming abandonment by post-conviction counsel. Judge Fischer agrees, using multiple references in his dissent to Mr. Vogl’s current motion being th e third motion he has filed. The state did not assert in the court of appeals or in this Court that the disposition of Mr. Vogl’s March 17, 2011, motion is a procedural bar to the adjudication of hi s current motion. Nevertheless, the dissents, sua sponte , raise this issue that was not briefed or argued relying on Rule 24.035(l)’s prohibition of successive motions. The context of the prohi bition in Rule 24.035(l) makes it clear that the rule references only pos t-conviction motions and not motions raising claims of abandonment by post-conviction counsel b ecause Rule 24.035 does not reference or establish procedures for claims of abandonment. Likewise, th is Court’s holdings that there cannot be a waiver of the mandatory time limits in Rule 24.035 are re ferencing the deadlines for the filing of initial motions for post-convicti on relief and were not ma de in the context of motions claiming abandonment by post-conviction counsel. See Price v. State , 422 S.W.3d 292, 297 (Mo. banc 2014); Dorris v. State , 360 S.W.3d 260, 266-69 (Mo. banc 2012); Smith v. State , 887 S.W.2d 601, 60 2-03 (Mo. banc 1994). Judge Fischer and Judge Wilson urge in their di ssents that this Court de ny Mr. Vogl’s claim, citing cases that would allow this Court, sua sponte , to find that the doctrine of res judicata bars review. Because the motion court dismi ssed Mr. Vogl’s current abandonment claim as procedurally barred on the ground that his Ru le 24.035 action was dismissed with prejudice for the untimely filin g of his original pro se motion and Mr. Vogl’s claim of abandonment never has been adjudicated on the meri ts, this Court dec lines to do so.

5 Mr. Vogl titled his pleading a “Motion to Re open Postconviction Pr oceeding and Request for Hearing.” In Eastburn v. State , this Court held that the proper terminology for a motion claiming abandonment of post-c onviction counsel is a motion for post-conviction relief due to abandonment and not a motion to reopen post-convicti on proceedings. 400 S.W.3d 770, 774 (Mo. banc 2013). This case, like Eastburn , does not allege activ e interference in the timely filing of the original motion but, rather, that appoi nted post-conviction counsel abandoned him by not proceed ing as required by Rule 24 .035(e). The terminology suggested by Eastburn has led to confusion between motions claiming abandonment and5 evidentiary hearing to determine the merits of hi s claim of abandonment. For support, Mr. Vogl made the following allegati ons pertaining to the filing of his pro se motion and his appointed counsel’s representation:

● The April 16, 2008 motion to rescind appointment of coun sel filed by postconviction counsel was filed without any consultation with Mr. Vogl.

● If post-conviction counsel had consulte d with Mr. Vogl, he would have obtained facts that would ha ve proved the timely filing of Mr. Vogl’s motion.

● Post-conviction counsel’s alleged failu re to investigate the circumstances surrounding the filing of Mr. Vogl’s Ru le 24.035 motion before filing the motion to rescind appointment of counsel constituted abandonment and noncompliance with Rule 24.035 becaus e he filed neither an amended motion for post-conviction relief nor a statemen t explaining that all facts and claims had been asserted in the pro se motion.

● Mr. Vogl never received notification that his counsel intended to file a motion to rescind counsel’s appoin tment. If he had been notified, he would have attempted to contact the court to request a hearing on the motion. Attached to Mr. Vogl’s motion were two exhib its – letters from the Jasper County circuit clerk’s office written in response to Mr. Vogl’s inquiries regarding the Jasper County circuit clerk’s office procedures for receiving and fo rwarding mail from one clerk’s office to the other. Jasper County maintains two courthouses – one in Carthage , which is the county seat, and the other in Jop lin. Mr. Vogl alleges that he mailed his pro se Rule 24.035 motion to the Jasper County circuit cler k’s office in Carthage on Marc h 12, 2008, and it arrived there on March 17, 2008. On the same day, after recognizing that th e file regarding his criminal

motions for post-conviction relief, as evidenced by the dissents. To avoid such confusion, Mr. Vogl’s motion will be referred to as a motion claiming abandonment by post-conviction counsel.6 conviction was at the Joplin o ffice, the Carthage office forwar ded the motion to the Joplin office without first stam ping the moti on as filed. When the Joplin office received Mr. Vogl’s pro se motion, it then stamped it “filed” for the first time on Ma rch 18, 2008. The first letter attached to Mr. Vogl’s motion articulates the clerk’s office procedure when forwarding mail to the co rrect office location. The le tter states that the Carthage office received Mr. Vogl’s motion, determined that it belonged in the Joplin office, and sent it to the Joplin office a day later. Specifically, the letter states:
1. Mail is received in whichever office the envelope is addressed to (in the above referenced case, Jasper County Clerk – not Jasper County Circuit Clerk – two (2) totally different offices); 2. When mail is opened and determined to belong to a diffe rent office in the Courthouse, the mail is taken to the corre ct office (in this case the correct office was the Jasper County Circuit Clerk’s office); 3. Jasper County Circuit Clerk’s Office in Carthage determined your original case was handled in the Joplin locatio n and any subsequent filings must also be filed in the Joplin location and placed your documents in a basket for our “runner” to pick up to deliver to Joplin. Our “runner” picks up every afternoon in Carthage and deliver s to the Circuit Clerk’s Office in Joplin the following morning. He also delivers ma il received in Joplin that needs to go to Carthage. After receiving the first letter, Mr. Vogl wr ote a letter, dated June 27, 2010, to the Jasper County circuit clerk asking when his pro se post-conviction motion initially was received by the Carthage office, not when the Joplin office received it after the Carthage office forwarded it. 6 The second letter from the clerk’s office was written in response to

6 Consistent with Mr. Vo gl’s allegation regardin g the handling of his pro se motion, his letter was stamped “filed” in the clerk’s Carthage office on July 1, 2010. That file stamp is crossed out. A second file stamp by the circuit cl erk’s Joplin office is da ted July 2, 2010. In addition, the fact that Mr. Vogl’s letter was dated June 27, 2010, an d stamped as filed for the first time on July 1, 2010, supports his contention that a letter leaves the DOC in7 Mr. Vogl’s June 27, 2010, letter. It states that , if it takes three days for Mr. Vogl’s motion to get from Cameron to the Carthage office as Mr. Vogl had said, th en it would follow that the Carthage office received his pro se motion on March 17, 2008. The deputy circuit clerk further stated that the envelo pe containing the original pro se motion was not in the clerk’s file. The actual text of the letter states: According to your letter dated March 12, 2008, your Motion was being mailed without copies since your housing unit wa s locked down and it needed to be mailed immediately. It is my presum ption that your Motio n went out in the next morning’s mail, bein g Thursday, March 13, 2008 . If, as you state, mail takes three (3) days from Cameron to Carthage, that would put it being received on Sunday, Marc h 16, 2008 on which th ere is no mail delivery subsequently being deliver ed to our Carthage offi ce on Monday, March 17, 2008 and received in our Joplin of fice on Tuesday, March 18, 2008. On Mondays, when we rece ive an abundant amount of mail, it is our normal procedure for mail to be delivered to a nother office to stamp one (1) envelope with the date received and then rubber band anything else to that piece of mail. The motion court overruled Mr. Vogl’s motion and request fo r evidentiary hearing. The court stated that Mr. Vogl’s post-convic tion action previously ha d been dismissed with prejudice as untimely. Thereafter, Mr. Vogl timely appealed. The case was transferred to this Court after opinion by the court of appeals. Mo. Const. art. V, sec. 10. Standard of Review When a motion court overrules a motion claiming abandonment by post-conviction counsel, appellate review is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. Gehrke v. State , 280 S.W.3d 54, 56 (Mo.

Cameron the day after it is dated and takes thre e days to be delivered from Cameron to the circuit clerk’s office in Carthage.8 banc 2009). After reviewing the entire record , a motion court’s findings and conclusions are clearly erroneous only if the reviewing court is “left with the definite and firm impression that a mistake has been made.” Price v. State , 422 S.W.3d 292, 294 (Mo. banc 2014). 7 Analysis Mr. Vogl claims that the mo tion court erred in overruling, without an evidentiary hearing, his motion claiming abandonment by post- conviction counsel. In his motion, Mr. Vogl alleges that post-conviction counsel abandoned him by not investigating to ascertain the facts regarding the timeliness of the filing of his pro se post-conviction motion. 8 Mr. Vogl alleges in his motion that , if post-conviction counsel would have

