TERRANCE LAMONTE JOHNSON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent

Jul 20, 2026
SD39268

REVERSED AND REMANDED

Terrance Lamonte Johnson (“Movant“) appeals the judgment of the Circuit Court of Pemiscot County, Missouri (“the motion court“), denying his Rule 24.0351 amended motion for post-conviction relief (“the Amended Motion“). On appeal, Movant presents two points of alleged error. Because the Amended Motion was filed untimely and the motion court made no independent abandonment inquiry, we do not address Movant‘s points on appeal, but rather reverse and remand for the motion court to conduct an abandonment inquiry.

Factual Background and Procedural History

The State initially charged Movant with first-degree murder, first-degree assault, second-degree burglary, tampering with physical evidence in a felony prosecution, first-degree property damage, and two counts of armed criminal action. However, pursuant to a plea agreement, the State amended the first-degree murder charge to second-degree murder and dismissed the remaining charges. Under the plea agreement, the State also agreed to recommend a sentence of 25 years’ imprisonment, and Movant received that sentence at sentencing on January 30, 2020.

Movant timely filed a pro se motion for post-conviction relief, pursuant to Rule 24.035, on July 20, 2020. The motion court appointed post-conviction counsel on July 20, 2020, and the complete transcript of the guilty plea and sentencing hearing was filed on August 17, 2020, making the Amended Motion due 60 days afterwards, or on October 16, 2020. Rule 24.035(g). The Rule also allowed for two extensions of 30 days each. Id. On September 22, 2020, appointed counsel timely requested one 30-day extension, which the motion court granted, making the Amended Motion due on November 16, 2020.

On November 13, 2020, three days before the Amended Motion was due, appointed counsel timely requested a second 30-day extension. The motion court failed to rule on or grant the motion for extension until November 25, 2020, nine days after the deadline for filing the Amended Motion had already passed, rendering the extension ineffective.2 Because the motion court‘s order granting the extension was ineffective, appointed counsel‘s Amended Motion remained due on November 16, 2020.

Under the mistaken belief that her request for a second extension had been timely granted, appointed counsel did not file the Amended Motion until December 15, 2020. The Amended Motion would have been timely filed had the motion court‘s order granting the second 30-day extension been effective. However, because that order was entered after the time had run, and was therefore ineffective, appointed counsel‘s Amended Motion was filed 29 days late.

On March 11, 2025, appointed counsel filed a motion to permit the untimely filing of the Amended Motion pursuant to Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991) (“the Sanders Motion“). In the Sanders Motion, appointed counsel explained the situation detailed above that led to the untimely filing of the Amended Motion. Appointed counsel stated that the late filing was not Movant‘s fault, but she did not file an affidavit with the Sanders Motion.

On May 14, 2025, the motion court held a hearing on the Sanders Motion. No parties or attorneys were under oath, but the attorneys discussed the Sanders Motion on the record. The motion court stated that it had reviewed the Sanders Motion and asked appointed counsel if the issue was that the court prior to the motion court had failed to grant appointed counsel an extension during the applicable time period. Appointed counsel agreed that that is what had occurred, and the motion court asked if the State had any objection to the Amended Motion being treated as timely filed. The State said no, at which point the motion court stated the following: “Okay. All right. [Appointed counsel], I think, based upon the timelines [sic] of [the Amended Motion] and [Movant‘s] position3 there, we will make no finding, at this time, as to any concerns for abandonment and allow you to proceed on with [the Amended Motion].” (Emphasis added.)

The motion court ultimately denied Movant relief on all claims asserted in the Amended Motion.4 The motion court‘s judgment denying Movant relief on the Amended Motion is silent as to any discussion about the issue of abandonment.

Abandonment and Timeliness

“Before reaching the merits of an appeal, we must first examine the timeliness of the amended motion for post-conviction relief.” Nussbaum v. State, 665 S.W.3d 414, 418 (Mo. App. W.D. 2023).

Our courts have repeatedly made clear that the deadlines for filing a post-conviction motion are mandatory and:

When post-conviction counsel is appointed to an indigent movant, an amended motion seeking post-conviction relief that is filed beyond the deadline can constitute “abandonment” of the movant. Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015);[] Harley v. State, 633 S.W.3d 912, 916 (Mo. App. E.D. 2021). If an amended motion seeking relief is untimely, the motion court is required to conduct an independent inquiry into the reason for the untimeliness to determine if abandonment occurred before considering the merits of the claims and evidence in the amended motion. Moore, 458 S.W.3d at 825; Mack [v. State], 635 S.W.3d [607,] 611 [(Mo. App. W.D. 2021)]; Harley, 633 S.W.3d at 916.

