In Division
JAMES DARRON BEERBOWER, JR., ) ) Appellant, ) No. SD38019 ) v. ) Filed: September 23, 2024 ) STATE OF MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF REYNOLDS COUNTY
Honorable Nathan T. Kelsaw, Judge
DISMISSED
James Darron Beerbower, Jr., appeals from the motion court's denial of
his amended Rule 29.15 motion for post-conviction relief after an evidentiary
hearing.1 Beerbower's claims in this appeal were not raised in a timely filed
amended motion. While Beerbower's counsel filed an affidavit alleging he
abandoned Beerbower by failing to timely file an amended motion, Beerbower's
counsel was not appointed, so the abandonment doctrine does not apply.
Nevertheless, the trial court found Beerbower had been abandoned by counsel
and treated the amended motion as timely filed. This was a mistake. Because
1 All rule references are to Missouri Court Rules (2021). Beerbower's claims were not raised in a timely filed amended motion and
because the abandonment doctrine only applies to cases where counsel is
appointed, the motion court was without authority to rule on the merits of
Beerbower's amended motion. Instead, the motion court should have ruled on
the claims raised in Beerbower's timely filed pro se motion. Since the motion
court did not adjudicate the claims raised in Beerbower's pro se motion, there is
no final, appealable judgment for us to review. Beerbower's appeal is dismissed
and the matter is remanded for further proceedings consistent with this opinion.
Facts and Procedural History
Beerbower was charged as a prior offender with three class A felonies of
child molestation in the first degree. Following a jury trial, Beerbower was found
guilty as charged, and sentenced by the trial court to three concurrent life
sentences. This Court affirmed Beerbower's convictions on direct appeal in
State v. Beerbower, 619 S.W.3d 117 (Mo. App. S.D. 2020), and we issued the
mandate on April 8, 2021.
Beerbower timely filed his pro se Rule 29.15 motion on July 8, 2021.2 On
July 20, the motion court directed the "[c]lerk to notify the Missouri Public
Defender" of Beerbower's Rule 29.15 motion. Post-conviction counsel, an
attorney with the Public Defender's office, entered his appearance on August 6,
and requested a 30-day extension for filing an amended motion. The motion
2 Beerbower's pro se motion alleged, in relevant part that he received "inef[f]ective assistance of
counsel" when counsel "[d]idn't offer depo[si]tions for cross-ex" and "failed to call witnesses & lab techs to offer DNA results as defense evidence[.]" 2 court granted the extension on August 25, making the amended motion due
November 4. See Rule 29.15(g).
On November 1, post-conviction counsel requested a second 30-day
extension of the deadline for filing an amended motion. On December 6, 122
days after post-conviction counsel entered an appearance, post-conviction
counsel filed an untimely Rule 29.15 amended motion. 3 See Rule 29.15(g)
(requiring the amended motion be filed within 120 days of the earlier of the date
the mandate is issued and counsel is appointed, or an entry of appearance is filed
by any counsel not appointed). On December 15, the motion court errantly
purported to grant post-conviction counsel's second request for extension. See
Earl v. State, 628 S.W.3d 695, 699 (Mo. App. E.D. 2021) ("Though the motion
court granted an extension, the motion court lacked discretion to rule on the
motion at this late date.").
After the second request for an extension was granted, post-conviction
counsel filed an affidavit "regarding abandonment." The affidavit acknowledged
the motion court did not grant the second extension of the deadline for filing the
amended motion until after the amended motion was due and filed, and the
amended motion was therefore untimely. The affidavit alleged the untimely
filing was "due to [post-conviction counsel's] error in calculating the applicable
deadlines under Rule 29.15 and the relevant case law," and that it was "no fault of
3 The untimely amended motion alleged, in relevant part, trial counsel was ineffective for: (1) "unreasonably fail[ing] to make an offer of proof concerning [Victim 1]'s and [Victim 2]'s prior sexual conduct among themselves[;]" (2) "unreasonably fail[ing] to request a change of venue[;]" and (3) "unreasonably fail[ing] to object to an improper acquittal-first argument during the State's summation." 3 [Beerbower's]." The affidavit requested the motion court determine Beerbower
was abandoned, and the untimely amended motion be treated as timely under
Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991).
The motion court found the amended motion untimely when it was filed
on December 6. The motion court further found post-conviction counsel had
"filed an affidavit of abandonment[,]" and "based upon the testimony and the
affidavit of [post-conviction counsel] . . . that [Beerbower's] claim for relief is
timely." The motion court denied Beerbower's amended motion for post-
conviction relief.
Analysis
Before determining the merits of Beerbower's points, we have an
independent duty to verify the timeliness of the post-conviction motion. See
Moore v. State, 458 S.W.3d 822, 826-27 (Mo. banc 2015). Beerbower
acknowledges his amended motion was not timely filed but argues its
untimeliness should be excused because he was abandoned by his post-
conviction counsel. The State argues the abandonment doctrine does not apply
because post-conviction counsel was not appointed. The State is correct.
"Normally, the failure to file a timely amended motion or statement in lieu
of an amended motion by post-conviction counsel creates a presumption of
abandonment." Cooper v. State, 675 S.W.3d 718, 721 (Mo. App. S.D. 2023).
