In the Missouri Court of Appeals Eastern District DIVISION FOUR
CLAYTON D. REEHTEN, ) No. ED110538 ) Appellant, ) Appeal from the Circuit Court of ) St. Louis County vs. ) ) Honorable Joseph S. Dueker STATE OF MISSOURI, ) ) Respondent. ) Filed: March 28, 2023
Introduction
Clayton D. Reehten (“Movant”) appeals the motion court’s judgment denying his Rule
29.15 motion for post-conviction relief following an evidentiary hearing.1 Movant raises two
points on appeal. In Point I, Movant argues the motion court clearly erred in denying his motion
because his trial counsel was ineffective for failing to cross-examine the State’s complaining
witness about a composite sketch and offer this sketch into evidence, casting doubt on the
reliability of the witness’s identifications. In Point II, Movant argues the motion court clearly
erred in denying his motion because his trial counsel was ineffective for failing to present
evidence showing Defense Exhibits 1A and 2A were saved to Movant’s phone from Snapchat,
explaining why no date and times were associated with the images, showing Movant did not
1 All Rule citations are to the Missouri Supreme Court Rules (2019), unless otherwise indicated. have acne or sores on his face on the days surrounding the incident, contradicting the State’s
complaining witness.
Because the motion court has no authority to grant an extension to file an amended
motion after the filing deadline has passed without first conducting an abandonment inquiry,
Movant’s amended motion was untimely filed. We reverse and remand for an abandonment
inquiry.
Factual and Procedural Background
On March 29, 2018, a jury found Movant guilty of one count of first-degree burglary
(Count I), three counts of armed criminal action (Counts II, IV, and VI), one count of felonious
restraint (Count III), one count of first-degree robbery (Count V), and one count of unlawful
possession of a firearm (Count VII). On May 18, 2018, Movant was sentenced to twenty-six
years on Counts I, II, IV, V, and VI, and fifteen years on Counts III and VII, with the sentences
to be served concurrently. On September 12, 2019, this Court affirmed Movant’s conviction in
State v. Reehten, 581 S.W.3d 169 (Mo. App. E.D. 2019).
On November 12, 2019, Movant timely filed a pro se motion to set aside his conviction
under Rule 29.15. On August 6, 2020, post-conviction counsel filed an entry of appearance and
requested an additional thirty days to file the amended motion. The motion court granted the
request, making the amended motion due on November 4, 2020. On October 28, 2020, post-
conviction counsel filed a second request for an additional thirty days to file the amended
motion. On November 9, 2020, after the deadline for the amended motion passed, the motion
court granted the request. This order changed the deadline for the amended motion to December
4, 2020. Post-conviction counsel filed an amended motion on December 4, 2020.
2 On June 30, 2021, the motion court held a partial evidentiary hearing. The evidentiary
hearing was continued to October 21, 2021, for Movant to introduce additional testimony, but
Movant presented no additional testimony or evidence. On March 16, 2022, the motion court
issued findings of fact and conclusions of law denying Movant’s amended motion.
This appeal follows.
Discussion
Before reaching merits, we must examine whether Movant’s amended motion was timely
filed. Barber v. State, 569 S.W.3d 556, 559 (Mo. App. E.D. 2019); see also Moore v. State, 458
S.W.3d 822, 826 (Mo. banc 2015)). The filing deadlines for post-conviction relief cannot be
waived. Barber, 569 S.W.3d at 559 (citing Watson v. State, 536 S.W.3d 716, 717 (Mo. banc
2018)). Rule 29.15(g) provides the amended motion “shall be filed within 60 days of the earlier
of the date both the mandate of the appellate court is issued and: (1) Counsel is appointed, or (2)
An entry of appearance is filed by any counsel that is not appointed but enters an appearance on
behalf of movant.” The motion court “may extend the time for filing the amended motion . . .
with no extension exceeding 30 days individually and the total of all extensions not to exceed 60
days.” Rule 29.15(g).
“The Supreme Court of Missouri has directed that any motion for an extension of time
under Rule 29.15 must be made and granted within the time that the amended motion is due.”
