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Pendleton v. State

Court of Appeals of Missouri, Western District

March 26, 2019

RAYMOND G. PENDLETON, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of Buchanan County, Missouri Honorable Daniel Fred Kellogg, Judge

          Before Division One: Cynthia L. Martin, P.J., Victor C. Howard, and Thomas H. Newton, JJ.

          OPINION

          THOMAS H. NEWTON, JUDGE.

         Mr. Raymond G. Pendleton appeals a Buchanan County Circuit Court judgment dismissing a Rule 24.035 motion following his guilty plea to a class B felony charge of driving while intoxicated. He contends that the court failed to make sufficient findings and conclusions about alleged exceptions to the motion's untimely filing. We reverse and remand for the motion court to make specific findings of fact as to the circumstances beyond Mr. Pendleton's control allegedly resulting in an untimely filed Rule 24.035 motion.

         After Mr. Pendleton pleaded guilty in 2015 to the class B felony of driving while intoxicated, the Buchanan County Circuit Court sentenced him to five years' imprisonment. He was delivered to the Department of Corrections on October 5, 2015, which meant, in the absence of an appeal, that his post-conviction motion was due no later than April 4, 2016.[1] Mr. Pendleton's Rule 24.035 motion to vacate, set aside, or correct the judgment or sentence was notarized on March 30, 2016, and he testified by deposition that he deposited the motion with sufficient first-class postage in a prison mailbox that day. The court clerk date stamped the motion as filed on April 6, 2016. Appointed counsel timely filed an amended motion under Rule 24.035, raising, among other matters, the claim that Mr. Pendleton's late filing of the pro se motion fell within a recognized exception under Dorris v. State, 360 S.W.3d 260 (Mo. banc 2012), i.e., the late filing was caused by circumstances beyond Mr. Pendleton's control, the court misfiled the motion, or it should be deemed timely filed under the "mailbox rule" which had not yet been adopted in Missouri.[2]

         The motion court conducted an evidentiary hearing that mainly involved a substantive issue raised in the amended motion, but also included the testimony of Mr. Pendleton's wife about notes she had taken regarding the date on which he had purportedly mailed the motion. While the motion court kept the record open to receive additional evidence, it entered a judgment of dismissal before that evidence was presented, dismissing the Rule 24.035 motion as untimely.[3] In that judgment, the motion court recited the relevant dates, set forth the Rule 24.035 requirement, and concluded, "As Movant filed the instant motion 182 days after such initial delivery it is untimely, and therefore must be dismisssed, this 11th day of July, 2017."

         Mr. Pendleton filed an amended motion to reconsider dismissal or in the alternative a motion for amended judgment on July 19, 2017. This motion reiterated his arguments about the timeliness of a Rule 24.035 motion and its exceptions, with reference to the circumstances of his case, and further sought, under Rule 78.07(c), an amendment to the July 11, 2017, judgment to include additional findings of fact and conclusions of law on the pro se motion's timeliness. According to the motion, because the "judgment makes no findings on Movant's claim tha[t] exceptions apply, the Court of Appeals would necessarily be required to supply findings and conclusions by implication, which would constitute an improper de novo review." Mr. Pendleton's deposition transcript was attached to the motion. After setting aside the July 11, 2017, judgment, the motion court heard additional testimony on the Rule 24.035 amended motion during an August 11, 2017, hearing at which Mr. Pendleton's deposition was formally admitted into evidence. The motion court entered a judgment of dismissal on August 22, 2017, again with minimal findings and conclusions.[4] Mr. Pendleton filed a motion to amend this judgment seeking specific findings under Rule 78.07(c) on the applicability of the second and third Dorris exceptions and presenting arguments similar to those raised in the alternative motion filed in July 2017.[5] The motion court did not rule on this motion, so it was deemed overruled ninety days later. Rule 78.06. Mr. Pendleton appeals.

         Legal Analysis

         In the sole point relied on, Mr. Pendleton argues that the motion court failed to make adequate findings of fact and conclusions of law with the degree of specificity required for meaningful appellate review under Rule 24.035(j).[6] According to Mr. Pendleton, the motion court simply found that the post-conviction motion was filed two days late and did not make any findings relating to his claim that the motion was late due to circumstances beyond his control or to misfiling by the court. The State argues, in part, that Mr. Pendleton waived this claim by failing to file a motion to amend the judgment under Rule 78.07(c). We disagree. As stated above, Mr. Pendleton filed a motion to amend under Rule 78.07(c) as to both the July 11 and August 22, 2017, judgments. Accordingly, we will address the point on the merits.

         Our review of a motion court's disposition of a Rule 24.035 motion is circumscribed. Rule 24.035(k).

Appellate review of a motion court's dismissal of a post-conviction relief motion is limited to determining whether the findings and conclusions of law are clearly erroneous. A motion court's findings and conclusions are clearly erroneous if this Court is left with the definite and firm impression that a mistake has been made after a review of the entire record.

Propst v. State, 535 S.W.3d 733, 735 (Mo. banc 2017) (citation omitted). "At a post-conviction relief evidentiary hearing, the motion court determines the credibility of the witnesses and is free to believe or disbelieve the testimony of any witness, including that of the Movant." Heller v. State, 554 S.W.3d 464, 468 (Mo. App. W.D. 2018) (citation omitted). On appeal, "[t]he movant bears the burden of demonstrating clear error." Id.

         As to the timeliness of a Rule 24.035 motion, the failure to timely file "shall constitute a complete waiver of any right to proceed under this Rule 24.035 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 24.035." Rule 24.035(b). Because Mr. Pendleton did not file an appeal from the judgment or sentence that he sought to vacate, set aside, or correct, his motion was required to be filed within 180 days of the date he was delivered to Department of Corrections' custody. Rule 24.035(b). His motion was date stamped by the court clerk two days outside that period; thus his claim was subject to complete waiver unless he could prove by a preponderance of the evidence that his motion fell within a recognized exception to the time limits or that the court misfiled the motion. Dorris, 360 S.W.3d at 267.

         In its ruling on Mr. Pendleton's motion, the motion court did not make any findings of fact, other than setting forth the relevant dates, and simply concluded that the motion was "untimely." The State contends, on the merits, that the motion court, by finding the pro se motion untimely, rejected Mr. Pendleton's claim that it was untimely due to circumstances beyond his control. We disagree. "[T]he rule that findings will be implied as consistent with the ...


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