                IN THE MISSOURI COURT OF APPEALS
                        WESTERN DISTRICT

GENE E. DUDLEY,                                             )
                                                            )
                                           Appellant,       )
                                                            )    WD77218
v.                                                          )
                                                            )    OPINION FILED:
                                                            )    April 28, 2015
STATE OF MISSOURI,                                          )
                                                            )
                                        Respondent.         )


                    Appeal from the Circuit Court of Jackson County, Missouri
                              The Honorable J. Dale Youngs, Judge

                  Before Division One: James Edward Welsh, Presiding Judge, and
                        Thomas H. Newton and Karen King Mitchell, Judges

       Gene Dudley, Jr., appeals, following an evidentiary hearing, the denial of his

Rule 24.0351 motion for post-conviction relief. Dudley claims that plea counsel was ineffective

for failing to call Dudley’s father as a witness in mitigation at sentencing. But because Dudley

failed to timely file his Rule 24.035 motion, or plead and prove any justification for the untimely

filing, he waived his right to seek post-conviction relief. The untimely nature of Dudley’s

motion deprived the motion court of authority to review the motion on its merits, and the motion



       1
           All rule references are to the Missouri Court Rules (2014), unless otherwise noted.
should have been dismissed. Accordingly, we vacate the motion court’s judgment and remand

with directions that the motion court dismiss Dudley’s untimely filed Rule 24.035 motion.

                                                   Background

         Dudley pled guilty, pursuant to a plea agreement, to one count of second-degree murder,

one count of first-degree assault, and two counts of armed criminal action, for which he was

sentenced to a total of twenty-three years’ imprisonment.

         On March 2, 2011, Dudley attempted to file a pro se Rule 24.035 motion, but it was not

actually file stamped until March 18, 2011.2 The motion alleged that Dudley had been delivered

to the Department of Corrections on August 21, 2009, and that he had not appealed the judgment

of conviction. Following the question of whether Dudley had filed any other Rule 24.035

motions before the current one, Dudley responded, “none.”

         The motion court initially dismissed Dudley’s motion on March 31, 2011, noting that it

had not been timely filed under the mandate of Rule 24.035(b). On July 12, 2011, Dudley

allegedly filed a pro se “Motion Requesting to File Out of Time Petition to Vacate Judgment to

Set Aside Guilty Plea.”3 On July 19, 2011, the motion court vacated the dismissal order because

the court believed that it should not have dismissed the motion without first appointing counsel

for Dudley under Rule 24.035(e).



         2
            The record suggests that there were some deficiencies in the original filing, of which Dudley was notified
by the circuit clerk. Dudley then filed more paperwork on March 16, 2011, but the complete correct documentation
was not filed until March 18, 2011. These date discrepancies, however, are immaterial to the outcome of this
appeal.
          3
            A copy of this motion has not been included in the record on appeal. The only reference made to it is in
the court’s order vacating the dismissal. Dudley makes no assertion on appeal as to the contents of the motion and
expresses confusion, noting that “[i]t is unclear what pro se motion is the subject of the court’s July 19, 2011 order.
A motion challenging the dismissal order does not appear on Case.net under either the original criminal case number
or the civil case number assigned to the Rule 24.035 motion.” Regardless, the motion court’s sole response to the
motion was to vacate its earlier dismissal order as a result of its failure to appoint counsel. Thus, we presume either
that the lack of appointed counsel was the only subject of Dudley’s motion or that the court rejected other arguments
contained therein. Dudley has not made any arguments pertaining to either his motion or the court’s response to it;
thus, we see no further reason to address it.


                                                          2
       Appointed counsel filed an amended Rule 24.035 motion, acknowledging that Dudley

had been delivered to the Department of Corrections on August 21, 2009, and had not appealed

the judgment of conviction. The amended motion alleged that “Mr. Dudley attempted to file a

timely pro se Rule 24.035 motion in October 2009 and in February 2010, but learned that those

motions were not received by the Court.” The motion further alleged that Dudley had filed his

pro se motion on February 3, 2011. The amended motion contained no allegations of either

interference with Dudley’s efforts to file or misfiling of his previous motions by the circuit court.

       The motion court held an evidentiary hearing on the two claims raised in the amended

motion. Thereafter, the court issued findings of fact and conclusions of law, overruling Dudley’s

Rule 24.035 motion.      In its findings and conclusions, the motion court stated:          “Movant

attempted to file pro se Rule 24.035 motions in October of 2009 and February of 2010, but these

motions were not received by the Court.” The court did not elaborate as to why the motions had

not been received before addressing the merits of Dudley’s claims. After the court overruled

Dudley’s Rule 24.035 motion, Dudley appealed.

