Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Clinton County The Honorable Daren
L. Adkins, Judge.
Before: Alok Ahuja, P.J., and Thomas H. Newton and Anthony
Rex Gabbert, JJ.
Ronald Taylor pleaded guilty to three charges of burglary in
the second degree under § 569.170,  based on
break-ins at three school buildings in Plattsburg in July
2009. Taylor was sentenced to three consecutive seven-year
sentences, and placed on probation. After his probation was
revoked and the sentences executed, Taylor moved for
post-conviction relief under Supreme Court Rule 24.035.
Taylor's amended Rule 24.035 motion alleged that his
guilty pleas were involuntary because they were coerced by
the State's initial filing of charges of burglary in the
first degree, for which the prosecution lacked probable
cause. Taylor also contended that his appointed plea counsel
was incompetent for failing to advise Taylor of the lack of a
factual basis to support the first-degree burglary charges,
or to otherwise challenge those charges.
circuit court denied relief without conducting an evidentiary
hearing. Because we conclude that Taylor's amended
postconviction relief motion alleged facts which would
entitle him to relief, and which were not conclusively
refuted by the record, we reverse, and remand to the circuit
court for an evidentiary hearing on Taylor's claims.
convictions stem from break-ins at a Plattsburg elementary
school, middle school, and high school on the morning of
Sunday, July 5, 2009. Property was damaged or stolen at each
location. Taylor was arrested after he attempted to sell
property taken from the high school to a confidential
was initially charged by information in separate cases with
three counts of burglary in the first degree under §
569.160. Burglary in the first degree is a Class B felony.
§ 569.160.2. Under the statutes then in effect, Class B
felonies were punishable by a term of imprisonment "not
less than five years and not to exceed fifteen years."
to a plea agreement, the State agreed to amend the three
charges to burglary in the second degree under §
569.170. Burglary in the second degree is a Class C felony,
§ 569.170.2, which at the time was punishable by
imprisonment for "a term of years not to exceed seven
years." § 558.011.1(3).
January 8, 2010, Taylor pleaded guilty to three counts of
burglary in the second degree. At his sentencing hearing, the
prosecution asked the court to impose the maximum sentence of
seven years on each count, and to run the sentences
consecutively to one another. The circuit court followed the
State's recommendation, and sentenced Taylor to seven
years' imprisonment - the maximum authorized sentence -
on each count, with the sentences ordered to run
consecutively. Execution of the sentences was suspended and
Taylor was placed on probation.
circuit court revoked Taylor's probation and executed the
sentences on October 5, 2012. Following the revocation of his
probation, Taylor moved for postconviction relief under
Supreme Court Rule 24.035. The Amended Motion filed by
appointed counsel contends that Taylor's guilty pleas
were coerced and involuntarily because the prosecutor
initially charged and threatened Taylor with prosecution for
burglary in the first degree, even though the prosecutor
lacked probable cause for the first-degree burglary charges.
Taylor further alleged that the pleas were coerced and
involuntary due to the ineffective assistance of his plea
counsel, who failed to advise Taylor of the lack of a factual
basis for the first-degree burglary charges, and failed to
investigate or challenge the initial charges before advising
Taylor to accept the plea agreement. Taylor alleged that he
would not have pleaded guilty, but would have insisted on
going to trial, were it not for prosecution's initial
filing of the baseless first-degree burglary charges, and his
counsel's incompetent response to those charges.
Circuit Court of Clinton County denied the Amended Motion
without an evidentiary hearing. The motion court concluded
that Taylor's allegations were refuted by the record. It
The record in this case shows that Movant specifically denied
that he had been threatened or coerced into pleading guilty.
Specifically, during his guilty plea, Movant was questioned
by the Court as to the voluntariness of his plea and the
assistance of his counsel, including whether Movant had
"been threatened or coerced in any manner to cause [him]
to plead guilty[, including a] . . . threat of further
prosecution, dismissal of other charges, or anything that is
not now before the Court." The record shows that Movant
gave no answers to the Court indicating that his plea was
anything other than voluntary, or that he was in any way
dissatisfied with his counsel. The record refutes
Movant's allegations that he was coerced to plead guilty
through the threat of additional or allegedly improper
charges, so Movant is not entitled to a hearing on his
(Record citation omitted.)
addressing the merits of Taylor's claims on appeal, we
are required to determine whether his Amended Motion for
postconviction relief was timely filed. See,
e.g., Childers v. State, 462 S.W.3d 825,
827 (Mo. App. E.D. 2015) (citing Moore v. State, 458
S.W.3d 822 (Mo. banc 2015)).
State argues that the Amended Motion was filed a day late,
and that the case must therefore be remanded to the motion
court to determine whether Taylor was abandoned by
post-conviction counsel or instead whether the untimely
filing was Taylor's fault. We disagree.
initially filed a timely pro se motion for
postconviction relief on January 11, 2013. Counsel was
appointed to represent him on January 17, 2013. Taylor's
guilty plea and sentencing transcripts were filed in the
circuit court on April 15, 2013. With a 30-day extension
which was granted at the request of appointed counsel,
Taylor's amended Rule 24.035 motion was due on July 14,
19, 2013, Taylor's counsel filed a motion confessing his
abandonment of Taylor due to counsel's failure to file a
timely amended motion. Counsel asserted that his abandonment
was caused by his failure to calendar the due date for the
amended motion. Counsel requested that the motion court find
that Taylor had been abandoned, re-appoint counsel, and
permit him additional time within which to file an amended
22, 2013, the motion court granted counsel's motion,
found that Taylor had been abandoned, and re-appointed
counsel to represent Taylor. The Court's July 22, 2013
order "ORDERED that Movant file his amended motion for
post-conviction relief within ninety days of the date of
90thday following the July 22, 2013 order was Sunday, October
20, 2013. Accordingly, the State and Taylor agree that the
Amended Motion was due on Monday, October 21, 2013.
See Rule 44.01(a). The motion court's judgment
states that the Amended Motion was filed on October 22, 2013
- one day beyond the deadline specified in the court's
July 22, 2013 order. Further, the Clerk's file stamp
indicates that the Amended Motion was filed on October 22.
Based on these facts, the State argues that the Amended
Motion was untimely, necessitating that the case be remanded
to the motion court for an abandonment inquiry.
the State neglects, however, is that the copy of the Amended
Motion in the circuit court's file bears a facsimile
transmission time stamp indicating that it was received by
the court at 3:27 p.m. on October 21, 2013 - the date the
Motion was due. The Forty-Third Circuit's Local Rule 3.3
in effect in October 2013 states:
Facsimile transmissions of pleadings are permissible in any
situation. No filing by facsimile shall be processed by the
clerks until the ...