BILLIE J. BORSCHNACK, )

)

Movant-Appellant, )

)

vs. ) No. SD36451

) Filed: October 29, 2020

STATE OF MISSOURI, )

)

Respondent-Respondent. )

APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY

Honorable Joe Z. Satterfield, Judge

AFFIRMED

Billie J. Borschnack (“Borschnack”), appeals from the motion court’s denial of Rule 29.151

relief. In one point on appeal, Borschnack argues that the motion court clearly erred in finding 

that “appointed counsel” did not abandon Borschnack, and that retained counsel’s subsequent 

amended motion was untimely. Finding no merit to this point, we affirm the judgment of the 

motion court.

 

1 All rule references are to Missouri Court Rules (2016).
2

Factual and Procedural Background

We recite the facts in accord with the findings of the motion court, including those as to 

credibility. See Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019). We recite such other material 

as necessary for context to our instant disposition.

This case involves multiple proceedings relating to the application of Rule 29.15, and a 

preliminary discussion of that rule is necessary to frame the procedural and substantive import of 

the more particular facts and litigation history attending this matter. Our Supreme Court set out 

the following overview of Rule 29.15 in Price v. State, 422 S.W.3d 292 (Mo. banc 2014):

[T]here is no federal constitutional right to post-conviction proceedings. 

[Pennsylvania v.] Finley, 481 U.S. [551,] 557, 107 S.Ct. 1990 [95 L.Ed.2d 539 

(1987)]. Because the state is not compelled to provide such proceedings, it is not 

required by the federal constitution to provide counsel to indigent inmates when the 

state—in its discretion—makes such proceedings available. Smith, 887 S.W.2d at 

602. Under the predecessor to Rule 29.15, however, this Court decided that 

appointing counsel for all indigent inmates who assert post-conviction claims was 

the best way to further the purpose of ensuring thorough review without undue 

delay in achieving finality of criminal convictions. Fields v. State, 572 S.W.2d 477, 

483 (Mo. banc 1978) (‘Finality is a central aspect of rule 27.26. If a meritorious 

collateral claim exists, the rule is designed to bring it to the fore promptly and 

cogently’).

Rule 29.15(e) continues this policy and provides that counsel will be 

appointed for all indigent inmates if, but only after, the inmate timely files his initial 

motion. The lack of any constitutional right to counsel in post-conviction 

proceedings, however, precludes claims based on the diligence or competence of 

post-conviction counsel (appointed or retained), Reuscher v. State, 887 S.W.2d 588, 

590 (Mo. banc 1994), and such claims are ‘categorically unreviewable.’ Eastburn

[v. State], 400 S.W.3d [770,] 774 [(Mo. banc 2013)]; State v. Ervin, 835 S.W.2d 

905, 929 (Mo. banc 1992) (same); Lingar v. State, 766 S.W.2d 640, 641 (Mo. banc 

1989) (same). With two such important policies (i.e., the Court’s decision to 

provide counsel for all indigent inmates and the Court’s steadfast refusal to 

acknowledge claims based on the ineffectiveness of post-conviction counsel), a 

collision was bound to occur. Luleff [v. State, 807 S.W.2d 495 (Mo. banc 1991)]

and Sanders [v. State, 807 S.W.2d 493 (Mo. banc 1991)] mark the Court’s 

resolution of that conflict.
3

When counsel is appointed under Rule 29.15(e), this rule requires this 

counsel to investigate the claims raised in the inmate’s timely initial motion and 

then file either an amended motion or a statement explaining why no amended 

motion is needed. Performance of these duties is essential because the limited 

scope of appellate review under Rule 29.15(j) assumes that ‘the motion court and 

appointed counsel will comply with all provisions of the rule.’ Luleff, 807 S.W.2d 

at 497–98. Therefore, Luleff balances the Court’s need to enforce the requirements 

of Rule 29.15(e) and its unwillingness to allow ineffective assistance claims 

regarding post-conviction counsel by holding that a ‘complete absence of 

performance’ by appointed counsel is tantamount to a failure of the motion court to 

appoint counsel under Rule 29.15(e) in the first instance. Id. at 498. Under either 

scenario, the integrity of the procedures set forth in the rule are compromised and 

the case cannot proceed as Rule 29.15(e) intends. Id. Accordingly, Luleff holds 

that the only way to restore the motion court and parties to the position Rule 

29.15(e) intends for them is for the motion court to appoint new counsel and allow 

additional time for this counsel to perform the duties required by Rule 29.15(e). Id.

at 497–98.

