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Date: 08-07-2018

Case Style:

Joshua A. Perkins vs. State of Missouri

Case Number: WD80745

Judge: Cynthia L. Martin

Court: MISSOURI COURT OF APPEALS WESTERN DISTRICT

Plaintiff's Attorney: Robert J. Bartholomew, Jr.

Defendant's Attorney: Carol D. Jansen

Description: The State charged Perkins with the class A felony of assault of a corrections officer
in the first degree (Count I) and the class B felony of committing violence against an
employee of the Department of Corrections (Count II). Perkins appeared with counsel at
a plea and sentencing hearing on May 5, 2016. At the hearing, the State initially announced
the agreed upon sentence to be concurrent 20-year terms of imprisonment on each count,
to run consecutively with any sentence Perkins was currently serving. Perkins stated that
he understood the State sought a 20-year term on Count I.
Later in the hearing, the State offered to drop Count II if Perkins pleaded guilty to
Count I for a 20-year term of imprisonment consecutive with the time he was currently
serving. Perkins agreed. The plea court reiterated the State's offer of a 20-year sentence
on Count I, explaining to Perkins he had the right to decline the offer and go to trial. Perkins
responded that he did not want to go to trial. The plea court found Perkins's guilty plea
was freely and voluntarily entered with an understanding of the nature of the charge and
the range of punishment. The plea court also explained to Perkins that there would not be
a sentencing assessment report "because we've already agreed with what the sentence is
going to be." The plea court sentenced Perkins to a 20-year term of imprisonment on Count
I, to run consecutively with any existing sentence. The plea court did not advise Perkins
of the mandatory minimum and maximum penalties for Count I. Perkins did not appeal
the judgment of conviction and sentence.
Perkins filed a timely pro se motion for post-conviction relief on June 22, 2016.
When prompted to list all known claims for vacating, setting aside, or correcting his
conviction and sentence, Perkins identified no known claims, and instead wrote "To be
amended by appointed counsel." The motion court appointed the public defender as
counsel for Perkins. The transcript of Perkins's guilty plea and sentencing was filed on
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July 29, 2016. By operation of Rule 24.035(g),1 any amended motion was due by
September 27, 2016.
On September 27, 2016, appointed counsel filed a statement in lieu of an amended
motion pursuant to Rule 24.035(e). Counsel attested that he had reviewed plea counsel's
files, the transcript from Perkins's guilty plea and sentencing, Perkins's pro se motion, and
correspondence from Perkins. Based on this review, appointed counsel determined that
there were no claims to be raised in an amended motion. Counsel also stated that he
provided a copy of the statement to Perkins prior to filing.
On October 3, 2016, within ten days of appointed counsel's filing of the statement
in lieu of an amended motion, Perkins filed a motion requesting an extension of time to file
an amended motion, and also filed a pro se amended motion. Perkins's amended motion
asserted several claims for post-conviction relief from his underlying guilty plea, but did
not claim abandonment by appointed counsel or otherwise address appointed counsel's
statement in lieu of an amended motion. Relevant to this appeal, Perkins's pro se amended
motion alleged that the plea court failed to advise him of the minimum and maximum
sentences he could receive, and that he would have more than likely gone to trial had he
known the range of punishment.
On October 13, 2016, the motion court granted Perkins's motion for an extension of
time to file an amended motion. Following an evidentiary hearing, the motion court issued
findings of fact and conclusions of law on Perkins's pro se amended motion. The motion

