             In the Missouri Court of Appeals
                     Eastern District
                                                    DIVISION III

JAMES LENOIR,                                              )            No. ED100731
                                                           )
           Appellant,                                      )            Appeal from the Circuit Court
                                                           )            of St. Francois County
vs.                                                        )
                                                           )            Honorable Kenneth W. Pratte
STATE OF MISSOURI,                                         )
                                                           )
           Respondent.                                     )            FILED: November 12, 2014



                                                         Introduction

           Appellant James Lenoir (“Lenoir”) appeals from the judgment of the motion court

dismissing his Rule 24.0351 motion for post-conviction relief as untimely without an evidentiary

hearing. Lenoir alleges that the motion court clearly erred in dismissing his Rule 24.035 motion

without conducting an evidentiary hearing as to whether his late filings might be excused by

circumstances beyond his control. Because Lenoir failed to meet his burden of proof to show

that his motion was timely filed, he waived his right to proceed with his Rule 24.035 motion, and

the motion was properly dismissed by the motion court. Affirmed.


1
    All rule references are to Mo. R. Crim. P. (2013).
                               Factual and Procedural Background

       On December 16, 2011, Lenoir pleaded guilty to committing violence upon an employee

of the Department of Corrections in St. Francois County. The trial court sentenced Lenoir to ten

years of imprisonment but suspended execution of the sentence and placed Lenoir on probation.

That same day, Lenoir also pleaded guilty to one count of committing violence upon an

employee of the Department of Corrections and one count of second degree assault upon a law

enforcement officer in an unrelated case. The trial court sentenced Lenoir to concurrent

sentences of ten years and seven years, respectively, but suspended execution of the sentences

and placed Lenoir on probation. On August 1, 2012, the trial court revoked Lenoir’s probation

in both cases and executed the previously imposed sentences.

       Lenoir was delivered to the Missouri Department of Corrections on August 2, 2012.

Lenoir filed a pro se Rule 24.035 motion in both cases, which were received by the circuit clerk

on May 1, 2013, 272 days after Lenoir had been delivered to the Missouri Department of

Corrections. That same day, Lenoir was appointed post-conviction counsel on both cases by the

motion court.

       On July 19, 2013, before Lenoir filed an amended motion for post-conviction relief, the

motion court dismissed the post-conviction motions filed by Lenoir in both cases as untimely

filed after finding that Lenoir’s pro se motions were filed more than 180 days after his delivery

to the Missouri Department of Corrections. On August 15, 2013, Lenoir filed motions under

Supreme Court Rule 78.07 to vacate the judgment and reopen or modify the judgment in each

case. Lenoir acknowledged that he missed the 180-day deadline for timely filing his Rule 24.035

motion, but argued that circumstances beyond his control justified his late filing, and thus his

case met one of the narrow exceptions to the mandatory time requirements for filing a post-



                                                 2
conviction motion. In his Rule 78.07 motion, Lenoir alleged he was placed in administrative

segregation immediately upon delivery to the Department of Corrections. Because of his

administrative segregation, Lenoir had to go through the Department’s legal claim procedures in

order to obtain a Form 40 so that he might timely file his post-conviction motion under Rule

24.035. Lenoir further alleged that due to a staffing shortage at the prison, only one caseworker

was assigned to the segregation unit until April 2013, which delayed him in acquiring the

services of a notary necessary to file his Rule 24.035 motion. Lenoir requested an evidentiary

hearing to address the issue of the timeliness of his motion.

       The motion court took no action on Lenoir's motions filed under Rule 78.07. This appeal

follows.

                                         Point on Appeal

       In his sole point on appeal, Lenoir argues that the motion court erred in dismissing his

Rule 24.035 motion without an evidentiary hearing as to whether Lenoir’s late filings might be

excused by circumstances beyond his control. Lenoir asserts that the motion court should have

granted him an evidentiary hearing so that he could prove his circumstances fell within a

recognized exception to the mandatory time limits.

                                       Standards of Review

       Review of a motion court’s disposition of a Rule 24.035 motion is limited to determining

whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule

24.035(k). Jones v. State, 394 S.W.3d 475, 476 (Mo. App. E.D. 2013). This Court will find

error only if we are left with a definite and firm belief that a mistake has been made. Barnes v.

State, 364 S.W.3d 765, 766 (Mo. App. E.D. 2012).




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                                            Discussion

       Under Rule 24.035, a person who pleads guilty to a felony and who claims that the

conviction or sentence violates the Constitution and laws of Missouri may seek post-conviction

relief in the sentencing court. Rule 24.035(a). If the person does not appeal the judgment or

sentence sought to be vacated, set aside or corrected, the “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). “Failure to file a motion within the time provided by this Rule 24.035 shall constitute

a complete waiver of any right to 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.” Id.

       The time limits of Rule 24.035 are constitutional and mandatory, representing a strict

guideline for the filing of post-conviction motions. Mitchell v. State, 14 S.W.3d 672, 673 (Mo.

App. E.D. 2000). Thus, when a movant files a motion for post-conviction relief under Rule

24.035, he or she must allege facts establishing that the motion is timely filed. Dorris v. State,

360 S.W.3d 260, 267 (Mo. banc 2012). The Supreme Court has recognized only three ways in

which a post-conviction movant may meet this burden:

       (1) by filing the original pro se motion timely so that the file stamp on the motion
       reflects that it is filed within the time limits proscribed in the rule;
       (2) alleging in the original pro se motion and proving by a preponderance of the
       evidence that the movant’s circumstances fall within a recognized exception to
       the time limits; or
       (3) alleging in the amended motion and proving by a preponderance of the
       evidence that the circuit court misfiled the motion.

Vogl v. State, 437 S.W.3d 218, 226 (Mo. banc 2014) (emphasis added). If the timely filing of an

original post-conviction motion is not proven, the motion court should dismiss the motion

without considering its merits. Mitchell, 14 S.W.3d at 673.




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