Missouri appeals court reverses ruling over flawed abandonment inquiry

Summary

• Missouri Court of Appeals reverses and remands Dunklin County ruling.
• Case centers on post-conviction counsel abandonment under Rule 29.15.
• Court finds motion court relied on unsworn Sanders motion statements.
• Requires proper abandonment inquiry before ruling on amended motion.

The Missouri Court of Appeals Southern District reversed and remanded a Dunklin County Circuit Court ruling, holding that the motion court did not properly develop the record on whether post-conviction counsel abandoned the movant in a felony case involving child sexual abuse material and statutory sodomy.

The opinion was handed down March 12. Chief Judge Jennifer R. Growcock authored the opinion, with Judges Becky J. West and Matthew P. Hamner concurring.

Arlie Lewis was convicted by a jury in 2015 for several class C and class B felonies for possessing child sexual abuse material, as well as one count of statutory sodomy. Lewis appealed and the appellate court affirmed the trial court’s judgment in April 2017. In June that same year, Lewis filed his pro se “Motion to Vacate, Set Aside or Correct the Judgment or Sentence” pursuant to Rule 29.15. The motion court appointed a public defender to represent him later that month and granted an additional 30 days to file an amended motion. Per Rule 29.15, the amended motion was due Sept. 26, 2017. Counsel, however, filed the amended motion three days late, along with a motion requesting the motion court to permit the late filing pursuant to Sanders v. State.

The motion for leave to file out of time attributed the delay to counsel’s workload in other cases and other professional obligations, though those assertions were not made under oath or supported by affidavit. Counsel’s amended motion also raised claims that differed from those in Lewis’ original pro se filing. After independently reviewing the record and the Sanders motion, the motion court found the delay was not attributable to Lewis and concluded he had been abandoned by counsel, allowing the amended motion to be filed out of time. Following discovery, the court granted the amended motion in part and denied it in part, vacating Lewis’ convictions on Counts I through IV. Lewis appealed the denial of his remaining claims, and the state cross-appealed the partial vacatur.

In its analysis, the appeals court found that the motion court relied solely on unsworn statements in the Sanders motion without conducting a proper inquiry into the abandonment issue, as required by state law.

“In its cross-appeal, the State asserts that: ‘[t]his Court should remand the case for an abandonment hearing because a presumption of abandonment arose after postconviction counsel untimely filed [the A]mended [M]otion and the motion court failed to conduct an abandonment inquiry.’ We agree,” the opinion stated.

The court concluded that since the counsel’s statements in the Sanders motion were not made under oath or attested in an affidavit, the outcome of the case was controlled by Saddler and its line of cases.

In Saddler, post-conviction counsel filed an amended motion after the deadline because she failed to realize the motion court had not ruled on her earlier request for an extension of time. She submitted the late filing along with a Sanders motion asking the court to treat it as timely, explaining that the error was hers and not the movant’s. However, her explanation was not made under oath or supported by an affidavit. Relying solely on these unsworn representations, the motion court concluded that counsel had abandoned the movant and deemed the amended motion timely. On appeal, the Eastern District found this to be an error, emphasizing that unsworn statements in a Sanders motion are insufficient to support an abandonment finding. The appellate court remanded that case with instructions for the motion court to conduct an independent inquiry.

“Because the motion court’s determination that Movant was abandoned by counsel was based exclusively on counsel’s unsworn representations in the Sanders motion and we cannot glean anything additional from the record establishing the motion court conducted an independent abandonment inquiry using any other method, the motion court did not create a sufficient record to demonstrate that its determination of the abandonment issue was not clearly erroneous,” the opinion stated.

The judgment was reversed and remanded.

The case is Lewis v. State, Case No. SD38920 & SD39258.