FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable
Margaret M. Neill, Judge
W. DRAPER III, JUDGE.
Watson (hereinafter, "Watson") was convicted by a
jury of first-degree robbery and sentenced to fifteen
years' imprisonment. At Watson's sentencing hearing,
the circuit court misinformed him about the time deadlines to
file his Rule 29.15 post-conviction motion. Watson's
conviction was affirmed on direct appeal, State v.
Watson, 397 S.W.3d 539 (Mo. App. E.D. 2013), and the
court of appeals issued its mandate. Watson filed a Rule
29.15 motion for post-conviction relief approximately sixteen
months later despite Rule 29.15(b)'s requirement that it
be filed within ninety days of the mandate's issuance.
The motion court overruled Watson's motion without an
evidentiary hearing. Watson appeals.
Court holds that Watson's Rule 29.15 post-conviction
relief motion was filed untimely. However, Watson's
untimeliness is excused because the circuit court misinformed
him about the appropriate deadline to file his motion during
his sentencing colloquy. The Court further holds the motion
court clearly erred in overruling Watson's Rule 29.15
motion because Watson demonstrated he is entitled to an
evidentiary hearing concerning trial counsel's strategy
for failing to request a lesser-included offense instruction.
The case is reversed, and the cause is remanded for an
and Procedural History
11, 2009, Watson entered a Check N' Go store where Yulena
Shull (hereinafter, "Shull") was working. When
Shull asked Watson if she could help him, Watson reached
around another customer, tossed a blue plastic grocery bag
onto the counter and told Shull to fill up the bag. Watson
walked around the counter, reached into his pocket, and
quickly flashed what Shull believed to be a gun at her. Shull
emptied the contents of her cash drawer into the grocery bag.
Watson left the store, and Shull contacted the police. Watson
was arrested and charged with one count of first-degree
robbery and armed criminal action. The jury convicted Watson
of first-degree robbery but acquitted him of armed criminal
sentencing, when the circuit court asked Watson if there was
any legal reason why he should not be sentenced, Watson
answered, "I wasn't properly represented."
After the circuit court sentenced Watson to serve fifteen
years' imprisonment, the circuit court informed Watson of
his post-conviction relief rights pursuant to Rule 29.07(b).
The circuit court stated, "In order to obtain review of
your conviction and sentence, you must file a verified
Criminal Procedure Form Number 40 within 180 days after your
delivery to the Missouri Department of Corrections;
otherwise, you waive or give up your rights under Rule
29.15." Watson indicated he understood his rights.
Watson listed grievances he had with trial counsel's
representation, which included wanting to plead guilty to a
lesser charge but being forced to go to trial.
conviction was affirmed on April 23, 2013. On May 15, 2013,
the court of appeals issued its mandate. More than sixteen
months later, on October 2, 2014, Watson filed his initial
pro se motion for post-conviction relief.
Watson's pro se motion stated he was sentenced
on March 9, 2012, and "was instructed not to file this
cause until [he] was delivered to the [department of
corrections] by the courts making this cause timely."
motion court appointed counsel, who subsequently filed an
amended motion. Watson's amended motion attempted to
explain the tardiness of his pro se filing. Watson
averred that he was never delivered to the department of
corrections to serve his sentence. The record reflected that
before the robbery trial, Watson was charged with a separate
criminal offense. In lieu of being delivered to the
department of corrections after the robbery conviction,
Watson was detained in the Saint Louis City Justice Center to
undergo a pretrial psychiatric examination to determine his
competency to stand trial for the separate offense. On August
4, 2014, Watson was adjudicated incompetent to stand trial
for the separate offense and ordered committed to the custody
of the department of mental health. The separate offense had
not yet been disposed of at the time of Watson's pro
requested that the motion court find his pro se
motion timely because the circuit court misinformed him
during sentencing regarding the deadline to file his motion.
