                                                                                         
                                       In the Missouri Court of Appeals
                                               Eastern District
                                                                       DIVISION FOUR

BRUCE WATSON,                                                               )     No. ED102746
                                                                            )
              Movant/Appellant,                                             )     Appeal from the Circuit Court
                                                                            )     of the City of St. Louis
              vs.                                                           )
                                                                            )     Honorable Margaret M. Neill
STATE OF MISSOURI,                                                          )
                                                                            )
              Respondent/Respondent.                                        )     Filed: February 23, 2016

                                                                         Introduction
              Bruce Watson (Appellant) appeals from the motion court’s judgment denying his Rule

29.151 motion for post-conviction relief without an evidentiary hearing. We vacate the motion

court’s judgment and dismiss the appeal.

                                                               Factual and Procedural Background

              On the morning of July 11, 2009, Appellant entered a Check ‘n Go store where Yulena

Shull (Shull) was working. Appellant placed a plastic grocery bag on the counter and told Shull

to fill up the bag. Appellant also walked around the counter and flashed what appeared to be a

gun at Shull. Shull put the money from her cash drawer into the bag. Appellant directed Shull to

open the safe. The safe featured a ten-minute countdown delay and would not open for ten

minutes after Shull entered the security code. This made Appellant angry and he exited the store



                                                            
1
    All rule references are to Mo. R. Crim. P. 2014, unless otherwise noted.
into a waiting cab. Shull wrote down the number of the cab and gave it to police. Shull later

identified Appellant as the robber from a mugshot picture and in a physical lineup.

       The State charged Appellant with first-degree robbery and armed criminal action. On

October 18-19, 2011, a jury trial was conducted. The jury found Appellant guilty of first-degree

robbery and not guilty of armed criminal action. The trial court entered judgment on Appellant’s

conviction and on March 9, 2012, sentenced him to 15 years in the Missouri Department of

Corrections. On March 19, 2012, Appellant filed his Notice of Appeal to this Court. This Court

affirmed Appellant’s conviction and sentence on April 23, 2013, State v. Watson, 397 S.W.3d

539 (Mo.App. E.D. 2013), and issued its mandate on May 15, 2013.

       On October 2, 2014, Appellant filed his pro se Rule 29.15 motion for post-conviction

relief. On October 14, 2014, the motion court notified the Missouri State Public Defender

System that Appellant had filed his pro se motion. Appointed counsel filed his entry of

appearance on October 23, 2014. On November 6, 2014, the motion court granted an additional

30 days to file an amended motion. Appointed counsel subsequently filed an amended motion

on January 12, 2015. On February 5, 2015, the motion court issued its findings of fact,

conclusions of law and judgment denying Appellant’s motion without an evidentiary hearing.

This appeal follows.

                                           Point on Appeal

       Appellant claims the motion court clearly erred in denying his Rule 29.15 post-conviction

motion without an evidentiary hearing because he alleged facts not refuted by the record, which,

if true, warranted relief in that he alleged his trial counsel was ineffective for failing to submit a

lesser-included offense instruction for second-degree robbery or stealing in relationship to the

first-degree robbery charge.



                                                   2
 
                                        Standard of Review

       Our review of the denial of a Rule 29.15 motion is limited to whether the findings and

conclusions of the motion court are clearly erroneous. Rule 29.15(k); Burston v. State, 343

S.W.3d 691, 693 (Mo.App. E.D. 2011). The findings and conclusions are clearly erroneous only

if, after reviewing the entire record, we are left with the definite and firm impression that a

mistake has been made. Burston, 343 S.W.3d at 693. The motion court’s ruling is presumed

correct. Strong v. State, 263 S.W.3d 636, 642 (Mo.banc 2008).

                                       Timeliness of Motion

       Before reaching the merits of an appeal, we examine the timeliness of the Rule 29.15

post-conviction motion. Rule 29.15(b) provides that if an appeal of the judgment or sentence

sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days

after the date the mandate of the appellate court is issued affirming such judgment or sentence.

