Court of Appeals of Missouri, Eastern District, Second Division
NOT FINAL UNTIL EXPIRATION OF THE REHEARING PERIOD.
Appeal from the Circuit Court of the City of St. Louis. Hon. David C. Mason.
FOR APPELLANT: Robert W. Lundt, St. Louis, MO.
FOR RESPONDENT: Chris Koster, Attorney General, Karen L. Kramer, Asst. Attorney General, Jefferson City, MO.
ROBERT G. DOWD, JR., Judge. Kurt S. Odenwald, P.J. and Gary M. Gaertner, Jr., J., concur.
ROBERT G. DOWD, JR., Judge
Kevin Lucious appeals the judgment of the motion court dismissing his case. The motion court had found that Lucious was " abandoned" by his post-conviction counsel, but then later realized that a 2009 judgment finding no abandonment had become final years earlier and the court had no authority to act thereafter. We affirm.
Lucious was convicted after a jury trial on one count of first-degree murder, one count of first-degree assault and two counts of armed criminal action stemming from a 1995 gang shooting. He was sentenced to life without the possibility of parole and three concurrent life sentences. The judgment entered on his convictions and sentence was affirmed in State v. Lucious, 967 S.W.2d 119, 120, (Mo. App. E.D. 1998). Lucious's Rule 29.15 motion was due on September 21, 1998. See Rule 29.15(b) (1998). Privately-retained post-conviction counsel sought an extension of that deadline, which the motion court granted. On October 9, 1998, Lucious's pro se motion was filed, and an amended motion was filed within a week thereafter. Both motions set forth virtually the same
claims of ineffective assistance of trial counsel, but the amended motion added an additional witness whom trial counsel had allegedly failed to investigate. Later, the motion court realized that it had no authority to extend the deadline for filing the original motion and, on the State's motion, dismissed the case. See Clark v. State, 261 S.W.3d 565, 571 (Mo. App. E.D. 2008); Moore v. State, 328 S.W.3d 700, 702-05 (Mo. banc 2010) (failure to file timely original motion is complete waiver of right to seek relief).
In 2009, Lucious filed a motion to have his Rule 29.15 proceedings reopened on the ground that he had been " abandoned" by his post-conviction counsel. Therein, he alleged that counsel told Lucious to mail his Form 40 to counsel, who would take care of filing it with the court. Lucious asserted that counsel acknowledged receiving the form in the mail a week before the filing deadline, but that counsel instead asked for additional time and did not file anything until after the original deadline. Lucious also claimed that the Form 40 motion counsel ultimately filed was different than the one he had sent to counsel and did not include all of the claims Lucious had set forth.
On November 16, 2009, the motion court entered judgment denying that motion, finding that Lucious's claims regarding counsel's conduct were not cognizable abandonment claims. But the court also stated that it had reviewed ex gratia the claims of ineffective assistance of trial counsel set forth in the amended Rule 29.15 motion and determined that Lucious would not have been entitled to an evidentiary hearing even if his motions had been timely filed. The motion court set forth each of Lucious's claims and addressed the factual and legal reasons why the record failed to support those claims.
The docket sheets indicate that on December 8, 2009, Lucious filed a " motion to vacate the order and judgment entered November 16, 2009 and to grant a hearing on movant's motion to reopen this Rule 29.15 action filed." Lucious states in his brief that this motion could not be found in the court's files but will be filed as part of a supplemental legal file. To date, there is no copy of this motion in the legal file, and nothing in the record demonstrates what grounds for relief were stated therein. On January 27, 2010, there is a docket entry titled " Request for Hearing," the text of which reads " hearing on movant's motion to reopen is hereby set for [date and time]. So ordered." There is no document in the legal file associated with this docket entry. The court did in fact hold a hearing, at which post-conviction counsel apparently admitted that the contentions regarding his untimely filing of the original Rule 29.15 motion were true. Thereafter, the motion court entered an order, this time finding that Lucious was " abandoned" by ...