MILLS v. STATE (2026)

Introduction

Desmond Mills appeals the court's denial of his Rule 29.15 ¹ motion for post-conviction relief following his convictions of first-degree murder, armed criminal action, and unlawful use of a weapon. He asserts four points on appeal claiming that the court clearly erred in denying his amended Rule 29.15 motion because he proved his counsel was ineffective for: (1) failing to hire a ballistics and toolmark expert; (2) failing to communicate the State's pre-trial plea bargain offer; (3) failing to adequately investigate and present evidence to support an alternative-suspect defense; and (4) failing to investigate and impeach a witness’ testimony during trial.

We have no authority to reach the merits of the amended motion and must dismiss Mills’ appeal because Mills’ amended motion was untimely filed. This late filing stripped the motion court of its authority to adjudicate it, and the court's use of the inapplicable abandonment doctrine to excuse the untimeliness is of no avail. The abandonment doctrine does not apply in this case because Mills’ counsel was not appointed by the court and this result prevails under the current state of the law despite Mills’ counsel being a public defender who entered his appearance for Mills.

Therefore, the motion court should have adjudicated Mills’ timely-filed pro se motion only. We dismiss this appeal and remand to the trial court to adjudicate Mills’ pro se motion.

Background

Mills directly appealed his convictions which we affirmed in State v. Mills, 623 S.W.3d 717 (Mo. App. 2021). On May 24, 2021, before the mandate issued, Mills prematurely filed his pro se motion. On December 22, 2021, an assistant public defender entered his appearance though the court had not yet appointed the public defender to represent Mills. That same day, Mills’ counsel requested an extension of time to file an amended motion which the court granted to March 22, 2022. On March 17, 2022, counsel requested a second extension for an additional thirty days in which to file the amended motion. The court did not grant that request until March 23, the day after the amended motion was due. On April 21, 2022, counsel filed the untimely amended motion.

On November 3, 2022, Mills’ counsel filed a motion to appoint counsel to represent Mills and for an abandonment finding for counsel's failure to file the amended motion by March 22, 2022. The trial court granted the motion to appoint counsel, found that counsel had abandoned Mills, and permitted the untimely filing of the amended motion. The court then had an evidentiary hearing on that motion which it denied and this appeal follows.

Standard of Review

We review a denial of a Rule 29.15 motion for post-conviction relief only to determine whether the court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Swallow v. State, 398 S.W.3d 1, 10 (Mo. banc 2013). Findings and conclusions are clearly erroneous only when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made. Id. at 3. “The filing deadlines for post-conviction relief ‘are mandatory, and cannot be waived.’ ” Watson v. State, 536 S.W.3d 716, 717 (Mo. banc 2018) (quoting Cox v. State, 445 S.W.3d 131, 134 (Mo. App. 2014)).

Analysis

Since Mills’ counsel filed the amended motion out of time, albeit by just one day, the motion court lost its authority to review that motion which left just Mills’ pro se motion before it and the abandonment doctrine was unavailable because Mills’ counsel had not been appointed by the court to represent him.

“The abandonment doctrine was created to excuse the untimely filing of amended motions by appointed counsel under Rule 29.15(e).” Scott v. State, 719 S.W.3d 723, 728 (Mo. App. 2025) (internal citations omitted). If appointed counsel abandons a movant by filing an untimely amended motion for post-conviction relief, the circuit court may excuse the untimely filing and must adjudicate the amended motion. Id. But the abandonment doctrine applies only to appointed counsel. Id. (citing State v. Gittemeier, 527 S.W.3d 64, 71 (Mo. banc 2017)). And this is true even if counsel entering his appearance is a public defender. Beerbower v. State, 699 S.W.3d 556, 559 (Mo. App. 2024) (citing Kemper v. State, 681 S.W.3d 611, 615 (Mo. App. 2023)). Ironically, “[t]he public defender's entry of an appearance without an appointment order obviates the need for the motion court to appoint counsel under Rule 29.15(e) because the movant is shown of record as represented by counsel.” Scott, 719 S.W.3d at 728-29.

“A judgment denying post-conviction counsel relief is not final and appealable if it fails to ‘acknowledge, adjudicate, or dispose’ all of the claims asserted in the post-conviction motion.” Creighton v. State, 520 S.W.3d 416, 423 n.9 (Mo. banc 2017) (quoting Green v. State, 494 S.W.3d 525, 532-33 (Mo. banc 2016)).

The result here is driven by Mills’ counsel's status as non-appointed even though he is a public defender who entered his appearance for Mills. Words matter in the law and the court encourages continued close coordination between the public defender's office and motion courts on these important issues.

The bottom line is that the only motion duly before the motion court was Mills’ pro se motion. While Mills argues that his amended motion contained all of his “cognizable” pro se claims such that we should reach the merits of those claims here, we disagree. Mills's pro se motion includes several claims that were not included in the amended motion. Thus, the trial court's judgment did not acknowledge, adjudicate, or dispose of all the claims asserted in the post-conviction motion appropriately before the court – in this case, the pro se motion. Childers v. State, 462 S.W.3d 825, 828 (Mo. App. 2015). Therefore, the judgment is not final. Creighton, 520 S.W.3d at 423 n.9.

Conclusion

The appeal is dismissed for lack of a final judgment and remanded to the court to adjudicate Mills’ pro se motion.

FOOTNOTES

1.   All rule references are to the Missouri Supreme Court Rules (2021).

James M. Dowd, Judge

Rebeca Navarro-McKelvey, Presiding Judge and Gary M. Gaertner, Jr., Judge concur.