But this presumption only applies in cases where counsel is appointed,
Gittemeier v. State, 527 S.W.3d 64, 71 (Mo. banc 2017), and where: (1) post-
conviction counsel takes no action with respect to filing an amended motion; or
(2) is aware of the need to file an amended motion but fails to do so in a timely 4 manner.4 Barton v. State, 486 S.W.3d 332, 334 (Mo. banc 2016). By adopting
this doctrine, we have "recognized that the failure to file an amended motion . . .
is not merely a claim of ineffective assistance of counsel. Rather, in such a case it
is as if counsel had not been appointed at all, for counsel has abandoned his or
her client." Id. at 336 (internal citations omitted).
Beerbower's argument fails because the abandonment doctrine does not
apply to situations where counsel is retained or voluntarily enters his or her
appearance where no appointment of counsel has been ordered; it only applies
where counsel is appointed. Gittemeier, 527 S.W.3d at 71; see Rule 29.15(g)
("If an amended motion or statement in lieu of an amended motion is not timely
filed by appointed counsel, then the court shall conduct an inquiry on the record
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In Division
JAMES DARRON BEERBOWER, JR., ) ) Appellant, ) No. SD38019 ) v. ) Filed: September 23, 2024 ) STATE OF MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF REYNOLDS COUNTY
Honorable Nathan T. Kelsaw, Judge
DISMISSED
James Darron Beerbower, Jr., appeals from the motion court's denial of
his amended Rule 29.15 motion for post-conviction relief after an evidentiary
hearing.1 Beerbower's claims in this appeal were not raised in a timely filed
amended motion. While Beerbower's counsel filed an affidavit alleging he
abandoned Beerbower by failing to timely file an amended motion, Beerbower's
counsel was not appointed, so the abandonment doctrine does not apply.
Nevertheless, the trial court found Beerbower had been abandoned by counsel
and treated the amended motion as timely filed. This was a mistake. Because
1 All rule references are to Missouri Court Rules (2021). Beerbower's claims were not raised in a timely filed amended motion and
because the abandonment doctrine only applies to cases where counsel is
appointed, the motion court was without authority to rule on the merits of
Beerbower's amended motion. Instead, the motion court should have ruled on
the claims raised in Beerbower's timely filed pro se motion. Since the motion
court did not adjudicate the claims raised in Beerbower's pro se motion, there is
no final, appealable judgment for us to review. Beerbower's appeal is dismissed
and the matter is remanded for further proceedings consistent with this opinion.
Facts and Procedural History
Beerbower was charged as a prior offender with three class A felonies of
child molestation in the first degree. Following a jury trial, Beerbower was found
guilty as charged, and sentenced by the trial court to three concurrent life
sentences. This Court affirmed Beerbower's convictions on direct appeal in
State v. Beerbower, 619 S.W.3d 117 (Mo. App. S.D. 2020), and we issued the
mandate on April 8, 2021.
Beerbower timely filed his pro se Rule 29.15 motion on July 8, 2021.2 On
July 20, the motion court directed the "[c]lerk to notify the Missouri Public
Defender" of Beerbower's Rule 29.15 motion. Post-conviction counsel, an
attorney with the Public Defender's office, entered his appearance on August 6,
and requested a 30-day extension for filing an amended motion. The motion
2 Beerbower's pro se motion alleged, in relevant part that he received "inef[f]ective assistance of
counsel" when counsel "[d]idn't offer depo[si]tions for cross-ex" and "failed to call witnesses & lab techs to offer DNA results as defense evidence[.]" 2 court granted the extension on August 25, making the amended motion due
November 4. See Rule 29.15(g).
On November 1, post-conviction counsel requested a second 30-day
extension of the deadline for filing an amended motion. On December 6, 122
days after post-conviction counsel entered an appearance, post-conviction
counsel filed an untimely Rule 29.15 amended motion. 3 See Rule 29.15(g)
(requiring the amended motion be filed within 120 days of the earlier of the date
the mandate is issued and counsel is appointed, or an entry of appearance is filed
by any counsel not appointed). On December 15, the motion court errantly
purported to grant post-conviction counsel's second request for extension. See
Earl v. State, 628 S.W.3d 695, 699 (Mo. App. E.D. 2021) ("Though the motion
court granted an extension, the motion court lacked discretion to rule on the
motion at this late date.").
After the second request for an extension was granted, post-conviction
counsel filed an affidavit "regarding abandonment." The affidavit acknowledged
the motion court did not grant the second extension of the deadline for filing the
amended motion until after the amended motion was due and filed, and the
amended motion was therefore untimely. The affidavit alleged the untimely
filing was "due to [post-conviction counsel's] error in calculating the applicable
deadlines under Rule 29.15 and the relevant case law," and that it was "no fault of
3 The untimely amended motion alleged, in relevant part, trial counsel was ineffective for: (1) "unreasonably fail[ing] to make an offer of proof concerning [Victim 1]'s and [Victim 2]'s prior sexual conduct among themselves[;]" (2) "unreasonably fail[ing] to request a change of venue[;]" and (3) "unreasonably fail[ing] to object to an improper acquittal-first argument during the State's summation." 3 [Beerbower's]." The affidavit requested the motion court determine Beerbower
was abandoned, and the untimely amended motion be treated as timely under
Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991).
