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Ashley v. State

Court of Appeals of Missouri, Western District, Fourth Division

May 7, 2019

TERRY GALE ASHLEY, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of Lafayette County, Missouri The Honorable Dennis A. Rolf, Judge

          Before: Karen King Mitchell, Chief Judge, and Alok Ahuja and Thomas N. Chapman, Judges

          KAREN KING MITCHELL, CHIEF JUDGE

Terry Ashley appeals the dismissal of his Rule 24.035 motion for post-conviction relief. Ashley argues that the motion court erred in finding the pro se motion to have been untimely filed. Finding no error, we affirm.

         Background

         On December 19, 2016, Ashley pled guilty to one count of first-degree statutory sodomy. On February 6, 2017, the trial court sentenced Ashley to a term of twenty years' imprisonment. Ashley was delivered to the Department of Corrections on February 8, 2017. On February 23, 2017, Ashley filed a motion to correct the judgment, nunc pro tunc, based on a misstated charge code number.[1] On March 6, 2017, the trial court granted Ashley's motion and entered a corrected judgment.

         On August 28, 2017, Ashley filed a pro se Rule 24.035 motion for post-conviction relief. On April 9, 2018, the State filed a motion to dismiss Ashley's post-conviction action based on the allegation that Ashley's pro se motion was not timely filed. On June 19, 2018, the motion court granted the State's motion and dismissed Ashley's post-conviction action. Ashley appeals.

         Analysis

         Ashley raises a single point on appeal; he argues that the motion court erred in dismissing his post-conviction action because his pro se motion was not, in fact, untimely insofar as it was filed within 180 days of the trial court's entry of the corrected judgment.

         At the outset, Ashley relies on the current version of Rule 24.035, and the State counters that the prior version (applicable at the time of Ashley's sentencing and his filing of the pro se motion) controls. The prior version provided that, if the original judgment was not appealed, "the [Rule 24.035] motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections." Rule 24.035(b) (2017) (emphasis added). The current version provides that, "[i]f no appeal of such judgment or sentence is taken, the motion shall be filed within 180 days of the date the sentence is entered." Rule 24.035(b) (2018) (emphasis added). Ashley then argues that his sentence was not "entered" until March 6, 2017, when the trial court issued the corrected judgment. And, because his pro se motion was filed within 180 days of March 6, 2017, he suggests that it was timely filed and therefore should not have been dismissed. We disagree.

         To begin, Ashley's argument completely ignores Rule 24.035(m), which limits the current version's application to only those "proceedings wherein sentence is pronounced on or after January 1, 2018." The Rule indicates that, "[i]f sentence was pronounced prior to January 1, 2018," as Ashley's was, "postconviction relief shall continue to be governed by the provisions of Rule 24.035 in effect on the date the motion was filed or December 31, 2017, whichever is earlier." Rule 24.035(m) (emphasis added). Accordingly, the time in which Ashley needed to file his Rule 24.035 motion began to run on February 8, 2017, [2] when he was delivered to the Department of Corrections.[3]

         Additionally, in his brief, Ashley implies that the State waived its ability to challenge the timeliness of the pro se motion by not raising the matter sooner:

[A]t no time since the filing of this petition, including at any of the previous court hearings that were reset as the parties continued to work through the discovery issues, was the issue of this alleged "late ...

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