DAVID KARL BAUER v. STATE OF MISSOURI (2026)

David Karl Bauer (“Movant”) appeals the Circuit Court of Ozark County, Missouri's (“motion court's”) order dismissing his Rule 29.15 ¹ motion for post-conviction relief without an evidentiary hearing. It is undisputed by the parties that: (1) appointed post-conviction counsel failed to timely file an amended motion or a statement in lieu, as required by Rule 29.15(e); and (2) the motion court failed to conduct an independent inquiry on the record as to whether this failure meant that Movant had been abandoned by appointed counsel. Because established Missouri case law requires the motion court to conduct a meaningful independent inquiry on the record regarding the abandonment issue and proceed accordingly, we reverse and remand.

Factual Background and Procedural History

Movant was convicted after a bench trial of statutory sodomy in the first degree. This Court affirmed Movant's conviction and sentence in an unpublished Order and Statement, and issued its mandate on February 21, 2019, in case number SD35461. On December 9, 2022, Movant filed an untimely motion for post-conviction relief (“Pro Se Motion” or “Form 40”). Along with his Pro Se Motion, Movant filed his Motion to Allow Movant to Proceed with his Rule 29.15 Post-Conviction Cause Despite the Untimeliness of his Pro Se Filing (“Motion to Proceed”). In his Motion to Proceed, Movant alleged that his Pro Se Motion filing was untimely “because of retained counsel's illadvising, [sic] abandoning and breaching the contract agreement[,]” and that appellate counsel had failed to inform him of the issuance of the mandate in his case.² Movant also filed a Request for Hearing related to his Motion to Proceed.

On January 24, 2023, the motion court appointed counsel for Movant pursuant to Randolph v. State, 608 S.W.3d 785 (Mo. App. E.D. 2020). On March 23, 2023, appointed counsel entered an appearance and requested an extension of time in which to file an amended motion for post-conviction relief, but the motion court never ruled on that request. On September 19, 2023, the State filed a motion to dismiss Movant's Pro Se Motion, arguing that it was untimely, and that Movant's reasons for the untimeliness did not justify the delay.

On January 13, 2025, the motion court held a hearing on the State's motion to dismiss. At the hearing, the motion court heard arguments by the State and appointed counsel for Movant, but no one testified under oath, no affidavits were submitted, and no evidentiary hearing occurred. During arguments from counsel, appointed counsel for Movant accepted full responsibility “for this having fallen through the cracks” and not filing an amended motion on Movant's behalf, and argued that failure was in no way attributable to Movant. Appointed counsel stated that he had been assigned to the case, that Movant had been in continuous contact with him, and that appointed counsel fully intended to file an amended motion on Movant's behalf. Appointed counsel further argued that “case law in the post-conviction relief area has ․ allowed that the Movant has an opportunity to plead a possible excuse, either in the Form 40 or in the amended motion.” Appointed counsel further requested the motion court to allow him to file an amended motion because he believed he could distinguish the Supreme Court of Missouri's holding in Moore v. State, 328 S.W.3d 700 (Mo. banc 2010), with a recent opinion that recognized an excuse for the untimely filing of a pro se motion.³ He asked the motion court to delay ruling on the motion to dismiss and to give him an opportunity to file an amended motion as the case law requires, and that it “would be appropriate later on to take [the State's motion to dismiss] up after [he] had an opportunity to get that amended motion filed and set forth the excuse.” The motion court did not take any testimony regarding the untimeliness of Movant's Pro Se Motion. When the motion court indicated it would not allow him to file an amended motion, appointed counsel asked the motion court to conduct an abandonment inquiry and to make a finding with respect to the abandonment issue, which the motion court also declined to do. It then granted the State's motion to dismiss, from which Movant appeals.

