KEVIN LAWAYNE ANDERSON v. STATE OF MISSOURI (2026)

Kevin Lawayne Anderson (“Movant”) presents a single point on appeal contending the circuit court clearly erred in denying, after an evidentiary hearing, the claim raised in his Rule 24.035 amended motion for post-conviction relief that his attorney provided ineffective assistance of counsel by failing to file a motion for a change of venue as a matter of right under Rule 32.03 within ten days of Movant's initial plea of not guilty.¹ Finding no clear error, we affirm.

Background

The State alleged Movant committed the offenses of: stealing, in violation of § 570.030, (Count 1); three counts of second-degree assault, in violation of § 565.052, (Counts 2-4); first-degree property damage, in violation of § 569.100, (Count 5); driving while intoxicated resulting in physical injury, in violation of § 577.010, (Count 6); and driving while license revoked, in violation of § 302.321, (Count 7). All charges were for events occurring on June 21-22, 2019. Movant pled not guilty on June 26, 2019. A public defender (“Initial Counsel”) entered an appearance on July 8, 2019.²

On September 11, 2019, Movant waived his preliminary hearing in front of Associate Circuit Judge S. Rob Barker. That same day, the State and Movant filed a stipulation agreeing that Judge Barker would continue as judge in the case. Trial was scheduled for September 22, 2022. The presiding judge of Mississippi County assigned Judge Zac Horack to the case on August 22, 2022, due to the unexpected emergency absence of Judge Barker. Movant did not file a motion for change of judge.

On September 21, 2022, under an agreement with the State, Counts 1-3 and Count 7 were dismissed, and Movant entered guilty pleas to Counts 4-6. The State also withdrew its motions for prior and persistent status. The plea court sentenced Movant to six years in the Missouri Department of Corrections (“DOC”) for assault in the second degree (Count 4), six years in DOC for property damage (Count 5), and four years in DOC for driving while intoxicated (Count 6). In addition, the plea court held that Counts 4 and 5 were to run consecutively with one another, and Count 6 would run concurrently, for a total of 12 years in DOC.

Movant filed his pro se Rule 24.035 motion for post-conviction relief on December 15, 2022. Motion Counsel was appointed the same day. The guilty plea and sentencing transcript was filed in the underlying criminal case on February 22, 2023. See Rule 24.03(d) (requiring the transcript to be filed as part of the permanent record in the criminal case). That same transcript was filed in the post-conviction case on March 10, 2023. The amended motion was filed on July 7, 2023. During the evidentiary hearing, all counsel and the motion court agreed that the amended motion was timely filed and, thus, did not conduct an abandonment hearing. The findings of fact and conclusions of law also found both motions were timely filed.

Before we can address the merits of this appeal, we first must determine whether Movant's pro se and amended motions for post-conviction relief were timely filed. See Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2015). Under the Supreme Court of Missouri's holding in Scott v. State, 719 S.W.3d 723, 727 (Mo. banc 2025), the version of Rule 24.035 in effect at the time of Movant's sentencing on October 22, 2022, controls the timetable for filing for post-conviction relief. The version of Rule 24.035 in effect on that date gave Movant 180 days from sentencing to file his pro se post-conviction motion. Rule 24.035(b). That motion was filed 55 days after he was sentenced, so it was timely. Because counsel was already appointed, the amended motion had to be filed within 120 days of February 22, 2023, which was when the complete transcript was filed in the criminal case. See Rule 24.035(g). Thus, the amended motion was due on or before June 22, 2023. Because it was not filed until July 7, 2023, it was untimely. The motion court's contrary finding as to timeliness is clearly erroneous. However, in Movant's brief, his appellate counsel stated:

Here, abandonment is clear on the record as there is evidence [Motion Counsel] incorrectly calculated the due date from when the guilty plea and sentencing transcript was filed in the post-conviction case and not the earlier date when it was filed in the underlying criminal case. It is clear [Motion Counsel] believed he was filing a timely amended motion. Nothing [Movant] did caused the amended motion to be late. Therefore, this Court should reach the merits of [Movant's] appeal without further delay.

(Internal citations omitted.)

We agree. Although Movant was abandoned, no remand for an abandonment hearing is required. When abandonment is “clear on the face of the record” and the claims in the amended motion have been heard at an evidentiary hearing and adjudicated, we will review the merits of those claims “without further delay.” Nelson v. State, 719 S.W.3d 729, 735 (Mo. banc 2025); Sauter v. State, 719 S.W.3d 143, 145 (Mo. App. S.D. 2025).

As relevant in this appeal, the amended motion contended that Initial Counsel provided ineffective assistance of counsel by failing to file a motion for change of venue as a matter of right under Rule 32.03 within ten days of Movant's initial plea of not guilty.

