Benton v. State

• Decision Date: 23 March 2004
• Docket Number: No. WD 62499.,WD 62499.
• Parties: Bennie L. BENTON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

128 S.W.3d 901

Bennie L. BENTON, Appellant, v. STATE of Missouri, Respondent.

No. WD 62499.

Missouri Court of Appeals, Western District.

March 23, 2004.

Susan L. Hoga, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, III, Patrick T. Morgan, Jefferson City, MO, for Respondent.

Before JOSEPH M. ELLIS, C.J., ROBERT G. ULRICH and LISA WHITE HARDWICK, JJ.

Order Granting Appellant's Motion for Remand & Denying Respondent's Motion to Strike One of Appellant's Documents Attached to Appellant's Appendix

ROBERT G. ULRICH, Judge.

Bennie L. Benton appeals the dismissal with prejudice without evidentiary hearing of his Rule 24.035 motion for postconviction relief for failure to timely file the motion. After filing his appeal, Mr. Benton filed, with this court, a Motion for Remand to the Motion Court For Further Proceedings on the Issue of Timeliness on August 7, 2003. Mr. Benton's motion is granted. His sole point on appeal, that the trial court erred in dismissing his motion as untimely, is not addressed in this opinion. Because the issue on appeal is not addressed, the State's Motion to Strike One of the Documents Attached to Appellant's Appendix, filed with this court on September 15, 2003, is denied.¹ The motion court's dismissal is vacated, and the case is remanded for the motion court to hold a hearing on Mr. Benton's claim that he timely submitted his pro se Rule 24.035 motion for postconviction relief.

Factual and Procedural History

Mr. Benton pleaded guilty on June 11, 2001, to one count of robbery in the first degree, section 569.020, RSMo 2000, and one count of armed criminal action, section 571.015, RSMo 2000, in case number CR2000-06727 and to one count of trafficking in the second degree, section 195.223, RSMo 2000, in case number CR2000-06235. The trial court sentenced Mr. Benton on July 23, 2001, to concurrent terms of fourteen years imprisonment for robbery, twenty years imprisonment for armed criminal action, and ten years imprisonment for trafficking. Mr. Benton was delivered to the Missouri Department of Corrections on July 26, 2001.

Mr. Benton claims that he sent a pro se motion to vacate the judgment pursuant to Rule 24.035 to the Sixteenth Circuit Court Administrator at the Jackson County Courthouse, in August or September 2001. Approximately nine months after he claims that he sent the motion, around April 17, 2002, Mr. Benton sent a letter to the Circuit Court Administrator stating that he had sent his Rule 24.035 motion in August 2001 and inquiring about the status of his case. The Director of Civil Records, Mary Ann McClure, sent a letter to Mr. Benton on April 18, 2002, informing him that she had searched the court's records and was unable to locate his Rule 24.035 motion. In the letter, Ms. McClure also requested that Mr. Benton provide her with a copy of or the information from the return receipt card that he had received evincing his claimed certified mailing.

Mr. Benton responded to Ms. McClure's request with a letter dated April 23, 2002, in which he provided copies of a certified mail receipt and a copy of his pro se Rule 24.035 motion. Mr. Benton's pro se Rule 24.035 motion was notarized on September 6, 2001. The receipt indicates that Mr. Benton sent something that cost $4.63 to the Jackson County Courthouse on September 10, 2001. Mr. Benton's pro se motion was subsequently stamped as filed by the Jackson County Courthouse on April 25, 2002. Counsel was appointed to represent Mr. Benton and filed an amended motion. The motion court dismissed the motion without a hearing because Mr. Benton's pro se motion was untimely filed. Specifically, the motion court found that Mr. Benton's motion was stamped filed on April 25, 2002, over two hundred and seventy three (273) days after he was delivered to the Missouri Department of Corrections. Rule 24.035 provides that the postconviction motion must be filed within ninety (90) days of the claimant's delivery to the Missouri Department of Corrections or the right to proceed under the rule is waived. Rule 24.035(b).²

Mr. Benton filed a Motion for Reconsideration of the Order Dismissing his motion on January 9, 2003. In the motion, Mr. Benton claimed that a question existed as to whether he timely filed his pro se motion. He claimed to have misplaced the green return receipt card indicating that something had been delivered from him to the Jackson County Courthouse in September 2001. Mr. Benton further alleged in his motion that the mailroom at the Crossroads Correctional Center had informed him that it received the return receipt card on September 19, 2001. The motion court overruled Mr. Benton's Motion for Reconsideration. This appeal followed.

Mr. Benton alleges in an affidavit filed with this court that he included his pro se Rule 24.035 motion in the certified mailing that he sent to the Jackson County Courthouse in September 2001. He further alleges in his affidavit that his pro se motion was, therefore, timely filed. To support his contention, Mr. Benton claims in his affidavit that after filing his notice of appeal, he sent a letter to the Consumer Advocate Office of the United States Postal Service informing it that he had misplaced the return receipt card and requesting that it provide him with a copy.³ A representative from the Consumer Affairs Office, Rosie Singleton, sent Mr. Benton a letter requesting that he provide her with the tracking number of the certified mail item. Mr. Benton then sent Ms. Singleton a letter containing the tracking number of the return receipt card. Next, Ms. Singleton sent correspondence to Mr. Benton indicating that the mail that he sent to the Jackson County Courthouse had been delivered. Included within this correspondence was a scanned image of the recipient information showing that Aisha Williams, an employee of the Jackson County Courthouse, signed for the certified mail that Mr. Benton sent to the Jackson County Courthouse on September 13, 2001, at 9:52 a.m. Ms. Singleton also included a computer screen printout indicating that Mr. Benton's certified mail had been delivered on the same date and time. Mr. Benton provided his counsel with a copy of the scanned image shortly thereafter.

Mr. Benton's counsel filed a Motion for Remand to the Motion Court for Further Proceedings on the Issue of Timeliness with this court on August 7, 2003. The motion claims that Mr. Benton has found additional information to support his claim that his pro se motion was timely filed, namely the correspondence from Ms. Singleton containing a scanned image of the recipient information. This correspondence is not part of the legal file on appeal. Mr. Benton requests this court and the motion court to consider the correspondence in determining whether his pro se motion was timely filed. He also included the correspondence as part of the appendix attached to his appellate brief. The State filed a Motion to Strike this document from Mr. Benton's appendix with this court on September 15, 2003. In its motion, the State claims that the recipient information document from the United States Postal Service should be struck from Mr. Benton's appendix because it was never presented to the lower court nor included in the record on appeal.

Generally, presentment of evidence extraneous to the trial court record should not be considered on appeal. Pennington v. Deca Prop. Mgmt. Co., 109 S.W.3d 235, 237 (Mo.App. E.D.2003); Wilson v. ANR Freight Systems, Inc., 892 S.W.2d 658, 662 (Mo.App. W.D.1994), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). However, an appellate court has the inherent power to...