 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
CASEY LANGHANS, ) No. ED103611
)
Appellant, ) Appeal from the Circuit Court
) of Jefferson County
vs. )
) Honorable Nathan B. Stewart
STATE OF MISSOURI, )
)
Respondent. ) FILED: October 18, 2016

Introduction

Casey Langhans (“Langhans”) appeals from the judgment of the motion court denying
his amended Rule 24.035' motion for post-conviction relief without an evidentiary hearing. In
his sole point on appeal, Langhans argues that the motion court clearly erred in denying him an
evidentiary hearing, in that the record did not conclusively refute his ineffective assistance of
counsel ciaim. Because Langhans did not tile his initial pro se Ruie 24.035 motion within 180
days of his first delivery to the Missouri Department of Corrections, his amended Rule 24.035
motion Was untimely and therefore barred. Accordingly, we vacate the judgment of the motion
court and remand the cause to the motion court With directions to enter an order dismissing

Langhans’s amended Rule 24.035 motion as untimely.

 

l All rule references are to Mo. R. Crim. P. (20] 5).

 

Factual and Procedural Historv

 

The State charged Langhans with one count of second-degree robbery (“Count i”) and
With one count of second-degree assault (“Count II”). Langhans pled guilty to both counts under
a plea agreementl The plea agreement provided that, in exchange for Langhans’s guilty plea, the
State would recommend ten years’ imprisonment for Count I with no objection to sentencing
pursuant to Section 559.115.2 Under Section 559.1 15, the circuit court could release Langhans
on probation after his successful completion of a 120-day treatment program With the Missouri
Department of Corrections. For Count II, the plea agreement recommended a consecutive five-
year prison sentence, but with the execution of the sentence suspended

After a plea hearing, the circuit court accepted Langhans’s guilty plea on both counts.
The circuit court sentenced Langhans pursuant to the plea agreement and applied Section
559.115 to Count I’s sentence. On or about June 17, 2013, Langlians was delivered to the
Missouri Depaitment of Corrections to complete the 120-day treatment program for the sentence
on Count I. Langlians successfully completed the 120-day treatment program, resulting in his
release from custody and the circuit court ordered supervised probation for the sentence on
Count l.

Within a year of Langhans’s release from prison, the State sought revocation of his
probation based on purported violations to the terms of his probation. At the resulting probation
revocation hearing, the circuit court revoked Langhans’s probation and ordered the execution of
the sentences on both Count l and Count iI. As a result, Langhans was delivered to the Missouri

Department of Corrections on November 7, 2014.

 

2 A|l statutory references are to RSMo (Cum. Supp. 2012).
2

 

On February 9, 2015, Langhans filed a pro se motion for post-conviction relief asserting
ineffective assistance of counsel. After amendment, Langhans’s Rule 24.035 motion alleged that
his counsel was ineffective in that plea counsel failed to communicate to him the
recommendation of Langhans’s father on the plea agreement Specifically, Langhans argued that
because he had difficulty communicating with plea counsel and comprehending the proceedings
in his case, he needed his father’s assistance in order to facilitate his ability to render a voluntary
guilty plea, Langhans avers that plea counsel did not inform him of his father’s recommendation
to reject the plea agreement and that plea counsel led him to believe that his father instead
approved of the plea agreement Consequently, Langhans insists that, but for plea counsel’s
ineffectiveness, he would have rejected the plea agreement based on his father’s
recommendation and assistance in understanding his case.

After addressing the merits of the motion and finding that the record conclusively refuted
Langhans’s contentions, the motion court denied Langhans’s amended Rule 24.035 motion in its

entirety Without an evidentiary hearing. This appeal follows.

Points on Appeal

In his sole point on appeal, Langhans asserts that the motion court clearly erred in
denying his ineffective assistance of counsel claim without an evidentiary hearing, in that the
record did not conclusively refute his contention that plea counsel failed to inform him of his
father’s recommendation to reject the plea agreement

Discussion

Before reaching the merits of Langhans’s amended Rule 24.035 motion, we must first
address the timeliness of the motion. Pettry v. State, 345 S.W.3d 335, 337 (Mo. App. E.D.
2011). Langhans maintains that his amended Rule 24.035 motion Was timely for his conviction

on Count 11 as he filed his initial pro se motion on February 9, 2015--within 180 days of his

3

 

November 2014 delivery to the Missouri Department of Corrections for his sentence on Count Il.
In contrast, the State argues that Langhans’s delivery to the Missouri Department of Corrections
in June of 2013 for the 120-day treatment program on Count I’s sentence initiated the 180-day
period in which Langhans could timely file a Rule 24.035 motion on any sentence within the
multi-count judgment3 The State further asserts that because Langhans did not file a motion for
post-conviction relief within 180 days of his June 2013 delivery, he completely waived any right
to proceed under Rule 24.035.

