Mack v. State
| Decision Date | 23 November 2021 |
| Docket Number | WD 84140 |
| Citation | 635 S.W.3d 607 |
| Parties | Cedric Dewayne MACK, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Katharine Curry, Columbia, MO, Counsel for Appellant.
Garrick Aplin, Jefferson City, MO, Counsel for Respondent.
Before Special Division: Mark D. Pfeiffer, P.J., Alok Ahuja, and Thomas N. Chapman, JJ.
Cedric Mack appeals the judgment of the Harrison County Circuit Court denying his amended Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Because the amended motion was not timely filed, the motion court did not conduct an abandonment inquiry, and the motion court failed to make findings of fact and conclusions of law, the judgment is reversed, and the cause is remanded with directions.
Mack was convicted of the Class D felony of driving while intoxicated for operating a motor vehicle while under the influence of alcohol on October 21, 2016. On April 20, 2017, Mack was sentenced as a prior and persistent offender to four years’ imprisonment. This court affirmed his conviction on direct appeal in State v. Mack , 560 S.W.3d 29 (Mo. App. W.D. 2018), and issued its mandate on December 5, 2018.
Mack timely filed his pro se motion for post-conviction relief on January 14, 2019, raising a single claim: "I did [sic] have a fair trial overruling the motion to suppress my statements." In stating the facts to support his claim, Mack stated, in pertinent part, that he made incriminating statements as a result of an interrogation. Nothing in the record showed that the motion court appointed counsel. On March 4, 2019, counsel entered an appearance. On May 2, 2019, 59 days later, counsel requested a 30-day extension to file an amended motion. On May 6, 2019, 63 days after counsel had entered an appearance, the motion court granted the request for a 30-day extension to file an amended motion. Counsel filed the amended motion on June 3, 2019, 91 days after both the mandate was issued and counsel entered an appearance. The amended motion raised three claims of ineffective assistance of trial counsel: (1) "failing to file and litigate prior to trial a motion to suppress the evidence obtained as fruits of law enforcement's stop of Movant's vehicle without reasonable suspicion"; (2) "failing to investigate and obtain evidence of Movant's prior injuries and to present such evidence in a motion to suppress the gaze nystagmus and one-leg stand test or, in the alternative, to present at trial evidence of Movant's prior injuries"; and (3) "failing to investigate, obtain and present at trial evidence of the inventory of Movant's vehicle."
The motion court conducted an evidentiary hearing. The trial transcript, videotape of the arresting officer's stop of Mack, and trial counsel's affidavit were entered into evidence, and the motion court took judicial notice of the underlying criminal file, exhibits, and direct-appeal case. The motion court entered its judgment denying Mack's Rule 29.15 motion on July 8, 2020. It did not issue findings of fact or conclusions of law.
On July 29, 2020, Mack's counsel filed a motion to amend the judgment pursuant to Rule 78.07(c) alleging that the judgment did not address all issues presented in the amended motion to allow meaningful review on appeal and asking the motion court to amend the judgment to adequately comply with the requirements of Rule 29.15(j) to "issue findings of fact and conclusions of law on all issues presented." The motion further alleged that Mack had submitted evidence in support of his first two claims of the amended motion, but conceded that he did not present evidence on his third claim. The motion court did not rule on the motion to amend the judgment. This appeal by Mack followed.
Mack raises two points on appeal challenging the motion court's denial of his Rule 29.15 motion for post-conviction relief. In his first point, he claims that he received ineffective assistance of counsel when his trial counsel failed to file a motion to suppress the evidence derived from the arresting officer's investigatory stop because the officer did not have reasonable suspicion to justify the stop. In his second point, Mack asserts that the motion failed to comply with the mandate of Rule 29.15(j) that findings of fact and conclusions of law be made on all issues presented.
Appellate review of a motion for post-conviction relief is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k) ; Watson v. State , 536 S.W.3d 716, 717 (Mo. banc 2018). Findings and conclusions are clearly erroneous only if, after reviewing the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Watson , 536 S.W.3d at 717. "The filing deadlines for postconviction relief are mandatory, and cannot be waived." Id. (internal quotes and citation). When a post-conviction relief motion is untimely, the motion court should not reach the motion's merits. Id.