7 In Price , the movant filed a post-conviction motio n pursuant to Rule 29 .15, which is the post-conviction rule applicable to movants conv icted of a felony after trial. Rule 29.15 contains certain substantive pr ovisions that are identical to provisions in Rule 24.035, applicable to movants wh o have plea ded guilty. See Rule 29.15. Acco rdingly, case law interpreting a provision that is identical in both rules applie s equally in proceedings under either rule. See Moore v. State , 934 S.W.2d 289, 290 (Mo. banc 1996). 8 While Judge Fischer’s dissent asserts, sua sponte , that any claim of abandonment should be raised during the course of a movant’s in itial post-conviction procee ding, this Court has held otherwise. In State ex rel. Nixon v. Jaynes , this Court suggested in dicta that a movant, by raising a claim of abandonm ent, could seek post-convictio n relief more than ten years after the motion court had ove rruled the movant’s initial pro se post-conviction motion. 63 S.W.3d 210, 217-18 (Mo. banc 2001). Then, in a 2008 decision, this Court addressed the issue raised by Judge Fischer’s dissent in this case and expressly held that “the abandonment doctrine provides a narro w exception permitting the circuit court to re-open an otherwise final post-conviction case.” Taylor v. State, 254 S.W.3d 856, 858 (Mo. banc 2008). Since Taylor, this Court has continued to address claims of abandonment raised in motions that, like Mr. Vogl’s, were made after all opport unities to challenge th e motion court’s initial denial of post-conviction relief, whether it be via a Rule 75.01 motion, direct appeal, or a motion for leave to file an app eal out of time, had expired. See Eastburn , 400 S.W.3 at 774 (motion claiming abandonment by appointed co unsel was filed approximately 13 years after the motion court denied initial relief); Gehrke , 280 S.W.3d at 57 (motion claiming abandonment by appointed counsel was filed mo re than seven years after the motion court denied relief); Crenshaw v. State , 266 S.W.3d 257, 259 (Mo. banc 2008) (motion claiming9 contacted him regarding the circ umstances of the filing of the pro se post-conviction motion rather than relying on the erroneous file stamp, coun sel would have learned that the pro se motion was, in fact, filed timely. Specifically , he alleges that appointed counsel would have discovered that Mr. Vogl’s motion was received timely by the Jasper County circuit clerk but was stamped with an incorrect date by the circuit clerk. In Jasper County, there is a courthouse in Carthage, the o fficial county seat. Jasper County maintains a second cour thouse in Joplin, as authoriz ed by section 71.300, RSMo 2000. The Jasper County circuit clerk has o ffices in both courthouses. The documents attached to Mr. Vogl’s motion state that th e circuit clerk has a practice of stamping documents received by the circu it clerk’s office as “filed” only when the document is received by the office where the file for the case is physica lly located. Under the 29th Judicial Circuit’s local court rule, Local Rule 4.3, “all circuit court actions shall be filed

abandonment by appointed counsel was filed mo re than two years after the motion court denied relief). Judge Fischer’s dissent concedes that the aforementioned cases from this Court permit the filing of a motion to reopen othe rwise final post-conviction proceedings. Nevertheless, his dissent asserts that the de cisions in these cases are not precedent for finding that Mr. Vogl’s motion is not procedur ally barred. In reac hing that conclusion, Judge Fischer misinterprets this Court’s decision in Taylor when he states that Taylor’s “pronouncement that abandonment of post-conviction counsel serves as a ‘narrow exception’ to [Rule 75.01] . . . was not necessary to the judgment, and is not a ‘holding’ of this Court.” To the contrary, this Court’s holding in Taylor was a consideration of whether a motion claiming abandonment filed after a post-conviction judgment is final was procedurally barred, and the C ourt found that it was not. Taylor , 254 S.W.3d at 858. The Court then ruled on the merits of M r. Taylor’s claim of abandonment. Id . This discussion by the Court in Taylor is not dictum. State ex rel. Anderson v. Hostetter , 140 S.W.2d 21, 24 (Mo. 1940) (dicta are “expressions of opinio n, not in anywise nece ssary for the actual decision of any question before the court”).10 with t he Circuit Court Clerk of this County in Joplin or Carthage.” Because Mr. Vogl’s pro

se motion was an initial pleading commenc ing an independent civil action, see Cowans v.
State , 778 S.W.2d 758, 761 (Mo. Ap p. 1989), he was permitted to file it in either Joplin or Carthage per Local Rule 4.3. Moreover, the offices are one and the same, and documents are filed when they are received by either office. A pl eading is deemed filed at the time it is received by the clerk of a circuit court. Rule 43.02(b). See also Stephan v. World Wide Sports, Inc. , 502 S.W.2d 264, 269 (Mo. 1973). 9 Accordingly, upon receipt of a pl eading, the Jasper County circuit clerk immediately should stamp the pleading as filed, regardless of whether the clerk believes it would go into a file at the clerk’s o ffice in the other Jasper County courthouse. If the clerk did not do so and, instead, forwar ded the pleading to a different office location without a file stamp, the Jasper County circuit court would have been operating under procedures that are contrary to Rule 43.02(b). 10 Therefore, if Mr. Vogl can prove that his

pro se motion arrived at either office of the circuit clerk of Jasper County on or before March 17, 2008, the motion was filed timely. In this appeal, Mr. Vogl claims that coun sel’s failure to ascertain the true date of filing and subsequent failure to file an amended motion alleging facts to prove the timeliness

9 Stephan cites to former Rule 43.01(j), the subject matter of which now is articulated in Rule 43.02. 502 S.W.2d at 269. Rule 43.02(b ) provides that “the filing of pleadings and other papers with the court as required by Rules 41 throug h 101 shall be made by filing them with the clerk of the court[.]” 10 On November 18, 2013, Japs er County implemented an el ectronic filing system, which likely has eliminated the practi ce of forwarding court filings to another office location in most cases. Electronic filing is not available to pro se litigants, however, so it will not eliminate the practice in post-conviction cases.11 of his pro se motion constitutes abandonmen t. He maintains that he is entitled to an evidentiary hearing on his motion claiming ab andonment by post-conviction counsel so he can have the opportunity to offer proof of the facts alleged in hi s motion. Ultimately, Mr. Vogl seeks to have his Rule 24.035 claims adjudicated on their merits. 11 Rule 24.035 provides the exclusive procedure by which a person convicted of a felony on a guilty plea may seek post-conviction relief. Rule 24. 035(a). As a threshold to achieving post-conviction relief, th e movant first must file a timely Rule 24.035 motion. Rule 24.035(b). See also Price, 422 S.W.3d at 296. When a pro se motion is filed by an indigent movant, the court shall cause counsel to be appointed to represent the movant. Rule 24.035(e). Thereafter, appointed counsel must file either an amended motion to compensate for any de ficiencies in the pro se motion or, in the alte rnative, a statement explaining the actions counsel took to ensure that no amende d motion is needed. Rule 24.035(e). In a motion filed pursuant to Rule 24.035, the movant “m ust allege facts showing a basis for relief to entitle the mova nt to an evidentiary hearing. The movant also must allege facts establishing the motion is timely filed.” Dorris v. State, 360 S.W.3d 260, 267 (Mo. banc 2012). In addition to making said fa ctual allegations, the movant also must prove those allegations. Id. The burden of alleging and provi ng that the motion is timely filed can be met by the movant in one of th ree ways: (1) by filing the original pro se motion timely so

11 If the motion court determines, after an inqu iry, that Mr. Vogl was abandoned, the appropriate remedy is the appointment of new counsel with the allowa nce of time for that counsel to proceed anew as re quired by Rule 24.035(e). Price , 422 S.W.3d at 298; Luleff v. State , 807 S.W.2d 495, 4 98 (Mo. banc 1991).12 that the file stamp on the motion reflects that it is filed within the time lim its proscribed in the rule; (2) alleging in the original pro se motion and proving by a preponderance of the evidence that the movant’s ci rcumstances fall with in a recognized exception to the time limits; or (3) alleging in the amended moti on and proving by a preponderance of the evidence that the circuit court misfiled the motion. 12 Id. If the timely filing of an original post-conviction motion is not proven, the motion court will regard the untimely motion as a “complete waiver” of any ri ght to proceed under Rule 24.035. Rule 24.035(b); Price , 522 S.W.3d at 296. The first two methods to prov e timely filing were not ava ilable to Mr. Vogl as the date of filing reflected on his original pro se motion is a date past th e filing deadline and, at the time he drafted his pro se post-conviction motion, he could not have been aware of that fact. Therefore, Mr. Vogl was left with onl y the last method of proving timeliness – filing an amended motion alleging facts and then pr oving that the court misfiled his original pro se motion. 13 Id. Because appointed coun sel did not file an ame nded motion, Mr. Vogl was deprived of the opportunity to em ploy this method of proof. Unlike an original motion, wh ich the movant is responsibl e for pleading and filing, an amended motion is a final pleading, which requires legal expertise. Gehrke , 280 S.W.3d