Watson understood the circuit court's statement to mean
that his motion was not due until 180 days after he was
delivered to the department of corrections. Because he was
never delivered to the department of corrections, Watson was
under the impression that the deadline to file his pro
se motion had not passed. Watson only discovered his
tardiness after speaking to another inmate about his case.
Watson also contended there was a genuine issue as to whether
he understood his rights under Rule 29.15 because he was
adjudicated incompetent. Finally, Watson's amended motion
alleged trial counsel was ineffective for failing to submit
lesser-included offense instructions for second-degree
robbery and felony stealing.
motion court recognized Watson's Rule 29.15 motion was
filed untimely. The motion court further stated the circuit
court was not required to inform a movant of the time limits,
and a failure to inform a movant does not override the
rule's mandatory time limits. However, the motion court
found Watson's case did not involve the circuit
court's failure to advise him of the time limit but,
rather, involved a misrepresentation about the time limit.
The motion court stated it would address the merits of
Watson's claim out of an abundance of caution. The motion
court overruled Watson's ineffective assistance of
counsel claim, finding Watson was not entitled to a
second-degree robbery instruction where there was evidence
presented that Watson used or threatened the use of a deadly
weapon or dangerous instrument during the course of the
robbery. Watson now appeals.
Court reviews the denial of post-conviction relief to
determine whether the motion court's findings of fact and
conclusions of law are clearly erroneous. Rule 29.15(k).
"A judgment is clearly erroneous when, in light of the
entire record, the court is left with the definite and firm
impression that a mistake has been made." Swallow v.
State, 398 S.W.3d 1, 3 (Mo. banc 2013).
of the Rule 29.15 Motion
Court must determine first whether it has the authority to
address the merits of Watson's Rule 29.15 motion because
his pro se motion was filed untimely. Rule 29.15(b)
provides in part:
If an appeal of the judgment or sentence sought to be
vacated, set aside or corrected was taken, the motion shall
be filed within 90 days after the date the mandate of the
appellate court is issued affirming such judgment or
sentence. If no appeal of such judgment or sentence was
taken, the motion shall be filed within 180 days of the date
the person is delivered to the custody of the department of
Watson sought an appeal from the circuit court's judgment
and sentence, his Rule 29.15 motion should have been filed
ninety days after the court of appeals issued its mandate,
which occurred May 15, 2013. Therefore, Watson's initial
pro se motion was due on or before August 13, 2013,
but was filed on October 2, 2014, approximately sixteen
months after the mandate issued.
addition to proving his substantive claim, Watson must show
he filed his Rule 29.15 motion within the time limits
provided therein. Dorris v. State, 360 S.W.3d 260,
267 (Mo. banc 2012). The time limits for filing a Rule 29.15
motion are mandatory. State v. Day, 770
S.W.2d 692, 695 (Mo. banc 1989); Eastburn v. State,
400 S.W.3d 770, 773 (Mo. banc 2013). Generally, when movants
fail to file their Rule 29.15 motions within the applicable
time limits, there is a complete waiver of the right to seek
post-conviction relief and a complete waiver regarding all
claims that could be raised in a Rule 29.15 motion. Moore
v. State, 328 S.W.3d 700, 702 (Mo. banc 2010). Because
Watson's pro se motion was filed untimely, he
must allege facts showing "and proving by a
preponderance of the evidence in his motion that he falls
within a recognized exception to the time limits."
Dorris, 360 S.W.3d at 267. While Rule 29.15 does not
carve out exceptions that excuse late filings, Missouri
courts recognize two exceptions: "(1) when
post-conviction counsel abandons the movant; and (2) when
rare circumstances outside the movant's control justify
late receipt of the motion." Moore, 328 S.W.3d
does not claim post-conviction counsel abandoned him.
Instead, Watson asserts the circuit court's
misinformation constituted rare circumstances that justify
his failure to prepare and send his original motion in a
timely manner. Watson requests this Court find the circuit
court's misinformation regarding the correct filing
deadline justifies creation of a new exception to Rule
29.15's mandatory filing deadlines.
