John Brewer v. State of Missouri

• Court: Missouri Court of Appeals
• Decided: December 13, 2022
• Docket: ED110321
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District SPECIAL DIVISION

JOHN BREWER, ) No. ED110321 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County vs. ) ) Honorable Jason D. Dodson STATE OF MISSOURI, ) ) Respondent. ) FILED: December 13, 2022

Introduction

John Brewer (“Brewer”) appeals from the motion court’s denial of his Rule 29.151

amended motion for post-conviction relief following an evidentiary hearing. In his sole point on

appeal, Brewer claims the motion court clearly erred in denying his motion for post-conviction

relief because trial counsel was ineffective for failing to challenge and correct an erroneous jury

instruction. Brewer and the State identified a timeliness issue in the record that must be

addressed before reaching the merits of the amended motion. Because a 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, Brewer’s amended motion was untimely filed.

Accordingly, we must reverse and remand the matter to the motion court for an abandonment

inquiry.

1 All Rule references are to Mo. R. Civ. P. (2020), unless otherwise indicated. Factual and Procedural History

Because we do not reach the merits of Brewer’s point on appeal, we briefly summarize

the relevant post-conviction timeline.

The jury convicted Brewer on one count of first-degree assault and one count of armed

criminal action for a non-fatal shooting outside of a barbershop. The trial court sentenced

Brewer to concurrent prison terms of ten years and three years for first-degree assault and armed

criminal action, respectively. Brewer appealed to this Court, which affirmed Brewer’s

convictions and sentences. We issued our mandate in the direct appeal on December 5, 2019.

See Rule 29.15(g).

Brewer filed a pro se motion for post-conviction relief (“PCR 1”) on February 19, 2020.

The pro se motion alleged trial counsel: (1) failed to challenge the sufficiency of evidence

presented at a preliminary hearing; (2) failed to depose witnesses prior to trial; and (3) failed to

call any witnesses for the defense at trial. The motion court took no action regarding PCR 1

before Brewer filed a second identical pro se motion (“PCR 2”) on April 14, 2020. On May 13,

2020, the motion court appointed the Missouri State Public Defender to represent Brewer on

PCR 2, making an amended motion for post-conviction relief due sixty-days later on July 13. On

June 15, 2020, post-conviction counsel entered an appearance on PCR 2 and requested a thirty-

day extension to file the amended motion on or before August 12. The motion court granted the

extension. On June 24, 2020, post-conviction counsel entered an appearance on PCR 1 and filed

a motion to consolidate PCR 1 and PCR 2. On July 1, 2020, the motion court consolidated PCR

1 and PCR 2 (“consolidated PCR”) under the case number assigned to PCR 1. On August 6,

2020, post-conviction counsel requested an additional thirty-day extension for the consolidated

PCR, seeking to extend the deadline for filing the amended motion to September 11, 2020. The

motion court granted the second extension request on August 21, 2020. 2 On September 10, 2020, post-conviction counsel filed the amended motion alleging trial

counsel was ineffective for failing to object to the incorrect wording of a jury instruction and for

failing to request that a corrected instruction be given. On March 1, 2021, the motion court

granted Brewer’s request for an evidentiary hearing.

At the evidentiary hearing, post-conviction counsel advised the motion court of an issue

relating to the timeliness of the amended motion. However, post-conviction counsel reasoned

that any potential untimeliness was not attributable to Brewer and should not preclude the motion

court from addressing the claims raised in the amended motion. Following the evidentiary

hearing, on December 30, 2021, the motion court denied Brewer’s amended motion for post-

conviction relief. In its judgment, the motion court specifically found that the amended motion

was timely filed “as a result of the consolidation of the two files.” This appeal follows.

Point on Appeal

In his sole point on appeal, Brewer claims the motion court erred in denying his motion

for post-conviction relief because trial counsel was ineffective for failing to object to the

incorrect wording of a jury instruction, thereby prejudicing the outcome of his trial.

Discussion

Before we can review the merits of Brewer’s post-conviction claim, we are required to

examine whether his amended motion was timely filed. Earl v. State, 628 S.W.3d 695, 699 (Mo.