Here, Appellant appealed the judgment against him, which was affirmed and the mandate issued

on May 15, 2013. However, Appellant did not file his Rule 29.15 post-conviction motion until

October 2, 2014. This filing was clearly beyond the 90-day time limit of Rule 29.15(b).

Appellant filed his motion more than a year late.

       The motion court stated it would allow the late filing because at his sentencing, the court

had only informed Appellant he had 180 days from the date he was delivered to the department

of corrections to file his Rule 29.15 post-conviction motion. This deadline, although correct,

only applies when no appeal is taken. Rule 29.15(b). Therefore, the motion court found

Appellant had been uninformed by the trial court regarding the time limit applicable to filing the

motion after an appeal of the judgment is taken and thereby misled as to the applicable time




                                                  3
 
limits. Also, Appellant was ultimately never delivered to the department of corrections, due to

other pending charges and issues with regard to his mental competence.

       The State contends the motion court did not have the authority to accept Appellant’s late

filing, as the time limits set by rule are absolute, and should have dismissed the motion.

       If the movant fails to file the motion within the 90-day time limit, there is a complete

waiver of the right to seek Rule 29.15 relief and of all claims that could be raised in the post-

conviction motion. Rule 29.15(b); Moore v. State, 328 S.W.3d 700, 702 (Mo.banc 2010). While

the rule does not carve out exceptions that excuse late filings, court decisions have created two:

(1) when post-conviction counsel abandons the movant; and (2) when rare circumstances outside

the movant’s control justify late receipt of the motion. Moore, 328 S.W.3d at 702.

       Under the first exception, abandonment traditionally excuses a late filing in two

situations: (1) when post-conviction counsel fails to file an amended motion and the record

shows the movant was deprived of meaningful review of the claims; or (2) when post-conviction

counsel files an untimely amended motion. Moore, 328 S.W.3d at 702; Gehrke v. State, 280

S.W.3d 54, 57 (Mo.banc 2009).

       Appellant does not allege abandonment in this case, but asserts his late filing should be

excused due to the inaccurate advice of the trial court, which he characterizes as third-party

interference.

       Third-party interference occurs “‘in very rare circumstances ... [in which] our courts have

found an improper filing, caused by circumstances beyond the control of the movant, justified a

late receipt of the motion by the proper court.’” Moore, 328 S.W.3d at 703; see also Nicholson

v. State, 151 S.W.3d 369, 371 (Mo.banc 2004)(motion that was timely filed in the improper

venue must be transferred to the proper venue as if it were filed there originally); Spells v. State,



                                                  4
 
213 S.W.3d 700, 701-02 (Mo.App. W.D. 2007)(motion was timely where movant sent it to

court’s previous address and post office received it before deadline for filing Rule 29.15 motion).

       The exemption employed in Nicholson and Spells arises out of the practical
       reality that an inmate cannot comply with Rule 29.15 without relying on a third
       party to some extent. As noted above, the initial motion under Rule 29.15(b)
       requires no legal expertise or assistance and is designed to be an informal filing
       that can be completed by an inmate acting alone. But Rule 29.15(b) requires that
       the inmate “shall file” this motion in the sentencing court and an inmate, by
       definition, cannot comply with such a requirement on his own. Instead, inmates -
       unlike nearly every other category of civil litigants - cannot initiate post-
       conviction proceedings without relying on the assistance of one or more third
       parties to take the motion from the inmate and deliver it to the circuit clerk for
       filing. Accordingly, where an inmate writes his initial post-conviction motion and
       takes every step he reasonably can within the limitations of his confinement to see
       that the motion is filed on time, a motion court may excuse the inmate’s tardiness
       when the active interference of a third party beyond the inmate’s control frustrates
       those efforts and renders the inmate’s motion untimely.

Price v. State, 422 S.W.3d 292, 302 (Mo.banc 2014); see also Gunn v. State, 2015 WL8776885

*2 (Mo.App. W.D. December 15, 2015).

