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Lemasters v. State

Court of Appeals of Missouri, Southern District, First Division

April 2, 2019

ANDREW LUKE LEMASTERS, Defendant-Appellant,
STATE OF MISSOURI, Plaintiff-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable Timothy Wayne Perigo

          DON E. BURRELL, P.J.

         Andrew Luke Lemasters ("Movant") appeals the denial of his amended Rule 29.15[1] motion for post-conviction relief. Because his original, pro se motion was not timely filed and did not claim that the tardiness was the result of third-party interference, his claim was waived, and the motion court clearly erred in failing to dismiss the motion.


         Movant was originally charged with two counts of the unclassified felony of first-degree statutory sodomy for having deviate sexual intercourse with a victim less than 12 years old. See section 566.062.[2] Movant's jury trial was held in Newton County in 2013, and the State dismissed the second count before the case was submitted to the jury. The jury was instructed on that one remaining count of statutory sodomy, and it returned a verdict finding Movant guilty of that offense. At sentencing, the trial court orally imposed a 31-year sentence for that single count of statutory sodomy, but its written judgment mistakenly indicated that Movant had been convicted of two counts of statutory sodomy.

         Movant filed a direct appeal that, inter alia, claimed the trial court erred in entering a written judgment that reflected convictions for two counts of first-degree statutory sodomy when Movant had only been convicted of one count of that offense. On July 14, 2014, while Movant's direct appeal was still pending, and presumably unbeknownst to Movant and the appellate courts, [3] the trial court entered an amended judgment that corrected the clerical error in its original judgment by showing the second count as "Dismissed by Prosec/Nolle Pros[.]"

         The State conceded the error in the original written judgment, and our supreme court agreed. Lemasters, 456 S.W.3d at 426. In doing so, our high court found the error to be "the prototypical circumstance [] for an order nunc pro tunc correcting the written judgment to reflect what actually occurred." Id. The Court affirmed the judgment as to one count of statutory sodomy, vacated the judgment as to the second count, and "remanded with directions that the trial court vacate its judgment with respect to the second count of statutory sodomy." Id. The Court issued its mandate on March 12, 2015, and the mandate directed the Department of Corrections to transport Movant to the Newton County jail to await "further order and action" by the trial court.

         Movant filed his pro se motion on June 17, 2015, 97 days after the Supreme Court of Missouri issued its mandate, thus 7 days after it could be timely filed in the motion court. See Rule 29.15(b).[4] The motion alleged multiple instances of ineffective assistance by trial and appellate counsel, and it acknowledged that the appellate court mandate had issued on March 12, 2015. Despite that acknowledgment, the motion was silent as to the reason why it was not timely filed. Movant knew that the motion could not arrive at the motion court until after its due date of June 10, 2015 because the pro se motion was accompanied by an affidavit from Movant asserting that he was eligible to proceed in forma pauperis. That affidavit was signed by Movant and notarized at the prison on June 10, 2015.

         Despite the fact that the pro se motion was not timely filed, and it contained no explanation for the delay, the motion court granted Movant's motion to proceed in forma pauperis and appointed the public defender to represent Movant on June 29, 2015. On July 29, 2015, the motion court granted motion counsel an additional 30 days in which to file an amended motion, purportedly making it due on September 27, 2015.

         Prior to that deadline, on August 28, 2015, motion counsel filed a MOTION TO TREAT MOVANT'S RULE 29.15 CRIMINAL PROCEDURE FORM 40 AS TIMELY FILED[.] ("Motion to Treat as Timely"). The motion acknowledged that Movant's pro se motion was not timely filed, the deadline having passed seven days before the pro se motion was filed. As justification for the late filing, the Motion to Treat as Timely claimed:

4. Movant's direct appeal counsel instructed Movant by letter (2/25/15 and 3/16/15) and in telephone conversation (3/6/15) regarding the deadline to file.
5. Movant signed his Form 40 on June 10, 2015 and placed it in the mail with the Crossroads Correctional Center.
6. Movant's delay in finalizing his Form 40, with his signature, in part resulted from his having to wait for access to a notary public with the institution; and due to ongoing health issues associated with a major heart health issue. Movant was scheduled for heart surgery on June 15, 2015, to replace a ...

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