Billy Wagner, Movant/Appellant, v. State of Missouri, Respondent/Respondent.

BILLY WAGNER, ) ) No. ED113083 Movant/Appellant, ) ) v. ) ) STATE OF MISSOURI, ) ) Filed: December 16, 2025 Respondent/Respondent. )

APPEAL FROM THE CIRCUIT COURT OF WARREN COUNTY The Honorable Jason H. Lamb, Judge

Introduction Movant, Billy Wagner, appeals the judgment entered by the Circuit Court of Warren County denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. However, Movant's pro se motion for post-conviction relief was the only motion that was timely filed and properly before the motion court. Retained counsel failed to timely file an amended motion, and the motion court failed to adjudicate all of the claims identified in Movant's pro se motion. Therefore, we dismiss the appeal for

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lack of a final, appealable judgment, and remand for further proceedings consistent with this opinion. Factual and Procedural Background A jury convicted Movant of one count each of delivery of a controlled substance, first-degree domestic assault, and unlawful possession of a firearm. The trial court sentenced Movant on September 9, 2021 as a prior and persistent offender to a total of 25 years of imprisonment. This Court affirmed Movant's conviction in State v. Wagner, 660 S.W.3d 393 (Mo. App. E.D. 2022), and we issued our mandate on March 7, 2023. Movant timely filed a pro se motion for post-conviction relief on May 1, 2023 pursuant to Supreme Court Rule 29.15, the version effective January 1, 2018 through November 3, 2021. The motion raised claims of ineffective assistance of trial counsel, including: (1) failing to request that the jury receive a cautionary instruction regarding Movant's prior convictions, in accordance with MAI-CR 4th 410.10; (2) failing to impeach the victim's credibility; (3) failing to object to the State's amendment of the domestic assault charge from second-degree to first-degree domestic assault; and (4) failing to preserve denial of Movant's motion to suppress. In a summary statement, Movant alleged that counsel was ineffective in his conduct of voir dire, jury selection, and closing argument; counsel failed to object to evidence and argument; counsel failed to raise a Brady violation; and counsel failed to file requested motions for Movant's defense at trial. The motion court appointed the Office of the Public Defender to represent Movant on May 3, 2023, thus making Movant's amended motion due on Monday, July 3, 2023.

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An assistant public defender entered an appearance and requested a 30-day extension of time in which to file an amended motion. The motion court granted the 30-day extension to August 2, 2023. In the meantime, on May 31, 2023, retained counsel from a private law firm entered an appearance. The motion court granted the public defender leave to withdraw because Movant had retained private counsel to represent him. Retained counsel did not request any further extension of time to file the amended motion, which remained due August 2, 2023. Retained counsel filed an amended motion pursuant to Rule 29.15 on August 28,

1. The amended motion alleged that trial counsel was ineffective for: (1) failing to

call necessary witnesses to establish that the search warrant was based on illegally obtained information; (2) failing to request an instruction under MAI-CR 4th 410.10; (3) erroneously informing Movant that he would not be found guilty of first-degree domestic assault; (4) failing to adequately prepare for trial; and (5) failing to confer with Movant, provide discovery, and investigate the possibility of a guilty plea as to only the charges for delivery of a controlled substance and unlawful possession of a firearm. The amended motion also alleged that Movant's constitutional rights were violated when the trial court denied his request to represent himself at his preliminary hearing. The motion court denied the claims raised in the amended motion following an evidentiary hearing. The court first found that the amended motion was timely filed, asserting that, under Rule 29.15(g), the amended motion was due within 120 days after

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the appointment of counsel, or on August 31, 2023. 1 The judgment then addressed the claims raised in the amended motion, but did not adjudicate the additional claims contained in Movant's pro se motion that were not otherwise encompassed in the amended motion. Movant appeals. Standard of Review We limit our review of the motion court's denial of a Rule 29.15 motion for post-conviction relief to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Mo. Sup. Ct. R. 29.15(k); Scott v. State, 719 S.W.3d 723, 725 (Mo. banc 2025); Kinsella v. State, 698 S.W.3d 858, 862 (Mo. App. E.D. 2024). We presume the motion court's findings are correct, and its judgment is clearly erroneous only if, after a full review of the record, we are left with a definite and firm impression that a mistake has been made. Scott, 719 S.W.3d at 725; Kinsella, 698 S.W.3d at 862. Discussion Before we review the merits of an appeal from a motion court's denial of post- conviction relief, we are obligated to determine whether the amended motion was timely filed. Id. Here, in his reply brief, Movant acknowledges his amended motion was filed out of time. He argues, however, that retained counsel had an actual conflict of interest because retained counsel represented Movant both on direct appeal and the post- conviction motion. As a result, Movant argues, retained counsel "could not have

1 The judgment states "August 31, 2024", but that appears to be a typographical error as all other relevant dates are stated as 2023.

