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Cox v. State

Court of Appeals of Missouri, Western District, Second Division

October 14, 2014

DONNY LEE COX, Appellant,
v.
STATE OF MISSOURI, Respondent

Appeal from the Circuit Court of Buchanan County. The Honorable Daniel F. Kellogg, Judge.

Damien S. B. DeLoyola, Kansas City, MO, for appellant.

Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before Division Two: Victor C. Howard, P.J., and Alok Ahuja and Gary D. Witt, JJ. All concur.

OPINION

Page 132

Alok Ahuja, Judge

Donny Cox pled guilty to statutory sodomy in the first degree and sexual exploitation of a minor. He filed a pro se motion for post-conviction relief under Supreme Court Rule 24.035 in the Circuit Court of Buchanan County. His appointed counsel later filed an amended motion. The circuit court denied Cox's amended motion following an evidentiary hearing, and Cox appeals. He argues that his amended post-conviction relief motion was untimely under Rule 24.035(g), and that the circuit court therefore erred in addressing the merits of his claims. Because Cox has failed to establish that he was prejudiced

Page 133

by the motion court's ruling on the merits of his amended motion, we affirm.

Factual Background

On September 28, 2010, Cox pled guilty to statutory sodomy in the first degree and sexual exploitation of a minor. On November 4, 2010, the court sentenced him to forty years' imprisonment for the sodomy offense, and to ten years for sexual exploitation. The court ordered the sentences to run consecutively.

Cox filed a pro se Motion to Vacate, Set Aside, or Correct the Judgment or Sentence under Rule 24.035 on May 2, 2011. The motion court appointed the public defender to represent Cox on May 10, 2011. The transcript of Cox's guilty plea and sentencing was filed in the circuit court on November 30, 2011. Cox's appointed counsel filed an amended motion for post-conviction relief on June 11, 2012.

Cox's amended motion alleged that his plea counsel was ineffective because counsel: (1) failed to advise Cox that the Court was not required to follow the sentencing recommendations contained in the plea agreement; (2) failed to advise Cox that he could withdraw his guilty plea; and (3) failed to advise Cox of available defenses should he choose to go to trial.

The circuit court held an evidentiary hearing on Cox's amended motion on December 19, 2012, at which Cox's plea counsel testified. On December 20, 2012, the motion court entered its judgment denying ...


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