A person who pleads guilty to a felony and correspondingly enters the custody of the
Missouri Department of Corrections may seek post-conviction relief in the sentencing court
through the procedure established by Rule 24.035. Lenoir v. State, 475 S.W.Bd 139, 141 (Mo.
App. E.D. 2014). By its plain language, Rule 24.035 permits claims for post-conviction relief
that assert the ineffective assistance of counsel in violation of the Constitution and laws of
Missouri or the Constitution of the United States. However, Rule 24.035 expressly provides that
the movant must raise any such claims within 180 days of the date the movant is delivered to the
Missouri Department of Corrections, if there was no appeal of the underlying judginth or
sentence. Rule 24.035(b); Phelps v. State, 351 S.W.3d 269, 270 (Mo. App. W.D. 2011). The
delivery of the movant into the custody of the Missouri Department of Corrections for a 120-day
treatment program pursuant to Section 559.115 initiates the 180-day period in which the movant
may file a Rule 24.035 motion. Roberts v. State, 407 S.W.3d 89, 91 (Mo. App. W.D. 2013).

Failure to abide by the timing requirements prescribed by Rule 24.035 results in the dismissal of

 

3 Even though the State raises this issue for the first time on appeal, neither party can waive compliance With the
timing requirements as prescribed by Rule 24,035 or Rule 29.15. Accordingly, we must address this issue. Dorris v.

 

State, 360 S.W.?)d 260, 268 (Mo. banc. 20l2); Asher v. State, 390 S.W.Bd 917, 918 (Mo. App. E.D. 2013).
4

 

the movant’s claim and a complete waiver of any right to proceed under Rule 24.035.‘l @o_ir,
475 S.W.3d at 141~42.

Here, Langhans’s June 2013 delivery to the Missouri Department of Corrections for the
120-day treatment program on Count l’s sentence initiated the 180-day period as to the

conviction on Count I. E, gg., Asher, 390 S.W.3d at 917-18; Roberts, 407 S.W.3d at 91. The

 

issue before this Court is whether the June 2013 delivery also initiated the 180-day period as to
the sentence for Count ll, even though the execution of Count Il’s sentence Was suspended at the
time of the June 2013 delivery.

Although the plain language of Rule 24.035 is silent on this point, the Supreme Court of
Missouri in Swallow v. State clarified the timing requirements for filing a Rule 24.035 motion in
cases involving a multi-count judgmentl 398 S.W.?)d 1, 4-5 (l\/lo. banc 2013). in Swallow, the
movant pled guilty to one count each of assault and armed criminal action. Li at 2. The circuit
court sentenced the movant to twenty years’ imprisonment for the assault charge and a
concurrent three-year prison sentence for the armed-criminal-action charge. I_d. On the assault
charge, the circuit court suspended execution of the sentence and placed the movant on
probation li ()n the armed-criminal-action charge, the circuit court ordered the immediate
execution of the sentence, resulting in the movant’s delivery to the Missouri Departinent of
Corrections in March of 2006. i_d. at 2-3. The movant completed his sentence for the armed-
criminal-action charge and was released from custody id at 3.

The circuit court later revoked the movant’s probation on the assault conviction and
ordered the execution of the sentence. ,I_d._ The movant was delivered to the custody of the

Missouri Department of Corrections shortly thereafter. I_d. Within 180 days of this second

 

“ There is a narrow of list of exceptions to the strict timing requirements of Rule 24.035 and Rule 29.15. gee Talley
v. State, 399 S.W.$d 872, 875 (Mo. App. S.D. 2013). However, these exceptions are not pertinent to this appeal

5

 

deiivery to the Missouri Department of Corrections, the movant filed a Rule 24.035 motion
alleging ineffective assistance of counsel. Id.

The Swallow court determined that the movant’s Rule 24.035 motion was untimely and
therefore barred Ld. at 7. Specifically, the court ruled that when the movant was “delivered to
the department of corrections for his [armed-criminal-action] conviction, Rule 24.035 required
him to file a motion within 180 days that raised all of his known challenges to the judgment
against him, which encompassed both convictions and both sentences that were imposed,
whether executed or not.” Id. at 5.

In reaching this conclusion, the court emphasized the purpose of Rule 24.035 is to
provide a prompt review of a potential deficiency in any judgment or sentence. § at 4. Indeed,
the framework of Rule 24.035 intends to provide to the movant a “single, unitary, post-
conviction remedy, to be used in the place of other remedies.” _Ld& (citing State ex rel. Nixon v.
lay@, 63 S.W.3d 210, 214 (Mo. banc 2001)). To that end, the court found that permitting
delays in raising Rule 24,035 motions until subsequent deliveries to the Missouri Department of
Corrections under the same judgment would frustrate the rule’s purpose. I_d.

