JOHNSON v. STATE (2026)

Terrance Lamonte Johnson (“Movant”) appeals the judgment of the Circuit Court of Pemiscot County, Missouri (“the motion court”), denying his Rule 24.035 ¹ amended motion for post-conviction relief (“the Amended Motion”). On appeal, Movant presents two points of alleged error. Because the Amended Motion was filed untimely, the motion court did not conduct an independent abandonment inquiry, and the factual scenario presented in this case does not directly fall within any of the exceptions heretofore set out by the Supreme Court of Missouri for conducting an abandonment inquiry, we reverse and remand this case for the motion court to conduct the requisite abandonment inquiry.

Factual Background and Procedural History

The State initially charged Movant with first-degree murder, first-degree assault, second-degree burglary, tampering with physical evidence in a felony prosecution, first-degree property damage, and two counts of armed criminal action. However, pursuant to a plea agreement, the State amended the first-degree murder charge to second-degree murder and dismissed the remaining charges. Under the plea agreement, the State also agreed to recommend a sentence of 25 years’ imprisonment, and Movant received that sentence at sentencing on January 30, 2020.

Movant timely filed a pro se motion for post-conviction relief, pursuant to Rule 24.035, on July 20, 2020. The motion court appointed post-conviction counsel on July 20, 2020, and the complete transcript of the guilty plea and sentencing hearing was filed on August 17, 2020, making the Amended Motion due 60 days afterwards, or on October 16, 2020. Rule 24.035(g). The rule also allowed for two extensions of 30 days each. Id. On September 22, 2020, appointed counsel timely requested one 30-day extension, which the motion court granted, making the Amended Motion due on November 16, 2020.

On November 13, 2020, three days before the Amended Motion was due, appointed counsel timely requested a second 30-day extension. The motion court failed to rule on or grant the motion for extension until November 25, 2020, nine days after the deadline for filing the Amended Motion had already passed, rendering the extension ineffective.² Because the motion court's order granting the extension was ineffective, appointed counsel's Amended Motion remained due on November 16, 2020.

Under the mistaken belief that her request for a second extension had been timely granted, appointed counsel did not file the Amended Motion until December 15, 2020. The Amended Motion would have been timely filed had the motion court's order granting the second 30-day extension been effective. However, because that order was entered after the time had run, and was therefore ineffective, appointed counsel's Amended Motion was filed 29 days late.

After appointed counsel filed the Amended Motion on December 15, 2020, the record on appeal shows no activity occurring on this case until December 22, 2021 – over one year later – when appointed counsel sent a letter to the motion court inquiring about the status of the case. Nothing else occurred, according to the record filed on appeal, until March of 2022, when appointed counsel filed notices of deposition. Still, during 2022, 2023, and 2024, the only filings in the record on appeal constitute notices of deposition and filings of deposition transcripts.

It was not until March 11, 2025, that appointed counsel filed a motion to permit the untimely filing of the Amended Motion pursuant to Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991) (“the Sanders Motion”). In the Sanders Motion, appointed counsel explained the situation detailed above that led to the untimely filing of the Amended Motion. Appointed counsel stated that the late filing was not Movant's fault, but she did not file an affidavit with the Sanders Motion. Notably, appointed counsel's Sanders Motion was completely silent as to why appointed counsel waited to file the Sanders Motion until nearly five years after the filing of the Amended Motion.

On May 14, 2025, the motion court held a hearing on the Sanders Motion. No parties or attorneys were under oath, but the attorneys discussed the Sanders Motion on the record. The motion court stated that it had reviewed the Sanders Motion and asked appointed counsel if the issue was that the court prior to the motion court had failed to grant appointed counsel an extension during the applicable time period. Appointed counsel agreed that that is what had occurred, and the motion court asked if the State had any objection to the Amended Motion being treated as timely filed. The State said no, at which point the motion court stated the following:

Okay. All right. [Appointed counsel], I think, based upon the timelines [sic] of [the Amended Motion] and [Movant's] position[3] there, we will make no finding, at this time, as to any concerns for abandonment and allow you to proceed on with [the Amended Motion].

(Emphasis added.)

The motion court ultimately denied Movant relief on all claims asserted in the Amended Motion.⁴ The motion court's judgment denying Movant relief on the Amended Motion is silent as to any discussion about the issue of abandonment.

Abandonment and Timeliness

“Before reaching the merits of an appeal, we must first examine the timeliness of the amended motion for post-conviction relief.” Nussbaum v. State, 665 S.W.3d 414, 418 (Mo. App. W.D. 2023).

Our courts have repeatedly made clear that the deadlines for filing a post-conviction motion are mandatory and:

When post-conviction counsel is appointed to an indigent movant, an amended motion seeking post-conviction relief that is filed beyond the deadline can constitute “abandonment” of the movant. Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015);[ ] Harley v. State, 633 S.W.3d 912, 916 (Mo. App. E.D. 2021). If an amended motion seeking relief is untimely, the motion court is required to conduct an independent inquiry into the reason for the untimeliness to determine if abandonment occurred before considering the merits of the claims and evidence in the amended motion. Moore, 458 S.W.3d at 825; Mack [v. State], 635 S.W.3d [607,] 611 [(Mo. App. W.D. 2021)]; Harley, 633 S.W.3d at 916.

Nussbaum, 665 S.W.3d at 419 (footnote omitted).⁵

Here, even though it is undisputed that the Amended Motion was untimely since the second request for extension was not ruled on in time, the motion court explicitly stated that it would not conduct an abandonment inquiry. Not only must the motion court conduct an abandonment inquiry under such circumstances, but

“[t]he motion court must also make a sufficient record of the abandonment inquiry.” [Harley, 633 S.W.3d at 917.] “Upon review of the record, if this Court determines there has been no independent inquiry into abandonment, then we must reverse and remand for the circuit court to conduct the inquiry.” Id. (quoting Brown v. State, 602 S.W.3d 846, 850 (Mo. App. E.D. 2020)).

