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Wadel v. State

Court of Appeals of Missouri, Western District, Fourth Division

July 25, 2017

CHRISTOPHER J. WADEL, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF BATES COUNTY, MISSOURI THE HONORABLE JAMES K. JOURNEY, JUDGE

          Before: Mark D. Pfeiffer, Chief Judge, Victor C. Howard, Judge and James E. Welsh, Judge

          VICTOR C. HOWARD, JUDGE

         Christopher Wadel appeals the Bates County Circuit Court judgment denying his Rule 29.15 motion for post-conviction relief. His three points on appeal claim the trial court clearly erred in denying his motion. The State argues that Wadel's pro se motion for post-conviction relief was not timely. This court agrees. The motion court's judgment is vacated, and this case is remanded with instructions to dismiss Wadel's post-conviction motion.

         In December 2011, Wadel was convicted of two counts of statutory sodomy in the first degree, one count of statutory rape in the first degree, and two counts of endangering the welfare of a child in the first degree. He was sentenced in February 2012 to ten years in prison on the counts of statutory sodomy and statutory rape and seven years in prison on the counts of child endangerment. The sentences were ordered to run concurrently with one another. Wadel appealed his convictions and sentences to this court.

         On April 30, 2013, this court affirmed Wadel's convictions in State v. Wadel, 398 S.W.3d 68 (Mo. App. W.D. 2013). This court issued its mandate on May 22, 2013. Wadel filed his pro se motion for post-conviction relief on September 9, 2013. The circuit court appointed counsel and granted an extension of time on September 10, 2013. Counsel from the Public Defender's office entered her appearance on September 27, 2013, and filed an amended post-conviction motion in December 2013. A hearing occurred in November 2015. The motion court denied Wadel's post-conviction motion on February 3, 2016. This appeal followed.

         Rule 29.15(b) states that if an appeal of the underlying conviction 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." It further states that "[f]ailure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 29.15." Wadel's pro se motion was filed 110 days after this court's mandate issued in the appeal of the underlying case.[1] It was not timely.

         The State raised this issue for the first time in its response brief in this case. The issue of timeliness was not raised before the motion court. Nonetheless, the motion court lacked authority to hear Wadel's post-conviction motion "regardless of the State's failure to raise the issue." Dorris v. State, 360 S.W.3d 260, 263 (Mo. banc 2012).

          In addition to proving his substantive claims, a post-conviction movant "must show he filed his motion within the time limits provided in the Rules." Id. at 267.

The movant must allege facts showing he timely filed his motion and meet his burden of proof by either: (1) timely filing the original pro se motion so that the time stamp on the file reflects that it is within the time limits proscribed in the Rule; (2) alleging and proving by a preponderance of the evidence in his motion that he falls within a recognized exception to the time limits; or (3) alleging and proving by a preponderance of the evidence in his amended motion that the court misfiled the motion.

Id. Wadel did none of these things.

         The motion court's judgment states that this court affirmed Wadel's conviction on April 30, 2013. It then states: "The Movant timely filed his Motion to Vacate on April 30, 2013." Its next finding is that the timely amended motion was filed on December 9, 2013. This court is unsure why the motion court stated the post-conviction motion was filed on April 30, 2013. Both the docket sheet and the file stamp indicate the pro se motion was filed on September 9, 2013. The motion was filed on September 9. See Federhofer v. State, 462 S.W.3d 838, 841 n.4 (Mo. App. E.D. 2015).

         The in forma pauperis affidavit part of the pro se motion was notarized July 20, 2012. The motion indicated that Wadel had appealed but the result of the appeal and the date the mandate was issued were not provided (presumably because the appeal was still pending). This does not change the filing date of the motion, though. The fact that Wadel may have executed the pro se motion on July 20, 2012, "without more, does not tend to prove when he actually dispatched the motion to the circuit court, much less when the court received it (or how the court processed the motion upon receipt)." Rinehart v. State, 503 S.W.3d 287, 289-90 (Mo. App. W.D. 2016).

         Some discussion of the Missouri Supreme Court's recent decision in Watson v. State, SC95665, __S.W.3d __, at *15, 2017 WL 1629372 (Mo. banc May 2, 2017) is needed. In Watson, the trial judge told the defendant he had 180 days from his date of delivery to the Department of Corrections or else he would waive his rights under Rule 29.15. Watson at *1. The defendant was not delivered to the Department of Corrections after sentencing. Id. at *2. He appealed and his conviction was affirmed. Id. at *1. The defendant filed a pro se motion for post-conviction relief sixteen months after the appeals mandate was issued. Id. The defendant ...


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