In Sanders, decided the same day as Luleff, there was no ‘complete absence 

of performance’ by appointed counsel. Instead, appointed counsel decided that an 

amended motion was necessary to raise all of the inmate’s claims properly, but then 

failed to file the amended motion in a timely manner. Sanders, 807 S.W.2d at 494-

95. Under this Court’s prior cases and the language of the rule, the amended motion 

should have been dismissed and the inmate allowed to proceed only on the claims 

raised in his timely initial motion. Id. at 494. The Court refused to take this 

approach, however. Instead, Sanders holds that the purposes of Rule 29.15(e) are 

frustrated as much by appointed counsel’s failure to follow through with a timely 

amendment as by the ‘complete absence of performance’ in Luleff. Id. Rather than 

have the motion court appoint new counsel as in Luleff, however, Sanders holds 

that the motion court need only treat the tardy amendment as timely in order to 

restore the intended effect of Rule 29.15(e). Id.

Accordingly, the rationale behind the creation of the abandonment doctrine 

in Luleff and Sanders was not a newfound willingness to police the performance of 

postconviction counsel generally. Instead, the doctrine was created to further the 

Court’s insistence that Rule 29.15(e) be made to work as intended. Extensions of 

this doctrine that do not serve this same rationale must not be indulged.

Price, 422 S.W.3d at 297-98.

Litigation History

Following a bench trial, Borschnack was convicted of first-degree assault. Borschnack 

was sentenced to fifteen years in prison, as a prior and persistent offender.
4

Borschnack filed his direct appeal to this Court, and we affirmed his conviction in an 

unpublished statement. State v. Borschnack, SD33932. Mandate was issued on March 3, 2016.

On April 29, 2016, Borschnack timely filed his pro se “Motion to Vacate, Set Aside or 

Correct the Judgment or Sentence,” along with his “Forma Pauperis Affidavit.”

On May 3, 2016, the motion court entered an order (“the order of appointment”) appointing

the public defender to represent Borschnack. It also granted an extension to file an amended postconviction motion, setting the deadline for August 1, 2016 (i.e., 90 days after the date of 

appointment). There was nothing in the record to indicate the court clerk notified the public 

defender’s office about this appointment and order. The public defender’s office never filed an 

amended motion or otherwise took any action on Borschnack’s behalf.

Thereafter, Borschnack retained private counsel and on January 23, 2017, retained counsel 

entered his appearance on behalf of Borschnack. On March 7, 2017, retained counsel filed a 

“Motion to Determine Appointed Counsel’s Abandonment and Allow Additional Time for Filing 

of Amended Motion by Retained Counsel.”

Following an April 12, 2017 hearing on Borschnack’s motion, the motion court entered the 

following docket entry:

PETITIONER APPEARS BY [RETAINED] ATTORNEY . . . COURT GRANTS 

ADDITIONAL 90 DAYS FOR PETITIONER TO FILE AMENDED PETITION.

Ninety days after the motion court entered this order (169 days after retained counsel’s entry of

appearance), Borschnack’s retained counsel filed an amended Rule 29.15 motion for postconviction relief on July 11, 2017.
5

On July 10, 2018, the motion court2entered its “Judgment” and “Findings of Fact and 

Conclusions of Law” based upon a stipulated record. The motion court found that Borschnack’s 

amended motion was not timely filed by retained counsel. The motion court then took up and 

denied Borschnack’s initial Rule 29.15 motion, finding it only made a conclusory allegation of 

ineffective assistance of counsel, without any substantive factual assertions. Borschnack appealed 

the judgment.