Analysis

Point I

In his sole point on appeal, Movant argues that

The motion court clearly erred in failing to conduct an abandonment hearing after appointed counsel failed to file an amended motion or a statement in lieu as required by Rule 29.15(e) and (g), ․ in that, once counsel is appointed, Rule 29.15 requires the motion court to conduct an abandonment hearing if no amended motion or statement in lieu has been filed before taking further action.

We agree.

Our Court has previously explained the applicable standard of review and legal principles that apply to a similar scenario in Borschnack v. State, 568 S.W.3d 914 (Mo. App. S.D. 2019), and we recite them in full herein:

“This Court reviews an order overruling a Rule 29.15 motion for postconviction relief to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous.” McFadden v. State, 553 S.W.3d 289, 298 (Mo. banc 2018) (internal quotation marks and citations omitted). “This standard is met if the appellate court is left with a definite and firm impression that a mistake has been made.” Id.

Both the motion court and this appellate court have a duty to enforce the Rule 29.15 mandatory time limits. Bearden v. State, 530 S.W.3d 504, 506 (Mo. banc 2017); Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014).[ ] Compliance with these time limits cannot be waived. Id.

If an appeal of the judgment or sentence sought to be vacated, set aside, or corrected is taken, an initial [PCR] motion must be filed within 90 days after the date the mandate of the appellate court issues affirming such judgment or sentence. Rule 29.15(b). In that scenario, an amended PCR motion

must be filed within sixty days of the earlier of: (1) the date both the mandate of the appellate court is issued and counsel is appointed or (2) the date both the mandate of the appellate court is issued and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant. The court may extend the time for filing the amended motion for one additional period not to exceed thirty days.

Rule 29.15(g). “ ‘[T]he effective date of appointment of counsel is the date on which the office of the public defender is designated[.]’ ” Stanley v. State, 420 S.W.3d 532, 540 (Mo. banc 2014) (quoting State v. White, 813 S.W.2d 862, 864 (Mo. banc 1991)).

When counsel is appointed by the court, such counsel's failure “to file either an amended motion or a statement in lieu of an amended motion within the 60-day deadline creates a presumption of abandonment.” Latham v. State, 554 S.W.3d 397, 404 (Mo. banc 2018). When a presumption of abandonment arises, “the motion court is obligated to conduct an independent inquiry to determine whether the movant was actually abandoned.” Milner v. State, 551 S.W.3d 476, 479-80 (Mo. banc 2018). “When the independent inquiry is required but not done, this Court will remand the case because the motion court is the appropriate forum to conduct such an inquiry.” Moore v. State, 458 S.W.3d 822, 826 (Mo. banc 2015). When making a required independent inquiry the motion court should

inquire not only of postconviction counsel, but ensure that movant is informed of counsel's response and given an opportunity to reply. The method of making this inquiry may be as formal or informal as the motion court deems necessary to resolve the question of abandonment by counsel, including, but not limited to, a written response and opportunity to reply, a telephone conference call, or a hearing.[ ] However, a sufficient record must be made to demonstrate on appeal that the motion court's determination on the abandonment issue is not clearly erroneous.

McDaris v. State, 843 S.W.2d 369, 371 n.1 (Mo. banc 1992) (emphasis added). In the absence of a sufficient motion court record to make that demonstration on appeal, the motion court's judgment should be reversed and the case remanded with instruction for the motion court to make an independent inquiry on the abandonment issue, which is capable of being reviewed by an appellate court. Milner, 551 S.W.3d at 480.

Borschnack, 568 at 918-19 (footnotes omitted).⁴

With these principles in mind, we turn to the case of Trapp v. State, 696 S.W.3d 890 (Mo. App. E.D. 2024), which dealt with a motion court's failure to issue findings of fact and conclusions of law regarding a movant's allegations that his circumstances fell within a recognized exception to the time limits of Rule 24.035.⁵ Id. at 894-95. We find its analysis applicable to the issue presented here of what is required of a motion court when a movant files a pro se motion out of time, and appointed counsel fails to file an amended motion or statement in lieu thereof on his behalf.