12 It is possible that a movant would not be aware that movant ’s circumstances fall within a recognized exception to th e filing time limits of the post-con viction rules at the time that the pro se motion was filed. Accordingl y, a movant is given the opportunity to raise those allegations in an amended motion. 13 When a pro se post-conviction motion is received by a ci rcuit clerk’s office before the end of the filing period set by rule but appears to be untimely due to clerk error, the motion is, in fact, filed timely. See Graves v. State, 372 S.W.3d 546, 549 (Mo. App. 2012); Phelps v. State , 21 S.W.3d 832, 833 (Mo. App. 1999).13 at 57. Therefore, even though the burden of pr oving that the original pro se motion was filed timely continues to rest with the movant, alleging said timeliness through an amended
motion requires the movant to depend on post-conviction couns el. This de pendency is recognized in Rule 24 .035, which articulates the duties owed by appointed counsel to a movant. Rule 24.035 reads: 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 attackin g the judgment and sentence. If the motion does not assert sufficient facts or include all clai ms known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If coun sel 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. Rule 24.035(e) (emphasis added). As stated by Rule 24.035 (e), appointed counsel is charged with the duty to “ascertain” whether the pro se motion asserts sufficient facts to support the movant’s claims for relief and ensure that the movant has included all claims “as a basis for attacking the judgment and sentence.” Id. Inherent in the “sufficient fact s to support the movant’s claims for relief” are facts that would prove the timely filing of the original pro se motion because a movant is prohibited from pr oceeding in a post-conviction action if the original motion was filed untimely. Rule 24.035(b); Dorris , 360 S.W.3d at 267. Mr. Vogl asserts that appoin ted counsel’s failure to asce rtain that there were facts that would prove the timeliness of his pro se motion and to file an amended motion alleging those facts constitutes abandonment suffi cient to allow him a remedy. In Price, this Court recently clarified what circumstances will constitute abandonment by post-conviction14 counsel. 422 S.W.3d at 298-307. Reaffirming Luleff v. State , 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State , 807 S.W.2d 493 (Mo. banc 1991), Price held that “a client is not bound by the actions or inac tions of his counsel [when] . . . the client is an indigent inmate who initiates a timely post-conviction pr oceeding and his court-appointed counsel’s failure to fulfill the duties imposed by Rule [24.035] is not merely incompetent but tantamount to the motion court having failed to ap point counsel at all.” 422 S.W.3d at 303. A movant is abandoned when ap pointed counsel fails to comp ly with the requirements in Rule 24.035(e) by not filing either an amended motion or a statement se tting out facts that demonstrate the actions that were taken to en sure that an amended motion is not needed. Id. This Court has outlined when a motion cour t is required to conduct an independent inquiry of a claim of abandonment of a post- conviction movant by appointed counsel. See
McDaris v. State , 843 S.W.2d 369, 371 (Mo. banc 1992); 14 Moore v. State , 934 S.W.2d 289 (Mo. banc 1996). In McDaris  ̧ appointed counsel filed an am ended Rule 24.035 motion two days late. 843 S.W.2d 369 at 371. The state filed a motion to dismiss both the pro se and amended motions for post-conviction relief. Id . Regarding the state’ s allegation that the amended motion was filed after the deadline, there was an in-court inquiry by the motion court of appointed counsel rega rding the reason for the late filing of the amended motion. Id

. Counsel advised the motion court that c ounsel had difficulty getting the amended

14 There has been confusion as to whether McDaris was overruled by State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 19 97). While the appendix in Carson listing the cases it overrules includes McDaris , the reference to McDaris was only for the purpose of indicating that State v. Lucas , 809 S.W.2d 54 (Mo. App 1992), which was being overruled by Carson , previously was overruled by McDaris on other grounds. Therefore, the decision in McDaris is still good law and of precedential authority.15 motion “back from the penitentiary and filing it, ” but claimed to have filed it as soon as receiving it in the mail from Mr. McDaris. Id . The motion court dismissed the amended motion and overruled Mr. McDaris’s pro se motion without further inquiry. Id

. Mr. McDaris appealed the motion court’s judgment, alleging “that motion counsel abandoned him by failing to file the amended motio n on time, or at least that the trial court did not adequately investigate abandonment.” Id . This Court ruled that the motion court’s inquiry was insufficient. Id . at n.1. The Court held: [T]he trial court should, as part of its independent inquiry under Luleff , inquire not only of postconviction co unsel, but ensure that movant is informed of counsel’s response and given an opportun ity to reply. The method of making this inquiry may be as formal or info rmal as the motion court deems necessary to resolve the question of abandonment by counsel, including, but not limited to, a written response and o pportunity to reply, a telephone conference call, or a hearing. However, a sufficient reco rd must be made to demonstrate on appeal that the motion court’s determin ation on the abandonment issue is not clearly erroneous. Id

. Two post-conviction movants, Dale E. Moore and Jacob Carr, cited this rule from
McDaris as support for their assertions that th ere was not sufficient inquiry by the motion courts of their claims that they were aban doned by appointed counse l despite counsel filing timely statements that counsel had decided to rely on each movant’s pro se motion. Moore, 934 S.W.2d at 290. The Court stated, “ McDaris does not require a response from movants when postconviction counsel files a timely statement setti ng out sufficient reasons for counsel’s decision to rely on the pro se motion.” Id . The Court stated that, “where the record shows on its face that post-conviction counsel did not abandon movant, there is no need to proceed to such an inquiry.” Id . at 292.16 The C ourt then reviewed the movants’ indi vidual claims that they were abandoned by their appointed counsel, who ea ch filed a statement that co unsel had decided to rely on
movant’s pro se motion rather than file an amended motion. Id . at 290. The Court reviewed the content of the appointed counsels’ statements. Id . at 290-91. The Court found that Mr. Moore was not abandoned because his appoi nted counsel’s timely affidavit “declared complete familiarity w ith the record and announced a r easoned decision that counsel would not file an amended motion” an d “[t]here [was] simply nothin g in the record to support a claim that postconviction co unsel abandoned Moore.” Id . at 292. 15 In contrast, the Court found th at the record in Mr. Carr’s case raised the presumption that he was abandoned by his appointed counsel. Id. Citing the requirement in Rule 24.035(e) that counsel is required to “ascer tain whether sufficien t facts supporting the grounds are asserted in the motion and whether the movant has included all grounds known to him as a basis for attackin g the judgment and sentence[,]” the Court found the statement filed by Mr. Carr’s counsel “shows on its face that counsel took neither of the two actions required by Rule 24.035(e).” Id. The Court found that counsel’s statement that he had reviewed Mr. Carr’s file “with the exclusion of the transcripts of the guilty plea hearing . . . , the sentencing hearing . . . , and movant’s pr o se motion” was “tantamount to a confession of abandonment.” Id. at 290, 292 (internal quotation ma rks omitted). The Court found that

15 The affidavit filed by Mr. Moore’s appoin ted counsel indicated that counsel “had reviewed the record, had inquired of movant re garding the existence of additional claims or facts relating to the post-convi ction motion, had explained to movant his rights under Rule 24.035 and determined that Moore's pro se motion ‘includes all colorable post-conviction claims known to movant or counsel.’” Id. at 290.17 a McDaris hearing wa s required because “the face of the record raises the presumption of abandonment to which Luleff and Sanders refer.” Id. at 292. Accordingly, when the record raises a presumption of abandonment because appointed counsel has failed to comply with the requirements in Rule 24.035(e) that counsel file a timely amended motion or a statement setting out facts that demonstrate counsel’s actions to ensure no amende d motion is needed, a motion co urt must conduct a sufficient independent inquiry of a post-conviction movant’s claim of abandonment. Moore , 934 S.W.2d 289, 291-92; McDaris , 843 S.W2d at 371 n.1. When th e record refute s the claim of abandonment, however, no inde pendent inquiry is required of the motion court. Id

. Here, Mr. Vogl’s appointed counsel failed to comply with Rule 24.035(e) because he did not file either an amended motion or a st atement setting out facts demonstrating that counsel took actions to ensure why no ame nded motion was needed. Instead, appointed counsel filed a motion to resc ind appointment of counsel. 16 Importantly, appointed counsel’s characterization of hi s request to terminate his repr esentation of Mr. Vogl as a “motion to rescind appointment of counsel” ra ther than a “motion to withdraw” does not relieve counsel of his duty to provide Mr. Vogl with the representation required under Rule

16 Mr. Vogl alleges – and the certificate of serv ice and docket sheet re flect – that he never was notified that counsel filed the motion to re scind appointment of co unsel. When counsel terminates representation of a client, counsel has a duty to protect the client’s interest; “[o]ne step necessary to protect a client's in terest is giving notice to the client” of the attorney’s intention to te rminate representation. In re Coleman , 295 S.W.3d 85 7, 866 (Mo. banc 2009).18 24. 035. No matter the nomenclature, counsel had responsibilities under Rule 24.035(e) that arose upon counsel’s appointment that counsel failed to fulfill. 17 The record in this case raises a presum ption of abandonment by appointed counsel because it reflects that counsel did not comply with the requi rements in Rule 24.035(e) by filing either an amended motion or a statemen t setting out facts demonstrating the actions taken by counsel ensured that no amended motion was necessa ry. Therefore, the motion court was required to conduct an independent in quiry of Mr. Vogl’s claim of abandonment. It did not do so. Accordingly, the motion c ourt clearly erred in overruling Mr. Vogl’s motion claiming abandonment by post-conviction counsel. Conclusion In post-conviction proceedings, an essential element of a movant’s claim in attacking the movant’s conviction and sentence is that the movant’s original pro se post-conviction motion was timely filed. If a timely filed motion appears to be filed untimely due to misfiling by the circuit court, a pro se movant may allege facts that prove the misfiling and the timeliness of the original motion in an amended motio n filed by appointed postconviction counsel. Wh en the record shows that appointe d counsel did not file either an amended motion or a statement setting out facts demonstrating what ac tions counsel took to ensure that no amended moti on was needed, there is a pr esumption of abandonment by

17 The court of appeals has held that no abandonment occurs when appointed counsel notifies the motion court that a movant’s pro se motion was untimely without filing either an amended motion or a statement explai ning why no amended motion is needed. Stewart v. State , 261 S.W.3d 678, 6 79 (Mo. App. 2008); Morgan v. State ; 8 S.W.3d 151, 154 (Mo. App. 1999). This Court di sagrees. To the extent Stewart and Morgan incorrectly held such inaction by appointed counsel do es not constitute abandonment, the cases are overruled.19 appointed counsel. Because the record in Mr. Vogl’s case sh ows that no amended motion or statement was filed by appointe d counsel, it raises the presum ption of abandonment, and the motion court erred in not conducting an independe nt inquiry. The judgment is reversed, and the cause is remanded.

