abandonment doctrine in Missouri

2025The State notes that, in Gittemeier v. State, 527 S.W.3d 64 (Mo. 2017), the Missouri Supreme Court limited the abandonment doctrine to appointed counsel.

2025Like we previously concluded in Kinsella, we cannot conclude that Watson overrules Creighton’s recognition that a public defender who “voluntarily enters his or her appearance qualifies as ‘any counsel that is not appointed but [who] enters an appearance on behalf of movant.’” Id. (quoting Creighton v. State, 520 S.W.3d 416, 421 (Mo. banc 2017)). 5 enters on a movant’s behalf is a public defender does not trigger the application of the abandonment doctrine.

2023“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.

2022Missouri 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[.]” Childers, 462 S.W.3d at 828 .

2025Indeed, although we acknowledge Davis’s contention that the State did not preserve this issue by failing to object at the abandonment inquiry, this Court nevertheless has a “duty to enforce the mandatory time limits . . . even if the State does not raise the issue.” Moore, 458 S.W.3d at 526 (Fisher, J., concurring) (quoting Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014) (affirming the complete waiver of a movant’s claims from his initial motion because the abandonment doctrine exists to only cure the untimely filing of amended motions by appointed counsel).

2025Indeed, although we acknowledge Davis’s contention that the State did not preserve this issue by failing to object at the abandonment inquiry, this Court nevertheless has a “duty to enforce the mandatory time limits . . . even if the State does not raise the issue.” Moore, 458 S.W.3d at 526 (Fisher, J., concurring) (quoting Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014) (affirming the complete waiver of a movant’s claims from his initial motion because the abandonment doctrine exists to only cure the untimely filing of amended motions by appointed counsel).

2025Indeed, although we acknowledge Davis’s contention that the State did not preserve this issue by failing to object at the abandonment inquiry, this Court nevertheless has a “duty to enforce the mandatory time limits . . . even if the State does not raise the issue.” Moore, 458 S.W.3d at 526 (Fisher, J., concurring) (quoting Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014) (affirming the complete waiver of a movant’s claims from his initial motion because the abandonment doctrine exists to only cure the untimely filing of amended motions by appointed counsel).

2025Indeed, although we acknowledge Davis’s contention that the State did not preserve this issue by failing to object at the abandonment inquiry, this Court nevertheless has a “duty to enforce the mandatory time limits . . . even if the State does not raise the issue.” Moore, 458 S.W.3d at 526 (Fisher, J., concurring) (quoting Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014) (affirming the complete waiver of a movant’s claims from his initial motion because the abandonment doctrine exists to only cure the untimely filing of amended motions by appointed counsel).

2025Because neither Nelson’s nor Woods’ amended motion was timely, the ordinary course would be to remand these cases to the motion court to conduct an abandonment hearing to determine if the tardiness of each motion was the fault of counsel and was not the result of the movant’s actions or inactions. 5 See Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991) (“If counsel’s apparent inattention results from movant’s negligence or intentional failure to act, movant is entitled to no relief other than that which may be afforded upon the pro se motion.”).

2017In Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), our Supreme Court created the abandonment doctrine.

2020The abandonment exception, however, does not apply to excuse the untimely filing of an initial PCR motion in any context, Price, 422 S.W.3d at 301 , including alleged ineffective representation by counsel, id. at 300 (citing Bullard v. State, 853 S.W.2d 921, 922-23 (Mo. banc 1993)).

2017In Bullard v. State, our Supreme Court refused to extend the abandonment doctrine to an untimely initial motion. 853 S.W.2d 921, 922-23 (Mo. banc 1993).

2023The Missouri Supreme Court has clarified the abandonment doctrine in multiple holdings after White, and has explicitly limited abandonment claims to only two instances, “when counsel fails to act in a timely manner or fails to act at all in filing an amended motion.” Barton, 486 S.W.3d at 337 ; see also Price, 422 S.W.3d at 297-300 .

2020Failure to Find Postconviction Counsel Abandoned McFadden McFadden next argues the circuit court clearly erred in failing to find postconviction counsel abandoned him by not asserting in the amended motion that the claims regarding Dr. Gur and Dr. Gelbort should apply to the guilt phase. 38 In general, an abandonment claim is limited to two circumstances, when “(1) post- conviction counsel takes no action on movant’s behalf with respect to filing an amended motion” or “(2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a

2020Even if the the doctrine of abandonment applied, Movant is entitled to relief only when he “is free of responsibility for the failure to comply with the requirements of [Rule 29.15].” Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc 1991).