1All references to rules are to Missouri Court Rules, Volume I -- State, 2016 unless otherwise indicated.
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court's judgment held that Perkins's amended motion "was filed within the time constraints
of his Motion for Extension of Time." On Perkins's claim that his plea was involuntary
because the plea court failed to inform him of the range of punishment, the motion court
found that Perkins received the agreed upon sentence established by his plea agreement
with the State. The motion court also found that Perkins understood the punishment he
would receive per the plea agreement, and that he repeatedly stated he did not want to go
to trial. Accordingly, the motion court held that Perkins was not prejudiced by the plea
court's failure to inform him of the range of punishment. The motion court denied all other
claims in Perkins's pro se amended motion, none of which are the subject of this appeal.
This timely appeal followed.
Standard of Review
"[R]eview of a denial of a post-conviction motion under Rule 24.035 is limited to a
determination of whether the motion court's findings of fact and conclusions of law are
clearly erroneous." Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). "The motion
court's findings and conclusions are clearly erroneous only if, after review of the record,
the appellate court is left with the definite and firm impression that a mistake has been
made." Id. "We presume that the motion court's findings and conclusions are correct, and
defer to the motion court's determinations of credibility." Simmons v. State, 502 S.W.3d
739, 741 (Mo. App. W.D. 2016) (quoting Porter v. State, 480 S.W.3d 455, 457 (Mo. App.
W.D. 2016)). "Even if the stated reason for a [motion] court's ruling is incorrect, the
judgment should be affirmed if the judgment is sustainable on other grounds." Swallow v.
State, 398 S.W.3d 1, 3 (Mo. banc 2013).
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Analysis
Perkins asserts two points on appeal. In Point One, Perkins argues that the motion
court clearly erred in failing to conduct an abandonment hearing following appointed
counsel's filing of a statement in lieu of an amended motion. In Point Two, Perkins
maintains that the motion court clearly erred in denying his claim that his plea was
involuntary because the plea court failed to inform him of the range of punishment.
Point One
In his first point on appeal, Perkins contends that the record does not demonstrate
that appointed counsel satisfied the requirements of Rule 24.035(e), requiring the motion
court to conduct an abandonment analysis. Perkins claims that appointed counsel failed to
fulfill his obligations under Rule 24.035(e) because counsel did not personally ask or
discuss with Perkins whether the pro se motion alleged all claims known to him.
Pursuant to Rule 24.035(e), when counsel is appointed to represent a post
conviction movant, counsel "shall ascertain whether sufficient facts supporting the claims
are asserted in the [pro se] motion and whether the movant has included all claims known
to the movant as a basis for attacking the judgment and sentence." Following this
investigation, "appointed counsel must file either an amended motion to compensate for
any deficiencies in the pro se motion or, in the alternative, a statement explaining the
actions counsel took to ensure that no amended motion is needed." Vogl v. State, 437
S.W.3d 218, 226 (Mo. banc 2014). "If counsel determines that no amended motion shall
be filed, counsel shall file a statement setting out facts demonstrating what actions were
taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and
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(2) all claims known to the movant are alleged in the pro se motion." Rule 24.035(e). In
addition, "[t]he statement shall be presented to the movant prior to filing." Rule 24.035(e).
"If post-conviction counsel fails to comply with the provisions of the Rule, it raises
a presumption that he has abandoned the movant." Scott v. State, 472 S.W.3d 593, 596
(Mo. App. W.D. 2015). "[W]hen the record raises a presumption of abandonment because
appointed counsel has failed to comply with the requirements in Rule 24.035(e) . . . a
motion court must conduct a sufficient independent inquiry of a post-conviction movant's
claim of abandonment." Vogl, 437 S.W.3d at 229. But when the record refutes a claim of
abandonment, "no independent inquiry is required of the motion court." Id. A claim of
abandonment is refuted by the record, such that no inquiry is required, when appointed
counsel complies with Rule 24.035(e) by "filing either an amended motion or a statement
setting out facts that demonstrate the actions that were taken to ensure that an amended
motion is not needed." Id. at 228. "A decision by [post-conviction] counsel to file a
statement in lieu of an amended motion, as permitted by Rule 24.035(e), does not, in itself,
constitute abandonment." Scott, 472 S.W.3d at 597.
Here, appointed counsel filed a statement in lieu of an amended motion in the
manner required by Rule 24.035(e). Appointed counsel's statement in lieu advised that
appointed counsel had ascertained "that there are no claims to be raised in an amended
motion, and there are no additional facts to be included in support [of] what [Perkins] has
stated in his pro se motion to vacate, set aside, or correct judgment or sentence." In support
of these assertions, appointed counsel noted that he had reviewed (i) plea counsel's files,
(ii) the transcript of Perkins's plea and sentencing hearing, (iii) Perkins's pro se motion, and
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(iv) correspondence from Perkins. The statement in lieu also asserted that that a copy of
the statement had been provided to Perkins prior to its filing. The statement in lieu facially
complied with the requirements of Rule 24.035(e). The record thus refutes a claim of
abandonment.2 Vogl, 437 S.W.3d at 228-29.
Perkins nonetheless complains that the trial court had a sua sponte obligation to
investigate whether Perkins was abandoned because appointed counsel did not have any
personal conversations or discussions with Perkins before deciding to file a statement in
lieu of an amended motion. However, although Rule 24.035(e) requires appointed counsel
to ascertain whether a pro se motion includes all claims known to a movant, and to set forth
the steps taken to do so, it does not instruct the steps that must be taken by appointed
counsel to do so. Relevant here, Rule 24.035(e) does not require appointed counsel to set
out facts demonstrating that he or she spoke directly with a post-conviction movant in order
to ascertain whether the pro se motion asserts all facts and/or claims known to a movant.
Perkins's contention that counsel should have personally talked with him about whether the

