BRANDEN SLAVENS v. STATE OF MISSOURI

568 S.W.3d 500

• Court: Missouri Court of Appeals
• Decided: February 7, 2019
• Docket: SD35379
• Status: Published

Opinion

BRANDEN SLAVENS, ) ) Appellant, ) ) vs. ) No. SD35379 ) Filed: February 7, 2019 STATE OF MISSOURI, ) ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Thomas E. Mountjoy, Circuit Judge

REVERSED AND REMANDED

Branden Slavens (“Slavens”) appeals the denial, after an evidentiary hearing, of his

amended Rule 24.035 1 motion to set aside his convictions for first-degree burglary, first-degree

robbery, first-degree assault, armed criminal action, felonious restraint, third-degree assault, and

two counts of first-degree tampering with a motor vehicle.

In the timeliness statement in his brief, Slavens suggests that this case must be remanded

to the motion court for an abandonment inquiry. The State agrees in its brief. We reverse and

1 All rule references are to Missouri Court Rules (2018). remand pursuant to the direction in Thomas v. State, 513 S.W.3d 370 (Mo.App. E.D. 2016), and

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

Slavens entered guilty pleas to all charges on August 8, 2014. He was sentenced and

delivered to the Missouri Department of Corrections on April 15, 2015. Slavens timely filed a

pro se Rule 24.035 motion on September 24, 2015. The hearing court appointed counsel to

represent Slavens on September 25, 2015. Stephen Harris (“Harris”) entered his appearance as

counsel for Slavens on October 1, 2015, and was granted an additional thirty days to file the

amended motion. The guilty plea and sentencing transcripts were filed on October 30, 2015,

making the amended motion due on January 28, 2016.

On November 23, 2015, Harris filed a motion to withdraw and requested re-appointment

of counsel due to a conflict of interest. On December 3, 2015, the hearing court sustained Harris’s

motion to withdraw, re-appointed counsel, and granted a thirty-day extension of time, for a total

of 90 days to file the amended motion. Newly appointed post-conviction counsel entered an

appearance on December 8, 2015, but did not file an amended motion until March 2, 2016.

This case presents the same issue regarding timeliness as appeared in Prine infra. In this

case, as in Prine, the public defender originally assigned to represent Slavens moved to withdraw

from the case and requested re-appointment of counsel for Slavens. 527 S.W.3d at 931. The

hearing court in Prine granted counsel’s motion and “purported to allow 90 additional days for

new counsel to file an amended motion.” Id.

As this Court explained in Prine, the appointment of a second post-conviction public

defender did not restart the clock for the filing of the amended motion. Id. at 932. Rather, this

Court held that “[a]n untimely amended motion raises a presumption of abandonment that the

motion court is duty bound to resolve after inquiry.” Id. (citing Moore v. State, 458 S.W.3d 822,

2 825 (Mo. banc 2015). In this case, the motion court failed to conduct an abandonment inquiry,

though required to do so.

We reverse and remand for the motion court to conduct a Moore abandonment hearing,

and for such further proceedings as warranted by Rule 24.035. Slavens’ points on appeal are

denied as moot and will not be addressed.

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

JEFFREY W. BATES, J. - CONCURS

DANIEL E. SCOTT, J. - CONCURS