2017In Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), our Supreme Court created the abandonment doctrine.

2023“If the motion is not made and granted within the time remaining to file the amended motion, then any subsequently filed amended motion should be considered untimely and the [motion] court should conduct an abandonment inquiry before proceeding to the merits.” Jones, 643 S.W.3d at 922 (citing Clemmons, 785 S.W.2d at 527 ).

2023Jones v. State, 643 S.W.3d 918 , 921 (Mo. App. E.D. 2022) (“[T]he circuit court has no authority to grant a request for an extension of time filed after the time to file the amended motion has passed.”); Clemmons v. State, 785 S.W.2d 524, 527 (Mo. banc 1990). 5 Conclusion This case is reversed and remanded for the motion court to conduct an abandonment inquiry. ______________________________ James M.

2021“While it is the duty of appellate courts to enforce the mandatory timelines in the post-conviction rules, the motion court is the appropriate forum to conduct an abandonment inquiry.” Id. (citing Blackburn v. State, 468 S.W.3d 910, 913 (Mo. App. E.D. 2015)).

2021“Upon review of the record, if we determine the motion court failed to make an independent inquiry or there is no record for us to review such inquiry, then we must reverse and remand for the motion court to conduct this inquiry.” Id. (citing Brown v. State, 602 S.W.3d 846 , 850 (Mo. App. E.D. 2020)).

2014Then, in a 2008 decision, this Court addressed the issue raised by Judge Fischer's dissent in this case and expressly held that "the abandonment doctrine provides a narrow exception permitting the circuit court to re-open an otherwise final post-conviction case.” Taylor v. State, 254 S.W.3d 856, 858 (Mo. banc 2008).

2014“The abandonment doctrine provides a narrow exception permitting the circuit court to re-open an otherwise final post-conviction case.” Taylor v. State, 254 S.W.3d 856, 858 (Mo. banc 2008).

2016Abandonment Prior to addressing the merits regarding a movant's post-conviction appeal, this court is obligated to, sua sponte, "first examine the timeliness of amended motions in each post- conviction case on appeal, even if the issue is not raised by either party." Lomax v. State, 471 S.W.3d 358, 359 (Mo. App. E.D. 2015) (citing Moore v. State, 458 S.W.3d 822 (Mo. banc 2015)). 2 A. Overview of Abandonment in Missouri A person convicted of a felony who claims a conviction or imposed sentence violates the United States Constitution, the Missouri Constitution, or other Missouri law, which inclu

2016See, e.g., Lomax v. State, 471 S.W.3d 358, 359 (Mo. App. 2015); Blackburn v. State, 468 S.W.3d 910, 912-13 (Mo. App. 2015); Gales v. State, 470 S.W.3d 405, 407-08 (Mo. App. 2015); Roberts v. State, 473 S.W.3d 672, 674 (Mo. App. 2015); Harris v. State, 474 S.W.3d 600, 603 (Mo. App. 2015); Mann v. State, 475 S.W.3d 208, 213 (Mo. App. 2015); Hawkins v. State, 476 S.W.3d 313, 316 (Mo. App. 2015); Silver v. State, 477 S.W.3d 697, 699 (Mo. App. 2015); James v. State, 477 S.W.3d 190, 196 (Mo. App. 2015); Lewis v. State, 476 S.W.3d 364, 365 (Mo. App. 2015); Frazee v. State, 480 S.W.3d 442, 446 (Mo. Ap

2015“It is' well-settled that a movant’s failure to present evidence at a hearing to provide factual support for a claim in his or her post-conviction motion constitutes an abandonment of that claim.” Id. at 932 .(citing State v. Nunley, 980 S.W.2d 290, 293 (Mo. banc 1998)).

2007“It is well-settled that a movant’s failure to present evidence at a hearing to provide factual support for a claim in his or her post-conviction motion constitutes an abandonment of that claim.” Watson, 210 S.W.3d at 438-39 ; see State v. Nunley, 980 S.W.2d 290, 293 (Mo. banc 1998); State v. Brooks, 916 S.W.2d 454, 456 (Mo.App. 1996); State v. Crawford, 914 S.W.2d 390, 393 (Mo.App.1996); State v. White, 913 S.W.2d 435, 438 (Mo.App.1996).

