Alonzo Showalter v. State of Missouri ( 2020 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
ALONZO SHOWALTER, ) No. ED108085
)
Appellant, )
) Appeal from the Circuit Court
) of St. Louis County
vs. ) Cause No. 14SL-CC01674
)
STATE OF MISSOURI, ) Honorable Gloria Clark Reno
)
Respondent. ) Filed: September 15, 2020
OPINION
Alonzo Showalter (“Movant”) appeals the denial of his Rule 24.035 post-conviction
relief (“PCR”) motion without an evidentiary hearing.1 In his sole point on appeal, Movant
argues the motion court clearly erred in denying his PCR motion because his plea counsel was
ineffective for failing to depose the victim prior to advising Movant to plead guilty and he was
thereby prejudiced by counsel’s ineffectiveness.
We do not reach the merits of Movant’s appeal because we remand to the motion court
for a determination as to whether Movant was abandoned by counsel.
1
All references are to Missouri Supreme Court Rules (2014).
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I. Factual and Procedural Background
On February 28, 2014, Movant pleaded guilty to nine counts: one count of burglary in the
first degree, one count of felonious restraint, two counts of forcible sodomy, one count of
forcible rape, and four counts of armed criminal action. The plea court accepted Movant’s guilty
plea and sentenced him to a total of 25 years’ imprisonment on March 7, 2014.
On May 2, 2014, Movant timely filed his Rule 24.035 pro se motion. The motion court
appointed post-conviction counsel on June 9, 2014. The transcripts of the guilty plea and
sentencing hearing were filed on May 21, 2014. After entering his appearance, post-conviction
counsel was granted an additional 30 days to file an amended motion on July 7, 2014, thus
making the amended motion due on Monday September 8, 2014.2 Post-conviction counsel
untimely filed the amended motion along with a request for an evidentiary hearing on September
25, 2014. On March 6, 2015, the motion court denied the request for an evidentiary hearing. On
June 5, 2019, the motion court issued its findings of fact and conclusions of law denying the
claims raised in Movant’s amended PCR motion.
This appeal follows.
II. Discussion
Before reaching the merits of Movant’s appeal, our Court must first examine the
timeliness of his amended Rule 24.035 post-conviction motion.3 See Austin v. State, 484 S.W.3d
830, 832 (Mo. App. E.D. 2016).
2
The amended motion was due on Monday, September 8, 2014, as the deadline fell on Sunday, September 7, 2014.
See Rule 24.035(g) and 44.01(a).
3
Movant simply points to this issue in the statement of facts of his appellate brief rather than raising it as a point on
appeal. However, the State raises the issue and concedes that remand is necessary.
2
The filing deadlines established by Rule 24.035(g) are mandatory. Bearden v. State, 530
S.W.3d 504, 506 (Mo. banc 2017). When appointed counsel fails to file an amended 24.035 post-
conviction motion before the deadline, it is presumed post-conviction counsel abandoned the
movant “because the filing of the amended motion indicates that counsel determined there was a
sound basis for amending the initial motion but failed to file the amended motion timely.” Moore
v. State, 458 S.W.3d 822, 825 (Mo. banc 2015); see also Lampkin v. State, 560 S.W.3d 67, 70
(Mo. App. E.D. 2018). As a result, the motion court has a duty to conduct and make a record of
an independent inquiry into whether movant was in fact abandoned by post-conviction counsel
before considering the claims and evidence presented in the amended motion. Lampkin, 560
S.W.3d at 70; Barber v. State, 569 S.W.3d 556, 559 (Mo. App. E.D. 2019). “Upon review of the
record, if we determine there has been no independent inquiry into abandonment or no record for
us to review such inquiry, then we must reverse and remand for the motion court to conduct this
inquiry.” Barber, 569 S.W.3d at 559–60.
In the present case, it is undisputed that the amended PCR motion was untimely filed.
Post-conviction counsel was appointed on June 9, 2014, thus the amended motion was due sixty
days later on Friday, August 8, 2014. See Rule 24.035(g). Due to the granted 30-day extension,
the amended motion became due on Monday, September 8, 2014. See Rule 24.035(g) and
44.01(a); see also Baker v. State, 565 S.W.3d 733, 736 (Mo. App. E.D. 2018). Movant’s
amended motion was filed out of time on September 25, 2014. Consequently, the untimely filing
of the amended motion raised a presumption of abandonment and required the motion court to
conduct an independent inquiry into whether Movant was abandoned by post-conviction counsel.
See Lampkin, 560 S.W.3d at 70; Guerra-Hernandez v. State, 548 S.W.3d 368, 371 (Mo. App.
3
E.D. 2018). The record is devoid of findings or conclusions relative to abandonment nor did the
motion court adjudicate Movant’s claims asserted in his pro se motion.4
Accordingly, because there is no record demonstrating the motion court conducted an
independent inquiry into whether Movant was abandoned, we cannot reach the merits of this
appeal, and must reverse and remand with instructions for the motion court to make a sufficient
record of an independent inquiry into abandonment. See Guerra-Hernandez, 548 S.W.3d at 371.
While it is our duty to enforce the mandatory timelines set forth in the post-conviction
rules, the motion court is the appropriate forum to conduct an independent inquiry on
abandonment and is vested with the discretion as to the method in which to make such inquiry.
Id.;Blackburn v. State, 468 S.W.3d 910, 913 (Mo. App. E.D. 2015). The result of the
abandonment inquiry determines whether the claims asserted in Movant’s pro se motion or the
amended motion should be adjudicated by the motion court. Pulliam v. State, 484 S.W.3d 877,
880 (Mo. App. E.D. 2016).
Our court acknowledges the inconvenience abandonment issues are causing motion
courts; however, we emphasize that “the purposes served by remand are mandatory compliance
with Missouri Supreme Court Rules, and adherence to jurisdictional limitations.” Guerra-
Hernandez 548 S.W.3d 368, 372.
4
For purposes of judicial economy, we considered whether the exception to the abandonment inquiry iterated in
Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015) applies to this case. The Childers exception applies
where all of the claims in a movant’s pro se PCR motion have been incorporated into, and thus adjudicated along
with, the amended PCR motion. Id.; see also Guerra-Hernandez, 548 S.W.3d at 371. In such cases, remand is not
necessary because the abandonment determination would have no effect on the relief available to the movant since
the motion court had already considered all of the movant’s claims in the pro se and amended motions. Guerra-
Hernandez, 548 S.W.3d at 371. Here, there are significant differences between Movant’s pro se and amended
motions, as Movant’s pro se motion asserted three claims of ineffective assistance of counsel and none asserted the
claim of ineffective assistance of plea counsel for failure to depose the victim. Because the motion court did not
consider the claims contained in Movant’s pro se motion and, instead, only considered the claims raised in the
amended motion, the Childers exception is inapplicable. See Mann v. State, 475 S.W.3d 208, 212 (Mo. App. E.D.
2015).
4
III. Conclusion
The motion court’s judgment is reversed and the case is remanded to the motion court to
conduct an independent inquiry into whether Movant was abandoned by post-conviction counsel
and for further proceedings consistent with the outcome of the motion court’s inquiry.
_______________________________
Colleen Dolan, P.J.
Mary K. Hoff, J., concurs.
Robert M. Clayton III, J., concurs.
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