App. E.D. 2021) (citing Moore v. State, 458 S.W.3d 822, 826 (Mo. banc 2015)). At the time

Brewer timely2 moved pro se for post-conviction relief, Rule 29.153 required a movant who filed

a motion for post-conviction relief after a direct appeal to file an amended motion “within [sixty]

2 Brewer’s pro se motion was due on or before March 4, 2020, and the record reflects that he timely filed PCR 1 on February 19. See Rule 29.15(b). 3 A new revision of Rule 29.15 took effect on November 4, 2021. The amended version of Rule 29.15 gives counsel 120 days to file the amended motion and prohibits any additional extension of time.

3 days of the earlier of the date both the mandate of the appellate court is issued and: (1) [c]ounsel

is appointed, or (2) [a]n entry of appearance is filed by any counsel that is not appointed but

enters an appearance on behalf of [the] movant.” Rule 29.15(g) permits the motion court to grant

extensions for “filing the amended motion or statement in lieu of an amended motion, with no

extension exceeding [thirty] days individually and the total of all extensions not to exceed [sixty]

days.” “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)). 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. (internal

citation omitted).

“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) (internal

citation omitted); see Earl, 628 S.W.3d at 700. The motion court must then conduct an inquiry

into whether abandonment occurred in order to determine which claims it is required to

consider—the claims raised in the amended motion or the claims raised in the pro se motion.

Moore, 458 S.W.3d at 825–26. If the motion court determines that post-conviction counsel did

not abandon the movant, the motion court may consider only the claims raised in the pro

se motion. Id. If the motion court determines that post-conviction counsel abandoned the

movant, the motion court may then deem the amended motion timely and consider the claims

therein. Id. “Critically, the motion court must make a sufficient record to demonstrate on appeal

that its determination on the abandonment issue is not clearly erroneous.” Earl, 628 S.W.3d at

700 (internal citations omitted). If the motion court does not conduct the abandonment inquiry,

4 we must reverse the judgment and remand the case to the motion court because “the motion court

is the appropriate forum to conduct [] an [abandonment] inquiry.” Moore, 458 S.W.3d at 826.

This Court issued its mandate on Brewer’s direct appeal on December 5, 2019. The

deadline for Brewer to file his pro se motion for post-conviction relief was ninety days later on

March 4, 2020. See Rule 29.15(b). The record shows Brewer timely filed PCR 1 on February

19, 2020. The motion court was required to appoint counsel to represent Brewer on PCR 1

within thirty days of its filing but failed to do so. Rule 29.15(e); see Bishop v. State, 566 S.W.3d

269, 271 (Mo. App. W.D. 2019). When the motion court took no action in PCR 1 for almost

sixty days, Brewer filed an identical motion for post-conviction relief, PCR 2, on April 14, 2020.

Brewer filed the duplicate motion believing that perhaps PCR 1 had not been received before the

March 4 deadline. The motion court first appointed post-conviction counsel to represent Brewer

on PCR 2 on May 13, 2020. Therefore, Brewer’s amended motion was due sixty days later, on

July 13, 2020. See Rule 29.15(g); 44.01(a) (“In computing any period of time prescribed or

allowed by these rules, . . . . The last day of the period so computed is to be included, unless it is

a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next

day which is neither a Saturday, Sunday nor a legal holiday.”). Post-conviction counsel entered

an appearance on PCR 2 on June 15, 2020, and concurrently moved for a thirty-day extension to

file the amended motion. The motion court timely granted Brewer’s motion for extension. As a

result, the deadline for Brewer to file an amended motion for post-conviction relief was now

August 12, 2020. See Rule 29.15(g); Edwards v. State, 514 S.W.3d 68, 70 (Mo. App. E.D.

2017) (“[A] court should calculate the date an amended motion is due using a two-step process,

counting [sixty] days from the date of appointment . . ., and then [thirty] days from the date the

motion is initially due.”). On August 6, 2020, post-conviction counsel moved for a second

5 thirty-day extension as permitted under Rule 29.15. Importantly, unless the motion court granted

post-conviction counsel’s second request for an extension to file an amended motion before

August 12, 2020, Brewer remained obligated to file his amended motion by August 12, 2020.

Little v. State, 652 S.W.3d 390, 394 (Mo. App. E.D. 2022); 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.”).

The record reflects that the motion court did not grant Brewer’s second extension request

until August 21, 2020, nine days after the August 12, 2020 deadline, making the ruling untimely.

See Jones, 643 S.W.3d at 921 (citing Clemmons, 785 S.W.2d at 527). 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. See id. Therefore, the

deadline for filing the amended motion for post-conviction relief remained August 12. When

Brewer filed the amended motion on September 10, 2020, the filing was untimely. See id.