2009Movant can be considered to have abandoned this claim. “ ‘It is well-settled that a movant’s failure to present evidence at a hearing to provide factual support for a claim in his [postconviction] motion constitutes an abandonment of that claim.’ ” Cole, 223 S.W.3d at 932 (quoting Watson v. State, 210 S.W.3d 434, 438-39 (Mo.App.2006)). “ ‘A hearing court is not clearly erroneous in refusing to grant relief on an issue which is not supported by evidence at the evidentiary hearing.’ ” Cole, 223 S.W.3d at 932 (quoting State v. Boone, 869 S.W.2d 70, 78 (Mo.App.1993)).

2007“A hearing court is not clearly erroneous in refusing to grant relief on an issue which is not supported by evidence at the evidentiary hearing.” State v. Boone, 869 S.W.2d 70, 78 (Mo.App.1993).

2021McAllister v. State, 600 S.W.3d 300 , 303 (Mo. App. E.D. 2020) (quoting Guerra-Hernandez v. State, 548 S.W.3d 368, 372 (Mo. App. E.D. 2018)). 4 to, a written response and opportunity to reply, a telephone conference call, or a hearing.” McDaris v. State, 843 S.W.2d 369 , 371 n.1 (Mo. banc 1992).

2020Our court acknowledges the inconvenience abandonment issues are causing motion courts; however, we emphasize that “the purposes served by remand are mandatory compliance with Missouri Supreme Court Rules, and adherence to jurisdictional limitations.” Guerra- Hernandez 548 S.W.3d 368, 372 . 4 For purposes of judicial economy, we considered whether the exception to the abandonment inquiry iterated in Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015) applies to this case.

2023Although “[t]he untimely filing of an amended motion raises a presumption of abandonment by counsel,” Latham v. State, 554 S.W.3d 397, 399 (Mo. banc 2018), “the abandonment doctrine applies only to cases involving appointed post-conviction counsel and thus cannot excuse retained counsel’s untimely amended motion.” Williams v. State, 602 S.W.3d 275 , 280 (Mo. App. E.D. 2020) (citing Gittemeier v. State, 527 S.W.3d 64, 71 (Mo. banc 2017)).

2020V, § 10, see also Rules 83.02 & 83.04, it suggests some uncertainty in the law that might account for retained counsel’s mistaken apprehension as to what was required under the abandonment doctrine. 8 We observe that Borschnack raises no other challenges to the motion court’s judgment on the merits. 12 BILLIE BORSCHNACK, ) ) Appellant, ) ) vs. ) No. SD36451 ) Filed: October 29, 2020 STATE OF MISSOURI, ) ) Respondent. ) CONCURRING OPINION I concur, but look back to this case’s first appeal, which was one of 55 reversals/remands to conduct or properly document abandonment inquiries, all on the h

2021"It is well-settled that a movant's failure to present evidence at a hearing to provide factual support for a claim in his or her post-conviction motion constitutes an abandonment of that claim." Id. at 932 (quoting Watson v. State, 210 S.W.3d 434 , 438- 39 (Mo. App. S.D. 2006)).

2009Movant can be considered to have abandoned this claim. “ ‘It is well-settled that a movant’s failure to present evidence at a hearing to provide factual support for a claim in his [postconviction] motion constitutes an abandonment of that claim.’ ” Cole, 223 S.W.3d at 932 (quoting Watson v. State, 210 S.W.3d 434, 438-39 (Mo.App.2006)). “ ‘A hearing court is not clearly erroneous in refusing to grant relief on an issue which is not supported by evidence at the evidentiary hearing.’ ” Cole, 223 S.W.3d at 932 (quoting State v. Boone, 869 S.W.2d 70, 78 (Mo.App.1993)).

2018Ross , 527 S.W.3d at 119 (quoting Adams v. State , 483 S.W.3d 480 , 483 (Mo. App. E.D. 2016) (citations and internal quotation marks omitted)).

2017Adams v. State, 483 S.W.3d 480, 483 (Mo. App. E.D. 2016) (citations and internal quotation marks omitted).

2014The dissenting opinions in Gehrke argue that abandonment occurs whenever counsel breaches an ethical duty to an inmate client, Gehrke, 280 S.W.3d at 61 (first dissenting opinion), and that the abandonment doctrine should excuse any failing by counsel that precludes review of the inmate's claims either in the motion court or on appeal, id. at 62 (second dissenting opinion).

2014The dissenting opinions in Gehrke argue that abandonment occurs whenever counsel breaches an ethical duty to an inmate client, Gehrke, 280 S.W.3d at 61 (first dissenting opinion), and that the abandonment doctrine should excuse any failing by counsel that precludes review of the inmate's claims either in the motion court or on appeal, id. at 62 (second dissenting opinion).