Additionally, the court found that the plain language of the rule militates against an
interpretation allowing the timing requirements for Rule 24.035 motions to begin anew after a
subsequent delivery to the Missouri Department of Corrections under the same judgment. L
Specifically, the court noted that Rule 24.035(d) expressly requires a movant to include in his or
her initial motion “every claim known to the movant for vacating, setting aside, or correcting the
judgment or sentence.” I_d. (emphasis added). Further, the court observed that Rule 24.035(1)
prohibits successive motions in order to ensure that movants receive a single, but prompt and

meaningful, post-conviction relief opportunity icL

 

Finally, the court concluded that allowing a delay in raising claims until a subsequent
delivery could infuse problems pertaining to issue preclusion, the potential of inconsistent
rulings, and absurd results in rulings on Rule 24.035 motions. § at 5. Accordingly, the court
stated, “[T]o contend that the rule permits a motion whenever a sentence begins could lead to the
absurd result that consecutive sentences could be challenged by a separate motion as each
sentence begins, whereas, if the sentences are concurrent, only one motion is permitted dealing
with all issues.” §

We read Swallow to require a movant, whose unappealled final judgment includes
sentences on multiple felony counts, to raise any known Rule 24.035 claims within 180 days of
his or her initial delivery to the Missouri Department of Corrections on any such counts
contained within the judgment Applying Swallow required Langhans to raise any ineffective
assistance of counsel claims he may have asserted on either Count 1 or Count ll within 180 days
of his June 2013 delivery to the Missouri Department of Corrections.

Langhans posits that Swallow is distinguishable as the movant there received a judgment
with concurrent sentences, and so any time served for the movant’s armed criminal action
necessarily accrued towards the movant’s assault charge for which the execution was suspended
De_ _i_d_. at 2-3. To Langhans, the movant in Swallow was thus already delivered to the Missouri
Department of Corrections on both counts when he began serving his armed criminal action
sentence.

We are not persuaded by Langhans’s argument Whiie we acknowledge the factual
distinction offered by Langhans, Swallow clearly rejects allowing movants to raise Rule 24.035
claims at each “subsequent delivery” in a judgment containing consecutive sentences l_d. at 5.

Indeed, the Supreme Court of Missouri called this an “absurd result” that would necessitate

 

duplicative motions at the start of each new sentence to resolve any Rule 24.035 claims against a
single judgmentma result counter to the purpose of Rule 24.035. § at 4-5.

Further, adopting Langlrans’s argurnent--tlrat a movant who is serving consecutive
sentences With the Missouri Department of Corrections under a single judgment must file a Rule
24.035 motion at the start of each new sentence-would result in the possibility of inconsistent
rulings on subsequent claims for post-conviction relief and in successive motions to fully resolve
the legality of a single judgment Swallow’s concerns pertaining to inconsistent rulings and
successive motions apply equally to Rule 24.035 motions filed upon subsequent deliveries on
consecutive sentences As a r'esult, we hold that a movant, whose unappealled final judgment
includes consecutive sentences on multiple felony counts, must raise any known Rule 24.035
claims within 180 days of his or her initial delivery to the Missouri Department of Corrections on
any such counts contained within the judgment

Here, Langhans received the benefit of his plea bargain, as it afforded him the
opportunity of minimal imprisonment if he complied with the terms of his probation Pursuant to
this plea bargain, Langhans entered the custody of the Missouri Department of Corrections in
June of 2013. If Langhans believed any part of his sentence or the judgment against him violated
the Constitution or laws of Missouri or the Constitution of the United States, he was required to
raise such claims at that time or within 180 days thereafter. Instead, Langhans waited, filing his
Rule 24.035 motion after the circuit court revoked his probation and ordered the execution of his
sentences By waiting to file until after the expiration of the 180-day period that commenced
with his June 2013 delivery to the Missouri Department of Corrections, Langhans’s pro se
motion was untimely under the strict time limits of Rule 24.035. @ Unnerstall v. State, 53

S.W.3d 589, 591~92 (Mo. App. E.D. 2001). As Langhans’s pro se Rule 24.035 motion was

 

untimely, the motion court lacked the authority to address the merits of his ineffective assistance
of counsel claim. § Accordingly, the motion court was obligated to dismiss Langhans’s
amended Rule 24.035 motion.
Conclusion
We vacate thejudgment of the motion court and remand the cause to the motion court
with directions to enter an order dismissing Langhans’s amended Rule 24.035 motion as

untimely

hidder

nURT s. oDr-;NWALD, iudge

James M. Dowd, P.J., concurs
Gary M. Gaertner, Jr., J., concurs

 