                                        Standard of Review

       “Appellate review of the denial of a post-conviction relief motion is limited to a

determination of whether the motion court’s findings of fact and conclusions of law are clearly

erroneous.” Burnett v. State, 450 S.W.3d 800, 805 (Mo. App. W.D. 2014). “Findings and

conclusions are clearly erroneous only if, after a review of the entire record, the appellate court is

left with the definite and firm impression that a mistake has been made.” Id. “The movant bears

the burden of showing by a preponderance of the evidence that the motion court clearly erred.”

Id.




                                                  3
                                                    Analysis

        Dudley raises a single claim on appeal regarding the effectiveness of his plea counsel.

The State argues, however, that Dudley waived this claim by failing to timely file his

Rule 24.035 motion. We agree.

        Rule 24.035(b) provides that, “If no appeal of [the] judgment [being challenged] was

taken, the [Rule 24.035] motion shall be filed within 180 days of the date the person is delivered

to the custody of the department of corrections.” Here, Dudley was delivered to the Department

of Corrections on August 21, 2009. Because he did not appeal his convictions, his Rule 24.035

motion had to be filed no later than February 17, 2010. His motion was not filed, however, until

March 18, 2011—approximately one year and one month past the deadline.4

        In a motion filed pursuant to Rule 24.035, the movant must allege facts establishing that

the motion is timely filed, and he must then prove those allegations. Dorris v. State, 360 S.W.3d

260, 267 (Mo. banc 2012). The movant can meet these burdens by either:

        (1) timely filing the original pro se motion so that the time stamp on the file
        reflects that it is within the time limits proscribed in the Rule; (2) alleging and
        proving by a preponderance of the evidence in his motion that he falls within a
        recognized exception to the time limits; or (3) alleging and proving by a
        preponderance of the evidence in his amended motion that the court misfiled the
        motion.

Id.

        Here, Dudley’s motion was not timely filed, as reflected by the time stamp on the

Rule 24.035 motion; thus, he has not met his burden under (1). His pro se motion neither

acknowledges the untimely nature of the filing nor provides any factual assertions that would

support a recognized exception to timely filing. Thus, he failed to meet his burden under (2). As

        4
           The record reflects a variety of possible filing dates for the pro se motion, ranging from as early as
February 3, 2011, to as late as March 18, 2011. While we rely on the March 18, 2011 filing date for purposes of our
analysis because it is the date reflected on the time stamp, the outcome would not change even under the more
favorable date of February 3, 2011.


                                                        4
for (3), though the amended motion acknowledged the untimely nature of the pro se motion and

provided an explanation for the untimeliness, the explanation involved neither a misfiling by the

circuit court nor a recognized exception for untimely filing. Thus, Dudley failed to meet his

burdens of both pleading and proving that his motion was timely filed.

       In its findings and conclusions, the motion court reiterated the allegations of the amended

motion explaining the untimely nature of Dudley’s Rule 24.035 motion. But there was nothing

in the record to support the factual findings. And even if they were supported by evidence, they

did not amount to legal justification to excuse Dudley’s untimely filing. Dudley did not allege,

much less prove, why his attempted filings were not received. Thus, he neither alleged nor

proved that circumstances beyond his control, or negligence or misconduct by others, prevented

his attempted filings from being successful. In the absence of such allegation, we are unaware of

any exception to Rule 24.035’s time limitations that could apply here. “It is the court’s duty to

enforce the mandatory time limits and the resulting complete waiver in the post-conviction

rules—even if the State does not raise the issue.” Dorris, 360 S.W.3d at 268.

       Because [the post-conviction rules] state that failure to file a motion within the
       time provided by the Rules “shall constitute a complete waiver of any right to
       proceed under [these] Rule[s] and a complete waiver of any claim that could be
       raised in a motion filed under [these] Rule[s],” the motion court had no authority
       to hear the motions . . . .

Id. at 263 (quoting Rules 24.035(b) and 29.15(b)).

                                          Conclusion

       Because Dudley’s Rule 24.035 motion was untimely, he waived “any claim that could be

raised in a motion filed pursuant to [that] Rule.” Accordingly, the motion court lacked authority

to review the merits of Dudley’s claim and should have dismissed the motion as untimely. The




                                                5
court’s judgment is vacated and the matter is remanded for the sole purpose of the motion court

dismissing Dudley’s Rule 24.035 motion as untimely.




                                           Karen King Mitchell, Judge

James Edward Welsh, Presiding Judge,
and Thomas H. Newton, Judge, concur.




                                              6