In Borschnack v. State, 568 S.W.3d 914 (Mo.App. S.D. 2019), this Court found that the

record on appeal established a presumption that Borschnack was abandoned by his court-appointed 

counsel. Id. at 918. This Court further found that the record was not sufficient to determine 

whether the motion court’s implicit3finding of actual abandonment by appointed counsel was 

clearly erroneous, so it reversed and remanded with instructions to the motion court to “make an 

independent inquiry on the abandonment issue, which is capable of being reviewed by an appellate 

court; to make an abandonment determination based upon the record made of such inquiry; and 

then to proceed with the case accordingly.” Id. at 920. Mandate issued on March 8, 2019.

On March 13, 2019, the motion court issued its “Order Requiring Discovery/Evidence on 

Issue of Abandonment and Order Requiring Deposition of Movant on Issue of Abandonment and 

Order Authorizing Depositions of Other Witnesses on Issue of Abandonment.”

Thereafter, the parties took the depositions of Borschnack, District Defender Kristina 

Starke Olson (“Olson”) of the Appellate Post Conviction East A Office, Area 51, in St. Louis, 

Missouri, and District Defender Gwenda Renee Robinson (“Robinson”) of the Appellate Post 

Conviction East B Office, Area 51, in St. Louis, Missouri.

 

2 We observe that the judge initially assigned to this case recused, and Judge Satterfield was appointed on June 8, 

2018.

3 See Borschnack, 568 S.W.3d at 919 n.6.
6

Borschnack testified in his deposition that on April 29, 2016, he filed his pro se Rule 29.15 

motion, and that he received a return copy of the motion stamped by the court clerk showing that 

the motion had been received and filed. He further testified that on May 3, 2016, he received a

copy of the order of appointment, appointing a public defender to represent him and was granted

an additional 30 days to file an amended motion. Borschnack stated that he was never contacted 

by a public defender; he wanted an amended motion filed and never told a public defender 

otherwise; and he took no action that would have prevented a public defender from filing an 

amended motion.

Olson testified she was the district defender for the “Missouri State Public Defender 

Appellate Post Conviction East A Office” in St. Louis, Robinson was the district defender of the 

“East B office,” and that these two offices covered all post-conviction motions filed in the courts 

of the Bootheel, including Dunklin County. Olson stated that appointments from Dunklin County 

are received through the mail by way of the U. S. Postal Service when the Dunklin County Circuit 

Court issues, and the clerk mails, a formal order of appointment to their office. Once that order of 

appointment is received, she and Robinson confer and decide whether Office A or Office B will 

handle the case, whereupon an attorney from the selected office is assigned. Olson was not aware

of any order of appointment from the Dunklin County Circuit Court regarding Borschnack’s postconviction motion; she had no record of any such appointment being made, sent to or received in 

her office’s assignment book, which is used to log all such incoming appointment orders; and that 

she had no recollection of ever talking with Borschnack, and was unaware of anyone in her office 

having spoken with Borschnack.

Robinson’s testimony was consistent with Olson’s. In relevant part, Robinson testified she 

did not recall opening a case for Borschnack, and that her office did not have a record of receiving 
7

any paperwork regarding Borschnack’s Form 40. Robinson also testified that she reviewed her 

office’s intake sheet, which would have created a paper trail if any such paperwork or assignment 

had been received, and found no record of her office receiving any paperwork or assignment 

relating to Borschnack.

On June 11, 2019, Borschnack’s retained counsel filed a notice that depositions had been 

taken and filed with the motion court. On June 12, 2019, the motion court issued an order 

requesting that the parties: (1) advise if the discovery and evidence conducted and submitted 

concluded the evidence to be presented on the abandonment issue; (2) advise whether the parties 

wanted to present the issue to the court by hearing, telephone conference call or by a written 

response and opportunity to reply; (3) that “appointed post-conviction counsel should be given 

timely and adequate notice of the existence of the motion court’s independent inquiry since if 

found to have been appointed and found to have abandoned [Borschnack], then they could face 

disciplinary action[]”; and (4) advised that the court would not proceed unless the District 

Defender of the Missouri State Public Defender, PCR Division, participates or declines to 

participate by so advising the motion court.

On July 24, 2019, Borschnack’s retained counsel filed a response indicating the parties

agreed the evidence was closed, and the parties wished to proceed by written response and reply. 

