ARLIE R. LEWIS, Movant-Appellant/Cross-Respondent v. STATE OF MISSOURI, Respondent-Respondent/Cross-Appellant

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ARLIE R. LEWIS, Movant-Appellant/Cross-Respondent, v. STATE OF MISSOURI, Respondent-Respondent/Cross- Appellant.

Case Numbers SD38920, SD39258

APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY Honorable Jason M. Scherer, Judge REVERSED AND REMANDED This case comes to us after the motion court granted one claim in Arlie R. Lewis' ("Movant's") amended post-conviction motion filed pursuant to Rule 29.15 1 and vacated his convictions in Counts I through IV in the underlying criminal case. However, because the record before us on appeal is insufficient to demonstrate that the motion court conducted an independent inquiry into whether post-conviction counsel abandoned

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

In Division

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Movant by untimely filing the amended motion, we reverse and remand the case for the motion court to make a sufficient record of an independent abandonment inquiry. Factual Background and Procedural History The State charged Movant with three counts of the class C felony of possession of child pornography, two counts of the class B felony of possession of child pornography, and one count of statutory sodomy. The jury convicted Movant on all counts. Movant appealed his convictions and sentences to this Court, and we issued our mandate affirming the trial court's judgment on April 17, 2017. 2 On June 23, 2017, Movant timely filed his pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence pursuant to Rule 29.15. On June 28, 2017, the motion court appointed the Office of the State Public Defender to represent Movant, and granted 30 additional days in which to file an amended motion. According to Rule 29.15, Movant's amended motion was due to be filed on September 26, 2017. Counsel, however, filed the Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for an Evidentiary Hearing ("Amended Motion") three days late, on September 29, 2017, along with a motion asking the motion court to permit the late filing of the motion pursuant to Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991) ("Sanders motion"). The Sanders motion stated that the late filing was due to counsel's workload in other cases, and not in any

2 In this Court's opinion, issued March 30, 2017, we affirmed Movant's convictions and sentences, but remanded to the trial court with directions to enter an amended conviction and sentence that conformed with the trial court's oral pronouncement at sentencing. State v. Lewis, 514 S.W.3d 28, 34 (Mo. App. S.D. 2017). The trial court entered its Amended Judgment that same day.

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way attributable to Movant. Counsel's Sanders motion listed the other cases he had been working on, and also stated that he had been conducting routine court appearances, case preparation, and client contact. The representations that counsel made in the Sanders motion were not stated under oath, nor were they included in an affidavit. In addition, the claims in Movant's Amended Motion that counsel filed differed from the claims in his original pro se Rule 29.15 motion. On October 16, 2017, the motion court issued an Order stating that it had made an independent inquiry into the issue of abandonment of counsel, reviewed counsel's Sanders motion, and reviewed the record. The Order further stated that those sources revealed that the delay was not attributable to Movant, and that therefore Movant had been abandoned and counsel would be permitted to file the Amended Motion out of time. 3 After an additional period of discovery, the motion court adjudicated the claims set out in the Amended Motion, sustained Movant's Amended Motion in part, and denied it in part. 4 Movant appealed the denial of his Amended Motion, and the State filed a cross- appeal. Analysis Before we address the merits of the appeal, we must address the untimeliness of Movant's Amended Motion first. Saddler v. State, 686 S.W.3d 720, 722-23 (Mo. App. E.D. 2024).

3 Judge Satterfield entered the Order granting the Sanders motion and later recused.

4 Following Judge Satterfield's recusal, Judge Scherer was assigned to the case and ultimately disposed of the claims set out in the Amended Motion.

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In its cross-appeal, the State asserts that: "[t]his Court should remand the case for an abandonment hearing because a presumption of abandonment arose after postconviction counsel untimely filed [the A]mended [M]otion and the motion court failed to conduct an abandonment inquiry." We agree. "The filing deadlines for post-conviction relief motions are mandatory and cannot be waived." Saddler [], 686 S.W.3d [at] 723 [] (quoting Watson v. State, 536 S.W.3d 716, 717 (Mo. banc 2018)). When post-conviction counsel is appointed, an amended motion seeking post-conviction relief filed beyond the deadline can constitute "abandonment" of the movant. Harley v. State, 633 S.W.3d 912, 916 (Mo. App. E.D. 2021) (citing Moore [v. State], 458 S.W.3d [822,] 825 (Mo. banc 2015)). "If an amended motion seeking post-conviction relief is untimely, the motion court is required to conduct an independent inquiry into the reason for the untimely filing to determine whether post-conviction counsel abandoned the movant, which must be done before considering the merits of the amended motion and the evidence in support." Id. (citing Moore, 458 S.W.3d at 825). The outcome of this inquiry dictates which claims are reviewed by the motion court. Id. at 918 (citing Moore, 458 S.W.3d at 826). ... "The 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)).