___________________ ______________ P ATRICIA B RECKENRIDGE , J UDGE
Russell, C.J., Stith, Draper, and Teitelman, JJ., concur; Fischer, J., dissents in separate opinion filed; Wilson, J., dissents in separate opinion filed. Fischer, J., concurs in opinion of Wilson, J.

# SUPREME COURT OF MISSOURI en banc
MARK D. VOGL, ) ) Appellant, ) ) v. ) No. SC93157 ) STATE OF MISSOURI, ) ) Respondent. )

DISSENTING OPINION I dissent from the principal opinion. In my view, the procedural posture of this case bars Vogl's requested relief. Vogl file d his original Rule 24.035 motion in March 2008. After sustaining his post-conviction counsel's motion to resc ind appointment, the motion court dismissed Vogl's Rule 24.035 mo tion in April 2008. Vogl did not appeal the motion court's dismissal. Rather, nearly three years later, Vogl filed a motion to reinstate his post-conviction proceedings, allegi ng that he had been abandoned by postconviction counsel. That motion was overruled, and the appeal of his claim of abandonment was dismissed. A year later, and a full four years after his initial motion was dismissed, Vogl filed his third Rule 24.035 motion, alle ging for the second time that his appointed post-conviction counsel had aban doned him. In my vi ew, this third motion is a successive post-conviction motion filed in violation of Rule 24.035(l) and Rule 75.01and is barre d by res judicata . Had Vogl wished to assert his claim that he was abandoned or his claim that his original motion was time ly filed, Vogl either should have filed a motion to vacate the motion court's judgment within that court's 30-day post-judgment control provided under Rule 75.01 or appealed the dismissal to the court of appeals. Vogl also could have filed a motion for leave to file a late notice of appeal within 12 months after the judgment became final pursuant to Rule 30.03. Vogl 's failure to pursue his abandonment claim on direct appeal of the dismissal precludes relief at this time. Further, the fact that Vogl has previously sought relief claiming abandonment, which was denied at the circuit court and appellate court levels, should result in the dismissal of this case based on res judicata

. 1 Facts and Procedural History In 2007, Vogl pleaded guilty to two counts of statutory sodomy in the first degree, a felony for which the authorized term of im prisonment is life imprisonment or a term of years not less than five year s. Section 566.062, RSMo Su pp. 2013. The circuit court sentenced Vogl to two concurrent terms of 15 years' imprisonm ent. Vogl does not allege that he is actually innocent of the crimes to which he plead ed guilty. Furthermore, Vogl does not allege that his guilty plea was not knowingly, voluntarily, and intelligently entered. Yet, the principal opinion approves th e use of a procedure in direct conflict with the express terms of this Court's rules and creates new law—once again muddying the abandonment waters. It does so in order fo r Vogl, who does not now claim innocence or

1 The motion court in this case specifically st ated as a basis for dismissal of his second abandonment claim that it had previously dismi ssed the original claim of abandonment.

2challenge the validity of his gu ilt y plea, to have a hearing on the merits of whether he was abandoned, despite his failure to raise this claim in the normal cour se of the procedures previously permitted by this Co urt. Especially troubling is that this is Vogl's second "motion to reopen" his post-co nviction proceeding, and nothi ng in the principal opinion would prohibit him from f iling yet another motion. Abandonment Claims Should Be Purs ued on Direct Appeal According to McDaris It is my view that Vogl was required to raise any abandonment claim in the initial motion court or in a direct appeal of the di smissal of his initial post-conviction motion. The principal opinion's decision to grant Vo gl relief on his "motion to reopen" postconviction proceedings, filed se veral years after his initial motion was overruled, is in direct conflict with this Court's rules. Rule 24.035(l) specifically provides, "The circuit court shall not entertain successive motions." And Rule 75.01 specif ically provides that the circuit court loses control over any judgment 30 days afte r entry. Remanding Vogl's case for a merits hearing on Vo gl's allegations of abandon ment permits a successive motion in violation of the clear and express terms of these rules. As stated above, this is the third Rule 24.035 motion that Vogl has filed (and the second motion claiming he was abandoned by post-convictio n counsel). He filed his initial motion in March 2008, wh ich the circuit court dismisse d as untimely filed. Three years later, in March 2011, Vogl filed a "Motio n to Reinstate Post -Conviction Action ... on Basis of Timely Filing," cl aiming he was abandoned by po st-conviction counsel. The motion court dismissed that motion, stating, "This Court has previously dismissed this action with prejudice for failure to file Motion within the time allowed by the rules. This

3Court will take no further action on this file." Vogl appealed the motion court's action, and i n May 2012, the court of appeals dismisse d the appeal because Vogl failed to file the record on appeal. Vogl did not seek transfer to this Court. The principal opinion fails to explain why the failure to proceed with the appeal of that motion does not preclude the relief Vogl seeks here. The subject of this appeal is Vogl's th ird Rule 24.035 motion (his second motion claiming abandonment), titled "Motion to Reop en Post Conviction Proceeding" and filed in May 2012. The circuit co urt overruled the motion, stating, "As in my entry of November 4, 2011 the Court notes that th is action was previously dismissed with prejudice for failure to file Motion within the time allowe d by the rules. Motion to reopen is overruled." This case, therefore, represents Vogl's third bite at the postconviction apple. 2 This Court's rules, as written, outline th e appropriate procedures for bringing and reviewing post-conviction motions. Thes e same rules are de signed to prevent unrestrained relitigation of claims that were, or should have been , brought in earlier proceedings. Specifically, three rules wo rk in concert to achieve these goals.

2 Honoring Rule 24.035(l)'s prohibition against su ccessive motions is particularly important because the only ineffective assi stance of counsel claims that may be brought in a Rule 24.035 motion for post-conviction relief after a guilty plea must allege that, due to counsel's ineffectiveness, the movant's guilty plea was not entered knowingly, voluntarily, and intelligently. Stanley v. State , 420 S.W.3d 532, 544 (Mo. banc 2014). In this case, Vogl's third motion merely alleged that he was abandoned by counsel, and his initial motion merely alleged that the sentencing judge "did not look at" a number of character reference letters and a letter from a doctor stating that Vogl should stay in th erapy rather than go to prison. These allegations do not state a claim for relief under Rule 24.035.

4First, Rule 75. 01 gives a circuit court cont rol over a judgment for 30 days after the judgment is entered. That rule states, "The trial court retains control over judgments during the thirty-day period after entry of ju dgment and may, after giving the parties an opportunity to be heard and fo r good cause, vacate, reopen, correct, amend, or modify its judgment within that time." During this period, a post-conviction movant can move the court to reopen his or her case or vacate the judgment on any number of grounds, including that the pro se motion had been timely filed or that post-conviction counsel failed to file an amended motion or a statem ent why no amended motion was required. After the expiration of this 30-day period, ho wever, the circuit court loses control over the judgment and loses the auth ority to vacate or reconsider the proceeding. While this rule specifically grants the circuit court control over the judgment, it also affirmatively cuts off that control after 30 days, prohibiting the circuit court from taking any further action on the matter. Second, a post-conviction mova nt is also entitled to an ap peal of the circuit court's judgment pursuant to Rule 24.035(k). Subsecti on k permits the appellate courts to review the motion court's ruling and to determine whether the findi ngs and conclusions of the trial court were clearly erroneous. If a post -conviction movant believes that the circuit court erroneously dismissed his or her Rule 24.035 motion as untimely, then the movant is entitled to appeal that determination to th e court of appeals. The movant may argue there that the circuit court erroneously dismi ssed the initial motion as untimely filed, that counsel abandoned him, or that the motion court failed to make an abandonment determination.

