COLBY SANDERS v. STATE OF MISSOURI

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Missouri Court of Appeals, Southern District.

COLBY L. SANDERS, Movant-Appellant, v. STATE OF MISSOURI, Respondent-Respondent.

No. SD34428

Decided: February 16, 2017

Attorney for Appellant – Mark A. Grothoff of Columbia, MO Attorneys for Respondent – Chris Koster (Attorney General), Shaun J. Mackelprang of Jefferson City, MO

Colby L. Sanders (“Movant”) appeals from the motion court's denial of his Rule 29.15 1 motion after an evidentiary hearing. The State contends that the amended motion is not timely. The procedural facts of this case fit within the parameters of an issue pending before the Supreme Court of Missouri. We transfer this case to the Supreme Court pursuant to Rule 83.02.

• This Court's mandate in Movant's direct appeal was issued on December 11, 2014. See State v. Sanders, No. SD32767. Movant's initial post-conviction motion was due by March 11, 2015. Rule 29.15(b).

• On March 3, 2015, Movant timely filed a pro se motion pursuant to Rule 29.15. On March 5, 2015, the motion court issued an “Order of Notification” to the public defender. This notification has been construed by our courts as constituting an appointment of counsel. See Johnson v. State, 491 S.W.3d 310, 312-313 (Mo.App. E.D. 2016) (“counsel was appointed ․ when the motion court entered an order notifying the Missouri State Public Defender's office that [movant] had filed a post-conviction relief motion”); see also Stanley v. State, 420 S.W.3d 532, 540 (Mo. banc 2014) (“ ‘[T]he effective date of appointment of counsel is the date on which the office of the public defender is designated rather than the date of counsel's entry of appearance.’ ”) (quoting State v. White, 813 S.W.2d 862, 864 (Mo. banc 1991)); Hopkins v. State, 499 S.W.3d at 318 (“the order of notification in this case [was] an appointment of counsel”). If it was a proper appointment of counsel, Movant's amended motion was due by May 4, 2015. Rule 29.15(g).

• On April 29, 2015, a public defender entered her appearance and requested an extension of time to file an amended motion. The motion court granted a thirty-day extension of time; however, the order was signed on April 29, 2015, allowing a thirty-day extension, with additional language granting the amended motion “ordered due on July 28, 2015.” If the order of notification starts the time for the filing of the amended motion, Movant's amended motion was due, after extension, by June 3, 2015.2

• Movant did not file his amended motion until July 28, 2015. Consequently, if the order of notification is an appointment of counsel, the motion would not be timely.

Whether a notification to the public defender constitutes an appointment of counsel is an issue pending in the Supreme Court of Missouri in Creighton v. State, No. SC95527 (argued October 5, 2016); and Hopkins v. State, No. SC95916 (argued December 13, 2016). In Hopkins v. State, 499 S.W.3d 317 (Mo.App. S.D. 2016), after holding that “the order of notification in this case [was] an appointment of counsel,” this Court transferred the case to the Supreme Court of Missouri for further review. Id. at 318-319. The same issue is before us once again. As in Hopkins, id. at 319, we reverse and remand for further proceedings as required by Moore v. State, 458 S.W.3d 822 (Mo. banc 2015); however, in light of the pending cases before the Supreme Court, we order that this case be transferred to the Supreme Court pursuant to Rule 83.02.

FOOTNOTES

1.   All rule references are to Missouri Court Rules (2016).

2.   Rule 29.15(g) provides, in part, “The court may extend the time for filing the amended motion for one additional period not to exceed thirty days.”

Nancy Steffen Rahmeyer, J. - Opinion Author

Gary W. Lynch, P.J. - Concurs Daniel E. Scott, J. - Concurs