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DIVISION THREE
KEVIN LUCIOUS, ) No. ED101006
)
Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Hon. David C. Mason
STATE OF MISSOURI, )
)
Respondent. )

ORDER

 

On the Court’s own motion, the Opinion Summaiy and Opinion filed in this case on
November 18, 2014 is hereby withdrawn and a new Opinion Summary and Opinion is to issue.
Appellant’s motion for rehearing, 01' transfer to the Missouri Supreme Court is denied as moot.

So Ordered:

Dated: {3 3d I S-  
K rt S. Odenwald, Presiding Judge

Division Three

cc: Robert W. Lundt
Chris Koster
Karen L. Kramer

 

 

 

1111 the ﬁlterinurt @nurt of appeals

(Eastern ﬂaunt
DIVISION THREE
KEVIN LUCIOUS, ) No. ED101006
)
Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Hon. David C. Mason
STATE OF MISSOURI, )
) Filed:
Respondent. ) January 13, 2015

OPINION

Kevin Lucious appeals the judgment of the motion court dismissing his case on the
ground that a 2009 judgment denying his motion to reopen his Rule 29.15 proceedings due to
abandonment was ﬁnal and the motion court was thereafter without any authority to act. We
affirm.

Lucious was convicted after a jury trial on one count of ﬁrst degree murder, one count of
ﬁrst degree assault and two counts of armed criminal action stemming from a 1995 gang
shooting. He was sentenced to life without the possibility of parole and three concurrent life
sentences. The judgment entered on his convictions and sentence was afﬁrmed in Slatﬂ
LLiotts, 967 S.W.2d 119, 120 (Mo. App. ED. 1998).1 Lucious’s Rule 29.15 motion was due on
September 21, 1998. E Rule 29.15(b) (1998). Privately—retained post-conviction counsel

sought an extension of that deadline, which the motion court granted. On October 9, 1998,

l The record From the direct appeal has been transferred to this case.

 

Lucious’s pro se motion was ﬁled, and an amended motion was ﬁled within a week thereafter.
Both motions set forth virtually the same claims of ineffective assistance of trial counsel, but the
amended motion added an additional witness whom trial counsel had allegedly failed to
investigate. Later, the motion court realized that it had no authority to extend the deadline for
ﬁling the original motion and, on the State’s motion, dismissed the case. E Clark v. State,
26IS.W.3d 565, 571 (M0. App. ED. 2008); Moore v. State, 328 S.W.3d 700, 702-05 (Mo. banc
2010) (failure to tile timely original motion is complete waiver of right to seek relief).

In 2009, Lucious ﬁled a motion to have his Rule 29.15 proceedings reopened2 on the
ground that he had been “abandoned” by his post-conviction counsel. Therein, he alleged that
counsel told Lucious to mail his Form 40 to counsel, who would take care of ﬁling it with the
court. Lucious asserted that counsel acknowledged receiving the form in the mail a week before
the ﬁling deadline, but that counsel instead asked for additional time and did not ﬁle anything
until after the original deadline. Lucious also claimed that the Form 40 motion counsel
ultimately ﬁled was different than the one he had sent to counsel and did not include all of the
claims Lucious had set forth.

On November 16, 2009, the motion court entered judgment denying that motion, ﬁnding
that Lucious’s claims regarding counsel’s conduct were not cognizable abandonment claims.
But the court also stated that it had reviewed ex gratia the claims of ineffective assistance of trial
counsel set forth in the amended Rule 29.15 motion and determined that Lucious would not have

been entitled to an evidentiary hearing even if his motions had been timely filed. The motion

2 The nomenclature “motion to reopen” has been denounced repeatedly in recent years by the Supreme Court and
should not be used. Instead, movants in Lucious’s position should seek leave to ﬁle their untimely initial post-
convietion motions out of time. Price v. State, 422 S.W.3d 292, 312 n.1 (Mo. banc 2014).

court set forth each of Lucious’s claims and addressed the factual and legal reasons why the
record failed to support those claims.

On December 8, 2009, Lucious ﬁled a “motion to vacate the order and judgment entered
November 16, 2009 and to grant a hearing on movant’s motion to reopen this Rule 29.15 action
ﬁled.” On January 27, 2010, the trial court set a hearing “on movant’s motion to reopen.” The
court held that hearing, at which post-conviction counsel apparently admitted that the
contentions regarding his untimely ﬁling of the original Rule 29.15 motion were true.
Thereafter, the motion court entered an order, this time ﬁnding that Lucious was “abandoned” by
counsel, granting the “motion to reopen” and giving Lucious leave to ﬁle another amended
petition for post-conviction relief. Over two years later, the case was set for an evidentiary
hearing on that amended motion.

The State sought to dismiss the entire case on the ground that the court’s failure to rule on
Lucious’s motion to vacate the November 16, 2009 judgment rendered that judgment ﬁnal by
operation of law, which was not appealed. Therefore, the State claimed, the court had no
authority to reopen the case and order amended motions and hearings. Lucious argued that his
motion to vacate was ruled on and the judgment vacated by implication when the court set a
hearing. In December of 2013, the motion court concluded that it had not ruled on the motion to
vacate—which therefore was deemed overruled ninety days after it was ﬁled—and therefore the
court had no authority to act after March 9, 2010. It dismissed the case, and Lueious appeals.
We afﬁrm for the following reasons.

