Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of St. Francois County. Honorable Kenneth W. Pratte.
FOR APPELLANT: E. Scott Thompson, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, Missouri.
FOR RESPONDENT: Chris Koster, Attorney General, Andrew C. Hooper, Assistant Attorney General, Jefferson City, Missouri.
Robert G. Dowd, Jr., J., Concurs. Gary M. Gaertner, Jr., J., Concurs.
Kurt S. Odenwald, Presiding Judge.
Appellant James Lenoir (" Lenoir" ) appeals from the judgment of the motion court dismissing his Rule 24.035 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.
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-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 ...