2025Like we previously concluded in Kinsella, we cannot conclude that Watson overrules Creighton’s recognition that a public defender who “voluntarily enters his or her appearance qualifies as ‘any counsel that is not appointed but [who] enters an appearance on behalf of movant.’” Id. (quoting Creighton v. State, 520 S.W.3d 416, 421 (Mo. banc 2017)). 5 enters on a movant’s behalf is a public defender does not trigger the application of the abandonment doctrine.

2024In Creighton v. State, 520 S.W.3d 416 (Mo. banc 2017), the Supreme Court of Missouri rejected the argument that a “public defender could serve as post-conviction counsel only on appointment by the motion court.” Id. at 421 (emphasis added).

2014In Hutton v. State, 345 S.W.3d 373, 377 (Mo.App.2011), we explained that an abandonment claim is no exception to that rule because, even though the movant would have no reason to raise abandonment in his pro se motion (in that he would not be aware that post-conviction counsel would ultimately abandon him), he could bring, the issue of abandonment to the court’s attention. 10 This would give the movant the opportunity to put his arguments before the circuit court, and, if granted, this court would then have a clear record from which to review the motion court’s ruling on the abandonment issue.

2014Id. at 377-78 ; see also Linder, 11 404 S.W.3d at 929-30 (where appellant failed to raise abandonment before the motion court, this court held that had appellant *722 filed a “motion to reopen,” 12 it would have opened the door to appellate review).

2020Pulliam v. State, 484 S.W.3d 877, 880 (Mo. App. E.D. 2016).

2016See, e.g., Lomax v. State, 471 S.W.3d 358, 359 (Mo. App. 2015); Blackburn v. State, 468 S.W.3d 910, 912-13 (Mo. App. 2015); Gales v. State, 470 S.W.3d 405, 407-08 (Mo. App. 2015); Roberts v. State, 473 S.W.3d 672, 674 (Mo. App. 2015); Harris v. State, 474 S.W.3d 600, 603 (Mo. App. 2015); Mann v. State, 475 S.W.3d 208, 213 (Mo. App. 2015); Hawkins v. State, 476 S.W.3d 313, 316 (Mo. App. 2015); Silver v. State, 477 S.W.3d 697, 699 (Mo. App. 2015); James v. State, 477 S.W.3d 190, 196 (Mo. App. 2015); Lewis v. State, 476 S.W.3d 364, 365 (Mo. App. 2015); Frazee v. State, 480 S.W.3d 442, 446 (Mo. Ap

2023Movant’s Argument Under Vogl Additionally, Movant argues the Missouri Supreme Court extended the abandonment doctrine with its holding in Vogl v. State, 437 S.W.3d 218 (Mo. banc 2014).

2023However, we expect that all timeliness issues would be addressed and ruled upon as part of the motion court’s abandonment inquiry on remand. 6 Although Moore v. State, 458 S.W.3d 822 (Mo. banc 2015) involved a Rule 29.15 motion and not a Rule 24.035 motion, our analysis is unaffected because “the relevant portions of Rule 29.15 are identical to those of Rule 24.035, and ‘case law interpreting a provision that is identical in both rules applies equally in proceedings under either rule.’” Harley v. State, 633 S.W.3d 912 , 916 n.3 (quoting Vogl v. State, 437 S.W.3d 218 , 224 n.7 (Mo. banc 2014)).

2024The abandonment doctrine authorizes a motion court to accept a late- filed amended motion when the movant filed “a timely pro se motion for postconviction relief, the motion court appoint[ed] counsel to represent the movant, and appointed counsel fail[ed] to file the amended motion in a timely manner.” Jendro v. State, 680 S.W.3d 585 , 591 (Mo. App. S.D. 2023) (citing Stanley v. State, 420 S.W.3d 532, 541-42 (Mo. banc 2014)).

2023Stanley, 420 S.W.3d at 541-42 .

2018We have recognized that a remand to the motion court is unnecessary if " all of the claims in both the pro se and amended motion ha[d] been adjudicated with written findings of fact and conclusions of law," as the post-conviction movant "has received all the process to which he is entitled," and a "remand would be pointless." Childers v. State , 462 S.W.3d 825 , 828 (Mo. App. E.D. 2015) (citations omitted); see also Bustamante v. State , 478 S.W.3d 431 , 435 n.2 (Mo. App. W.D. 2015).

2016Bustamante v. State, 478 S.W.3d 431 , 435 n. 2 (Mo.App.W.D.2015). 3 .