KENNETH R. CORCRAN, Movant v. STATE OF MISSOURI, Respondent

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KENNETH R. CORCRAN, Movant, v. STATE OF MISSOURI, Respondent.

No. SD39156

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Joseph L. Hensley, Judge VACATED AND REMANDED Movant Kenneth R. Corcran ("Movant") appeals the motion court's judgment dismissing his pro se Rule 24.035 1 Motion for post-conviction relief as untimely without appointing counsel. Movant asserts three points on appeal, and the State concedes that the motion court erred and the case should be remanded. We agree. The motion court's judgment is vacated and we remand the case for the appointment of counsel and further proceedings consistent with this opinion.

1 All rule references are to Missouri Court Rules (2025).

In Division

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Facts and Procedural History On March 26, 2024, Movant was charged with four counts of first-degree statutory sodomy (§566.062). 2 On February 24, 2025, Movant pled guilty to two of these counts and was sentenced to serve 20 years in the Missouri Department of Corrections for each conviction, with the sentences to run concurrently. The remaining two sodomy counts were dismissed as part of the plea agreement. Movant was represented by an assistant public defender at the time of his plea. On June 25, 2025, Movant filed his pro se Motion for post-conviction relief and a corresponding affidavit to proceed in forma pauperis. His affidavit stated that he had "no resources available." On June 26, 2025, the motion court dismissed Movant's pro se Motion as untimely, without appointing counsel for Movant. This appeal followed. Standard of Review Our review of a denial of a Rule 24.035 motion for post-conviction relief "is limited to a determination of clear error in the circuit court's findings of fact and conclusions of law." McCartney v. State, 622 S.W.3d 729, 731 (Mo. App. S.D. 2021) (quoting Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013)). "A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made." Id.

2 Unless otherwise indicated, all statutory references are to RSMo 2016, as amended through February 24, 2025.

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Analysis The State concedes that this case should be remanded to the motion court so counsel can be appointed. Because we agree, we grant Movant's Point 1 and need not address the remaining allegations of error. Under Rules 29.15(e) and 24.035(e), post-conviction movants have the right to be represented by counsel if they are indigent. Williams v. State, 494 S.W.3d 638, 641 (Mo. App. W.D. 2016). "[A]ppointment of counsel for an indigent pro se movant is mandatory." Haynes v. State, 553 S.W.3d 885, 886 (Mo. App. S.D. 2018) (citing Ramsey v. State, 438 S.W.3d 521, 522 (Mo. App. E.D. 2014)) (internal quotations omitted). "[I]ndigency should be liberally assessed when pro se post-conviction motions are first filed." Williams, 494 S.W.3d at 641. Here, Movant contends he demonstrated his indigent status when he filed his affidavit attesting he has "no resources available." The State agrees. Liberally construing the evidence in the record, which includes the fact that Movant was represented by a public defender in his underlying criminal case, we also conclude Movant sufficiently established he is indigent and entitled to appointment of counsel in his post-conviction proceeding. See id. at 642 (noting that the motion court must appoint counsel for a movant who indicates on his post-conviction motion that he is seeking leave to proceed in forma pauperis and provides the corresponding affidavit).

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Under these circumstances, the appointment of counsel was mandatory regardless of whether Movant's pro se Motion was untimely. 3 "[A] motion court is required to appoint counsel for a movant even when the movant's pro se motion is facially untimely." Naylor v. State, 569 S.W.3d 28, 32 (Mo. App. W.D. 2018) (citing Vogl v. State, 437 S.W.3d 218, 226-30 (Mo. banc 2014)). The purpose behind the requirement to appoint counsel is to protect a movant's right to have an opportunity to argue the timeliness of his request for post-conviction relief in an amended motion. Id. (holding that the motion court clearly erred after denying movant's pro se Rule 24.035 facially untimely motion without appointing counsel because movant was "entitled to the benefit of counsel's legal expertise to determine if his circumstances fell within a recognized exception to Rule 24.035's time limits, and if so, to raise such allegations"). Accordingly, the motion court erred in dismissing Movant's pro se Rule 24.035 Motion without appointing counsel. Point 1 is granted. Conclusion The motion court's judgment dismissing Movant's pro se Motion for post- conviction relief is vacated. The case is remanded to the motion court for the

3 Because we are remanding the case for the appointment of counsel, we need not address the issue of the timeliness of Movant's pro se Motion. Movant will have the burden of pleading and proving in the motion court that his pro se Motion is timely filed. McCartney, 622 S.W.3d at 731. Under Rule 24.035(b), a movant seeking post-conviction relief must file a motion to vacate, set aside, or correct the judgment within 180 days of the date the sentence is entered if the movant has not appealed the judgment. It does not appear that Movant sought any direct appeal of the judgment in this matter, and thus he should have had 180 days from February 24, 2025, to file his pro se motion under Rule 24.035.

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appointment of counsel to represent the Movant and for further proceedings consistent with this opinion.

MATTHEW P. HAMNER, J. – OPINION AUTHOR DON E. BURRELL, J. – CONCURS BECKY J. WEST, J. – CONCURS