In addition, Borschnack’s retained counsel advised Robinson and Olson would respond as to 

whether they wanted to further participate in the abandonment inquiry. On the same date, Olson 

and Robinson responded that they provided all the information they had in their depositions, that 

they had nothing further to add, and that they declined to participate further, unless ordered by the

motion court.
8

On September 16, 2019, Borschnack, by his retained counsel, filed his written response

and argument on the abandonment issue.

On October 23, 2019, the motion court entered its “Judgment” and “Findings of Fact and 

Conclusions of Law,” denying Borschnack’s motion. The motion court’s findings, as relevant 

here, stated:

In his written memorandum to this Court movant relies exclusively on Luleff v. 

State, 807 S.W.2d 495 (Mo. 1991) for the proposition that this court should find 

that the public defender abandoned movant and therefore this court should appoint 

new counsel and should allow the newly appointed counsel time to amend movant’s 

pro se motion.

However the facts surrounding the abandonment issue in Luleff are distinguishable 

from this case. In that case the Supreme Court found that “On the day movant filed 

his motion for post-conviction relief, June 28, 1988, the circuit court appointed a 

public defender to represent movant. It appears from the record that counsel was 

notified of the appointment on July 1, 1988. . . . . There is no entry of appearance.” 

Luleff at page 498. (emphasis added).

In this case, there is absolutely no evidence that the public defender post-conviction 

offices received the order of appointment entered by Judge Mayer. In fact all the 

credible evidence is to the contrary. District Defenders Kristina Starke Olson and 

Gwenda Renee Robinson, being the public defenders who oversaw the only two 

offices that would have received the order of appointment, testified that they had 

not received such an order in movant’s case and that the written records in their 

office confirmed such.

Further, the docket entries in this case do not reflect that the clerk forwarded the 

Order of Appointment and other documents to the public defender, even though 

Judge Mayer ordered that such a docket entry confirming such be made after the 

order was actually sent. Therefore, it appears from the testimony presented and the 

actual court record that the clerk failed to fulfill that duty. There is nothing in the 

court record to indicate that the order was sent to or received by the public defenders 

or that the public defenders were ever aware of the attempted order of appointment.

Given the evidence presented, this court cannot find that the public defenders were 

ever appointed or that the public defenders failed to fulfill their obligations under 

Rule 29.15 (e) and (g). Finding abandonment by the public defenders under these 

facts and exposing them to possible disciplinary action would be unjust and is 

unsupported by the record and this court declines to do so.
9

This current case is more akin to Creighton v. State, 520 S.W.3d 416 (Mo. 2017), 

Hopkins v. State, 519 S.W.3d 433 (Mo. 2017), and, Allen v. State, 524 S.W.3d 183 

(Mo. App. W.D. 2017) than it is to the Luleff case.

In those cases the courts held that memorandum/notices issued by the motion courts 

and sent to and received by public defenders advising them that pro se postconviction motions had been filed, did not constitute appointments of counsel. 

Even though the public defenders had actually been notified it was the same as if 

counsel had never been appointed. The courts held that such notices did not 

commence the filing time-lines mandated under Rule 29.15 (g). Instead, the filing 

deadlines commenced when the public defenders, considered non-appointed 

counsel, entered their appearances in the cases.

Specifically, in Creighton, the motion court issued and sent a memorandum to a 

public defender on March 8, 2013, notifying him that the defendant had filed a 

pro se motion for post-conviction relief. The State argued that the memorandum 

was an appointment of counsel and that the amended motion was untimely. The 

Supreme Court held that such memorandum was merely a notification and not an 

appointment of counsel triggering the Rule 29.15 (g) time-lines for filing an 

amended petition. In that case the public defender subsequently entered his 

appearance on May 30, 2013, on behalf of movant and filed the amended motion 

on August 28, 2013. The court held that, “Movant’s public defender, 

unquestionably qualifies as “any counsel that is not appointed but who enters 

an appearance on behalf of movant.” Therefore the court held that consistent with 

the plain language of Rule 29.15 (g), the filing period commenced when Movant’s 

public defender entered his appearance and so the amended motion was timely filed 

in that case. Creighton at page 421.

