Gerlt v. State

• Decision Date: 12 April 2011
• Docket Number: No. WD 72225.,WD 72225.
• Citation: 339 S.W.3d 578
• Parties: Donald Ray GERLT, Appellant,v.STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

339 S.W.3d 578

Donald Ray GERLT, Appellant,

v.STATE of Missouri, Respondent.

No. WD 72225.

Missouri Court of Appeals, Western District.

April 12, 2011.

Kent Denzel, Columbia, MO, for appellant.Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JAMES E. WELSH, Judge and GARY D. WITT, Judge.GARY D. WITT, Judge.

Donald Ray Gerlt appeals the denial of his Rule 24.035 post-conviction motion, after an evidentiary hearing, by the motion court. We affirm.

Factual Background

Donald Ray Gerlt (“Gerlt”) was charged in Howard County with three counts of driving while his license was revoked, a violation of section 302.321. ¹ Because Gerlt had numerous prior offenses, each count was charged as a class-D felony. He was also alleged to be a prior and persistent felony offender under section 558.016.

In August 2007, Gerlt entered a plea of guilty to Count II (driving with a revoked license on September 20, 2006) in exchange for the State's agreement to dismiss Counts I and III, to withdraw its prior and persistent felony offender allegation, and for the State's recommendation that Gerlt be sentenced to four years in the Department of Corrections with a suspended execution of sentence and he be placed on probation for five years. At the plea hearing, Gerlt confirmed that he understood the charges, understood his rights, and wished to plead guilty. The plea court found Gerlt's guilty plea was supported by a factual basis, and was made knowingly, voluntarily, and intelligently.

In February 2009, the prosecutor filed a motion to revoke Gerlt's probation. The motion alleged that Gerlt had violated his probation by committing a felony, resisting arrest under section 575.150. Gerlt admitted the violation at his revocation hearing and, in return, the prosecutor agreed not to proceed with formal charges for the new offense, with the understanding that federal authorities would be charging Gerlt for the incident giving rise to the violation. The court ordered Gerlt's probation revoked and imposed the previously suspended four-year sentence. Gerlt was delivered to the custody of the Department of Corrections on March 20, 2009.

Gerlt filed his pro se Rule 24.035 ² motion for post-conviction relief on September 17, 2009. The motion was amended by appointed counsel and, in that amended motion, Gerlt alleged that plea counsel had provided him with ineffective assistance for failing to advise him of a potential defense for the charge to which he pled guilty. The motion court held an evidentiary hearing and issued its findings of fact and conclusions of law, denying Gerlt's post-conviction motion. Gerlt now appeals. Further factual details will be provided as necessary in the analysis section.

Analysis

Before addressing the merits of Gerlt's appeal, we need to consider the effect of the failure of Gerlt to timely file his Rule 24.035 post-conviction motion. Rule 24.035 sets forth the time limit to which a movant must adhere in order to have his post-conviction motion for relief heard by the motion court. Gerlt did not appeal the judgment or sentence he seeks now to vacate. Rule 24.035(b) provides “[i]f no appeal of such judgment was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections.” (Emphasis added.) Further, “failure to file a motion within the time provided by this Rule 24.035 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.” “The movant is responsible for filing the original motion, and a lack of legal assistance does not justify an untimely filing.” Gehrke v. State, 280 S.W.3d 54, 57 (Mo. banc 2009) (citing Bullard v. State, 853 S.W.2d 921, 923 (Mo. banc 1993)).

Gerlt was delivered to the custody of the Department of Corrections on March 20, 2009. Gerlt filed his pro se Rule 24.035 post-conviction relief motion on September 17, 2009, 181 days after the Department of Corrections took him into custody. Gerlt's motion was filed one day out of time. The State failed to raise this issue before the motion court, and the motion court proceeded to decide the issue on the merits. The issue of the untimely motion is raised for the first time on appeal.

Prior to the Missouri Supreme Court's decision in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), the failure of the Movant to timely file for post-conviction relief was considered a jurisdictional issue and, therefore, it was one that could be raised for the first time on appeal by the State or by this Court sua sponte. See, e.g., Murphy v. State, 796 S.W.2d 673 (Mo.App. S.D.1990); Suman v. State, 783 S.W.2d 525 (Mo.App. W.D.1990).