In Trapp, the movant filed his Form 40 out of time. Id. at 892-93. After the motion court appointed counsel for the movant, the movant filed an additional statement explaining why his motion was filed out of time, and he made allegations therein attempting to prove that the untimeliness was due to active interference beyond the movant's control. Id. Appointed counsel filed three virtually identical amended motions on the movant's behalf challenging each of the movant's three guilty pleas. Each of the motions contended (1) the movant's additional statement explaining why his pro se motion was not timely filed sufficiently alleged the filing was untimely due to active interference beyond the movant's control, (2) set forth six claims alleging the movant was entitled to post-conviction relief, and (3) requested an evidentiary hearing. Id. at 893. Thereafter, no activity occurred in the movant's case for over 17 months, at which point the motion court placed his case on the dismissal docket. Id. The movant requested an evidentiary hearing at that time, and asked that his case not be dismissed. Id. However, rather than hold an evidentiary hearing, the motion court dismissed the movant's amended motions for failure to prosecute without holding an evidentiary hearing and without issuing findings of fact and conclusions of law. Id.

The Eastern District of this Court held that the motion court had erred when it had dismissed the movant's amended motions without issuing findings of fact and conclusions of law. Id. at 896-97. Specifically, the court of appeals held that the movant was entitled to a hearing with findings of fact and conclusions of law because:

“[r]emand here cannot be deemed unnecessary and forgoing it may be prejudicial” because: (1) “[the movant] alleged that a recognized exception for circumstances beyond his control applied to excuse his untimely filing”; (2) “existing precedent regarding this exception is not clearly fatal to its application here”; and (3) “[the movant] has not had the opportunity to present evidence on his argument for applying that exception to this case.” Ross [v. State], 659 S.W.3d [368,] 374 (Mo. App. E.D. 2023) (internal quotations omitted).

Id. at 895-96.

Similarly, here, in his Motion to Proceed filed along with his untimely Form 40, Movant made allegations that his Form 40 was late due to:

retained counsel's illadvising [sic], abandoning and breaching the contract agreement, as was found and determined by the Office of Cief [sic] Disciplinary Counsel (“Committe”) [sic] ․ [and] appellate counsel failed Movant and his active interference was failing to inform him of the mandate [of his appeal being issued] because once he learned of the mandate, Movant filed his Form 40 less than [30] days later, ․ [and] [i]f this Court believe [sic] that additional facts need to be adduced, Movant requests a separate hearing on the timeliness of this motion.

While the motion court in this case properly appointed post-conviction counsel for Movant, the motion court never ruled on appointed counsel's request for an extension of time in which to file an amended motion. Instead, the motion court held a hearing on the State's motion to dismiss. The arguments made during the proceedings at the motion to dismiss were not under oath, no additional testimony was taken, and no statements were made and admitted into evidence in an affidavit.

That difference distinguishes this case from the case of Cable v. State, 634 S.W.3d 845 (Mo. App. S.D. 2021), wherein the motion court afforded the movant an opportunity to plead and prove at a hearing – with the assistance of counsel – that the untimeliness of his pro se motion fell within a recognized exception to the timeliness rules. While it appears that the movant in Cable had both his abandonment and his timeliness claims adjudicated at the same hearing, he nonetheless had them adjudicated at an evidentiary hearing on the record, with the assistance of counsel. Id. at 849-50. Movant here had neither of those things.

Instead, in this case, when they appeared for argument on the State's motion to dismiss, Movant's appointed counsel took full responsibility for the failure to file an amended motion on Movant's behalf, and he stated Movant had no role in the failure to file the amended motion. Appointed counsel stated that he fully intended to file an amended motion and to make an argument on Movant's behalf that would excuse Movant's untimely filing of the Pro Se Motion, and he requested that the motion court grant him an opportunity to do so. In addition, the State agreed to proceed in that fashion, stating “[s]o I think that if [Movant] does want to try to – to file his amended response, the State would permit that – or not object to that.”