In this case the court finds that, as in Creighton, Hopkins, and Allen, there was 

never an actual appointment of legal counsel made on movant’s behalf based on the 

above findings, the record and the credibility of the public defender witnesses. To 

hold otherwise would require this court to find that an order that was never sent to 

or received by a public defender constituted a valid order of appointment, when, as 

held in the above cases, a public defender who actually receives notice from a 

motion court that a pro se post-conviction motion has been filed is not considered 

appointed by the court.

Further, in this case, as in those cited above, an attorney did subsequently enter his 

appearance on behalf of the movant and that entry triggered the 29.15 (g) timelines. But unlike those cases the amended motion in this case was not timely filed 

after the entry of appearance was filed. Such untimely filing of an amended motion 

would ordinarily require this court to conduct an abandonment inquiry on that issue, 

however, the entry of appearance in this case was filed by non-appointed private 

retained legal counsel. . . . [R]etained private legal counsel do not get the benefit of 

the abandonment doctrine.
10

(Emphasis in original).4

This appeal followed. In one point relied on, Borschnack argues the motion court clearly 

erred in rejecting his amended Rule 29.15 motion as being untimely filed in that appointed counsel 

abandoned Borschnack, and retained counsel’s motion should therefore have been treated as 

timely.

Standard of Review

“A judgment denying postconviction relief will be affirmed unless its findings and 

conclusions are clearly erroneous. Findings and conclusions are clearly erroneous only when this 

Court is left with a definite and firm impression that a mistake has been made.” Hamilton v. State, 

598 S.W.3d 607, 610 (Mo. banc 2020) (internal quotation and citation omitted).

Analysis

Borschnack argues that the motion court clearly erred in “finding that [his] amended Rule 

29.15 motion was untimely filed[.]” Specifically, he claims error in “the motion court’s finding 

that appointed counsel could not have abandoned [] Borschnack because the circuit court clerk’s 

office never mailed the order of appointment to the public defender[,] resulting in the time for 

filing the amended Rule 29.15 motion to begin to run upon retained counsel’s entry of 

appearance[.]” Borschnack suggests this finding “is unsupported by the civil rules and legal 

authority, [is] contrary to the postconviction rules, and ignores the fact that [] Borschnack was 

unable to file a timely amended postconviction motion due to the actions of the State.” He claims 

 

4 The motion court found that the trial court’s order of appointment was not “valid” for lack of mailing or notice. We

do not agree. The order of appointment was valid, although it was not effective such as to trigger appointment of 

counsel (and Rule 29.15’s countdown for appointed counsel’s filing of an amended motion). See Rule 29.15 (“The 

procedure to be followed for motions filed pursuant to this Rule 29.15 is governed by the rules of civil procedure 

insofar as applicable.”); Rule 74.02 (“Every direction of a court made or entered in writing and not included in a 

judgment is an order.”). Nevertheless, this distinction is not fatal to the motion court’s judgment in this instance, for 

the reasons discussed more fully infra. 
11

prejudice in that “he was denied review of the substantial merits of his amended Rule 29.15 motion 

to which he was entitled.”5

“[T]his Court’s limited review of Rule 29.15 proceedings is premised on the ‘assumption 

that the motion court and appointed counsel will comply with all provisions of the rule.’” 

Gittemeier v. State, 527 S.W.3d 64, 68-69 (Mo. banc 2017) (quoting Luleff, 807 S.W.2d at 498).

In adopting the abandonment doctrine, this Court altered its traditional stance and 

‘recognized that the failure to file an amended motion . . . is not merely a claim of 

ineffective assistance of counsel. Rather, in such a case it is as if counsel had not 

been appointed at all, for counsel has abandoned his or her client.’

Gittemeier, 527 S.W.3d at 569 (quoting Barton v. State, 486 S.W.3d 332, 336 (Mo. banc 2016)) 

(emphasis added); see also Price, 422 S.W.3d at 298 (equating abandonment by appointed counsel 

as “tantamount to a failure of the motion court to appoint counsel under Rule 29.15(e) in the 

first instance.”) (emphasis added).