Nussbaum, 665 S.W.3d at 419 (footnote omitted).5

Here, even though it is undisputed that the Amended Motion was untimely since the second request for extension was not ruled on in time, the motion court explicitly stated that it would not conduct an abandonment inquiry. Not only must the motion court conduct an abandonment inquiry under such circumstances, but

“[t]he 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)).

Smith v. State, 697 S.W.3d 617, 619 (Mo. App. E.D. 2024).

There are only two exceptions to the motion court‘s duty to conduct an abandonment inquiry:

First, the Childers exception allows appellate courts to proceed without remanding when all of the claims in a movant‘s pro se motion have been incorporated into and adjudicated along with the claims in the amended motion. Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015). The second is when post-conviction counsel files an affidavit or other sworn statement asserting that the late filing of the amended motion was not the movant‘s fault but was the result of counsel‘s late receipt of the notice of appointment and counsel‘s heavy caseload. Gale v. State, 508 S.W.3d 128, 130 (Mo. App. S.D. 2016).

Id. at 620 n.1. Neither of those circumstances exist in this case.

Rather, “because the motion court did not grant [Movant] an additional thirty days to file his amended motion until after the deadline for filing the amended motion had passed, the amended motion was untimely, and the cause must be remanded for an abandonment inquiry.” Nussbaum, 665 S.W.3d at 418. See also Jones, 643 S.W.3d at 921-22; Clemmons, 785 S.W.2d at 527; Richard v. State, 487 S.W.3d 504, 506-07 (Mo. App. E.D. 2016). The result of the abandonment inquiry determines which motion the motion court should adjudicate – the original motion or the amended motion. Moore, 458 S.W.3d at 826. If the motion court finds that Movant has been abandoned, the motion court is directed to permit the untimely filing. Id. If, however, the motion court finds that Movant has not been abandoned, the motion court should not permit the filing of the Amended Motion and should proceed with Movant‘s pro se motion. Id. at 825.

As Movant‘s Amended Motion was untimely because the second request for an extension was not ruled on in time, the motion court had a duty to undertake an independent inquiry into the reasons for the late filing and to make a sufficient record of that inquiry. The motion court did not do so, and we must reverse and remand to the motion court for that inquiry to take place.

Conclusion

We reverse and remand this case to the motion court for an independent inquiry into whether Movant was abandoned by appointed counsel and for further proceedings consistent with the outcome of the motion court‘s abandonment inquiry and this opinion.

JENNIFER R. GROWCOCK, J. – OPINION AUTHOR

JACK A. L. GOODMAN, J. – CONCURS

BRYAN E. NICKELL, J. – CONCURS

Notes

1
All references are to Missouri Court Rules (2018), which was the version of the Rule in effect at the time that Movant was sentenced.
2
See Jones v. State, 643 S.W.3d 918, 921 (Mo. App. E.D. 2022) (citing Clemmons v. State, 785 S.W.2d 524, 527 (Mo. banc 1990)) (holding that “any motion for an extension of time ... must be made and granted within the time that the amended motion is due“).
3
The motion court had asked Movant if he had any concern about appointed counsel continuing to represent him in this matter, and he said he did not.
4
We note that the claims in the Amended Motion differed from the claims in Movant‘s pro se motion. In his pro se motion, Movant claimed that his counsel was ineffective for failing to contact witnesses in the case. In the Amended Motion, Movant claimed that his attorneys were ineffective for pressuring him to take the plea agreement with the State, and for failing to request independent fingerprint and/or DNA analysis on several items of physical evidence in the State‘s possession before advising Movant to plead guilty pursuant to the plea agreement with the State.
5
“Case law interpreting a provision that is identical in Rules 24.035 and 29.15 applies equally in proceedings under either rule.” Bauer v. State, 734 S.W.3d 825, 831 n.5 (Mo. App. S.D. 2026) (quoting Borschnack v. State, 568 S.W.3d 914, 918 n.4 (Mo. App. S.D. 2019)).