Under Rule 81.05, a judgment becomes ﬁnal at the expiration of thirty days after its entry
if no timely authorized after-trial motion is ﬁled. Rule 81.05(a)(l). If an authorized after-trial

motion is ﬁled and not ruled upon, it is deemed overruled and the judgment becomes ﬁnal ninety

days from the date the motion was ﬁled. Rule 81 .05(a)(2)(A). Thus, Lucious’s motion to vacate
would have an effect on the ﬁnality of the November 16, 2009 judgment for purposes of Rule
81.05 only if it was an authorized after-trial motion. A “motion to vacate” is not an authorized

after-trial motion, but can be considered so for this purpose if “it places before the trial court

)5

allegations of trial court error regarding contested legal or factual issues. Estate of Downs v.
Mg, 348 S.W.3d 848, 858 n.3 (Mo. App. W.D. 2011). Lucious’s motion to vacate could be
considered an authorized after—trial motion. But the motion court did not rule on that motion
within ninety days under Rule 81.05. The only action taken by the court within that ninety-day
period—which ended on March 9, 2010—was setting a hearing on the “motion to reopen.” This
type of action does not extend the time for ruling on an after-trial motion. “A ruling must make
some sort of determination in the case.” In re Kreutzer, 50 S.W.3d 334, 336 (Mo. App. SD.
2001). The setting of a hearing resolves nothing and does not foreclose the possibility of a later
ruling. Setting this hearing date did not dispose of any issues in the case or determine anything
about Lucious’s motion to vacate or the November 16, 2009 judgment. At most, the setting of a
hearing may indicate that the trial court might reconsider its November 16, 2009 judgment. But
that still cannot be considered a ruling, even by implication, because it did not dispose of the
issue. & Basham v. Williams, 239 S.W.3d 717, 721-22 (Mo. App. SD. 2007) (docket entry
stating cause taken up, heard, taken under advisement and amended judgment was forthcoming
did not extend time for court to rule on after-trial motion, nor was a denial of after-trial motion).
Thus, it cannot be deemed a ruling for purposes of Rule 81.05. E.

For these reasons, the November 16, 2009 judgment denying Lucious’s claims of

abandonment became final—mat the latest—0n March 9, 2010, which was ninety days after the

motion to vacate was ﬁled but not ruled upon. The motion court properly dismissed the case
after realizing its error in proceeding with this case after that point.

Lucious complains it is fundamentally unfair that—~through no fault of his ownmhe had
no opportunity to appeal the November 16, 2009 judgment since his counsel, the State and the
court proceeded with the case for Years as if that judgment had been vacated. By the time the
court determined otherwise in December of 2013, it was too late to appeal; thus, Lucious claims,
he has been denied an adequate opportunity to have his underlying claims heard. We disagree.
Lucious has been given all the opportunities to which he is entitled for having his post-
conviction claims for relief heard and has suffered no unfair prejudice by the motion court’s
erroneous proceedings.

First, it appears Lucious had adequately alleged in his “motion to reopen” that privately-
retained post-conviction counsel actively interfered with Lucious’s ability to timely ﬁle his
original Rule 29.15 motion. “[W]here an inmate prepares his initial motion and does all that he
reasonably can to ensure that it is filed on time, tardiness resulting solely from the active

interference of a third party beyond the inmate’s control may be excused and the waiver imposed

by Rule 29.15(b) not enforced.” Price, 422 S.W.3d at 307. This would not constitute

 

abandonment because that doctrine only applies to the actions of appointed counsel with respect
to amended motions. ﬂ. (holding that prior Supreme Court cases recognizing active interference
as basis for excusing untimeliness did not expand abandonment doctrine). But it would have
entitled him to have the motion court consider the original pro se motion as having been timely
ﬁled and proceed to reviewing the merits of, what would then be deemed timely, amended

motion. E McFadden v. State, 256 S.W.3d 103, 109 (Mo. banc 2008).4 There would be no

4 There are limited circumstances in which a court may allow an abandoned movant to file an amended motion, but
this was not a case of abandonment and, even if it was, these circumstances are not present here. See Morgan v.

5

need to remand for that remedy in this case, however, because the motion court has already
reviewed the merits of Lucious’s claims ex gratia and found no relief was warranted. m
Morgan, 296 S.W.3d at 5. We have conducted our own ex gratia review and ﬁnd no clear error
in the motion court’s conclusion that the record did not support Lucious’s claims of ineffective

assistance of trial counsel and would not have warranted an evidentiary hearing even if the

motion had been timely filed.
Point denied.

The judgment is afﬁrmed.

 

 

k ROBERT G. DOWD, JR, Judge %

Kurt S. Odenwald, RI. and
Gary M. Gaertner, Jr., J ., concur.

W

State, 296 S.W.3d I, 5 (Mo. App. ED. 2009) (where appointed counsel filed no motion nor took any action on
behalf of movaut).

 

