Hewitt v. State
2017 Mo. App. LEXIS 75
Mo. Ct. App.2017Background
- Movant (Joshua Daniel Hewitt) pleaded guilty to tampering with a motor vehicle and forgery on July 17–18, 2012; the court imposed consecutive 4- and 7-year sentences but suspended execution and placed him on probation.
- Movant admitted violating probation on April 9, 2013; the court executed the previously imposed sentences and advised Movant of his Rule 24.035 rights when he was delivered to the Department of Corrections.
- Movant filed a pro se Rule 24.035 motion on June 19, 2013; appointed post-conviction counsel were later appointed but none timely filed an amended motion or a statement in lieu of an amended motion.
- The motion court denied Movant’s amended Rule 24.035 motion as untimely; Movant appealed the denial.
- Core procedural dispute: when the 24.035 filing period began/was complete—whether the sentencing transcript included the April 9, 2013 probation revocation (and resulting delivery to DOC) for purposes of Rule 24.035(g) timing—and whether appointed counsel abandoned Movant, requiring an independent inquiry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentencing transcript was "complete" only after the probation revocation hearing, making Movant’s amended motion timely | Movant: sentencing wasn’t "final" for Rule 24.035 timing until April 9, 2013 revocation transcript was filed; Rule 29.07(b)(4) requires advising of 24.035 at final sentencing | State: sentencing was final on July 18, 2012 (execution suspended); Movant had no 24.035 right until delivery to DOC, but the July 18, 2012 sentencing remains complete and started the timing once transcript and counsel appointment occurred | Court: Rejects Movant’s theory; July 18, 2012 sentencing was final and not incomplete because execution was suspended; Rule 29.07(b)(4) does not require notice at that date because Rule 24.035 rights arise only upon delivery to DOC. |
| Whether appointed post-conviction counsel abandoned Movant by failing to timely file an amended motion, and whether the motion court conducted the required independent inquiry | Movant: appellate argument focuses on counsel omissions producing a presumption of abandonment requiring inquiry and relief | State: argued amended motion was untimely and that reappointment might restart deadlines (argued dates) | Court: Found record shows a presumption of abandonment (no timely filings); motion court failed to perform required independent inquiry. Remands for the motion court to conduct independent inquiries regarding abandonment and to provide appropriate relief if abandonment is found. |
Key Cases Cited
- Moore v. State, 458 S.W.3d 822 (Mo. banc 2015) (timing rules are mandatory; counsel must timely file amended motion or state pro se motion is sufficient)
- Taylor v. State, 254 S.W.3d 856 (Mo. banc 2008) (definition of abandonment by post-conviction counsel)
- Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991) (presumption of counsel noncompliance when record lacks evidence of counsel’s attention)
- Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991) (late filing attributable to movant bars relief beyond pro se motion)
- Crenshaw v. State, 266 S.W.3d 257 (Mo. banc 2008) (proper remedy for abandonment is to restore movant to position absent abandonment)
- Price v. State, 422 S.W.3d 292 (Mo. banc 2014) (when abandonment is found, appoint new counsel and allow time to perform Rule 24.035 duties)