5Lastly, Rule 24.035(l) prohibits the filing of a successive Rule 24.035 motion. Under the express terms of this rule, a post- conviction movant is required to bring any post-conviction claims in one motion. Any successively f iled motions, including those masquerading as "motions to reopen" or "motions claiming abandonment" are specifically prohibited by the ex press terms of this rule. Abandonment, as originally conceived, was designed to fit w ithin the framework of Rule 24.035(l), which granted an adequate opportunity for revi ew, while also limiting the number of motions that could be f iled and the time frame for review of an abandonment claim. Wh en this Court created the abando nment doctrine, it also discussed the appropriate forum for the ev aluation of such claims. As this Court discussed at length
in Price v. State, 422 S.W.3d 292 (Mo. banc 2014), the abandonment doctrine in postconviction proceedings was introduced in Luleff v. State , 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State , 807 S.W.2d 493 (Mo. banc 1991). Luleff held that counsel's complete failure to file an amended motion or a statemen t why no such amended motion is necessary amounts to abandonm ent by post-conviction counsel. Luleff also addressed the question of the appropriate forum for ad dressing abandonment claims. 807 S.W.2d at 497. Luleff determined that the initial motion c ourt where the initia l motion was being prosecuted is the correct place to address such claims, stating: If presented with an oppo rtunity to address claims regarding postconviction counsel, the motion court could appoint new counsel, if necessary, at that time. Should the motion court conclude there is no basis for the movant's claim, a finding to that effect would alleviate the need for appellate courts to speculate as to what o ccurred in the circuit court. This Court holds that the appropriate forum for addressing cl aims regarding a complete absence of performance by postconviction coun sel on a motion for postconviction

6relief is in the circuit court where th e m otion is being prosecuted by the movant. Id. Furthermore, this Court held that the motion court, during the initial post-conviction proceeding, has an obligation to determ ine whether the mova nt was abandoned by counsel prior to dismissing the initial post-conviction motion. Luleff stated: At such time as the motion court ma y proceed to rule a postconviction motion and there is no record of any activity by counsel on movant's behalf, the motion court shall make inquiry, sua sponte , regarding the performances of both movant and co unsel. ... If the court determines ... that counsel has failed to act on behalf of the movant, the court shall appoint new counsel, a llowing time to amend the pro se motion, if necessary, as permitted under [the post-conviction rules]. Id. at 498 (footnote omitted). Similarly, in Sanders , this Court determined that the initial motion court is the appropriate forum for addressing claims that a movant was abandoned due to counsel's failure to timely file an amended motion. 807 S.W.2d at 495. There, the Court stated: For the reasons enunciated in Luleff ... it is expedient to address in the motion court claims regarding failure of postconviction counsel to comply with the time requirements of [the post-conviction rules]. To conduct an inquiry into counsel's apparent failure in this regard does not run afoul of [the post-conviction rules' prohibiti on against the filing of successive motions]. The appropriat e forum for addressing clai ms regarding failure ofpostconviction counsel to comply with the requirements of [the postconviction rules] is in the circuit court wher e the motion is being prosecuted by movant. Id.
In McDaris v. State , this Court outlined the proced ure that the initial motion court is to follow when conducti ng the independent inquiry into whether a movant was abandoned by post-convi ction counsel that Luleff and Sanders required. McDaris stated:

7Pen ding issuance of a Rule change, the trial court should, as part of its independent inquiry under Luleff, inquire not only of postconviction counsel, but ensure that movant is informed of counsel's response and given an opportunity to reply. The method of making this inquiry may be as formal or informal as the motion court deems necessary to resolve the question of abandonment by counsel, including, but not limited to, a written response and opportunity to reply, a tele phone conference call, or a hearing. However, a sufficient record must be made to demonstrate on appeal that the motion court's determination on th e abandonment issue is not clearly erroneous. 843 S.W.2d 369, 371 n.1 (Mo. banc 1992) (emphasis added). This Court has the authority to make a rule change, but it has not changed the procedure set out in McDaris

. Following these rules and precedents, there is little d oubt that the appropriate forum for addressing Vogl's abandonment clai ms was in the initial circuit court where the initial motion was filed. And there is little doubt that, unde r these preceden ts, the initial motion court should have made in quiry into whether Vogl was abandoned by co unsel. If Vogl believed that the initial circuit court e rroneously dismissed his motion, he was left with several options. He coul d have filed a motion to vacate the judgment within 30 days while the circuit court still had control over the judgment, or he could have appealed. Notably, and significant to the resolution of this case, Luleff and Sanders both involved direct appeals from initial motions in which this Court granted relief. Despite this precedent and the language of this Court's rules, the principal opinion permits, for the first time, a h earing on the merits of Vogl's abandonment claim raised in what is his third motion. I acknowledge that this Court has made several statements that purport to permit the filing of such a "motion to reopen" and that these cases characterize abandonment as an "ex ception" to Rule 75.01. However, in my view, these cases are not

8binding on any court because th ey rely entirely on dicta and have never been necessary to resolve the issues presented. Moreover, these cases conflict with the rules and have led to an unending cycle of relitig ation of "abandonment" claims , with some filings, as the principal opinion acknowledg es, coming more than a decad e after the initial motion was filed. 3 As noted, the concept of the "motion to reopen" post-convictio n proceedings first appeared in dicta. The firs t time this Court mentioned th e possibility of a "motion to reopen" was in State ex rel. Nixon v. Jaynes , 63 S.W.3d 210, 217-18 (Mo. banc 2001). In Jaynes , an inmate petitioned the circ uit court for a writ of habeas corpus, argui ng that his appointed post-conviction counsel had a conf lict of interest because post-conviction counsel had also served as trial counsel. Id. at 213. This Court held that the inmate had not pleaded sufficient facts to show that he was entitled to habeas corpus relief. Id. At the end of the opinion, in dicta, the Court stated that, if the inmate could prove that he had been abandoned, he "may wish to move to reopen his original motion under Rule 29.15 in the sentencing court, provided that his original motion was timely filed." Id. at 218. This statement cites no authority for such a motion and does not indicate that the Court considered the time lim itations on such motions contained in this Court's rules.

3 The court of appeals recently handed down a case that demonstrates this danger. In Middleton v. State, No. WD75669 (Mo. App. Mar. 4, 2014), an inmate filed a "motion to reopen" his postconviction proceedings due to abandonment, which the circuit court overruled. He appealed, and the court of appeals affirm ed in a published opinion. Middleton v. State , 200 S.W.3d 140 (Mo. App. 2006). Several years later, the inmate filed a second "motion to reopen," again claiming abandonment, which the circuit court again overrul ed. The inmate appealed, and the court of appeals again affirmed, but onl y after oral argument and a second written opinion.

9Later, in Taylor v. State , 254 S. W.3d 856, 857-58 (M o. banc 2008), this Court stated that the "abandonment doctrine provides a narrow ex ception permitting the circuit court to re-open an otherwise final post -conviction case." The Court cited the Jaynes dicta as its only authority for this proposition. Id. at 858. The Court did not engage in any analysis regarding Rule 24.035(l)'s prohibition against successive motions. Nor did it examine why "abandonment" sh ould be treated as an excep tion to any of this Court's rules when the requested remedy could be obtai ned through direct appeal. Moreover, the Court went on to find that Taylor had not been abandoned by his post-conviction counsel. Id. at 858. The Court's pronouncement th at abandonment of post-conviction counsel serves as a "narrow exception" to the rule, therefore, was not necessary to the judgment and is not a "holding" of this Court.
In Crenshaw v. State , 266 S.W.3d 257, 259 (Mo. banc 2008), decided shortly after Taylor , this Court likewise stated, "Under this Court's precedents, the motion court has authority to consider a motion to reopen [pos t-conviction] proceedings when it is alleged that a movant has been abandoned by his counsel." Crenshaw cited a court of appeals opinion, Edgington v. State , 189 S.W.3d 703 (Mo. App. 2006), to support that proposition. Edginton , in turn, cited the Jaynes dicta as authority. 189 S.W.3d at 706. The Court in Crenshaw did not engage in any analysis regarding what gives the motion court such author ity. Moreover, Crenshaw did not grant the movant relief. 266 S.W.3d at 260-61. In fact, the Court in Crenshaw declined to examine whether abandonment had occurred. Id. at 260.

10In Ge hrke v. State , 280 S.W.3d 54, 57 n.3 (Mo. ba nc 2009), the Cour t again, this time in a footnote, stated that the circuit co urt has the authority to consider a motion to reopen post-convictions proc eedings when the movant alleges abandonment. Gerhke cites Crenshaw , which, as noted, relies on a cour t of appeals opin ion that cites Jaynes

. Much like the other cases, Gehrke contains no analysis concerning the "exception" and holds that post-conviction counse l did not abandon the movant. Id. at 58-59. No case that the principal opinion or Vogl cites as authority to support the abandonment "exception" to the general ru les concerning final judgments actually granted relief to the movant. And never ha s this Court analyzed the source of such "exception" or how that "exception" square s with Rule 24.035(l)'s prohibition against successive motions. 4
The rules of this Court do not provide for a "motion to reopen ." Nor do they provide for a motion for post-conviction relie f due to abandonment. Abandonment, as