The motion court nonetheless declined, stating that whether Movant's excuse for his untimely filing was justified was “an issue that's ripe for the Southern District to decide[.]” Despite not having heard any testimony under oath or even argument from Movant's appointed counsel about Movant's reasons for untimely filing his Pro Se Motion, the motion court dismissed Movant's case without an evidentiary hearing and without the assistance of counsel. The motion court found based on this limited record that Movant could not bring himself within the “active interference” exception to the timeliness requirements but did not make any independent inquiry or any findings about abandonment.

We agree with Movant that the motion court erred when it decided at this stage of the proceedings and on this limited record that Movant had not pled or proved that his untimely Pro Se motion fell within an exception to the timeliness rules. Furthermore, because post-conviction counsel was appointed, and appointed counsel failed to file an amended motion or a statement in lieu thereof, the motion court erred when it failed to conduct an independent inquiry into abandonment.

Because Movant did not have the assistance of appointed counsel, Movant was denied the opportunity to be assisted by counsel to plead and prove, either through an abandonment motion or through an amended motion, that the untimely filing of his Pro Se Motion fell within a recognized exception to the Rule 29.15 time limits. Cable, 634 S.W.3d at 849-50. Unlike the motion court in Cable, the motion court here did not allow appointed counsel to file an amended motion and to present evidence to attempt to prove that his Pro Se Motion fell within a recognized exception to the Rule 29.15 time limits. Nor did the motion court conduct an independent inquiry on the record into abandonment.

Our high court has acknowledged that, while the movant remains responsible for timely filing the pro se motion, one way in which he can prove the timeliness of an otherwise untimely original motion is through an amended motion, which requires him to depend on counsel. Vogl v. State, 437 S.W.3d 218, 227 (Mo. banc 2018). In Vogl, the motion court dismissed the movant's post-conviction motion without an independent inquiry into abandonment and based solely on appointed counsel's statements in his motion to rescind his appointment, wherein appointed counsel stated that movant's pro se motion had been filed out of time. Id. at 220. Six days later, the motion court entered its order rescinding its previous order appointing counsel and dismissed the case with prejudice because it found that movant's motion had not been timely filed. Id. at 221.

Our high court held that appointed post-conviction counsel had abandoned the movant by failing to investigate the untimeliness of his pro se post-conviction motion, and ultimately held that the motion court “clearly erred in dismissing [the movant's] motion.” Id. at 221, 230. We recite our high court's conclusion on this issue because it directly applies to the facts of this case:

In post-conviction proceedings, an essential element of a movant's claim in attacking the movant's conviction and sentence is that the movant's original pro se post-conviction motion was timely filed. If a timely filed motion appears to be filed untimely due to misfiling by the circuit court,[6] a pro se movant may allege facts that prove the misfiling and the timeliness of the original motion in an amended motion filed by appointed postconviction counsel. When the record shows that appointed counsel did not file either an amended motion or a statement setting out facts demonstrating what actions counsel took to ensure that no amended motion was needed, there is a presumption of abandonment by appointed counsel. Because the record in Mr. Vogl's case shows that no amended motion or statement was filed by appointed counsel, it raises the presumption of abandonment, and the motion court erred in not conducting an independent inquiry.

Id. at 230.

Our high court stated in a footnote, as applicable here:

It is possible that a movant would not be aware that movant's circumstances fall within a recognized exception to the filing time limits of the post-conviction rules at the time that the pro se motion was filed. Accordingly, a movant is given the opportunity to raise those allegations in an amended motion.

Id. at 226, n.12.

In this case, Movant's appointed counsel stated that he intended to file an amended motion on Movant's behalf which under existing case law arguably would excuse Movant's untimely filing of his Pro Se Motion and that, through no fault of Movant's own, appointed counsel did not file such a motion. Because the facts of this case raise a presumption of abandonment, and the motion court failed to conduct an independent inquiry into the abandonment issue, the motion court's ruling in this case was clearly erroneous. Id. at 230.