Inherent in a motion court’s Rule 29.15 duty to appoint counsel is a duty to notify counsel 

of that appointment—without such notice, the appointment of counsel is not effective. Here, the 

motion court entered an order purporting to appoint the public defender’s office as counsel for 

Borschnack, but (as the motion court’s findings indicate) the court clerk’s office failed to send 

notice of (and the public defender’s office did not receive) the trial court’s order of appointment. 

This was not “abandonment”—which is directed solely at the conduct of appointed counsel6—

 

5 The concept (as Borschnack frames it) of being “entitled” to post-conviction proceedings or remedies is strictly 

confined. See McFadden v. State, 553 S.W.3d 289 (Mo. banc 2018):

Missouri law is well-settled: Individuals convicted of state crimes have no federal constitutional 

right to a state post-conviction proceeding in the first instance. Any such right to a postconviction

proceeding exists only by statute or this Court’s rules, and the United States Supreme Court has 

stated ‘we are unwilling to accept [ ] that when a State chooses to offer help to those seeking relief 

from convictions, the Federal Constitution dictates the exact form such assistance must assume.’

Id. at 302 (quoting Finley, 481 U.S. at 559, 107 S.Ct. 1990); Dorris, 360 S.W.3d at 270 (“Rules 29.15 and 24.035 are 

different—they do not provide a right for any party. The Rules instead create a procedure for a post-conviction relief 

system. That system is, at least in part, concerned with preserving the finality of judgment.”).

6 Gittemeier, 527 S.W.3d at 68 (“The origins of the abandonment doctrine . . . reflect that the doctrine applies only to 

appointed counsel.”).
12

though the effect was similar to abandonment in the respect that it was “as if counsel had not been 

appointed at all,” Gittemeier, 527 S.W.3d at 569 (internal quotation and citation omitted), and 

“tantamount to a failure of the motion court to appoint counsel . . . in the first instance.” Price, 

422 S.W.3d at 298.

Thus the motion court’s analysis on this issue was correct in that: (1) there was no 

abandonment by appointed counsel; (2) because there was no abandonment, retained counsel’s 

voluntary entry of appearance on January 23, 2017, began the Rule 29.15 countdown for the filing 

of an amended motion; (3) the time for filing an amended motion (March 24, 2017, 90 days after 

retained counsel’s entry of appearance) expired before retained counsel filed his amended motion 

(on July 11, 2017, one hundred sixty-nine (169) days after entering his appearance for movant.);7

and (4) Borschnack’s initial pro se motion controlled, and since it contained only a legal 

conclusion as to “ineffective assistance of counsel,” it was properly denied.

Borschnack fails to demonstrate that the motion court clearly erred in denying his Rule 

29.15 motion, and his point is accordingly denied.8 The motion court’s judgment is affirmed.

WILLIAM W. FRANCIS, JR., J. - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, P.J. - CONCURS

DANIEL E. SCOTT, J. - CONCURS AND FILES SEPARATE CONCURRING OPINION

 

7 We observe that retained counsel did not have the benefit of more recent Supreme Court treatment on this issue at 

the time of the relevant proceedings below. Our Supreme Court addressed PCR abandonment and amended motion 

timeliness in five different hand-downs between retained counsel’s entry of appearance and the motion court’s first 

PCR judgment (January 2017—July 2018): Watson v. State, 536 S.W.3d 716 (Mo. banc 2018); Bearden v. State, 

530 S.W.3d 504 (Mo. banc 2017); Gittemeier, 527 S.W.3d at 64; Creighton, 520 S.W.3d at 416; Hopkins, 519 S.W.3d 

at 433. Two additional hand-downs followed in the next two months: Latham v. State, 554 S.W.3d 397 (Mo. banc 

2018); Milner v. State, 551 S.W.3d 476 (Mo. banc 2018). To the extent our high court took seven such cases “because 

of the general interest or importance of a question of involved in the case or for the purpose of reexamining existing 

law,” MO. CONST. art. V, § 10, see also Rules 83.02 & 83.04, it suggests some uncertainty in the law that might 

account for retained counsel’s mistaken apprehension as to what was required under the abandonment doctrine.

