Court of Appeals of Missouri, Western District, First Division
GENE E. DUDLEY, Appellant,
STATE OF MISSOURI, Respondent
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable J. Dale Youngs, Judge.
For Appellant: Susan L. Hogan, District Public Defender Kansas City, MO.
For Respondent: Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO.
Before Division One: James Edward Welsh, Presiding Judge, and Thomas H. Newton and Karen King Mitchell, Judges. James Edward Welsh, Presiding Judge, and Thomas H. Newton, Judge, concur.
Karen King Mitchell, Judge
Gene Dudley, Jr., appeals, following an evidentiary hearing, the denial of his Rule 24.035 motion for post-conviction relief. Dudley claims that plea counsel was ineffective for failing to call Dudley's father as a witness in mitigation at sentencing. But because Dudley failed to timely file his Rule 24.035 motion, or plead and prove any justification for the untimely filing, he waived his right to seek post-conviction relief. The untimely nature of Dudley's motion deprived the motion court of authority to review the motion on its merits, and the motion should have been dismissed. Accordingly, we vacate the motion court's judgment and remand with directions that the motion court dismiss Dudley's untimely filed Rule 24.035 motion.
Dudley pled guilty, pursuant to a plea agreement, to one count of second-degree murder, one count of first-degree assault, and two counts of armed criminal action, for which he was sentenced to a total of twenty-three years' imprisonment.
On March 2, 2011, Dudley attempted to file a pro se Rule 24.035 motion, but it was not actually file stamped until March 18, 2011. The motion alleged that Dudley had been delivered to the Department of Corrections on August 21, 2009, and that he had not appealed the judgment of conviction. Following the question of whether Dudley had filed any other Rule 24.035 motions before the current one, Dudley responded, " none."
The motion court initially dismissed Dudley's motion on March 31, 2011, noting that it had not been timely filed under the mandate of Rule 24.035(b). On July 12, 2011, Dudley allegedly filed a pro se " Motion Requesting to File Out of Time Petition to Vacate Judgment to Set Aside Guilty Plea."  On July 19, 2011, the motion
court vacated the dismissal order because the court believed that it should not have dismissed the motion without first appointing counsel for Dudley under Rule 24.035(e).
Appointed counsel filed an amended Rule 24.035 motion, acknowledging that Dudley had been delivered to the Department of Corrections on August 21, 2009, and had not appealed the judgment of conviction. The amended motion alleged that " Mr. Dudley attempted to file a timely pro se Rule 24.035 motion in October 2009 and in February 2010, but learned that those motions were not received by the Court." The motion further alleged that Dudley had filed his pro se motion on February 3, 2011. The amended motion contained no ...