2During oral argument, Perkins's counsel referred this court to two cases: Brown v. State, 968 S.W.3d 725 (Mo. App. E.D. 1998) and Moore v. State, 934 S.W.2d 289 (Mo. banc 1996). Perkins argued both cases require an abandonment hearing when appointed counsel's statement in lieu of an amended motion fails to confirm conversations have taken place with the movant prior to the filing of the statement. We disagree. In Moore, the statement in lieu was found to be tantamount to a confession of abandonment, as appointed counsel's statement indicated that appointed counsel "reviewed the file 'with the exclusion of the transcripts of the guilty plea hearing, the sentencing hearing . . . , and movant's pro se motion. . . .'" Moore, 934 S.W.2d at 292. The Court in Moore deemed this to be facial noncompliance with the requirements of Rule 24.035(e), requiring an abandonment inquiry. Id. (noting that "the statement filed by post-conviction counsel shows on its face that counsel took neither of the two actions required by Rule 24.035(e) (emphasis in original)). In contrast, the statement filed by Perkins's appointed counsel facially complied with the requirements of Rule 24.035(e). In Brown v. State, the State conceded that a statement in lieu failed to facially comply with the requirements of Rule 24.035(e) when the statement failed to include an assurance that a copy of the statement had been provided to the movant before it was filed. 968 S.W.3d at 727. Although the court in Brown also referred to the statement's failure to explain counsel's reasons for failing to communicate with the movant prior to filing the statement, the State's concession that the statement in lieu failed to facially comply with Rule 24.035(e)'s requirements negated the need for the court to engage in any analysis regarding whether such an explanation is facially required by the Rule. In addition, in this case appointed counsel's statement does state that he communicated with Perkins, albeit in writing, as part of his investigation.
8

pro se motion included all known claims is "a substitute for an impermissible claim of
ineffective assistance of post-conviction counsel." Barton v. State, 486 S.W.3d 332, 338
(Mo. banc 2016); see also Riley v. State, 364 S.W.3d 631, 637 (Mo. App. W.D. 2012)
("Under Rule 29.15(e) . . . counsel is entitled to exercise his or her reasonable professional
judgment to determine what level of inquiry is necessary to ensure that all viable
postconviction claims . . . are properly presented.").3 "[R]eview of whether [post
conviction counsel] should have filed an amended motion with supplemental claims
[instead of a statement pursuant to Rule 24.035(e)] is beyond the scope of the analysis on
the issue of abandonment and constitutes an unreviewable post-conviction ineffective
assistance of counsel claim." Logan v. State, 377 S.W.3d 623, 627 (Mo. App. W.D. 2012)
(alterations in original) (quoting Dean v. State, 314 S.W.3d 402, 407 (Mo. App. S.D.
2010)).
We recognize that Perkins's initial pro se motion asserted no claims at all, and
instead indicated in the section where claims were to be asserted that the motion would "be
amended by appointed counsel." That is immaterial, however, to whether appointed
counsel facially complied with the requirements of Rule 24.035(e). Appointed counsel's
statement in lieu of an amended motion set out facts demonstrating the actions taken in
ascertaining that the pro se motion set forth all facts and claims known to the movant, and
that there are no claims to be raised in an amended motion. The statement in lieu is not
rendered deficient merely because Perkins's initial pro se motion asserted no claims.

