Lawrence Frazee v. State of Missouri
2016 Mo. App. LEXIS 55
| Mo. Ct. App. | 2016Background
- Lawrence Frazee was convicted of first-degree robbery and sentenced to 25 years; direct appeal affirmed (State v. Frazee) and mandate issued October 14, 2009.
- Frazee filed a pro se Rule 29.15 post-conviction motion on January 11, 2010; counsel (an assistant public defender) entered an appearance January 28, 2010.
- Counsel filed an amended Rule 29.15 motion on April 19, 2010 raising three new claims distinct from the pro se motion; the amended motion did not incorporate the pro se claims.
- No record exists of any request for, or grant of, the permissive 30-day extension under Rule 29.15(g); the amended motion was therefore outside the 60-day filing window and appears untimely.
- The motion court held an evidentiary hearing, denied the amended motion on the merits, but never conducted the independent inquiry into whether post-conviction counsel abandoned Frazee by filing an untimely amended motion.
- On appeal, the court held it could not reach the merits because under Missouri precedent the motion court must first determine whether counsel’s conduct amounted to abandonment; the case was reversed and remanded for that inquiry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of amended Rule 29.15 motion / duty to inquire about abandonment | Frazee: counsel was ineffective for failing to present mitigation evidence; amended motion raising those claims should be considered despite timing | State: amended motion appears untimely under Rule 29.15(g); no record of extension request | Court: amended motion appears untimely; because the motion court never conducted the required independent inquiry into abandonment, case must be remanded for that inquiry before reaching merits |
| Merits of ineffective-assistance claim (failure to present mental-health mitigation at sentencing) | Frazee: trial counsel failed to investigate/present testimony of two mental-health professionals, which would have mitigated sentence | State: merits not reached at appellate level because of timeliness/abandonment procedural issue | Court: did not rule on merits; remanded so motion court can determine abandonment and then decide which motion to adjudicate (pro se or amended) |
Key Cases Cited
- Moore v. State, 458 S.W.3d 822 (Mo. banc 2015) (when an amended post-conviction motion is untimely, the motion court must independently inquire whether counsel abandoned the movant)
- Vogl v. State, 437 S.W.3d 218 (Mo. banc 2014) (discusses abandonment inquiry requirement)
- Childers v. State, 462 S.W.3d 825 (Mo. App. E.D. 2015) (appellate court must examine timeliness and remand when abandonment inquiry is omitted)
- Blackburn v. State, 468 S.W.3d 910 (Mo. App. E.D. 2015) (describes consequence of abandonment finding: permit untimely amended motion)
- State v. Frazee, 292 S.W.3d 594 (Mo. App. W.D. 2009) (direct-appeal decision affirming conviction)