4 Significantly, no case from this C ourt decided before the errant Jaynes dicta addressed abandonment as part of a "motion to reope n" a post-conviction proceeding. Each pre- Jaynes case addresses abandonment during the initial post-conviction proc eeding or an appeal of the post-conviction motion's overruling without the noti on of a "motion to reopen the proceeding." See Moore v. State , 934 S.W.2d 289 (Mo. banc 1996) (dea ling with two cases in which abandonment was addressed at the motion court level prior to denying relief); State v. White , 873 S.W.2d 590, 596-99 (Mo. banc 1994) (reviewing th e motion court's determination during the Rule 29.15 proceeding that the m ovant was not abandoned), supers eded on other grounds by rule as stated in Glover v. State , 225 S.W.3d 425 (Mo. banc 2007); McDaris v. State , 843 S.W.2d 369, 371 (Mo. banc 1992) (reviewing a determination by the motion court that movant was not abandoned). These cases indicate that, before the Jaynes dicta, this Court understood the abandonment doctrine to apply only during the original post -conviction proceeding. No "motion to reopen" based on abandonment seems to have existed. This is particularly evident in Luleff , Sanders , and McDaris , each of which specifically stated that it was the initial motion court's responsibility to conduct an independent inquiry in to whether abandonment occurr ed before ruling on the motion in the event of a late or non- filing of the amended motion or st atement that no amended motion is necessary.
11judicially created, was to be examined prior to the circuit court's decision on the postconviction motion. The movant was free to argue that certain actions of counsel constituted abandonment during po st-conviction procee dings or the direct appeal thereof. In my view, the cases relying on the Jaynes dicta are incorrectly deci ded in so far as they have suggested the use of a motion to reope n post-conviction proceedings, or any motion given another name alleging abandonment by appointed post-conviction counsel, without determining whether such a motion was a pr ohibited successive post-conviction motion. 5 The principal opinion states that the Rule 24.035(1) pr ohibition against successive motions does not apply to ab andonment claims because Rule 24.035 does not establish the procedure for abandonment claims. I could accept that position if the principal opinion was willing to follow this Court's holding in McDaris which, pending a rule change, required abandonment claims to be made during the appeal of the postconviction motion. McDaris at 371-2. As stated previous ly, this Court has not adopted a rule providing for an alternative pro cedure to pursue abandonment claims. The truly myopic aspect of the "motion to reopen" due to abandonment of postconviction counsel is its complete disregard of the import ance of finality of judgments. As mentioned, permitting these "motions to reopen" as some kind of exception to both Rule 75.01 and Rule 24. 035(l) permits an endless cycle of relitigation of the same issue. This is exactly what these rules are desi gned to prevent. If "abandonment" somehow

5 It should be noted that untimely post-conviction motions due to what Price termed "third-party interference" or "active interference" do not run afoul of the prohibition against filing a successive motion. In those cases, no initial moti on will have been filed; therefore, the movant needs to file a motion seeking to file the initial post-conviction motion out of time. See Price , 422 S.W.3d at 295 n.1, 301-06.

12serves as an unlimited and unqualified exception to these rules, there is little to stop Vogl from filing another "m otion to re open" if he is ultimately unsu ccessful on remand. If this Court does not follow its ru les as written, there is no lim it on the number of times a movant may allege abandonment in a "motion to reopen," and there is no limit on the timing of such a motion. Additionally, the puzzling pa rt about the principal op inion's decision to permit abandonment claims in a "mo tion to reopen" is that su ch a motion is completely unnecessary. Any colorable abandonment clai m will be available to the movant in the initial motion court or on direct appeal because any successful claim of abandonment will be apparent from the record. 6 As noted, Price made clear that abandonment only occurs in two situations: 1) when appointed post-c onviction counsel fails to file an amended motion or a statement why no motion is necessa ry or 2) when such a motion is necessary but is untimely filed by appointed counsel. 422 S.W.3d at 297-98. Either of these situations will be apparent from the face of the record in the initial motion court or on direct appeal of the initial post-conviction motion. This is even true in Vogl's case. Th e principal opinion ultim ately holds that postconviction counsel aban doned Vogl by failing to file an amended motion or statement in lieu thereof. There is absolute ly no reason that Vogl could not have asserted this claim by following the normal procedures permitted by this Court's rules. Vogl could have filed a timely motion to vacate under Rule 75 .01 or he could have filed an appeal. The

6 In fact, the principal opinion states that the motion court need only investigate abandonment "when the record raises" such a pres umption and when " the record refutes the claim of abandonment" no such inquiry is require d. Slip op. at 16-17 (emphasis added).

13failure to do so results from Vogl's own lack of diligence at the time his initial motion was dismissed. There is one additional concern with a llowing unfettered "motions to reopen" a post-conviction proceeding. In my view, this Court should refuse to permit "motions to
reope n" filed outside of the normal time lim it to preserve potential relief under federal habeas corpus proceedings. In denying relief in Gehrke , this Court stated as follows: Federal habeas corpus proceedings require a movant to exhaust all available state remedies, including appeal and postconviction remedies, before bringing a federal claim. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). State court remedies are exhausted "when they are no longer available, regardless of the reason for their unavailability." Woodford v. Ngo, 548 U.S. 81, 92–93 (2006). If the scope of abandonment were expanded further, it is fore seeable that federal habeas corpus claims could be denied due to a movant's failu re to bring a mo tion to reopen postconviction proceedings. This would frustrate the legitimate goals of a prompt comprehensive review and finality. Gehrke , 280 S.W.3d at 59. I understand that this result may appear unsympathetic because Vogl did not have counsel to guide him th rough the appeals process. Howe ver, as the record demonstrates, Vogl discovered all of his claims and prepar ed all of the motions leading to this third motion on his own, without co unsel. The record also suggests that, on multiple occasions, Vogl reached out to his appointed post-convi ction counsel, who answered several of Vogl's questions about filing th is third motion. Furthermore, in postconviction proceedings, Rule 30. 03 allows the movant to seek leave to file a notice of appeal out of time within 12 mont hs of the judgment becoming final. 7 This gave Vogl a

7 Rule 30.03 provides:

14full year to collect all the in formation that is now the basi s for his third Rule 24.035 motion and seek leave to appeal. 8 The Principal Opinion's Discussion of "Counsel's Failure to Ascertain" is Unnecessary Had Vogl asserted his claim in a timel y manner, he likely would have alleged sufficient facts that, if true, would have prov en that he was abandoned by post-conviction counsel under this Court's recent definition of "abandonment" in Price v. State , 422 S.W.3d 292 (Mo. banc 2014). This Court made clear in Price that "abandonment" by post-conviction counsel occurs only in one of two situations: 1) when appointed postconviction counsel fails to co mply with Rule 24.035(e) by failing to file either an amended motion or a statement e xplaining why no amended motion is required or 2) when appointed post-conviction coun sel files an untimely amended motion. Id. at 297-98. Vogl's third Rule 24.035 motion a lleged sufficient facts that, if true, would prove that his post-conviction counsel failed to file eith er an amended motion or a

Where the defendant or the st ate has the right of appeal including appeals from an order in a post-conviction proceeding involving a prior felony conviction , but notice of appeal is not filed with the cler k of the trial court within ten days after the judgment becomes final, the defendant or the state may file a notice of appeal in the trial court if, with in twelve months after th e judgment becomes final, a motion for leave to file such notice is filed in the appropr iate appellate court and it thereafter sustains the motion and grants such leave. (Emphasis added). 8 In addition to the rule allowing late appeals, Rule 74.06 permits a court to entertain motions seeking relief from a judgment or order. Am ong the reasons for relieving a party from a final judgment are that the judgment "i s no longer equitable for the judgment to remain in force" and "excusable neglect." Rule 74.06(b) (1) and (5). Such motions must be made within a reasonable time and, for certain provisions, not more than on e year. This rule ha s not been cited by any party, but it is permitted by this Court's rules. Even this available procedure would be preferred to ignoring this Court's clear and express rule prohibiting the filing of a successive Rule 24.035 motion.

15statem ent explaining why no amended motion was required. Vogl alleges his postconviction counsel's only action was to file a motion to rescind his appointment as counsel on the ground that Vogl's initial motion was untim ely. Counsel's motion to rescind appointment did not meet the basic requirements of Rule 24.035(e); therefore, Vogl's allegations, if proven , would constitute abandonment. Despite the fact that this straightforward analysis resolves the issue, the principal opinion could be misconstrued to extend the abandonment doctrine into an evaluation of whether counsel met its "duty to ascertai n" whether a movant has timely filed the pro se motion required by Rule 24.035. Th is analysis is neither n ecessary for the principal opinion's resolution of this case, nor supported by this Court's precedent. The opinion specifically holds, "Here, Mr. Vogl's appointed counsel failed to comply with Rule 24.035(e) because he di d not file either an amended motion or a statement setting out facts demonstrating that counsel took actions to ensure why no amended motion was needed." This holding re nders the principal opinion's discussion of the "duty to ascertain" unnecessary, and in my view, the discussion will lead to a resurgence of multiple "motions to reopen" or alternativel y correctly titled "motions for relief due to abandonment" that are nothing more than re-characterized claims of ineffective assistance of post-conviction counsel. 9

9 Moreover, Moore v. State , cited by the principal opinion as authority for the proposition that appointed post-conviction counsel's "failure to ascer tain" all of the facts re levant to a movant's pro se motion, does not hold that such a failure actually amounts to abandonment. Rather, Moore stands for the rather unremarkable proposition that when the record shows on its face that counsel has failed to comply with the post-conviction rules, counsel will be presumed to have abandoned the movant. 934 S. W.2d 289, 292 (Mo. banc 1996). Moore remanded a case to the