3Although Riley v. State, 364 S.W.3d 631 (Mo. App. W.D. 2012), addresses Rule 29.15(e), that rule is identical to Rule 24.035(e). "[C]ase law interpreting a provision that is identical in both [post-conviction] rules applies equally in proceedings under either rule." Vogl v. State, 437 S.W.3d 218, 224 n.7 (Mo. banc 2014).
9

It is worth noting that Rule 24.035(e) provides movants with recourse to challenge
statements in lieu filed by appointed counsel. After discussing what a statement in lieu
must address, the last sentence of Rule 24.035(e) provides that "[t]he movant may file a
reply to the statement not later than ten days after the statement is filed." We have found
no Missouri authority addressing what can, should, or must be included in the reply
authorized by Rule 24.035(e). Nor have we located Missouri authority addressing the
effect of a filed reply, or the procedure to be followed by a motion court if a reply is filed.
However, it is reasonable to conclude that at a minimum, the reply authorized by Rule
24.035(e) constitutes the movant's opportunity to challenge the assertions made in a
statement in lieu of an amended motion, and thus affords a movant the opportunity to put
facts on the record that could require an independent inquiry. Perkins did not file a reply
to appointed counsel's statement in lieu of an amended motion as authorized by Rule
24.035(e). And although Perkins's pro se amended motion was filed within ten days of
appointed counsel's statement in lieu, the pro se amended motion does not argue that
appointed counsel's statement in lieu was deficient, or that appointed counsel abandoned
Perkins.4 Though Perkins's pro se amended motion asserted claims to vacate and set aside
his judgment and sentence, the pro se amended motion did not argue, and Perkins has not
argued on appeal, that the filing of a pro se amended motion within ten days of appointed

4The Missouri Supreme Court is currently addressing whether a post-conviction movant is permitted to file a pro se amended motion after appointed counsel files a statement in lieu pursuant to Rule 24.035(e). See Latham v. State, No. SC96315 (Mo. banc argued Nov. 8, 2017). Though the prominent issue in that case is the timeliness of a pro se amended motion filed after appointed counsel files a statement in lieu, it is possible the Supreme Court could also address the extent to which a pro se amended motion filed within ten days of a statement in lieu constitutes the reply authorized by Rule 24.035(e).
10

counsel's filing of a statement in lieu of amended motion requires an abandonment inquiry.
We will not sua sponte address arguments Perkins has not raised.
The trial court did not commit clear error in failing to conduct an abandonment
inquiry.
Point One is denied.
Point Two
In Point Two, Perkins argues that the motion court clearly erred in denying the claim
asserted in his pro se amended motion that his guilty plea was involuntary because the plea
court failed to advise him of the mandatory minimum and maximum penalties for his
charged offense.
Before addressing the merit of Perkins's point on appeal, we address the State's
contention that the motion court had no authority to entertain Perkins's pro se amended
motion because it was not timely filed. The State maintains that counsel's filing of a
statement in lieu of an amended motion does not grant a post-conviction movant an
additional ten days within which to file a pro se amended motion. Additionally, the State
argues that the motion court had no authority to grant Perkins an extension of time to file
an amended motion when the motion requesting an extension of time was filed after the
time to file an amended motion had lapsed.
The State's contention frames an issue that may be resolved by the anticipated
decision in Latham v. State, No. SC96315 (Mo. banc argued Nov. 8, 2017), where the
Supreme Court is similarly considering the timeliness of a pro se amended motion filed
after appointed counsel's statement in lieu of an amended motion. If Latham does not
11