Court's Obligations Under Rule 29.07
Rule 29.07(b)(4) provides in pertinent part:
If a defendant has a right to proceed under … Rule
29.15, the court at the conclusion of final sentencing shall
advise the defendant of such right and shall examine the
defendant as to the assistance of counsel received by the
defendant. The examination shall be on the record and may be
conducted outside the presence of the defendant's
counsel. At the conclusion of the examination the court shall
determine whether probable cause exists to believe the
defendant has received ineffective assistance of counsel.
Rule 29.07(b), the trial court must conduct a post-sentencing
hearing in which it questions the defendant concerning the
effectiveness of trial counsel. The court must also advise
the defendant of the right to proceed under Rule 29.15."
Moore, 328 S.W.3d at 703. Yet the circuit court is
not responsible for any breach appellate counsel commits in
filing the Rule 29.15 motion and has no obligation to remedy
it. Price v. State, 422 S.W.3d 292, 303 (Mo. banc
2014). The circuit court is obligated to provide a remedy
under two discrete circumstances: (1) when a criminal
defendant has received ineffective assistance of counsel that
is so deficient it violates the defendant's
constitutional right to effective assistance of counsel; and
(2) when an indigent defendant timely files a post-conviction
motion and appointed counsel's actions constitute
abandonment. Id. This Court has yet to resolve the
question presented in this case, which is what relief, if
any, movants are entitled to when they rely on the circuit
court's inaccurate recitation of the mandatory Rule 29.15
to Inform the Defendant
this case does not present the issue of the circuit
court's failure to inform a movant about his or her
rights under Rule 29.07(b), appellate court cases establish
that movants are not entitled to relief when the circuit
court provides little or no information about the filing
deadlines. In Reed v. State,
781 S.W.2d 573 (Mo. App. E.D. 1989), the court held the
circuit court's failure to advise the movant of the time
deadlines did not excuse an untimely filing. The appeals
While Rule 29.07(b)(4) indicates a trial judge should inform
a movant of his right to a Rule 24.035 or 29.15 motion, there
is no indication in the rules or case law that failure to do
so overrides the mandatory time limitations. In addition, the
rule does not require the sentencing court to specifically
advise defendant of the ninety day time limit.
Id. at 573.
State v. Johnston, 786 S.W.2d 220 (Mo. App. W.D.
1990), the circuit court advised the movant generally of the
right to post-conviction relief but did not advise the movant
of the specific time deadline. Id. at 222. The
Western District rejected the movant's argument that his
untimely post-conviction claims should be heard because the
circuit court failed to advise him of the filing deadline.
Id. The Western District stated the circuit
court's general explanation complied with Rule
29.07(b)(4), despite failing to inform the movant of the
specific deadline. Id. "We do not hold that
failure of the trial court to give the advice required by
Rule 29.07(b)(4) would in any way relax the time requirements
within which a [post-conviction motion] must be filed
…." Id. at 222-23.
Hawkins v. State, 807 S.W.2d 214 (Mo. App. W.D.
1991), the circuit court failed to inform the movant of his
right to proceed under Rule 29.15 and failed to examine him
regarding trial counsel's effectiveness. The movant
argued these failures excused his untimely Rule 29.15 motion.
The appeals court disagreed, citing and following
Reed. Id. at 215; see also Drewel v.
State, 835 S.W.2d 401, 402-03 (Mo. App. E.D. 1992)
(rejecting the movant's untimely filing and finding case
identical to Reed and Hawkins). Hence, the
circuit court's failure to inform a movant of his or her
rights under Rule 29.07(b) will not excuse a tardy
is a difference between failing to inform and misinforming
movants of their post-conviction rights. Despite Watson's
assertion that his case presents an issue of first
impression, this Court notes only two appellate court cases
have addressed instances in which the circuit court