Full Opinion (html_with_citations)

                In the Missouri Court of Appeals
                                Western District

TARIQUE SHELTON,                        )
                             Appellant, )          WD85013
v.                                      )
                                        )
STATE OF MISSOURI,                      )          FILED: December 27, 2022
                           Respondent. )

     APPEAL FROM THE CIRCUIT COURT OF CALLAWAY COUNTY
                THE HONORABLE KEVIN CRANE, JUDGE

           BEFORE DIVISION THREE: CYNTHIA L. MARTIN, PRESIDING JUDGE,
            LISA WHITE HARDWICK, AND W. DOUGLAS THOMSON, JUDGES

      Tarique Shelton appeals the denial of his amended Rule 24.035 motion after

he pled guilty to first-degree robbery. He contends the motion court clearly erred

in denying his amended motion because plea counsel was ineffective for failing to

investigate and prepare a defense. Because Shelton’s amended motion was

untimely filed and the motion court did not conduct an abandonment inquiry, we

reverse the judgment and remand the case to the motion court to conduct such an

inquiry.

                         FACTUAL AND PROCEDURAL HISTORY

      The State charged Shelton with first-degree robbery and armed criminal

action. Shelton agreed to plead guilty to first-degree robbery in exchange for the
State’s dismissal of the armed criminal action charge and recommendation for a

10-year sentence. The court accepted Shelton’s guilty plea and sentenced him to

10 years in prison.

      In December 2020, Shelton timely filed a pro se Rule 24.035 motion

asserting three claims: (1) plea counsel was ineffective for failing to secure the

same plea agreement as his co-defendant; (2) plea counsel did not explore that

the victim could not identify him as a suspect and the victim made “six

depositions that differed from the others”; and (3) plea counsel was negligent for

telling him and his family “the trial would not be fair.”

      On December 16, 2020, the motion court appointed a public defender to

represent Shelton in the post-conviction proceedings. The transcript of Shelton’s

guilty plea and sentencing hearing was filed on February 26, 2021. On April 30,

2021, appointed counsel filed Shelton’s amended Rule 24.035 motion asserting

one claim: that plea counsel was ineffective for failing to investigate and prepare a

defense to the charges, rendering Shelton’s guilty plea involuntary and

unknowing.

      The motion court denied Shelton’s amended motion after an evidentiary

hearing. In its judgment, the motion court found Shelton failed to provide any

credible evidence to support his claim in his amended motion. Shelton appeals.

                                 STANDARD OF REVIEW

      We review the denial of a post-conviction motion for clear error. Rule

24.035(k). The motion court’s findings and conclusions are clearly erroneous only

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if a review of the entire record leaves us with a definite and firm impression that a

mistake was made. Dobbins v. State,
187 S.W.3d 865, 866
 (Mo. banc 2006).

                           TIMELINESS OF AMENDED MOTION

      Before addressing the merits of an appeal from the denial of a post-

conviction motion, we must first examine whether the motion was timely filed.

Bearden v. State,
530 S.W.3d 504, 506
 (Mo. banc 2017). Amended motions for

post-conviction relief must be filed within 60 days of the earlier of the date both a

“complete transcript,” which consists of the guilty plea and sentencing hearing,

has been filed and counsel is appointed. Rule 24.035(g). “Rule 24.035(g) filing

deadlines are mandatory,” and “circuit and appellate courts have a duty to

enforce the mandatory time limits.” Bearden,
530 S.W.3d at 506
 (quoting Price v.

State,
422 S.W.3d 292, 297
 (Mo. banc 2014) (internal quotation marks omitted)).

      Appointed counsel’s failure to timely file an amended motion creates a

presumption of abandonment triggering the motion court’s obligation to conduct

an independent inquiry into abandonment. Milner v. State,
551 S.W.3d 476, 480

(Mo. banc 2018). The purpose of the abandonment inquiry is to determine which

motion to adjudicate.
Id.
 If the motion court determines the untimely filing of the

amended motion “stems from the movant’s negligence or intentional failure to

act,” then the court should proceed only on the pro se motion.
Id.
 If, however,

the motion court “determines the movant did not act negligently or did not

intentionally fail to act, the motion court should permit the untimely filing” and

proceed on the amended motion.
Id.
 When counsel fails to file a timely amended

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motion, we must remand the case to the motion court for inquiry into the post-

conviction movant’s abandonment by appointed counsel. Bearden,
530 S.W.3d at 506
.

       In this case, counsel was appointed on December 16, 2020, and the

transcript of the guilty plea and sentencing hearing was filed on February 26,

2021. Shelton’s amended Rule 24.035 motion was due on April 27, 2021, but it

was not filed until April 30, 2021. There is no indication that the motion court

extended the time for filing the amended motion, and “we do not presume the

motion court granted an extension of time without a record of the extension.”

Earl v. State,
628 S.W.3d 695
, 699 (Mo. App. 2021). Appointed counsel’s failure to

file a timely amended motion created a presumption of abandonment that

triggered the motion court’s obligation to conduct an independent inquiry into

whether Shelton was abandoned. The motion court did not do so. Therefore, we

must remand the case to the motion court to conduct the abandonment inquiry to

determine which motion the court should adjudicate. Milner,
551 S.W.3d at 480
.

                                    CONCLUSION

       The judgment is reversed, and the case is remanded with instructions for

the motion court to make an independent inquiry to determine whether Shelton

was abandoned by appointed counsel’s failure to file a timely amended motion.



                                       ____________________________________
                                       LISA WHITE HARDWICK, JUDGE
ALL CONCUR.

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