Jones v. State, 643 S.W.3d 918, 921 (Mo. App. E.D. 2022) (citing Clemmons v. State, 785
S.W.2d 524, 527 (Mo. banc 1990)) (emphasis original). The motion court “has no authority to
grant a request for an extension of time filed after the time to file the amended motion has
passed.” Id. (citing Clemmons, 785 S.W.2d at 527).
3 “The untimely filing of an amended motion by postconviction counsel creates a
presumption of abandonment.” Watson v. State, 536 S.W.3d 716, 719 (Mo. banc 2018) (citing
Vogl v. State, 437 S.W.3d 218, 230 (Mo. banc 2014)). Where an amended motion is untimely
filed, the motion court is “required to make a record of an independent inquiry into abandonment
before considering the claims and evidence presented in the amended motion.” Barber, 569
S.W.3d at 559 (citing Lampkin v. State, 560 S.W.3d 67, 70 (Mo. App. E.D. 2018)). “This record
must be clear enough for us to decide if the finding of abandonment was clearly erroneous.” Id.
(citing McDaris v. State, 843 S.W.2d 369, 371 n.1 (Mo. banc 1992)). “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.” Earl v. State, 628 S.W.3d 695, 699 (Mo. App. E.D. 2021), reh'g and/or transfer denied
(June 28, 2021), transfer denied (Oct. 5, 2021) (quoting Brown v. State, 602 S.W.3d 846, 850
(Mo. App. E.D. 2020)). “If the motion court finds that a movant has not been abandoned, the
motion court should not permit the filing of the amended motion and should proceed with
adjudicating the movant's initial motion.” Moore, 458 S.W.3d at 825 (citing Sanders v. State,
807 S.W.2d 493, 495 (Mo. banc 1991)). But, “[i]f the motion court determines that the movant
was abandoned by appointed counsel's untimely filing of an amended motion, the court is
directed to permit the untimely filing.” Id. (citing Sanders, 807 S.W.2d at 495).
Here, on August 6, 2020, post-conviction counsel filed an entry of appearance and
requested an additional thirty days to file the amended motion. The motion court granted the
request, making the amended motion due on November 4, 2020. On October 28, 2020, post-
conviction counsel filed a second request for an additional thirty days to file the amended
motion. Movant remained obligated to file his amended motion by November 4, 2020, unless the
4 motion court granted post-conviction counsel’s second request for an extension to file an
amended motion before November 4, 2020. See Childers v. State,
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In the Missouri Court of Appeals Eastern District DIVISION FOUR
CLAYTON D. REEHTEN, ) No. ED110538 ) Appellant, ) Appeal from the Circuit Court of ) St. Louis County vs. ) ) Honorable Joseph S. Dueker STATE OF MISSOURI, ) ) Respondent. ) Filed: March 28, 2023
Introduction
Clayton D. Reehten (“Movant”) appeals the motion court’s judgment denying his Rule
29.15 motion for post-conviction relief following an evidentiary hearing.1 Movant raises two
points on appeal. In Point I, Movant argues the motion court clearly erred in denying his motion
because his trial counsel was ineffective for failing to cross-examine the State’s complaining
witness about a composite sketch and offer this sketch into evidence, casting doubt on the
reliability of the witness’s identifications. In Point II, Movant argues the motion court clearly
erred in denying his motion because his trial counsel was ineffective for failing to present
evidence showing Defense Exhibits 1A and 2A were saved to Movant’s phone from Snapchat,
explaining why no date and times were associated with the images, showing Movant did not
1 All Rule citations are to the Missouri Supreme Court Rules (2019), unless otherwise indicated. have acne or sores on his face on the days surrounding the incident, contradicting the State’s
complaining witness.
Because the motion court has no authority to grant an extension to file an amended
motion after the filing deadline has passed without first conducting an abandonment inquiry,
Movant’s amended motion was untimely filed. We reverse and remand for an abandonment
inquiry.