Love v. State, 725 S.W.3d 124, 131 (Mo. App. E.D. 2025).

"The method of the abandonment inquiry is left to the motion court's discretion," and can be formal or informal, such as a written response and opportunity to reply, a telephone call, or a hearing. Saddler, 686 S.W.3d at 723. However, "a sufficient record must be made to demonstrate on appeal the motion court's determination on the

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abandonment issue is not clearly erroneous." Id. (quoting Milner v. State, 551 S.W.3d 476, 480 (Mo. banc 2018)). The parties agree that Movant's Amended Motion was filed three days late. Along with Movant's untimely Amended Motion, counsel filed what is referred to as a Sanders motion, which is a motion that asks the motion court to permit the late filing pursuant to Sanders v. State. Counsel's statements in the motion, however, were not made under oath or attested to in an affidavit. The outcome of this case is therefore dictated by Saddler and its line of cases. In Saddler, the movant's counsel filed his amended post-conviction motion out of time, having failed to realize that the motion court did not rule upon her prior motion for an extension of time. Id. at 722. Along with the untimely amended motion, post- conviction counsel filed the Sanders motion, asking the court to consider her untimely motion timely filed pursuant to Sanders. Id. In that motion, post-conviction counsel reiterated her mistake with respect to whether her motion for additional time had been granted, and she informed the court that the mistake was not attributable to the movant. Id. Her statements in the motion, however, were not made under oath, and were not included in an affidavit. Id. Based solely on counsel's representations in her Sanders motion, the motion court issued findings of fact and conclusions of law finding that post- conviction counsel had abandoned the movant, and that movant's amended motion had been timely filed. Id. On appeal, the Eastern District of this Court held that the motion court had clearly erred when it based its abandonment inquiry on counsel's unsworn statements in the

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Sanders motion. Id. at 723-24. The court cited multiple other cases wherein our courts have held that "unsworn statements in Sanders motions do not create a sufficient record to demonstrate that the motion court's abandonment determination is not clearly erroneous." Id. at 724. As such, the Saddler court remanded the case to the motion court and directed it "to make a sufficient record of an independent abandonment inquiry." Id. Movant argues that the motion court's abandonment inquiry in this case was sufficient under Saddler and that line of cases because the motion court "made an independent inquiry and credited post-conviction counsel's statements and determined that the late filing of the [A]mended [M]otion was not due to [Movant's] negligence or intentional failure to act." Movant's arguments, however, are directly refuted by Saddler, as discussed above. 5

Because the motion court's determination that Movant was abandoned by counsel was based exclusively on counsel's unsworn representations in the Sanders motion and we cannot glean anything additional from the record establishing the motion court conducted an independent abandonment inquiry using any other method, the motion court did not create a sufficient record to demonstrate that its determination of the abandonment issue was not clearly erroneous. We therefore reverse the motion court's

5 There are exceptions to the rule, such as when the record unmistakably demonstrates that the failure to file the motion was due to counsel's mistaken belief about which version of the rules applies; in such a case remand would serve no purpose. See Nelson v. State, 719 S.W.3d 729, 735 (Mo. banc 2025). Two other exceptions apply when all of a movant's claims in a pro se motion have been incorporated into and adjudicated along with the claims in the amended motion, or when counsel files an affidavit or other sworn statement attesting to the facts in the Sanders motion. Love v. State, 725 S.W.3d 124, 131 n.1 (Mo. App. E.D. 2025). None of these exceptions apply here.

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Order and remand the case for the motion court to make a sufficient record of an independent abandonment inquiry. JENNIFER R. GROWCOCK, C.J. – OPINION AUTHOR

BECKY J. WEST, J. – CONCURS

MATTHEW P. HAMNER, J. – CONCURS