On remand, the motion court must hold an abandonment hearing and determine if Movant has been abandoned. Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991). The motion court shall make findings on this point. Id. If the motion court determines that Movant has been abandoned, the motion court “shall appoint new counsel allowing time, if necessary, to amend the pro se motion as permitted under Rule 29.15(f), and the cause shall proceed anew according to the provisions of the rule.” Id. Crucially, the independent inquiry into the issue of abandonment must occur in a manner that allows for appellate review to determine whether the finding was clearly erroneous. Milner v. State, 551 S.W.3d 476, 480 (Mo. banc 2018).

While we acknowledge that Movant's ability to prove his allegations in his Pro Se Motion which may bring him within the “third party interference” exception to the timeliness rule presents an “exceedingly difficult set of circumstances[,]” that simply is not for this Court to decide at this juncture, as Movant was not given an opportunity at the motion court to formulate his arguments on the record with the assistance of counsel. Trapp, 696 S.W.3d at 896-97 (quoting Ross, 659 S.W.3d at 375).

The case is reversed and remanded to the motion court with directions to proceed in accordance with the directions stated herein.

FOOTNOTES

1.   All rule references are to Missouri Court Rules (2022).

2.   The motion court characterized Movant's claims as abandonment by post-conviction counsel and active interference by post-conviction counsel.

3.   The State cited Moore in its Motion to Dismiss, stating the Supreme Court “held that appellate counsel's failure to inform movant that the mandate from his appeal had been issued did not excuse movant's failure to timely file post-conviction motion.” See Moore, 328 S.W.3d at 702-03.

4.   The Supreme Court of Missouri's recent decision in Nelson v. State, reiterated that “[r]emand to the motion court for an abandonment inquiry is the appropriate disposition when an ‘independent inquiry is required but not done.’ ” 719 S.W.3d 729, 735 (Mo. banc 2025) (quoting Moore v. State, 458 S.W.3d 822, 826 & n.3 (Mo. banc 2015)). However, the Court concluded that, in limited circumstances, remand to the motion court was unnecessary. Id. In Nelson, counsel included a “statement of timeliness” in the amended motion which acknowledged that counsel applied the wrong version of the rule and miscalculated the deadline for filing the amended motion. Id. Based on the factual and procedural posture in the case, “remand [wa]s not required because the record unmistakably demonstrate[d] appointed counsel abandoned [the movant] by failing to timely file an amended motion, and [this failure was] not due to any negligence or intentional failure to act by [the movant].” Further, the Supreme Court noted that after the motion court erroneously concluded the amended motion was timely it held an evidentiary hearing on the claims raised therein and proceeded to make findings of facts and conclusions of law denying all said claims. Id. The Supreme Court concluded:Rather than waste time and effort remanding for abandonment hearings when abandonment is clear on the face of the record, or remanding for evidentiary hearings on claims that already have been heard at an evidentiary hearing and adjudicated, the only reasonable conclusion is for this Court to reach the merits of Nelson's ․ appeal[ ] without further delay.The limited circumstances in Nelson allowing the Court to reach the merits of the appeal and forgo remand are not present in this case.

5.   As stated in Borschnack, “[c]ase law interpreting a provision that is identical in Rules 24.035 and 29.15 applies equally in proceedings under either rule.” 568 S.W.3d at 918 n.4.

6.   In Vogl, the movant alleged that the circuit court had misfiled his motion. Id. at 227. The burden of alleging and proving that the motion was timely filed can also be met by a timely filing with a file-stamp to prove the same or, as in this case, alleging in the original pro se motion and proving by a preponderance of the evidence that the movant's circumstances fall within a recognized exception to the time limits. Id. at 226.

JENNIFER R. GROWCOCK, C.J. – OPINION AUTHOR

JACK A. L. GOODMAN, J. – CONCURS BECKY J. WEST, J. – CONCURS