# In the Missouri Court of Appeals **Eastern District** DIVISION TWO JOHN C. DUVALL, ) No. ED100738 ) Appellant, ) Appeal from the Circuit Court ) of Marion County vs. ) ) Hon. John J. Jackson STATE OF MISSOURI, ) ) Filed: Respondent. ) June 17, 2014
J ohn Duva l l was convicted in 2001 after a jury trial on three counts of statutory sodomy ; the judgment on those convictions was affirmed on direct appeal. See State v. Duvall , 90 S.W.3d 503 (Mo. App. E.D. 2002)

. In 2003, Duvall filed a pro se Rule 29.15 motion, and counsel was appointed and filed a timely amended motion . Thereafter, private counsel was retained and appeared at the evi dentiary hearing s on Duvall’s motion . The motion was de nied. On appeal from that judgment , Duvall claimed that the motion court erred in denying his motion because he had been abandoned by post

- conviction counsel and also claimed that the motion court should not have allowed counsel to appear at the evidentiary hearing s because Duvall had fired him

. We found no merit in these claims of error and affirmed. See Duvall v. State , 201 S.W. 3d 67 (Mo. App. E.D. 2006). Then, in 2013, Duvall filed the instant motion to re

- open his Rule 29.15 proceedings, a gain claiming abandonment by post

- conviction counsel on the grounds that he did not consent to the actions taken on his behalf by appointed or private counsel. The motion court denied Duvall’s motion in a docket entry and did not enter findings or conclus ions.2 Duvall appeals, claiming that the motion court erred by failing to enter findings and conclusions

. He requests remand, but does not otherwise challenge the correctness of the motion court’s denial. The State points out that Duvall has failed to preserve his challenge to the form of this judgment b ecause he did not first file a motion in the motion court seeking to amend the judgment to include specific findings or conclusions . “ In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review. ” Rule 78.07(c); Gerlt v. State , 339 S.W.3d 578, 584

- 85 (Mo. App. W.D. 2 011) (Rule 78.07(c) applicable to post

- conviction proceedings ). But in this case, no findings and conclusion s were required because

— despite being called an aband on ment claim

— Duvall’s motion does not sufficiently state a cognizabl e post

- conviction claim. See Sneed v. State , 412 S.W.3d 903, 903

- 904 (Mo. App. E.D. 2013) ( listing exceptions to Rule 29.15(j) requirement of findings and conclusions). Abandonment is the complete failure to act. Gehrke v. State , 280 S.W.3d 54, 58 (Mo. banc 2009). There can be no abandonment by post

- conviction counsel when counsel has actually filed a timely amended Rule 29.15 motion. Eastburn v. State , 400 S.W.3d 770, 773

- 75 (Mo. banc 2013). Duvall alleges in his motion to re

- open that c ounsel file d an amended Rule 29.15 moti on and appeared at evidentiary hearings on his behalf; his complaint is that counsel took these actions without Duvall’s consent and without conferring with Duvall. But c ounsel’s actions did not deprive Duvall of meaningful review of the merits of his cla ims for post

conviction relief

— those claims was timely filed, fully heard and finally ruled on by the motion
court . Even the allegation that post

- conviction counsel acted without Duvall’s consent has been3 reviewed previously by this Court and found to be without merit

. See Duvall , 201 S.W. 3d at
67. Duvall’s motion to re

- open is an attempt to fi le an impermissible successive post

conviction motion

. His complaints about counsel a re not true abandonment claims, but rather ineffective assistance of post

- conviction counsel claims , which are “categorically unreviewable.” Eastburn , 400 S.W.3d at 774. Having failed to state a cognizable basis for re

- opening his post

conviction proceedings, the motion court properly denied Duvall’s motion and was not re quired to issue findings and conclusions . Remanding for the issuance of findings and conclusions would serve no purpose in this case , as the correctness of the motion court’s denial is clear. See Weekley v. State , 265 S.W.3d 319, 323 (Mo. App. S.D. 2008)

. The judgment is a ffirmed.

______________________________________ ROBERT G. DOWD, JR., Judge
Lawence E. Mooney, P.J. and Sherri B. Sullivan, J., concur.