resolve the timeliness issue presented by the facts in this case, Missouri authority on the
subject is mixed.
In 1990, the Missouri Supreme Court held that under then Rule 29.15(f), the
discretion of the motion court to extend the time to file an amended motion must be
exercised within the time the amended motion is initially due. Clemmons v. State, 785
S.W.2d 524, 527 (Mo. banc 1990).5 This holding from Clemmons has been cited by each
of our appellate courts. See Rutherford v. State, 192 S.W.3d 746, 749 n.4 (Mo. App. S.D.
2006); State v. Leisure, 810 S.W.2d 560, 575 (Mo. App. E.D. 1991); Pelton v. State, 794
S.W.2d 301, 302 n.1 (Mo. App. W.D. 1990). Based on Clemmons, the motion court had
no authority to grant Perkins's October 3, 2016 motion seeking an extension of time to file
an amended motion because the initial time period to file an amended motion expired on
September 27, 2016.
More recently, however, the Eastern District cited the Southern District to authorize
a motion court's grant of an extension to file an amended motion sought after the time to
file an amended motion had expired, "as long as the amended motion was ultimately filed
within the [authorized] extension period." Federhofer v. State, 462 S.W.3d 838, 841(Mo.
App. E.D. 2015) (citing Volner v. State, 253 S.W.3d 590, 592 (Mo. App. S.D. 2008)
(approving of request filed five days after initial time limit when request and amended
motion were both filed "well within the thirty-day extension period")). Both cases involved
amended motions filed by appointed counsel. It is possible that Federhofer and Volner

5Clemmons v. State, 785 S.W.2d 524 (Mo. banc 1990), interpreted language in then Rule 29.15(f) that is identical to the language in Rule 29.15(g) allowing a motion court to extend the time for filing an amended motion, and Rule 29.15(g) is identical to Rule 24.035(g). See Vogl, 437 S.W.3d at 224 n.7.
12

aimed to shortcut what would otherwise have been the required remedy for an untimely
amended motion where the delay is not attributable to the movant--treating the untimely
motion as timely filed. See Williams v. State, 503 S.W.3d 301, 303 (Mo. App. W.D. 2016).
However, the holdings in Federhofer and Volner are not expressly limited to amended
motions filed by appointed counsel. And, neither Federhofer nor Volner address
Clemmons. If we were similarly inclined to disregard Clemmons, Perkins's amended
motion would be deemed timely because it was filed within the extension period authorized
by Rule 24.035, though the request for an extension was not made before the amended
motion was initially due.
In the end, we need not resolve whether Perkins's pro se amended motion was timely
filed as the claim therein asserted that is the subject of Perkins's second point on appeal is
plainly without merit.6 Pursuant to Rule 24.02(b)(1), the plea court was required to inform
Perkins of "the mandatory minimum penalty provided by law, if any, and the maximum
possible penalty provided by law." While it is clear from the record that the plea court
failed to inform Perkins of the mandatory minimum and maximum penalties he faced, "the
failure to methodically trace in succession each of the items pronounced by the rule [24.02]
does not necessarily constitute prejudicial error." Steinle v. State, 861 S.W.2d 141, 143
(Mo. App. W.D. 1993). "[T]he failure of the [plea] court to advise the defendant of the

6If Perkins's pro se amended motion is considered untimely, the motion court would then have been required to adjudicate Perkins's initial pro se motion. Gittemeier v. State, 527 S.W.3d 64, 66 (Mo. banc 2017). In that instance, the motion court would have been required to dismiss Perkins's claim for post-conviction relief because Perkins' initial motion did not assert any claims for relief. The motion court did in fact dismiss Perkins's claims for post-conviction relief (albeit based on the amended motion), and did not err in doing so. See id. at 66-67 (affirming a motion court's judgment overruling post-conviction relief even though the motion court adjudicated claims raised in an untimely amended motion).
13

range of punishment prior to accepting his guilty plea [does] not prejudice the plea where
the sentence imposed was agreed upon in advance." Id. (citing Matthews v. State, 501
S.W.2d 44, 46 (Mo. 1973)); accord Holland v. State, 990 S.W.2d 24, 29 (Mo. App. E.D.
1999).
Perkins and the State agreed prior to sentencing that his sentence on Count I would
be a 20-year term of imprisonment. Perkins clearly understood the terms of the plea
agreement. He also expressed that he did not want to go to trial. The plea court imposed
the exact sentence agreed upon between Perkins and the State. Perkins was not prejudiced
by the plea court's failure to inform him of the range of punishment prior to accepting his
guilty plea. The motion court did not err in denying Perkins' claim that his plea was
involuntary based on its finding that Perkins was not prejudiced.
Point Two is denied.

Outcome: The judgment of the motion court is affirmed.

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