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objectively assessed whether he himself was ineffective in representing [Movant] in the direct appeal." Further arguing advancement of the goals of post-conviction relief and fundamental fairness, Movant asks us to find that he was abandoned by retained post- conviction counsel, and remand with instruction to the motion court to appoint new counsel to represent Movant in filing a new amended motion and presentation of evidence in support of those claims. Governed by the recent decision of our Supreme Court in Scott v. State, 719 S.W.3d 723 (Mo. banc 2025), we reject Movant's arguments that we should apply the abandonment doctrine to retained counsel. As a result, we deny Movant's request to direct the motion court to appoint new counsel to file a new amended motion. Because retained counsel failed to timely file an amended motion for post- conviction relief, and because the motion court failed to adjudicate all of the claims contained in Movant's pro se motion we must dismiss the appeal for lack of a final, appealable judgment. Retained Counsel Failed To Timely File The Amended Motion Missouri's Supreme Court adopted Rule 29.15 as the single, unified procedure for inmates seeking post-conviction relief after trial. Scott, 719 S.W.3d at 726. Rule 24.035 sets forth an analogous post-conviction procedure for movants who pled guilty. Id. The trial court sentenced Movant on September 9, 2021. Supreme Court Rule 29.15(g) effective on that date provided in pertinent part: If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion or statement in lieu of an amended motion shall

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be filed within 60 days of the earlier of the date both the mandate of the appellate court is issued and: (1) Counsel is appointed, or (2) An entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant. The court may extend the time for filing the amended motion or statement in lieu of an amended motion, with no extension exceeding 30 days individually and the total of all extensions not to exceed 60 days. Mo. Sup. Ct. R. 29.15(g), eff. Jan. 1, 2018 (emphasis added). Further, "[t]his Rule 29.15 shall apply to all proceedings wherein sentence is pronounced on or after January 1, 2018." Mo. Sup. Ct. R. 29.15(m), eff. Jan. 1, 2018. 2

In November 2021, a new version of Rule 29.15(g) took effect. In cases where an appeal was taken, this later version of the rule required that the amended motion be filed "within 120 days of the earlier of the date both the mandate of the appellate court is issued and: (1) Counsel is appointed, or (2) An entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant." Mo. Sup. Ct. R. 29.15(g), eff. Nov. 4, 2021 (emphasis added). This later version of the rule also explicitly prohibited the motion court from extending the time in which an amended motion could be filed. Id. Rule 29.15 states a motion for post-conviction relief "shall" be filed within the time limits established by rule, and failure to timely file results in a complete waiver of

2 The current version of Rule 29.15(m) clarifies that the movant's date of sentencing determines the version of the rule applied to the motion. "For sentences pronounced on or after January 1, 2018, post[-]conviction relief proceedings shall be governed by the provisions of Rule 29.15 in effect on the date of the movant's sentencing." Mo. Sup. Ct. R. 29.15(m), eff. Jul. 1, 2023 (emphasis added).

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any right to proceed on the motion. Scott, 719 S.W.3d at 726. "The time limits for filing a post-conviction motion are mandatory. The movant is responsible for timely filing the initial motion, and appointed counsel must timely file either an amended motion or a statement that the pro se motion is sufficient." Id. (quoting Stanley v. State, 420 S.W.3d 532, 540 (Mo. banc 2014)). The time limits in 29.15 avoid delay in processing inmates' claims and prevent litigation of stale claims. Id. Courts have a duty to enforce the mandatory time limits and the resulting complete waiver in the post-conviction rules. Id. Relevant to the time in this case, our Supreme Court changed the rules pertaining to the deadline for filing an amended motion for post-conviction relief after Movant was sentenced in September 2021 but before Movant's amended motion was filed in August

1. Id. The rule was amended from a 60-day deadline with extensions available under

the 2018 rule, to a 120-day deadline with no extensions under the 2021 rule. Accordingly, the central issue is which version of the rule applies: whether the January 1, 2018 version of Rule 29.15 in effect on Movant's sentencing date governs his entire post-conviction proceedings (no matter when those proceedings began or how long they last), or whether amendments to Rule 29.15 made after Movant's sentencing governed his post-conviction proceedings when the amendments became effective November 4, 2021. Id. at 726-27. The motion court applied the 120-day deadline. We find the incorrect version of the rule was applied.