Gerlt argues that the Missouri Supreme Court's decision in Webb means that the State's failure to raise the timeliness of Gerlt's motion is not a jurisdictional defect but a matter of trial error which, if not raised by the State before or at the motion hearing, constitutes a waiver of the defense by the State. This court has very recently addressed this exact argument in Snyder v. State, 334 S.W.3d 735 (Mo.App.W.D.2011).³

In Snyder, this court held that “the State waive[s] its right to challenge Appellant's post-conviction motion based upon the time limitation contained in Rule 24.035(b) by failing to raise that issue in the motion court.” Id. at 739–40. This court reasoned that a contrary holding would conflict with the Missouri Supreme Court's holding in McCracken v. Wal–Mart Stores E., LP, 298 S.W.3d 473, 476 (Mo. banc 2009) that “if a matter is not jurisdictional but rather is a procedural matter required by statute or rule or an affirmative defense of the sort listed in Rule 55.08, then it generally may be waived if not raised timely.” (Emphasis added.) Webb has made clear that issues of timeliness do not divest the trial courts of this state of subject matter jurisdiction which remains, in this case, a civil matter. See Webb, 275 S.W.3d at 251–253. The question of “timeliness” raises issues of trial error and not jurisdiction. Andrews v. State, 282 S.W.3d 372, 375 n. 3 (Mo.App. W.D.2009). The question of whether the movant has a statutory right to proceed on a claim because of an untimely filing is analogous to other non-jurisdictional defenses which are waived if not raised in a responsive pleading or otherwise under Missouri law. See McCracken, 298 S.W.3d at 477–78.

The time limitations found in Rule 24.035(b) are “governed by the rules of civil procedure insofar as applicable.” Rule 24.035(a). Rule 55.08 and Rule 55.27(a) “dictate that the State set forth in its responsive pleading to the post-conviction motion an assertion that the movant waived his or her right to proceed under Rule 24.035(b). Otherwise, the State waives its right to claim that Appellant waived his right to pursue post-conviction relief.” Snyder, 334 S.W.3d at 739.

We recognized in Snyder, and do so again today, that this holding conflicts with the Eastern District's contrary holding in Swofford v. State, 323 S.W.3d 60, 64 (Mo.App. E.D.2010). The Southern District has followed the Eastern District's holding in Swofford. See Dorris v. State, –––S.W.3d ––––, 2011 WL 742548 (Mo.App.S.D.2011). For the aforementioned reasons set out in Snyder, we again reject the holdings in Swofford and Dorris insofar as they permit the State to raise a matter of trial error for the first time on appeal. Accordingly, we turn to the motion court's decision to deny Gerlt's motion on the merits.

Standard of Review

In determining whether the motion court erred in denying Gerlt's motion for post-conviction relief, our review is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k). Error is clear when the record definitely and firmly indicates that the circuit court made a mistake. State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995).

Analysis

In Point One on Appeal, Gerlt argues the motion court clearly erred in denying his Rule 24.035 motion because a review of the entire record leaves a definite and firm impression that his guilty plea was not knowingly, intelligently, and voluntarily entered, due to the ineffective assistance of plea counsel,⁴ in that plea counsel did not fully advise Gerlt as to the defense that Officer Oswald had apparent authority to promise Gerlt that the charge in Count II would be dismissed if Gerlt worked with the officer on undercover drug investigations.

“ ‘To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must satisfy a two-prong test.’ ” Glaviano v. State, 298 S.W.3d 112, 117 (Mo.App. W.D.2009) (quoting Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009)). “The movant must show that his counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would exercise in a similar situation and that trial counsel's failure prejudiced the defendant.” Id.

“However, by entering a plea of guilty, a defendant waives every claim of error except claims involving the voluntariness or understanding of the plea.” Herriford v. State, 295 S.W.3d 904, 906 (Mo.App. W.D.2009). “A plea must be a voluntary expression of the defendant's choice and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences of the act.” Roberts v. State, 276 S.W.3d 833, 836 (Mo. banc 2009). “Due process requires that a person who wishes to plead guilty must be competent to do so and must enter the plea knowingly and voluntarily.” State v. Shafer, 969 S.W.2d 719, 731 (Mo. banc 1998). In addition to his claim that his plea was involuntary due to the inadequacy of counsel's representation, he must also “show that there is a reasonable probability that, but for counsel's errors, he would...