8 We observe that Borschnack raises no other challenges to the motion court’s judgment on the merits.
BILLIE BORSCHNACK, )

)

Appellant, )

)

vs. ) No. SD36451

) Filed: October 29, 2020

STATE OF MISSOURI, )

)

Respondent. )

CONCURRING OPINION

I concur, but look back to this case’s first appeal, which was one of 55 

reversals/remands to conduct or properly document abandonment inquiries, all on the 

heels of 29 others that Judge Bates collected in Williams v. State, 521 S.W.3d 612, 614-

15 (Mo.App. 2016)(Bates, P.J., concurring).1 Our colleagues now repeatedly cite “the 

 

1 See Latham v. State, 554 S.W.3d 397 (Mo. banc 2018); Milner v. State, 551 S.W.3d 

476 (Mo. banc 2018); Watson v. State, 536 S.W.3d 716 (Mo. banc 2018); Bearden v. 

State, 530 S.W.3d 504 (Mo. banc 2017); Showalter v. State, No. ED108085 (Mo.App. 

Sept. 15, 2020); Martin v. State, 606 S.W.3d 675 (Mo.App. 2020); Hatmon v. State, 

603 S.W.3d 927 (Mo.App. 2020); Brown v. State, 602 S.W.3d 846 (Mo.App. 2020); 

McAllister v. State, 600 S.W.3d 300 (Mo.App. 2020); Robinson v. State, 592 

S.W.3d 406 (Mo.App. 2020); Eckert v. State, 591 S.W.3d 903 (Mo.App. 2019); Harris 

v. State, 584 S.W.3d 795 (Mo.App. 2019); Brunnworth v. State, 583 S.W.3d 505 

(Mo.App. 2019); Pickens v. State, 575 S.W.3d 795 (Mo.App. 2019); Pendleton v. 

State, 570 S.W.3d 658 (Mo.App. 2019); Barber v. State, 569 S.W.3d 556 (Mo.App. 

2019); Borschnack v. State, 568 S.W.3d 914 (Mo.App. 2019); Slavens v. State, 568 

S.W.3d 500 (Mo.App. 2019); Baker v. State, 565 S.W.3d 733 (Mo.App. 2018);

Lampkin v. State, 560 S.W.3d 67 (Mo.App. 2018); Oliphant v. State, 557 S.W.3d 

541 (Mo.App. 2018); White v. State, 555 S.W.3d 483 (Mo.App. 2018); Guerra-
2

inconvenience abandonment issues are causing motion courts.” Showalter, slip op. at 

4; McAllister, 600 S.W.3d at 303; Barber, 569 S.W.3d at 561. See also Brown, 602 

S.W.3d at 851.

 

Hernandez v. State, 548 S.W.3d 368 (Mo.App. 2018); Staten v. State, 540 S.W.3d 

873 (Mo.App. 2018); Carter v. State, 540 S.W.3d 506 (Mo.App. 2018); Hougardy v. 

State, 534 S.W.3d 874 (Mo.App. 2017); Mitchell v. State, 528 S.W.3d 454 (Mo.App. 

2017); Prine v. State, 527 S.W.3d 930 (Mo.App. 2017); Ross v. State, 527 S.W.3d 116 

(Mo.App. 2017); Corwin v. State, 525 S.W.3d 614 (Mo.App. 2017); Southern v. 

State, 522 S.W.3d 340 (Mo.App. 2017); Yelton v. State, 522 S.W.3d 285 (Mo.App. 

2016); Altic v. State, 521 S.W.3d 615 (Mo.App. 2017); Williams v. State, 521 S.W.3d 

612 (Mo.App. 2016); Hewitt v. State, 518 S.W.3d 227 (Mo.App. 2017); Greer v. State, 

515 S.W.3d 831 (Mo.App. 2017); Alexander v. State, 515 S.W.3d 822 (Mo.App. 2017);

Hicks v. State, 514 S.W.3d 118 (Mo.App. 2017); Edwards v. State, 514 S.W.3d 68 

(Mo.App. 2017); Coleman v. State, 514 S.W.3d 66 (Mo.App. 2017); Politte v. State, 

