Court of Appeals of Missouri, Western District, Fourth Division
CHRISTOPHER J. WADEL, Appellant,
STATE OF MISSOURI, Respondent.
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
C. HOWARD, JUDGE
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.
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.
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.
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. It was not timely.
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).
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.
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).
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).
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