             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

 TERRY GALE ASHLEY,                               )
                                                  )
                                    Appellant,    )
                                                  )   WD81841
 v.                                               )
                                                  )   OPINION FILED:
                                                  )   May 7, 2019
 STATE OF MISSOURI,                               )
                                                  )
                                 Respondent.      )


                Appeal from the Circuit Court of Lafayette County, Missouri
                           The Honorable Dennis A. Rolf, Judge

                 Before Division Four: Karen King Mitchell, Chief Judge, and
                         Alok Ahuja and Thomas N. Chapman, Judges

       Terry Ashley appeals the dismissal of his Rule 24.035 motion for post-conviction relief.

Ashley argues that the motion court erred in finding the pro se motion to have been untimely filed.

Finding no error, we affirm.

                                          Background

       On December 19, 2016, Ashley pled guilty to one count of first-degree statutory sodomy.

On February 6, 2017, the trial court sentenced Ashley to a term of twenty years’ imprisonment.

Ashley was delivered to the Department of Corrections on February 8, 2017. On February 23,

2017, Ashley filed a motion to correct the judgment, nunc pro tunc, based on a misstated charge
code number.1 On March 6, 2017, the trial court granted Ashley’s motion and entered a corrected

judgment.

         On August 28, 2017, Ashley filed a pro se Rule 24.035 motion for post-conviction relief.

On April 9, 2018, the State filed a motion to dismiss Ashley’s post-conviction action based on the

allegation that Ashley’s pro se motion was not timely filed. On June 19, 2018, the motion court

granted the State’s motion and dismissed Ashley’s post-conviction action. Ashley appeals.

                                                      Analysis

         Ashley raises a single point on appeal; he argues that the motion court erred in dismissing

his post-conviction action because his pro se motion was not, in fact, untimely insofar as it was

filed within 180 days of the trial court’s entry of the corrected judgment.

         At the outset, Ashley relies on the current version of Rule 24.035, and the State counters

that the prior version (applicable at the time of Ashley’s sentencing and his filing of the pro se

motion) controls. The prior version provided that, if the original judgment was not appealed, “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.” Rule 24.035(b) (2017) (emphasis added). The current

version provides that, “[i]f no appeal of such judgment or sentence is taken, the motion shall be

filed within 180 days of the date the sentence is entered.” Rule 24.035(b) (2018) (emphasis added).

Ashley then argues that his sentence was not “entered” until March 6, 2017, when the trial court

issued the corrected judgment. And, because his pro se motion was filed within 180 days of




         1
           “Rule 81.12 specifies the record which must be provided by an appellant on appeal and imposes upon an
appellant the duty to file the transcript and prepare a legal file so that the record contains all evidence necessary to
make determinations on the issues raised.” Carter v. State, 253 S.W.3d 580, 582 (Mo. App. S.D. 2008). Though
Ashley did not file the motion with this court, a review of Ashley’s underlying criminal case on Case.net indicates
that the motion sought to correct an erroneous charge code referenced in the judgment.


                                                           2
March 6, 2017, he suggests that it was timely filed and therefore should not have been dismissed.

We disagree.

         To begin, Ashley’s argument completely ignores Rule 24.035(m), which limits the current

version’s application to only those “proceedings wherein sentence is pronounced on or after

January 1, 2018.” The Rule indicates that, “[i]f sentence was pronounced prior to January 1,

2018,” as Ashley’s was, “postconviction relief shall continue to be governed by the provisions of

Rule 24.035 in effect on the date the motion was filed or December 31, 2017, whichever is earlier.”

Rule 24.035(m) (emphasis added). Accordingly, the time in which Ashley needed to file his

Rule 24.035 motion began to run on February 8, 2017,2 when he was delivered to the Department

of Corrections.3

         Additionally, in his brief, Ashley implies that the State waived its ability to challenge the

timeliness of the pro se motion by not raising the matter sooner:

         [A]t no time since the filing of this petition, including at any of the previous court
         hearings that were reset as the parties continued to work through the discovery
         issues, was the issue of this alleged “late filing” ever brought up to the court.

         ...

         The Respondent actively participated in hearings and discussions and never raised
         the issue of timing. Fundamental fairness would suggest that this matter be allowed
         to be heard as neither the Respondent nor the court were prejudiced by any undue
         delay, nor should this matter be deemed a stale claim.

         Contrary to Ashley’s suggestion, Rule 24.035(b) provides that “[f]ailure to file a motion

within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to




         2
           In both the State’s motion to dismiss and Ashley’s response thereto, the parties assert that Ashley was
delivered to the Department of Corrections on February 7, 2017. The February 8, 2017 date comes from Ashley’s
amended motion. But even accepting the later date as accurate does not change the result here.
         3
           Because we conclude that the prior version of Rule 24.035 controls, and thus the relevant question is when
Ashley was delivered to the custody of the Department of Corrections, we need not address whether the entry of a
corrected judgment affected the date the sentence was entered.


                                                         3
proceed under this Rule 24.035 and a complete waiver of any claim that could be raised in a motion

filed pursuant to this Rule 24.035.” “By failing to timely file, [a] movant . . . completely waive[s]

his right to proceed on his post-conviction relief claims according to the language of the Rules.”

Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012). “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.” Id. (emphasis added). Simply put, “[t]he State cannot waive

movant’s noncompliance with the time limits in Rules 29.15 and 24.035.” Id.

       Because Ashley was delivered to the Department of Corrections, at the latest, on

February 8, 2017, his Rule 24.035 motion was due no later than August 7, 2017. As he did not

file it until August 28, 2017, it was untimely and resulted in a complete waiver of his right to seek

post-conviction relief under Rule 24.035. Consequently, the motion court did not err in dismissing

Ashley’s post-conviction proceeding. Its judgment dismissing the case is affirmed.




                                              Karen King Mitchell, Chief Judge

Alok Ahuja and Thomas N. Chapman, Judges, concur.




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