The Supreme Court addresses this issue in Scott v. State. In that case, our Supreme Court determined that the version of Rule 29.15 in effect from January 1, 2018 to November 3, 2021 remained applicable to cases where sentencing occurred during that

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date range, despite amendments to the rule that took effect November 4, 2021. Id. at 727. The Scott Court observed: Ordinarily, unless the rule states otherwise, a procedural rule applies to all pending proceedings whether commenced before or after the adoption of the rule. So, a change to the deadline for filing an amended Rule 29.15 motion will apply to a pending Rule 29.15 action (assuming the operative deadline has not run) unless the rule states otherwise. But the version of Rule 29.15 in effect at [the movant's] sentencing date does state otherwise. That is the purpose of Rule 29.15(m), i.e., it changes the presumption that amendments to procedural rules occurring in the middle of an action will apply to that action. Id. (internal quotations and citations omitted)(emphasis in original). As in Scott, at the time of Movant's sentencing, Rule 29.15(m) provided: "This Rule 29.15 shall apply to all proceedings wherein sentence is pronounced on or after January 1, 2018." Id. Movant was sentenced in September 2021, during the date range of January 1, 2018 to November 3, 2021. Therefore, the version of Rule 29.15 in effect on Movant's sentencing date—setting a 60-day deadline with up to two extensions of no more than 30 days each—applies throughout Movant's post-conviction proceedings. This remains true, regardless of later amendments such as the November 4, 2021 amendment setting a 120-day deadline with no extensions in which to file an amended post- conviction motion. See id. (holding version of Rule 29.15 in effect on movant's sentencing date applies throughout post-conviction proceedings regardless of later amendments). Movant appealed his conviction, and filed a timely pro se motion. The version of Rule 29.15(g) in effect on the date of Movant's sentencing specified an amended motion must be filed within 60 days of the earlier of both: (1) the date the mandate issued from

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the appellate court, and (2) appointment of counsel or entry of appearance by any counsel who is not appointed. Here, counsel was appointed on May 3, 2023 following issuance of our Court's mandate. The amended motion was, therefore, initially due 60 days later on Monday, July 3, 2023. This version of Rule 29.15(g) applicable to Movant's case also permitted an extension of the initial 60-day deadline, with no single extension to exceed 30 days and the total of all extensions not to exceed 60 days. Mo. Sup. Ct. R. 29.15(g), eff. Jan. 1,

1. Appointed counsel obtained one extension of 30 days, thus making the amended

motion due on August 2, 2023. Appointed counsel was then granted leave to withdraw after entry of retained counsel on May 31, 2023. No further extensions were requested, thus leaving the amended motion due on August 2. The amended motion that retained counsel filed on Movant's behalf was not timely because it was not filed until August 28,

1. Failure to timely file results in a complete waiver of any right to proceed on the

motion. Scott, 719 S.W.3d at 726. The Abandonment Doctrine Does Not Apply To Retained Counsel Our Supreme Court created the abandonment doctrine in Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), and Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), to excuse the late filing of an amended motion for post-conviction relief by appointed counsel. Id. at 727-28. The abandonment doctrine exists solely to protect the right to

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counsel afforded to indigent movants by Supreme Court Rules 24.035(e) and 29.15(e). 3

Cornelious v. State, 526 S.W.3d 161, 164 (Mo. App. W.D. 2017). Prior to adoption of the abandonment doctrine, the effectiveness of post-conviction counsel could not be challenged because a movant has no constitutional right to competent effective assistance of counsel in a post-conviction proceeding. State ex rel. Hanaway v. Curless, No. SD39039, 2025 WL 2950628, at *3 (Mo. App. S.D. Oct. 20, 2025). Movant acknowledges that Missouri's abandonment doctrine has been held to apply only to appointed counsel. In Gittemeier v. State, the Missouri Supreme Court held that if appointed counsel abandons a movant by filing an untimely amended motion for post-conviction relief, the motion court may excuse the untimely filing and adjudicate the amended motion. 527 S.W.3d 64, 69 (Mo. banc 2017). The Court explicitly held that, in light of the

3 Rule 29.15(e) provides that "[w]ithin 30 days after an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant." (Emphasis added). After providing for prematurely filed motions, Rule 29.15(e) continues:

Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. 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 (2) all claims known to the movant are alleged in the pro se motion. The statement shall be presented to the movant prior to filing. The movant may file a reply to the statement not later than ten days after the statement is filed. The 2018, 2021, and current versions of this rule are consistent.

