Cox v. State

• Decision Date: 14 October 2014
• Docket Number: No. WD 76549.,WD 76549.
• Court: U.S. District Court — Western District of Missouri
• Parties: Donny Lee COX, Appellant, v. STATE of Missouri, Respondent.

445 S.W.3d 131

Donny Lee COX, Appellant
v.
STATE of Missouri, Respondent.

No. WD 76549.

Missouri Court of Appeals, Western District.

Oct. 14, 2014.

445 S.W.3d 132

Damien S.B. DeLoyola, Kansas City, MO, for appellant.

Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before Division Two: VICTOR C. HOWARD, P.J., and ALOK AHUJA and GARY D. WITT, JJ.

Opinion

ALOK AHUJA, Judge.

Donny Cox pled guilty to statutory sodomy in the first degree and sexual exploitation of a minor. He filed a pro se motion for post-conviction relief under Supreme Court Rule 24.035 in the Circuit Court of Buchanan County. His appointed counsel later filed an amended motion. The circuit court denied Cox's amended motion following an evidentiary hearing, and Cox appeals. He argues that his amended post-conviction relief motion was untimely under Rule 24.035(g), and that the circuit court therefore erred in addressing the merits of his claims. Because Cox has failed to establish that he was prejudiced

445 S.W.3d 133

by the motion court's ruling on the merits of his amended motion, we affirm.

Factual Background

On September 28, 2010, Cox pled guilty to statutory sodomy in the first degree and sexual exploitation of a minor. On November 4, 2010, the court sentenced him to forty years' imprisonment for the sodomy offense, and to ten years for sexual exploitation. The court ordered the sentences to run consecutively.

Cox filed a pro se Motion to Vacate, Set Aside, or Correct the Judgment or Sentence under Rule 24.035 on May 2, 2011. The motion court appointed the public defender to represent Cox on May 10, 2011. The transcript of Cox's guilty plea and sentencing was filed in the circuit court on November 30, 2011. Cox's appointed counsel filed an amended motion for postconviction relief on June 11, 2012.

Cox's amended motion alleged that his plea counsel was ineffective because counsel: (1) failed to advise Cox that the Court was not required to follow the sentencing recommendations contained in the plea agreement; (2) failed to advise Cox that he could withdraw his guilty plea; and (3) failed to advise Cox of available defenses should he choose to go to trial.

The circuit court held an evidentiary hearing on Cox's amended motion on December 19, 2012, at which Cox's plea counsel testified. On December 20, 2012, the motion court entered its judgment denying Cox's amended motion on the merits. This appeal followed.

Analysis

Cox raises a single claim on appeal: that the motion court erred in ruling on the merits of his amended motion for post-conviction relief, because the amended motion was untimely. Cox asks this Court to vacate the judgment of the motion court, so that he can then file a new motion for post-conviction relief based on the contention that he was abandoned by post-conviction counsel due to the untimely filing of the amended motion. See, e.g., Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 2010) (noting that “abandonment traditionally excuses a late filing in two situations: (1) when post-conviction counsel fails to file an amended motion and the record shows the movant was deprived of meaningful review of the claims; or (2) when post-conviction counsel files an untimely amended motion”).

Rule 24.035(g) provides that, where no direct appeal is taken, an amended motion for post-conviction relief must be filed:

within sixty days of the earlier of: (1) the date both a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and counsel is appointed or (2) the date both a complete transcript has been filed in the trial court and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.

Rule 24.035(g) authorizes the motion court to grant one extension of time, not to exceed thirty days, for the filing of an amended motion.

In this case, the motion court appointed the public defender's office to represent Cox on May 10, 2011. Cox's guilty plea and sentencing transcripts were filed on November 30, 2011. Accordingly, Cox's amended motion was due on January 30, 2012 (since no extension of time was requested or granted). The amended motion was not filed, however, until June 11, 2012, 133 days later. Although the amended motion was filed more than four months late, the motion court held an evidentiary hearing on the motion, and ultimately denied Cox's claims on their merits.

445 S.W.3d 134

The State did not argue in the circuit court that Cox's amended motion was untimely. As Cox points out, however, the filing deadlines contained in the post-conviction relief rules are mandatory, and cannot be waived. Dorris v. State, 360 S.W.3d 260, 270 (Mo. banc 2012). “It is the court's duty to enforce the mandatory time limits and the resulting complete waiver in the post-conviction rules—even if the State does not raise the issue.” Id. at 268.

While courts may have an obligation to enforce the filing deadlines found in Rules 24.035 and 29.15 on their own motion, this presumes that a live controversy exists concerning whether the movant is entitled to post-conviction relief. In this case, however, Cox does not argue that he is legally entitled to post-conviction relief. He does not contend that the claims asserted in his amended motion were meritorious. Nor does Cox assert that, because the amended motion was untimely, the motion court should have instead considered, and granted relief on, the claims asserted in his original pro se motion. Thus, Cox's appellate briefing does not argue that he is entitled to post-conviction relief either because the motion court erroneously rejected a meritorious claim, or because it erroneously failed to consider a meritorious claim. Cox merely argues that the motion court erred in considering the claims asserted in his amended motion at all.

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