16Res Ju dicata Prohibits Vogl's Second Abandonment Claim The principal opinion suggests that the res judicata issue is raised " sua sponte ." The principal opinion notes th at the State has not asserted that Vogl's prior motions constituted a "procedural bar" to the adjudication of his cu rrent motion. However, the "failure" to raise this issue at this point does not constitute a waiver of the issue. The post-conviction rules do not require a responsive pleading. Rule 24. 035(g). In this case, the State did not file a responsive pleading be cause the circuit court swiftly denied relief without one, specifically pointing to its previous judgment overruling the original claim of abandonment. Therefore, the State has not "waived" any clai m that Vogl was not abandoned, including that Vogl's claim is barred by res judicata due to his failure to perfect either his original post-conviction appeal or the appeal of his original abandonment claim. Res Judicata is an affirmative defense. Ordinarily, the party seeking to benefit by it must either plead in an answer, raise it by an amendment to the pleadings, or present it by motion to di smiss. However, it is a defense that not only benefits the defe nding party, but al so benefits the court's ability to efficiently administer justice. In this regard, the United States Supreme Court has recognized:

circuit court because counsel's statement w hy no amended motion was filed indicated that counsel had done nothing other than to file the statement. Id. Moore 's holding stems from the fact that the Court determined that counsel essen tially did nothing at all, not that counsel failed to ascertain facts that would have led to a colorable claim. Id. Counsel's failure to perform an adequate investigation is a matte r of the effectiveness of counsel and, therefore, categorically unreviewable. This is perfectly demonstrated by the two cases that the principal opinion overrules, Stewart v. State , 261 S.W.3d 678 (Mo. App. 2008), and Morgan v. State , 8 S.W.3d 151 (Mo. App. 1999). The movant in each case alleged that post-conviction counsel had abandoned him by failing to investigate the timeliness of the pro se motion. The court of appeals in each case held that such an a llegation was better characterized as one for ineffective assistance of post-conviction counsel.

17"if a court is on notice that it has previ ously decided the issue presented, the court may dismiss the action sua sponte , even though the defense has not been raised. This result is fully consistent with the policies underling res judicata: it is not based solely on the defendant' s interest in avoiding the burdens of twice defending a su it, but is also based on the avoidance of unnecessary judicial waste." Arizona v. California , 530 U.S. 392, 412 (2000). Patrick V. Koepke Const., Inc. v. Woodsage Const. Co. , 119 S.W.3d 551, 555 (Mo. App. 2003) (some internal citations omitted). Mo reover, this Court has stated that, although res judicata is an affirmative defense, it need no t be asserted in a responsive pleading because res judicata is in essence an allegation that th e plaintiff has failed to state a claim upon which relief may be granted. Chesterfield Village, Inc. v. City of Chesterfield , 64 S.W.3d 315, 318 n.1 (Mo. banc 2002). As such, res judicata may be raised in a motion to dismiss. Id. As pointed out in Koepke , while caution should be exercised in applying res judicata sua sponte , a well recognized exception to this caution ex ists when the defense arises out of the court's own earlier judgme nt. That is exactly what this Court is reviewing here—the motion court expressly re ferenced its previous judgment denying abandonment relief in its judgment denying relief on this motion. Under these facts, it is totally inappropriate for this Co urt to hold that ruling is "cl early erroneous." In my view, the judicially efficient resolution is to deny relief now rather than remand and require the State to file a motion to dismiss that the motion court will surely sustain.

18The pri ncipal opinion suggests that the Court should not review, sua sponte , the issue of res judicata because the "motion court dismissed Mr. Vogl's current abandonment claim as procedurally barred . . . Mr. Vogl's claim of abandonment has never been adjudicated on th e merits." However, the moti on court's 2011 order states that the circuit court would take no action on Vogl's claims of abandonment because Vogl failed to timely file his original motion. Or, in other words, because Vogl had not filed a timely original motion, the motion cour t determined that he could not have been abandoned by counsel. Moreover, any failure to obtain a final ad judication would stem from Vogl's own failure to appeal his initial motion and his failure to perfect his second appeal. To state that Vogl has not received a final adjudication of his abandonment claim is to: 1) ignore the language of the motion c ourt's order; 2) ignore Vogl's multiple failures to pursue his abandonment claims through the procedures availa ble to him; and 3) ignore the fact that, until the pr incipal opinion overruled Stewart v. State and Morgan v. State today, Vogl's claims were considered claims of ineffective assistance of post-conviction counsel and not abandonment. As Judge Wilson's dissent points out, even assuming that the motion court's 2011 order dismissed Vogl's abandonm ent claims "without prejudice," A dismissal without prejudice may ope rate to preclude the party from bringing another action for the same cause and may be res judicata of what the judgment actually decided. Mahoney v. Doerhoff Su rgical Services, 807 S.W.2d 503, 506 (Mo. banc 1991). An appeal from such a dismissal can be taken where the dismissal has the pr actical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum. City of Chesterfield v. Deshetler Homes, 938 S.W.2d 671, 673 (Mo.App.1997).

19Chr omalloy American Corp. v. Elyria Foundry Co. , 955 S.W.2d 1, 3 (Mo. banc 1997); see also Naylor Senior Citizens H ousing, LP v. Side Const. Co. , 423 S.W.3d 238, 242-43 (Mo. banc 2014). Clearly, both Vogl and the court of app eals believed that the circuit court's order terminated the litigation in 2011, as evidenced by Vogl 's appeal from that order. Because the express terms of the order terminated the litigation so that Vogl would have a final judgment to appeal the motion court's ruling, the subsequent abandonment litigation is barred by res judicata

. This Court has an obligation to ensure co mpliance with its post-conviction rules.
Dorris v. State , 360 S.W.3d 260, 268 (Mo. banc 2012). In Dorris , this Court specifically held that the time limitations for the post-conviction rules cannot be waived by either party. 360 S.W.3d at 270. This Court held that the time limitations established by the rules for post-conviction relief were mandatory to preserve the finality of judgments and could not be waived. Id. In my view, this same conclu sion applies to the post-conviction rules prohibiting successive motions. Becaus e permitting successive motions frustrates the post-conviction relief system's need for finality, the State may not "waive" the rule violation, either inadvertently or purposefu lly. My view that this second abandonment claim is barred by res judicata is in accord with this Court' s recent statement that parties cannot concede or stipulate to legal issues. State v. Hardin , 429 S.W.3d 417, 421 n.4 (Mo. banc 2014) (stating that the State coul d not concede that the defendant had been subject to double jeopardy). Lastly, "this Court will affirm on any gr ound that supports the circuit court's judgment, regardless of the grounds on which the circuit court relied." Stanley v. State ,
20420 S.W.3d 532, 543 n. 9 (M o. banc 2014); see also Rizzo v. State , 189 S.W.3d 576, 578 (Mo. banc 2006). While it coul d be argued that the precis e grounds on wh ich the motion court overruled this third mo tion are not clear, it appears that the motion court ruled, without the issue having been ra ised by the State, that its rulings on Vogl's prior motions prohibited the requested relief. In light of the docket entr y and this Court's ability to affirm on any ground that supports the judg ment, the determination that Vogl's current claim of abandonment is barred by res judicata should be addressed at this time. Conclusion I disagree with the principal opinion's holding that the abandonment doctrine entitles Vogl to file a third Rule 24.035 motion. Vogl ha d a remedy available to him years ago when th e motion court dismissed his initial mo tion. At that time, Vogl could have appealed the dismissal of his motion purs uant to Rule 24.035(k) or sought to vacate the judgment within the time peri od allowed by Rule 75.01. Because he failed to pursue these available remedies, Vogl is not entitled to relief now. Rule 24 .035(l) specifically prohibits successive post-conviction relief motio ns. To grant Vogl a remand for a merits hearing on his allegations of abandonment, whether his motion is characterized as a "motion to reopen" or "motion for post-convic tion relief due to abandonment" is to ignore the plain language of Rule 24.035(l).
In McDaris , this Court stated that the moti on court should examine abandonment prior to ruling on the motion by discussing the issue with post-conviction counsel and allowing the post-conviction movant to reply. McDaris stated that this procedure should stand until such time as this Co urt changed its rules. This Court has not changed its rules

2122 to permit a different procedure for determini ng abandonment claims despite its authority to do so. For the reasons stated above, I would affi rm the judgment. I also concur in the opinion of Judge Wilson that res judicata bars Vogl from re-litig ating his abandonment claim.