Smith v. State, 697 S.W.3d 617, 619 (Mo. App. E.D. 2024).

There are specific exceptions to the motion court's duty to conduct an abandonment inquiry:

First, the Childers exception allows appellate courts to proceed without remanding when all of the claims in a movant's pro se motion have been incorporated into and adjudicated along with the claims in the amended motion. Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015). The second is when post-conviction counsel files an affidavit or other sworn statement asserting that the late filing of the amended motion was not the movant's fault but was the result of counsel's late receipt of the notice of appointment and counsel's heavy caseload. Gale v. State, 508 S.W.3d 128, 130 (Mo. App. S.D. 2016).

Id. at 620 n.1. Our high court has also carved out an exception to the rule requiring an abandonment hearing when appointed counsel commits a clerical error in calculating the due date for an amended motion by using the wrong version of the rule and files the amended motion untimely as a result. Young v. State, 738 S.W.3d 94, 100 (Mo. banc 2026); Nelson v. State, 719 S.W.3d 729, 735 (Mo. banc 2025). See also Gray v. State, 726 S.W.3d 112, 116 (Mo. App. S.D. 2025) (declining to remand to the motion court for an abandonment hearing where the record demonstrated the untimeliness of the amended motion was due to counsel's miscalculation of the due date); and Sauter v. State, 719 S.W.3d 143, 147 (Mo. App. S.D. 2025) (citing Nelson for the proposition that remand is not required when the record plainly shows that counsel's failures resulted from incorrectly determining which version of the rules to follow). None of those circumstances exist in this case.

While the exception created by Nelson and Young could potentially be extended by our high court to apply to this situation, our review of those cases leads us to believe the exception has not yet been extended this far, and we decline to do so here. Young, relying on Nelson, held that “[w]hen the amended motion shows appointed counsel erred in calculating the due date for the amended motion by using the wrong version of [the rule], no further facts are needed, and the conclusion of abandonment is inescapable.” Young, 738 S.W.3d at 100. This case does not concern appointed counsel's application of the wrong version of the rule and therefore a miscalculated deadline, and Young itself noted that “[i]f the motion court did not conduct an abandonment inquiry, this Court ordinarily will remand for it to do so rather than allow appellate courts to make such determinations in the first instance.” Id.

Rather, we view this record on appeal more analogous to that presented in Nussbaum, which requires the motion court to “inquire into counsel's claims and the possibility that the movant's negligence or failure to act caused the untimely filing of the amended motion.” 665 S.W.3d at 420 (quoting Harley, 633 S.W.3d at 918). In Nussbaum, “because the motion court did not grant [Movant] an additional thirty days to file his amended motion until after the deadline for filing the amended motion had passed, the amended motion was untimely, and the cause must be remanded for an abandonment inquiry.” Id. at 418. See also Jones, 643 S.W.3d at 921-22; Clemmons, 785 S.W.2d at 527; and Richard v. State, 487 S.W.3d 504, 506-07 (Mo. App. E.D. 2016). The result of the abandonment inquiry determines which motion the motion court should adjudicate – the original motion or the amended motion. Moore, 458 S.W.3d at 826. If the motion court finds that Movant has been abandoned, the motion court is directed to permit the untimely filing. Id. If, however, the motion court finds that Movant has not been abandoned, the motion court should not permit the filing of the Amended Motion and should proceed with Movant's pro se motion. Id. at 825.

For the reasons explained herein, we decline to extend the exceptions to the rule requiring an abandonment hearing to this factual scenario, as that task is more appropriately suited to our high court. As Movant's Amended Motion was untimely because the second request for an extension was not ruled on in time, the motion court had a duty to undertake an independent inquiry into the reasons for the late filing and to make a sufficient record of that inquiry. The motion court did not do so, and we must reverse and remand to the motion court for that inquiry to take place.

Conclusion

We reverse and remand this case to the motion court for an independent inquiry into whether Movant was abandoned by appointed counsel and for further proceedings consistent with the outcome of the motion court's abandonment inquiry and this opinion.

FOOTNOTES

1.   All references are to Missouri Court Rules (2018), which was the version of the rule in effect at the time that Movant was sentenced.

2.   See Jones v. State, 643 S.W.3d 918, 921 (Mo. App. E.D. 2022) (citing Clemmons v. State, 785 S.W.2d 524, 527 (Mo. banc 1990)) (holding that “any motion for an extension of time ․ must be made and granted within the time that the amended motion is due”).

3.   The motion court had asked Movant if he had any concern about appointed counsel continuing to represent him in this matter, and he said he did not.

4.   We note that the claims in the Amended Motion differed from the claims in Movant's pro se motion. In his pro se motion, Movant claimed that his counsel was ineffective for failing to contact witnesses in the case. In the Amended Motion, Movant claimed that his attorneys were ineffective for pressuring him to take the plea agreement with the State, and for failing to request independent fingerprint and/or DNA analysis on several items of physical evidence in the State's possession before advising Movant to plead guilty pursuant to the plea agreement with the State.

5.   “Case law interpreting a provision that is identical in Rules 24.035 and 29.15 applies equally in proceedings under either rule.” Bauer v. State, 734 S.W.3d 825, 831 n.5 (Mo. App. S.D. 2026) (quoting Borschnack v. State, 568 S.W.3d 914, 918 n.4 (Mo. App. S.D. 2019)).

JENNIFER R. GROWCOCK, J.

JACK A. L. GOODMAN, J. – CONCURS BRYAN E. NICKELL, J. – CONCURS