In this case, the deadline to file a motion for change of venue as a matter of right was July 8, 2019. At the evidentiary hearing, Initial Counsel testified that she was “very aware” of the rules regarding change of venue and that such motion must be filed within ten days of the initial plea. She also testified that by the time Movant requested a change of venue, the time to file a motion had long expired. According to Initial Counsel, Movant did not tell her that the Mississippi County Sheriff and Victim were related until “much later,” when the case had already been transferred to circuit court. Initial Counsel testified that Movant:

was adamant that he wanted to keep Judge Barker, which is why we [waived the] preliminary hearing specifically to stipulate to Judge Barker, because [Movant] said Judge Barker had always been good to him because of new or other cases that he had in the county, and that [Movant] wanted Judge Barker as his judge.

Initial Counsel further testified she believed it was possible to select a jury pool in Mississippi County that had no connection to the sheriff, Victim, or Movant. Initial Counsel stated she had tried a “rather high[-]profile case” in Mississippi County before and had been “able to find a jury who said they had never heard anything about it, wasn't related, didn't know anybody.”

Movant testified at the evidentiary hearing that he told Initial Counsel when she began representing him that the sheriff and Victim were related and that he wanted the case moved out of Mississippi County. In addition, Movant acknowledged that he recalled waiving his right to a preliminary hearing, and requesting and signing a stipulation to keep Judge Barker on his case. Movant testified that he wanted to keep Judge Barker because he believed he was a fair judge.

On February 18, 2025, the motion court denied Movant's motion for post-conviction relief. Specifically, the motion court found Movant failed to prevail on his allegations that Initial Counsel was ineffective. The motion court also found there was an abundance of evidence that Movant entered the guilty plea knowingly and voluntarily, regardless of his subsequent venue complaint. The motion court noted that at his guilty plea hearing, Movant made several remarks indicating that he was satisfied with all his attorneys’ services, including Initial Counsel; had not been threatened to plead guilty; and that his attorneys answered any questions he had.

Principles of Review

Appellate review of the motion court's denial of Movant's post-conviction motion under Rule 24.035 is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k). “A motion court's findings and conclusions are clearly erroneous only if the Court, after reviewing the entire record, is left with the definite and firm impression that a mistake has been made.” Gehrke v. State, 280 S.W.3d 54, 56-57 (Mo. banc 2009). As relevant here, “[i]f conviction results from a guilty plea, any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowledge with which the plea was made.” State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997); Davis v. State, 719 S.W.3d 138, 141 (Mo. App. S.D. 2025).

Legal Analysis

Movant's single point states as follows:

The motion court clearly erred when it denied [Movant's] Rule 24.035 amended post-conviction motion to vacate, set aside, or correct judgment and sentence, because [Movant] was denied his rights to a fair trial, jury trial, due process of law, and effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I, sections 10, 18(a), and 22(a) of the Missouri Constitution, in that [Initial Counsel] was ineffective for failing to file a motion for change of venue under Rule 32.03 within ten days of [Movant's] initial plea of not guilty. [Initial Counsel's] ineffectiveness prejudiced [Movant] because the motion for change of venue would have been granted as of right and he then would not have pleaded guilty but would have insisted on a jury trial.

We disagree. Initial Counsel was not ineffective in failing to ask for a change of venue as a matter of right under Rule 32.03 ³ . “A decision not to seek a change of venue demonstrates no incompetence by counsel unless it is manifestly wrong.” Mann v. State, 245 S.W.3d 897, 905 (Mo. App. S.D. 2008) (internal citations omitted). The motion court believed Initial Counsel's testimony that Movant did not request a change of venue until long after the time limit had expired. Similarly, Movant did not advise Initial Counsel of the concerned familial relationship until long after the time limit ran. Movant himself testified that he wanted to keep Judge Barker in the case and Initial Counsel accomplished that. Our review of the record supports the motion court's conclusion that it was “Movant's insistence – not [Initial Counsel's] – that the case remain in Mississippi County.” Movant presented no evidence that he could not receive a fair trial in Mississippi County. The record is clear that Movant was satisfied with Initial Counsel's services at the time of the plea. This Court recently addressed a similar issue in Davis, and found no clear error. “[T]he motion court is free to believe or disbelieve any portion of the testimony, and we defer to the motion court's credibility determinations.” Spicher v. State, 547 S.W.3d 579, 583 (Mo. App. S.D. 2018). Movant's point is denied.

Conclusion

We affirm the motion court's denial of post-conviction relief.

FOOTNOTES

1.   Unless otherwise indicated, all rule references are to Missouri Court Rules (2023). All statutory references are to RSMo (2016).

2.   Movant was subsequently represented by private counsel from March 14, 2020, through June 25, 2021. At his guilty plea, Movant was represented by a different public defender (“Plea Counsel”).

3.   We note that on September 14, 2022, Movant filed a motion for a change of venue for cause pursuant to Rule 32.04, alleging that the inhabitants of Mississippi County were prejudiced against Movant. That motion was denied on September 15, 2022, and is not included as part of Movant's appeal.

BRYAN E. NICKELL, J. – OPINION AUTHOR

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