Before reaching the merits of Mack's first point on appeal, this court must first examine the timeliness of his amended motion for post-conviction relief. Moore v. State , 458 S.W.3d 822, 826 n.4 (Mo. banc 2015) ; Earl v. State , 628 S.W.3d 695, 699 (Mo. App. E.D. 2021) ; Johnson v. State , 613 S.W.3d 512, 515 (Mo. App. E.D. 2020). The State argues that because the motion court did not grant the motion for an extension to file an amended motion until after the initial deadline for filing the amended brief had passed, the amended motion filed thereafter was untimely, and the cause must be remanded for an abandonment inquiry.
Rule 29.15 was amended, effective January 1, 2018. Which version of Rule 29.15 applies is addressed in Rule 29.15(m), which indicates that "[i]f sentence was pronounced prior to January 1, 2018, postconviction relief shall continue to be governed by the provisions of Rule 29.15 in effect on the date the motion was filed or December 31, 2017, whichever is earlier." In this instant matter, Mack was sentenced on April 20, 2017, and his initial motion pro se motion was filed on January 14, 2019. Even though Mack's initial pro se motion was filed on January 14, 2019, the version of Rule 29.15 in effect on December 31, 2017, applies. All references herein therefore refer to the version of Rule 29.15 in effect through December 31, 2017.
The 2017 version of Rule 29.15(g) stated the following:
"The untimely filing of an amended motion by postconviction counsel creates a presumption of abandonment." Watson , 536 S.W.3d at 719. If the amended motion is untimely, the motion court must conduct an independent inquiry into the reason for the untimeliness to determine if abandonment occurred before considering the claims and evidence presented in the amended motion. Moore , 458 S.W.3d at 825 ; Earl , 628 S.W.3d at 699 ; Johnson , 613 S.W.3d at 515. If the motion court finds that a movant has not been abandoned, it should not permit the filing of the amended motion and adjudicate the initial motion only; if the motion court determines that the movant was abandoned by counsel's untimely filing of the amended motion, the court must permit the untimely filing. Moore , 458 S.W.3d at 825-26. The motion court must make a sufficient record of the inquiry. Earl , 628 S.W.3d at 699 ; Johnson , 613 S.W.3d at 515. If the motion court did not conduct an inquiry or no record to review such inquiry was made, the judgment must be reversed and the case remanded because the motion court is the appropriate forum to conduct an abandonment inquiry. Moore , 458 S.W.3d at 826 ; Earl , 628 S.W.3d at 699 ; Johnson , 613 S.W.3d at 515. An exception to this rule applies if the motion court adjudicated all of the claims in both the pro se and amended motions with written findings of fact and conclusions of law, making a remand unnecessary. Childers v. State , 462 S.W.3d 825, 828 (Mo. App. E.D. 2015). However, if the claims in the pro se motion were not adjudicated, the movant did "not receive[ ] the process that justice requires." Moore , 458 S.W.3d at 826 n.3.
"[T]he discretion of the motion court to extend the time to file an amended motion must be exercised within the time the amended motion is initially due. " Perkins v. State , 569 S.W.3d 426, 435 (Mo. App. W.D. 2018) (citing Clemmons v. State , 785 S.W.2d 524, 527 (Mo. banc 1990) ). See also Earl , 628 S.W.3d at 699 (); Rutherford v. State , 192 S.W.3d 746, 749 n.4 (Mo. App. S.D. 2006) ().
In this case, counsel entered an appearance on March 4, 2019, after this court issued its mandate. Mack's amended motion was, therefore, due 60 days later, on May 3, 2019. Counsel requested a 30-day extension to file an amended motion on May 2, 2019, within the 60-day time period to file the amended motion. The motion court, however, did not rule on the extension request until May 6, 2019, outside the 60-day time period to file an amended motion. Though the motion court granted an...
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