Although Brewer acknowledges that the amended motion was untimely filed if counted

from the day post-conviction counsel was appointed on May 13, Brewer argues we should affirm

the motion court’s judgment because the motion court properly determined that the amended

motion was timely filed as a result of the consolidation of PCR 1 and PCR 2.4 Brewer posits that

because the motions were consolidated under the case number assigned to PCR 1, we should use

the date post-conviction counsel entered an appearance in PCR 1, June 24, 2020, as the date from

4 While Brewer correctly notes that pro se PCR 2 was untimely filed, the motion court did not err in considering the motion timely filed and effectively appointing counsel given the timely filing of pro se PCR 1, which clearly demonstrated that any untimeliness as to PCR 2 was due to the court and not movant. See Goldberg v. State, 635 S.W.3d 599, 604 (Mo. App. E.D. 2021) (explaining that despite the seemingly absolute filing deadline, an untimely pro se motion can be excused if it is the result of action or inaction by a third party outside of the movant’s control).

6 which we calculate the filing deadline for the amended motion. This argument plainly ignores

the initial appointment of counsel on May 13. See Rule 29.15(g) (mandating we count from the

earliest of the date both the mandate is issued and either counsel is appointed, or any

unappointed counsel enters an appearance). We recognize post-conviction counsel’s diligence in

discovering the coexistent PCR files. Indeed, we are mindful that Brewer filed PCR 2 as a

precaution because he reasonably believed his earlier filing may not have been received by the

motion court. The record suggests Brewer had a legitimate reason to believe PCR 1 was not

received when the motion court did not appoint counsel within the thirty-day window provided

by Rule 29.15(e). Although the docket entries reflect that PCR 1 was timely filed, the motion

court did not appoint counsel until after Brewer filed PCR 2. Nevertheless, the operative Rule

29.15 provides that we must calculate the due date of the amended motion from the earliest 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. Here, the motion court clearly

appointed post-conviction counsel on May 13, 2020. In so doing, the motion court appointed

counsel to PCR 2 before any other counsel entered an appearance in either PCR 1, PCR 2, or the

consolidated PCR. Mindful of our duty, we note that Brewer offers no authority—nor are we

aware of any— supporting the motion court’s conclusion that the consolidation of the two pro se

motions permits the motion court to calculate the timeliness of the amended motion from a date

other than the appointment of counsel. See Rule 29.15(g); Little, 652 S.W.3d at 394 (citing Earl,

628 S.W.3d at 699) (“Missouri case law is clear: ‘The filing deadlines for post-conviction relief

are mandatory, and cannot be waived.’”).

There is one exception to Rule 29.15’s mandatory filing deadlines for amended motions.

“Missouri recognizes that remand for an abandonment inquiry is not needed ‘where all of the

7 claims in both the pro se and amended motion have been adjudicated with written findings of

fact and conclusions of law[.]’” Little, 652 S.W.3d at 394 (citing Childers, 462 S.W.3d at 828).

The record shows that Brewer’s pro se motion contains claims not found within the amended

motion, and that the motion court ruled only on the claims presented in the amended motion.

Therefore, the exception for permitting review when all claims in both motions are adjudicated

does not apply. See id.

Given that the record shows post-conviction counsel untimely filed the amended motion,

a presumption of abandonment arises. See Watson, 536 S.W.3d at 719. This Court has a duty to

enforce the mandatory deadlines for post-conviction motions. See Little, 652 S.W.3d at 394.

However, the motion court is the appropriate forum to conduct an inquiry into abandonment.

See Moore, 458 S.W.3d at 826. The record shows that the motion court did not grant Brewer’s

second motion for extension within the time that the amended motion was due, making the

amended motion filed on September 10, 2020, untimely. See Jones, 643 S.W.3d at 921 (citing

Clemmons, 785 S.W.2d at 527). Because the record lacks any showing that the motion court

made an independent inquiry into abandonment, we must reverse and remand with instructions

for the motion court to conduct an abandonment inquiry. See id. (internal citation omitted).

Conclusion

The judgment of the motion court is reversed, and the matter is remanded for the motion

court to conduct an independent inquiry into whether Brewer was abandoned by post-conviction

counsel and for further proceedings consistent with this opinion.

_________________________________ KURT S. ODENWALD, Judge

Angela T. Quigless, P.J., concurs. Calea Stovall-Reid, Sp.J., concurs. 8