____ _______________________ Zel M. Fischer, Judge

# SUPREME COURT OF MISSOURI en banc
MARK D. VOGL, ) ) Appellant, ) ) v. ) No. SC93157 ) STATE OF MISSOURI, ) ) Respondent. ) DISSENTING OPINION The majority opini on holds that, when the counsel appointe d to represent an inmate pursuant to Rule 24.035(e) does no t file an amended motion or a statement explaining why no amended moti on is necessary, the inmate e ither can object to such “abandonment” in the motion court and/or asse rt that claim on appeal as the inmates did
in Luleff v. State , 807 S.W.2d 495 (M o. banc 1991), and Sanders v. State , 807 S.W.2d 493 (Mo. banc 1991), or the inmate can wait several years and then file a “motion for post-conviction relief due to abandonment.” Re gardless of the merits of this holding, the Court is wrong to announce and appl y it to Mr. Vogl in this case. As explained below, the 2012 motion that the majority opinion holds should have been granted by the tria l court was Mr. Vogl’s second abandonment motion, not his first. His first abandonment motion is identical to the present one in all material respects except that it was filed in 2011 , more than 14 months before the motion at issue in thiscase. The trial court denied Mr. Vogl’s firs t abandonm ent motion (just as it later denied the motion now before this Court), and Mr. Vogl appealed that first denial (just as he now appeals the second). But that is where the similarities end. Mr. Vogl never filed the record in his first appeal and, as a result, it was dismissed. Because Mr. Vogl already took the second ch ance to raise his abandonm ent claim that the majo rity opinion holds he should have, there is no need or reason to give him a third. Accordingly, I respectfully dissent. The majority opinion rec ites that Mr. Vogl’s initial post-conviction motion was denied as untimely on April 22, 2008, and he concedes that he did not ask the motion court to reconsider or vacate that decision under Rules 75.01 or 74.06. Mr. Vogl also made no effort to seek appellate review of th is dismissal, either wi thin 10 days after it became final (which, because Mr. Vogl made no motion for reconsideration, was 30 days after its entry) or anytime w ithin the following year under Rule 30.03 (which allows the appellate court to grant leave for such a late filing “for good cause shown”). The majority opinion then r ecites that, in 2012, Mr. Vogl filed a motion alleging that he had been abandoned by his appointed coun sel in 2008 and seeking to have the motion court hear and determine the merits of his Rule 24.035 claims that had been improperly dismissed as a result of that ab andonment. Finally, the majority opinion recites that Mr. Vogl’s abandonment moti on was denied on May 21, 2012, that he appealed this denial, and that his appeal is now before this Court pursuant to article V, section 10 of the Missouri Constitution.

2But, between 2008 (when his initial post- conviction motion was denied) and 2012 (whe n he filed the abandonment motion that is now before this Court), there was another very important chapter to Mr. Vogl’s procedural story. On March 17, 2011, more than 14 months before he filed the motion that is now before this Court, Mr. Vogl filed his first motion alleging that he had been aba ndoned by his appointed counsel in 2008 and seeking to have the motion cour t hear and determine the merits of his Rule 24.035 claims that were improperly dismissed as a result of that abandonment. 1
Attached to this first abandonment motion are the same exhibits that the majority opinion analyzes from his second motion: (a) the 2010 correspondence between Mr. Vogl and the Jasper County circu it clerk’s office; (b) the le tter and motion from appointed counsel requesting the motion court to resc ind appointment because Mr. Vogl’s initial

pro se motion was filed too late under Rule 24. 035; and (c) the motion court’s 2008 order rescinding counsel’s appointm ent and dismissing Mr. Vogl’s motion for post-conviction relief as untimely. Mr. Vogl alleges in his first abandonment motion, as he does in his second, that his pro se Rule 24.035 motion was not untim ely in 2008, that his appointed counsel’s concession on this issue was “without proper merit, ” and that this abandonment by appointed counsel deprived him of meaningful review of the claims he had raised in his 2008 motion for post-conviction relief.

1 Mr. Vogl includes a copy of his first abandonment motion in his legal file for this case, as well as the correspondence from the appellate division of the Public Defender System (which did not represent Mr. Vogl at the time) stating it had reviewed his mo tion and recommending he file it.

3The motion court denied Mr. Vogl’s firs t abandonm ent motion on November 4, 2011, just as it later would deny his s econd abandonment motion six months later. 2 Mr. Vogl appealed this November 4 denial to the Missouri Court of Appeals, Southern District, where his appeal was assigned Case No. 31797. Four months later, however, Mr. Vogl had not filed his record on appeal. Pursuant to Rule 84.08, therefore, the appellate court warned Mr. Vogl that his ap peal would be dismissed unless he filed the required documents or demonstrated good caus e why dismissal should not be ordered. He did neither, and Mr. Vogl’s appeal fro m the trial court’s denial of his first abandonment motion was dismissed. Rule 24.035(l) plainly states: “The ci rcuit court shall not entertain successive motions.” Even if the majority opinion is correct that this language does not prohibit an inmate from filing a “motion for post-convicti on relief due to abandonment” after having previously filed (and been denied) a motion fo r post-conviction relief, there is nothing in the language of Rule 24.035(l) that ju stifies allowing an inmate to file a second “motion for post-conviction relief due to abandonment” when he has previo usly filed (and been denied) a first “motion for post-conviction relief due to abandonment.”

2 The majority opinion insists that the “motion court dismissed Mr. Vogl’s current [second] abandonment claim as procedurally barred on the ground that his Rule 24.035 action was dismissed with prejudice for the untimely filing of his original pro se motion and Mr. Vogl’s claim of abandonment never has been adjudicated on the merits[.]” Maj. Op. at 4, n.4. That is a fair reading of the motion court’s order de nying Mr. Vogl’s first abandonment motion on November 4, 2011, but it is not a fair reading of the motion court’s ruling denying the second abandonment motion, i.e., the denial at issue here. Here, the motion court explicitly notes that it denied a previous motion from Mr. Vogl on the same ground seeking the same relief.

4If Mr. Vogl had managed to file the record in his appeal fromthe 2011 denial of his first abandonment motion (as he managed to do in this case and as pro se inmates manage to do in hundreds of post-conviction appeals every year), all that has occurred in this appeal could have – and perhaps would ha ve – occurred in that one. But he did not do so, and that appeal was dismissed. No matter how compelling the issues he might have raised then would have been, and no matter how wron g the trial court may have been in denying Mr. Vogl’s first aband onment motion in 2011 under the majority opinion’s reasoning here, there simply is no justification for ignoring the fact that Mr. Vogl did not file his second abandonment motion (the denial of which is now before the Court) until after he failed to perfect his appeal from the denial of his first abandonment motion. 3 Even assuming that the majority opinion is correct that Mr. Vogl had a right to assert an abandonment claim years after failing to assert that claim in the motion and

3 The majority opinion suggests that the dismissa l of Mr. Vogl’s first abandonment motion has no preclusive effect because it was not decided “ on the merits.” The trial court denied both motions on the same grounds (and, as to Mr . Vogl’s second abandonment motion, on the additional ground that the court ha d denied relief to Vogl rega rding abandonment in his first motion). The majority opinion offers no reason w hy the second denial is a ppealable but the first denial was not. A dismissal has preclusive effect on any issue it decides, a nd it is this preclusive effect that makes the dismissal appealable. Chromalloy Am. Corp. v. Elyria Foundry Co. , 955 S.W.2d 1, 3 (Mo. banc 1997). Accordingly, either: (a) the denial of Vogl ’s first abandonment motion was preclusive on the question of whethe r abandonment can be asserted years after the post-conviction motion was denied and, because it was preclusive on this point, the dismissal was appealable (as the court of a ppeals plainly concluded it was); or (b) the de nial of Mr. Vogl’s first abandonment motion was not preclusive on that issue and, because it was not preclusive, it was not appealable. The majority opinion does not choose (b) because, under that approach, the denial of Vogl’s second motion also cannot be appealed. On the ot her hand, if the answer is (a) and the denial of an abandonment motion is a ppealable – which the majority opinion plainly holds it is – then all of the arguments raised and adopted here could have been raised and adopted in Mr. Vogl’s appeal from the denial of his first abandon ment motion. The fact that he failed to pursue that appeal does not mean it did not happen.

56 appellate courts in 2008 (or 2009), Mr. Vogl ex ercised that right in 2011 when he filed his first abandonment motion. It may well ha ve been error for the motion court to deny Mr. Vogl’s first abandonment motion just as the majority opinion concludes it was error to deny his second; but we will never know. Mr. Vogl’s failure to perfect his appeal from the denial of his first motion waived all claims of error regarding that denial. He cannot simply ignore the disposition of his first abandonment motion in the hopes of relitigating the same issues now in a second motion. Ac cordingly, the Court is wrong to reach the issues it resolves in this case, and I re spectfully dissent from its having done so. 4

___________________ _____________ Paul C. Wilson, Judge

4 The majority opinion chides the author for raising this issue sua sponte , noting that the state did not raise the preclusive effect of Mr. Vogl’s first abandonment motion below. It is difficult to see how the state could have raised this issue when it was under no obligation to file a responsive pleading to Mr. Vogl’s second abandon ment motion and, as a practical matter, had no opportunity to raise that issue (or anything else) before the trial court denied the motion. Presumably, it will do so on remand. There is no need to put the partie s through this exercise, however, as this Court repeatedly has held that “motion courts and appellate courts have a ‘duty to enforce the mandatory time limits and the resulting complete waiver in the postconviction rules – even if the State do es not raise the issue.’” Price v. State , 422 S.W.3d 292, 297 (Mo. banc 2014) (quoting Dorris v. State , 360 S.W.3d 260, 268 (Mo. banc 2012)). There is no reason this “duty” also should not extend to “enforci ng” the clear prohibiti on against successive postconviction motions found in Rules 24.035(l) and 29.15( l). To say that th is prohibition does not extend to successive post-convic tion motions based on abandonment because nothing in Rules 24.035 and 29.15 recognizes post-conviction motions based on abandonment simply proves too much.