       There was no active interference by a third party that frustrated Appellant’s initial efforts

to comply with Rule 29.15’s time limits. He made no initial efforts to comply with Rule 29.15’s

time limits. There is no case law supporting Appellant’s position that the sentencing court’s

informing him partially of the applicable time limits for filing a Rule 29.15 post-conviction

motion constitutes active interference by a third party. There were no rare circumstances in this

case that justified Appellant’s failure to prepare and send his original Rule 29.15 post-conviction

motion for more than a year after the expiration of 90 days.

       As in Price, the “‘active interference’ exception does not apply in [Appellant’s]

circumstances. He did not do all that he could do to effect a timely filing of his Rule 29.15

motion. Like the inmate in Bullard [v. State, 853 S.W.2d 921, 922-23 (Mo.banc 1993)] (but

unlike the inmates in Nicholson and Spells), [Appellant] … took no steps to meet (or even



                                                 5
 
calculate) the applicable filing deadline for his motion.” Price, 422 S.W.3d at 302; see also

Gunn, 2015 WL8776885 at *3. In Bullard, the inmate never took steps to draft or file his initial

motion or find out the deadline, but blamed it on his attorneys. In Nicholson, the inmate drafted

and filed his motion timely but mailed it to the wrong circuit court. In Spells, the inmate drafted

and filed his motion timely but sent it to the court’s previous address.

       Appellant failed to present evidence he did everything he reasonably could have done to

timely file his motion by calculating its due date and drafting it. Price, 422 S.W.3d at 302. He

also failed to establish the sentencing court did anything to prevent him from calculating the due

date of his motion and filing it on time. See Gunn, 2015 WL8776885 at *3. “As legal assistance

is not required in order to file the original motion, the absence of proper legal assistance does not

justify an untimely filing.” Bullard, 853 S.W.2d at 922-23; Price, 422 S.W.3d at 299, 300.

       Appellant is not free of responsibility for failure to timely file his original motion. This

showing is a requirement in establishing active interference by a third party. “Specifically, when

an inmate prepares the motion and does all he reasonably can do to ensure that it is timely filed

under Rule 29.15(b), any tardiness that results solely from the active interference of a third party

beyond the inmate’s control may be excused and the waivers imposed by Rule 29.15(b) not

enforced.” Price, 422 S.W.3d at 301.

       Appellant’s lack of any attempt to prepare his initial motion and file it in a timely manner

is compounded by his revelation that he still delayed filing for at least two months after he was

informed by a fellow inmate who reviewed his initial motion that it was late, and he should have

filed it sooner. The inmate reviewed Appellant’s motion sometime between March 9, 2013, and

August 4, 2014. Appellant still did not file his motion until October 2, 2014. Relief is

appropriate only when a movant does all he can do to effect a timely filing of his Rule 29.15



                                                  6
 
motion and is free off responsibiliity for the faailure to com
                                                             mply with thee requiremennts of the rulle.

Accordin
       ngly, Appellaant cannot benefit
                               b       from the
                                            t exceptioon to Rule 299.15(b) recoggnized in

Nicholso
       on and Spellss for circumsstances in wh
                                             hich a reaso nable, good faith effort bby the inmatte to

write and
        d timely file an initial mo
                                  otion under Rule
                                              R 29.15(bb) is frustratted by the acctive interferrence

of a third
         d party on wh
                     hom the inm
                               mate had to reely but couldd not controll. Price, 4222 S.W.3d at 303.

        For the aforem
                     mentioned reeasons, Appellant’s appeeal is dismisssed becausee his initial ppost-

convictio
        on motion was untimely filed under Rule
                                           R 29.15(bb) and the unntimeliness w
                                                                             was not excuused

by any acctive interferrence of a th
                                   hird party.

                                                 Conclusion
                                                 C

        The
        T motion court’s judgm
                             ment is vacatted and the aappeal is dism
                                                                    missed.




                                                         Sherrri B. Sullivaan, J.

        V Amburg, C.J., and
Lisa S. Van
Kurt S. Odenwald,
        O         J.., concur.




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