Factual and Procedural Background
On March 29, 2018, a jury found Movant guilty of one count of first-degree burglary
(Count I), three counts of armed criminal action (Counts II, IV, and VI), one count of felonious
restraint (Count III), one count of first-degree robbery (Count V), and one count of unlawful
possession of a firearm (Count VII). On May 18, 2018, Movant was sentenced to twenty-six
years on Counts I, II, IV, V, and VI, and fifteen years on Counts III and VII, with the sentences
to be served concurrently. On September 12, 2019, this Court affirmed Movant’s conviction in
State v. Reehten, 581 S.W.3d 169 (Mo. App. E.D. 2019).
On November 12, 2019, Movant timely filed a pro se motion to set aside his conviction
under Rule 29.15. On August 6, 2020, post-conviction counsel filed an entry of appearance and
requested an additional thirty days to file the amended motion. The motion court granted the
request, making the amended motion due on November 4, 2020. On October 28, 2020, post-
conviction counsel filed a second request for an additional thirty days to file the amended
motion. On November 9, 2020, after the deadline for the amended motion passed, the motion
court granted the request. This order changed the deadline for the amended motion to December
4, 2020. Post-conviction counsel filed an amended motion on December 4, 2020.
2 On June 30, 2021, the motion court held a partial evidentiary hearing. The evidentiary
hearing was continued to October 21, 2021, for Movant to introduce additional testimony, but
Movant presented no additional testimony or evidence. On March 16, 2022, the motion court
issued findings of fact and conclusions of law denying Movant’s amended motion.
This appeal follows.
Discussion
Before reaching merits, we must examine whether Movant’s amended motion was timely
filed. Barber v. State, 569 S.W.3d 556, 559 (Mo. App. E.D. 2019); see also Moore v. State, 458
S.W.3d 822, 826 (Mo. banc 2015)). The filing deadlines for post-conviction relief cannot be
waived. Barber, 569 S.W.3d at 559 (citing Watson v. State, 536 S.W.3d 716, 717 (Mo. banc
2018)). Rule 29.15(g) provides the amended motion “shall be filed within 60 days of the earlier
of the date both the mandate of the appellate court is issued and: (1) Counsel is appointed, or (2)
An entry of appearance is filed by any counsel that is not appointed but enters an appearance on
behalf of movant.” The motion court “may extend the time for filing the amended motion . . .
with no extension exceeding 30 days individually and the total of all extensions not to exceed 60
days.” Rule 29.15(g).
“The Supreme Court of Missouri has directed that any motion for an extension of time
under Rule 29.15 must be made and granted within the time that the amended motion is due.”
Jones v. State, 643 S.W.3d 918, 921 (Mo. App. E.D. 2022) (citing Clemmons v. State, 785
S.W.2d 524, 527 (Mo. banc 1990)) (emphasis original). The motion court “has no authority to
grant a request for an extension of time filed after the time to file the amended motion has
passed.” Id. (citing Clemmons, 785 S.W.2d at 527).
3 “The untimely filing of an amended motion by postconviction counsel creates a
presumption of abandonment.” Watson v. State, 536 S.W.3d 716, 719 (Mo. banc 2018) (citing
Vogl v. State, 437 S.W.3d 218, 230 (Mo. banc 2014)). Where an amended motion is untimely
filed, the motion court is “required to make a record of an independent inquiry into abandonment
before considering the claims and evidence presented in the amended motion.” Barber, 569
S.W.3d at 559 (citing Lampkin v. State, 560 S.W.3d 67, 70 (Mo. App. E.D. 2018)). “This record
must be clear enough for us to decide if the finding of abandonment was clearly erroneous.” Id.