513 S.W.3d 387 (Mo.App. 2017); Moxley v. State, 512 S.W.3d 771 (Mo.App. 2017);

Rhodes v. State, 512 S.W.3d 133 (Mo.App. 2017); Rice v. State, 512 S.W.3d 108 

(Mo.App. 2017); Graves v. State, 512 S.W.3d 87 (Mo.App. 2017); Stafford v. State, 

510 S.W.3d 906 (Mo.App. 2017); Craigg v. State, 510 S.W.3d 903 (Mo.App. 2017); 

Ford v. State, 510 S.W.3d 360 (Mo.App. 2017); Norman v. State, 509 S.W.3d 846 

(Mo.App. 2017); White v. State, 505 S.W.3d 456 (Mo.App. 2016); Usry v. State, 504 

S.W.3d 815 (Mo.App. 2016); Williams v. State, 503 S.W.3d 301 (Mo.App. 2016);

Williams v. State, 501 S.W.3d 562 (Mo.App. 2016); Price v. State, 500 S.W.3d 324 

(Mo.App. 2016); Wilson v. State, 495 S.W.3d 827 (Mo.App. 2016).

Judge Bates’s earlier list, for the 16 months preceding Williams, included Mahone 

v. State, 504 S.W.3d 71 (Mo.App. 2016); Hill v. State, 499 S.W.3d 311 (Mo.App. 2016); 

Williams v. State, 494 S.W.3d 638 (Mo.App. 2016); Huffman v. State, 493 S.W.3d 

892 (Mo.App. 2016); Sayre v. State, 493 S.W.3d 33 (Mo.App. 2016); Johnson v. 

State, 491 S.W.3d 310 (Mo.App. 2016); Price v. State, 489 S.W.3d 358 (Mo.App. 

2016); Wright v. State, 488 S.W.3d 263 (Mo.App. 2016); Patton v. State, 488 

S.W.3d 143 (Mo.App. 2016); Richard v. State, 487 S.W.3d 504 (Mo.App. 2016);

Wallace v. State, 487 S.W.3d 62 (Mo.App. 2016); Pulliam v. State, 484 S.W.3d 877 

(Mo.App. 2016); Austin v. State, 484 S.W.3d 830 (Mo.App. 2016); Adams v. State, 

483 S.W.3d 480 (Mo.App. 2016); Rice v. State, 482 S.W.3d 464 (Mo.App. 2016); 

Shields v. State, 482 S.W.3d 461 (Mo.App. 2016); Hendricks v. State, 481 S.W.3d 

600 (Mo.App. 2016); Frazee v. State, 480 S.W.3d 442 (Mo.App. 2016); McCullough 

v. State, 480 S.W.3d 439 (Mo.App. 2016); Silver v. State, 477 S.W.3d 697 (Mo.App. 

2015); James v. State, 477 S.W.3d 190 (Mo.App. 2015); Lewis v. State, 476 S.W.3d 

364 (Mo.App. 2015); Hawkins v. State, 476 S.W.3d 313 (Mo.App. 2015); Mann v. 

State, 475 S.W.3d 208 (Mo.App. 2015); Harris v. State, 474 S.W.3d 600 (Mo.App. 

2015); Roberts v. State, 473 S.W.3d 672 (Mo.App. 2015); Lomax v. State, 471 S.W.3d 

358 (Mo.App. 2015); Gales v. State, 470 S.W.3d 405 (Mo.App. 2015); and Blackburn 

v. State, 468 S.W.3d 910 (Mo.App. 2015). See Williams, 521 S.W.3d at 614 n.1 (Bates, 

P.J. concurring).
3

These recurring problems cast considerable drag on the limited resources of public 

defenders, prosecutors, and courts. Judge Bates floated various ideas in Williams, 521 

S.W.3d at 614-15, and wondered whether Rules 24.035 and 29.15 “could be revised to 

better address the timeliness issue.” Id. at 615. Perhaps our judiciary should investigate 

such options. As Judge Bates said: “We see this occur far too often, and no one is the 

better for it—not the courts, the lawyers, and certainly not the movants.” Id. 

DANIEL E. SCOTT – CONCURRING OPINION AUTHOR