The motion court found the amended motion untimely when it was filed
on December 6. The motion court further found post-conviction counsel had
"filed an affidavit of abandonment[,]" and "based upon the testimony and the
affidavit of [post-conviction counsel] . . . that [Beerbower's] claim for relief is
timely." The motion court denied Beerbower's amended motion for post-
conviction relief.
Analysis
Before determining the merits of Beerbower's points, we have an
independent duty to verify the timeliness of the post-conviction motion. See
Moore v. State, 458 S.W.3d 822, 826-27 (Mo. banc 2015). Beerbower
acknowledges his amended motion was not timely filed but argues its
untimeliness should be excused because he was abandoned by his post-
conviction counsel. The State argues the abandonment doctrine does not apply
because post-conviction counsel was not appointed. The State is correct.
"Normally, the failure to file a timely amended motion or statement in lieu
of an amended motion by post-conviction counsel creates a presumption of
abandonment." Cooper v. State, 675 S.W.3d 718, 721 (Mo. App. S.D. 2023).
But this presumption only applies in cases where counsel is appointed,
Gittemeier v. State, 527 S.W.3d 64, 71 (Mo. banc 2017), and where: (1) post-
conviction counsel takes no action with respect to filing an amended motion; or
(2) is aware of the need to file an amended motion but fails to do so in a timely 4 manner.4 Barton v. State, 486 S.W.3d 332, 334 (Mo. banc 2016). By adopting
this doctrine, we have "recognized that the failure to file an amended motion . . .
is not merely a claim of ineffective assistance of counsel. Rather, in such a case it
is as if counsel had not been appointed at all, for counsel has abandoned his or
her client." Id. at 336 (internal citations omitted).
Beerbower's argument fails because the abandonment doctrine does not
apply to situations where counsel is retained or voluntarily enters his or her
appearance where no appointment of counsel has been ordered; it only applies
where counsel is appointed. Gittemeier, 527 S.W.3d at 71; see Rule 29.15(g)
("If an amended motion or statement in lieu of an amended motion is not timely
filed by appointed counsel, then the court shall conduct an inquiry on the record
to determine if movant was abandoned by appointed counsel."). This is true even
when the counsel that enters his or her appearance is a public defender.
Kemper v. State, 681 S.W.3d 611, 615 (Mo. App. E.D. 2023) (finding
abandonment doctrine did not apply where the motion court never entered an
appointment order and the assistant public defender voluntarily entered her
appearance on movant's behalf).
Here, post-conviction counsel was not "appointed" because the motion
court never entered an order appointing the public defender's office. Rather, the
motion court directed the "[c]lerk to notify the Missouri Public Defender" of
4 Our courts have limited the doctrine's application to these circumstances because the doctrine
arose out of the need to balance two important policies—the court's decision to provide counsel for all indigent inmates and the court's steadfast refusal to address claims based on ineffectiveness of post-conviction counsel. Id. at 69.
5 Beerbower's Rule 29.15 motion. But a directive to the clerk to notify the public
defender's office is not an appointment of counsel. See Creighton v. State,
520 S.W.3d 416, 419 (Mo. banc 2017) (holding the motion court's memorandum
which notified the public defender that the defendant had filed a pro se Rule
29.15 motion was not an appointment).
Because the abandonment doctrine was intended to apply only to
situations where it is "as if counsel had not been appointed at all," it does not
apply to situations like this, where counsel voluntarily enters an appearance
without an order appointing counsel.5 When counsel voluntarily enters his or her
appearance on behalf of a movant, as opposed to being appointed by the court,
counsel has voluntarily taken an action indicating he or she has knowledge of the
case and intends to represent the client. In that situation, it is not "as if counsel
had never been appointed at all." This is true even if the counsel that enters his
or her appearance is a public defender. In such a scenario, there is no meaningful
distinction between a privately retained counsel who enters an appearance and a
public defender who voluntarily enters an appearance since both have taken an
action in the case acknowledging their representation of the movant. Because
post-conviction counsel was not appointed, the trial court erred in finding
movant had been abandoned.
Since Beerbower's pro se motion included at least one claim not raised in
the amended motion, the motion court failed to dispose of all of the claims and
5 Indeed, post-conviction counsel's amended motion expressly acknowledged the motion court
"did not 'appoint' the public defender's office, but rather 'notified' the office" and that post- conviction counsel entered his appearance after receiving that notification. 6 the judgment is not final. See Joyner v. State, 685 S.W.3d 651, 654 (Mo. App.
E.D. 2024).
Conclusion
Beerbower's appeal is dismissed for lack of a final judgment, and
remanded for further proceedings consistent with this opinion.
MARY W. SHEFFIELD, J. – OPINION AUTHOR
JENNIFER R. GROWCOCK, C.J. – CONCURS
JEFFREY W. BATES, J. – CONCURS