(citing McDaris v. State, 843 S.W.2d 369, 371 n.1 (Mo. banc 1992)). “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.” Earl v. State, 628 S.W.3d 695, 699 (Mo. App. E.D. 2021), reh'g and/or transfer denied
(June 28, 2021), transfer denied (Oct. 5, 2021) (quoting Brown v. State, 602 S.W.3d 846, 850
(Mo. App. E.D. 2020)). “If the motion court finds that a movant has not been abandoned, the
motion court should not permit the filing of the amended motion and should proceed with
adjudicating the movant's initial motion.” Moore, 458 S.W.3d at 825 (citing Sanders v. State,
807 S.W.2d 493, 495 (Mo. banc 1991)). But, “[i]f the motion court determines that the movant
was abandoned by appointed counsel's untimely filing of an amended motion, the court is
directed to permit the untimely filing.” Id. (citing Sanders, 807 S.W.2d at 495).
Here, on August 6, 2020, post-conviction counsel filed an entry of appearance and
requested an additional thirty days to file the amended motion. The motion court granted the
request, making the amended motion due on November 4, 2020. On October 28, 2020, post-
conviction counsel filed a second request for an additional thirty days to file the amended
motion. Movant remained obligated to file his amended motion by November 4, 2020, unless the
4 motion court granted post-conviction counsel’s second request for an extension to file an
amended motion before November 4, 2020. See Childers v. State, 462 S.W.3d 825, 828 (Mo.
App. E.D. 2015) (“Assuming that a request will be granted does not relieve counsel of the
obligation to actually make the request if additional time is needed, and extensions will not be
presumed to have been granted without a record thereof.”); see also Brewer v. State, ED 110321,
2022 WL 17587743, at *3 (Mo. App. E.D. Dec. 13, 2022), reh'g and/or transfer denied (Jan. 17,
2023).
The record shows the motion court did not grant Movant’s second extension request until
November 9, 2020, five days after the November 4, 2020 deadline, making the ruling untimely.
See Brewer, 2022 WL 17587743, at *3. “Because a motion court lacks authority to grant an
extension after the time in which the amended motion was due, the motion court's second
extension of the deadline was not effective.” Id. (emphasis original). Thus, the deadline for filing
the amended motion remained November 4, 2020, making Movant’s filing on December 4, 2020,
untimely. See id.
Movant argues the exception to Rule 29.15’s mandatory filing deadlines for amended
motions applies. See Childers, 462 S.W.3d at 828. We disagree. “Missouri recognizes that
remand for an abandonment inquiry is not needed ‘where all of the claims in both the pro se and
amended motion have been adjudicated with written findings of fact and conclusions of law[.]’”
Little v. State, 652 S.W.3d 390, 394 (Mo. App. E.D. 2022) (quoting Childers, 462 S.W.3d at
828); see also Brewer, 2022 WL 17587743, at *4. Here, the record shows Movant’s pro se
motion contains claims not found within the amended motion, and the motion court only ruled on
the claims in the amended motion. Because Movant did not explicitly plead certain claims
argued in his pro se motion, but not in his amended motion, the motion court found it “need not
5 address” the pro se motion and would “solely address[] Movant[’s] claims as set forth in his
[a]mended [m]otion.” Thus, the exception allowing review when all claims in both motions are
adjudicated does not apply. See Little, 652 S.W.3d at 394 (quoting Childers, 462 S.W.3d at 828);
see also Brewer, 2022 WL 17587743, at *4.
Because the motion court has no authority to grant an extension to file an amended
motion after the filing deadline has passed without first conducting an abandonment inquiry,
Movant’s amended motion was untimely filed. “When the independent inquiry is required but
not done, this Court will remand the case because the motion court is the appropriate forum to
conduct such an inquiry.” Moore, 458 S.W.3d at 826 (citing Sanders, 807 S.W.2d at 495). The
result of the inquiry into abandonment determines whether the motion court should adjudicate
the initial pro se motion or the amended motion. Id. (citing Sanders, 807 S.W.2d at 495). Thus,
the motion court’s judgment is reversed, and the case is remanded for the motion court to
conduct an independent inquiry to determine if Movant was abandoned. Id.
Conclusion
The judgment is reversed and remanded to the trial court for an abandonment inquiry into
whether Movant was abandoned by his appointed counsel.
_______________________________ Philip M. Hess, Judge
Kelly C. Broniec, P.J. and James M. Dowd, J. concur.