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abandonment doctrine's origins and limited purpose, the doctrine applies only to cases involving appointed post-conviction counsel. Id. at 71. See also Mack v. State, 716 S.W.3d 260, 262 (Mo. banc 2025) (public defender entered appearance without appointment, meaning abandonment doctrine does not apply); Curless, No. SD39039, 2025 WL 2950628, at *2 (our Supreme Court recently reiterated that abandonment doctrine applies only to appointed post-conviction counsel); Kinsella, 698 S.W.3d at 863 (abandonment doctrine does not apply because motion court did not appoint post- conviction counsel); Beerbower v. State, 699 S.W.3d 556, 560 (Mo. App. S.D. 2024) (because post-conviction counsel was not appointed, motion court erred in finding movant abandoned); Kemper v. State, 681 S.W.3d 611, 613 (Mo. App. E.D. 2023) (because post-conviction counsel was not appointed, movant was not entitled to abandonment inquiry or to consideration of his amended motion). Cornelious, 526 S.W.3d at 164 ("[A]bandonment doctrine exists solely to protect the statutory right to counsel afforded to indigent movants ...."). Our Supreme Court recently reiterated that it "has never held the abandonment doctrine applies to unappointed counsel and declines to so hold now." Scott, 719 S.W.3d at 728. Thus, the amended motion that was untimely filed by retained counsel was not entitled to consideration because counsel was unappointed. Because Counsel Was Unappointed, The Amended Motion Was Not Entitled To Consideration, And We Decline To Extend The Abandonment Doctrine Under The Circumstances Presented In This Case After acknowledging that the amended motion was not timely filed under the version of Rule 29.15(g) in effect at the time of Movant's sentencing, and that Missouri's

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abandonment doctrine has never applied to retained counsel, Movant argues for the first time in his reply brief that we should, nevertheless, remand his case to the motion court with instructions that new counsel be appointed to file a new amended motion for post- conviction relief. Movant bases this argument on the fact that his retained post-conviction counsel also represented him on direct appeal. As a result, Movant contends, retained counsel had an actual conflict of interest during the post-conviction proceeding, and we should apply the abandonment doctrine here because it would be impossible for counsel to identify his own ineffective actions on direct appeal. As evidence of retained counsel's conflict of interest and ineffectiveness, Movant points to retained counsel's failure to challenge on direct appeal the sufficiency of the evidence to convict him of first-degree domestic assault. Movant's argument is unpersuasive, and Missouri Courts have already rejected similar conflict-of-interest arguments in the post-conviction context. Zuko v. State, 684 S.W.3d 138, 140-41 (Mo. App. E.D. 2023); Cornelious, 526 S.W.3d at 164. First, the claims that retained counsel raised or did not raise on direct appeal have no bearing whatsoever on his failure to timely file Movant's amended motion. Even were we to accept for the sake of argument that Movant's counsel had a conflict of interest during the post-conviction proceeding, that conflict cannot be attributed to counsel retroactively to impugn his performance during the direct appeal. Zuko, 684 S.W.3d at

Second, the Sixth Amendment right to the appointment of competent counsel does not extend to the post-conviction process. Id. at 140. The lack of any constitutional right

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to counsel in post-conviction proceedings renders categorically unreviewable claims based on the diligence or competence of post-conviction counsel. Id. In Cornelious, our Western District held that because the abandonment doctrine exists solely to protect the right to counsel afforded to indigent movants by Supreme Court Rules 24.035(e) and 29.15(e), and because no other constitutional or statutory right guarantees counsel in post-conviction proceedings, the abandonment doctrine does not apply to remedy the failure of retained counsel to timely file an amended motion in post-conviction proceedings. 526 S.W.3d at 164. Nevertheless, Movant urges us to reconsider Missouri case law, and to look to the case law of other states to hold that the abandonment doctrine does apply to retained counsel. He argues that the rule-based right to counsel in post-conviction proceedings necessarily encompasses the right to effective assistance of such counsel. He further argues that advancement of the goals of Missouri's post-conviction relief rules and fundamental fairness "mandate that the abandonment principle apply to retained counsel." We decline Movant's invitation to look to the decisions of courts outside Missouri and to extend application of the abandonment doctrine to retained counsel. First, such decisions are not binding precedent on this Court. Second, we decline because our own courts, including our Supreme Court, have addressed this issue repeatedly and recently. See, e.g., Scott, 719 S.W.3d at 728 ("The Court has never held the abandonment doctrine applies to unappointed counsel and declines to so hold now.").

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Conclusion Thus, the only claims reviewable by the motion court are Movant's claims in his pro se motion that were not addressed in the judgment. A final judgment, which resolves all claims and issues in a case and leaves nothing for future determination, is a prerequisite for appeal. Kinsella, 698 S.W.3d at 865. Absent a final judgment, we must dismiss the appeal. Id. Because the motion court has not yet adjudicated all of the claims asserted in Movant's pro se motion, we dismiss this appeal for lack of a final judgment, and remand for further proceedings consistent with this opinion.

___________________________________ A NGELA T. QUIGLESS, JUDGE Renee D. Hardin-Tammons, P.J. and Thomas C. Clark, II, J., concur.