There are numerous examples of cases in which prisoners have successfully challenged the actions of Rule 27.26 courts. See, e.g., Parker v. State, 785 S.W.2d 313 (Mo.App. 1990) (motion court erred by dismissing the Rule 27.26 petition of a defendant who had received no assistance of counsel); Young v. State, 724 S.W.2d 326 (Mo.App. 1987) (reversing the dismissal of a Rule 27.26 petition because the motion court had not given counsel notice or an opportunity to be heard); Ray v. State, 644 S.W.2d 663 (Mo.App. 1982) (motion court's dismissal of a Rule 27.26 petition was improper because counsel had not had an opportunity to amend the petition and to consult with the defendant). Moreover, the Missouri Supreme Court disagrees with the petitioner's argument.
This rule, however, has no application to a situation in which the record shows not mere ineffectiveness but such a total default in carrying out the obligations imposed upon appointed counsel by Rule 29.15(e) as to constitute abandonment. Sanders v. State, 807 S.W.2d 493, 494 (Mo. banc 1991); Luleff v. State, 807 S.W.2d 495, 497 (Mo. banc 1991); Luster v. State, 785 S.W.2d 103, 106 (Mo.App. 1990); Parker v. State, 785 S.W.2d 313, 314 (Mo.App. 1990); Webster v. State, 796 S.W.2d 79, 80 (Mo.App. 1990). The record presented here is substantially similar to those in Sanders and Luleff.
Id. at 571.Parker subsequently reached the appellate level twice in a post-conviction proceeding: Parker v. State, 785 S.W.2d 313 (Mo.App.E.D. 1990), and Parker v. State, 836 S.W.2d 469 (Mo.App.E.D. 1992). The holdings for which we cite Parker remained intact on those occasions.
This appeal followed. The litigation preceding the filing of the amended motion is found in Parker v. State, 785 S.W.2d 313 (Mo.App. 1990). Movant first asserts that the motion court erred in finding that the trial court correctly sentenced him to consecutive sentences for each of the two attempted rape convictions.
A "post-conviction proceeding cannot be used to challenge the effectiveness of counsel in the post-conviction proceeding," Sloan v. State, 779 S.W.2d 580, 583 (Mo. banc 1989), unless there has been complete abandonment by counsel. Parker v. State, 785 S.W.2d 313 (Mo.App.E.D. 1990). Here, movant was not abandoned, as his counsel filed an amended motion and represented him at his evidentiary hearing.
Thus, under Rule 27.26, courts had the freedom to remand a claim for a counsel's failure to amend if they so wished. Under Rule 29.15, after Day v. State, 770 S.W.2d 692 and its progeny, this is not possible. Once the deadline has passed, all specified rights under Rule 29.15 have been forfeited. Defendant cites Parker v. State, 785 S.W.2d 313 (Mo.App. 1990) as authority to reverse the motion court's judgment. In Parker, appellant received no assistance of counsel, not just ineffective assistance of counsel.
Movant points out, however, that cases decided by the Court of Appeals since Sloan, Young and Lingar have held that where counsel for a prisoner in a post-conviction proceeding provides no representation whatever, a judgment denying relief can be reversed and the proceeding remanded so the prisoner can receive assistance of counsel. Parker v. State, 785 S.W.2d 313 (Mo.App. 1990); Luster v. State, 785 S.W.2d 103 (Mo.App. 1990) (prisoner entitled to new appointed counsel and fresh period for filing amended motion to vacate). At the same time, movant recognizes the Court of Appeals has held the extraordinary relief of reversal because of appointed counsel's failure to amend a prisoner's pro se motion to vacate his conviction is not warranted unless the record indicates he had a justiciable claim that appointed counsel failed to present.
The court granted review "`because the record [does not demonstrate] the active participation of appointed counsel and no amended motion is filed.'" Webster, 796 S.W.2d at 80 (quoting Hirsch v. State, 698 S.W.2d 604, 605 (Mo.App. 1985); also citing Parker v. State, 785 S.W.2d 313 (Mo.App. 1990); Luleff v. State, No. ED 57489 (Mo.App. Aug. 14, 1990)). Appellant has not shown the facts necessary to trigger application of Luster, thus it is not necessary to reconcile the holdings of Luster and Lingar at this time.
Young, 770 S.W.2d at 245[4]; Lingar v. State, 766 S.W.2d 640, 641[2] (Mo. banc 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 258, 107 L.Ed.2d 207 (1989). Appellant directs us to Parker v. State, 785 S.W.2d 313 (Mo.App. 1990). There counsel was appointed for an indigent prisoner in a post-conviction proceeding under former Rule 27.26 (now repealed) and, according to the record, did nothing thereafter.
This court has reversed denial of post-conviction motions where motion counsel takes no "affirmative steps on behalf of movant," Goings v. State, 676 S.W.2d 64 (Mo.App.E.D. 1984), or "when the record [does not demonstrate] the active participation of appointed counsel and no amended motion is filed," Hirsch v. State, 698 S.W.2d 604, 605 (Mo.App.E.D. 1985). See also, Parker v. State, 785 S.W.2d 313 (Mo.App.E.D. 1990); Luleff v. State, slip op. No. 57489, August 14, 1990 (Mo.App.E.D.). We need not decide here whether movant has stated legally sufficient grounds for post-conviction relief. "In the absence of some performance by appointed counsel the motion court cannot know whether the pro se pleading can be made legally sufficient by amendment or whether there are other grounds known to movant but not included in the pro se motion."