Kirk v. State

• Decision Date: 17 December 2019
• Docket Number: WD 81958
• Citation: 590 S.W.3d 897
• Parties: Julie Mae KIRK, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

590 S.W.3d 897

Julie Mae KIRK, Appellant,

v.STATE of Missouri, Respondent.

WD 81958

Missouri Court of Appeals, Western District.

Opinion filed: December 17, 2019

Natalie Hull Lodge, Kansas City, MO, Counsel for Appellant.

Gregory L. Barnes, Jefferson City, MO, Counsel for Respondent.

Before Division Two: Thomas H. Newton, Presiding Judge, Anthony Rex Gabbert, Judge, and Tom N. Chapman, Judge

Anthony Rex Gabbert, Judge

Julie Kirk appeals from the judgment of the circuit court which dismissed her pro se Rule 24.035 motion for postconviction relief as untimely filed. We reverse.

Background

In May 2017, Kirk pleaded guilty to the class C felony of possession of a controlled substance, two counts of the class C felony of first-degree endangering the welfare of a child, and the class A misdemeanor of unlawful use of drug paraphernalia. The trial court found Kirk to be a prior drug offender and a prior and persistent offender and sentenced her to seven years’ imprisonment on each of the felonies and 90 days in jail on the misdemeanor, with the sentences ordered to run concurrently.

Kirk was delivered to the custody of the Department of Corrections (DOC) on June 22, 2017. Under the version of Rule 24.035(b) which became effective on July 1, 2017, Kirk’s postconviction relief motion was due within 180 days of the date she was delivered to the DOC’s custody, or by December 19, 2017. The rule specified that a motion sent to the court by United States mail would be deemed filed as of the date the motion was "deposited in the mail."

The circuit clerk stamped Kirk’s pro se Rule 24.035 motion as received on December 21, 2017 – two days after the deadline. The circuit court appointed counsel to represent Kirk. Before counsel could file an amended postconviction relief motion, the State filed a motion to dismiss on the basis that Kirk’s pro se motion was untimely.

The circuit court held an evidentiary hearing on the State’s motion to dismiss on March 19, 2018. At the outset, the State argued to the circuit court that Kirk’s testimony, standing alone, would not be sufficient to show when her motion was mailed:

There has to be evidence of when it went into the mail. And if all we have is the Defendant's testimony, then I don't know that that is something that we can rely on. I mean, it's in her best interest to say that it was mailed prior to the date where it would be untimely filed.

The State argued that, although Kirk’s motion was file-stamped on December 21, "[i]t could have been mailed the day before. It could have been mailed on the 20th, which is still untimely filed."

Kirk testified that she was incarcerated at the Chillicothe Correctional Center. She said that she put her pro se motion in the prison mail system on December 4, 2017, the date on which her in forma pauperis affidavit was notarized. Kirk testified that she placed the motion in her housing unit’s outgoing mailbox, which is picked up once a day. Once the motion was placed in the prison mailbox, Kirk testified that "it’s in the Department of Corrections’ hands. I don't have nothing to do with it."

Kirk also presented the testimony of the Lafayette County Circuit Clerk, Deana Aversman. Aversman testified that mail is not delivered directly to the Lafayette County courthouse in Lexington. Instead, Aversman testified that she picks up the mail from the post office every day between 8:00 and 8:30 a.m. Once a filing is picked up from the post office, it is file stamped on the day she picks it up. If mail arrives at the post office after 8:30 a.m., it would be picked up the next day. Because of when she picks up the mail, Aversman agreed that, "if [Kirk’s pro se motion] had arrived at the post office at 8:30 the day before, it wouldn't get picked up[, and therefore would not get file-stamped,] until the next day."

Aversman testified that the clerk’s office had not retained the envelope in which Kirk mailed her pro se motion to the court. She acknowledged in her testimony that since July 2017, "we have this new rule [Rule 24.035(c) ] where we are supposed to be file stamping the envelopes as well" as the motions themselves. Aversman testified that she became alerted to the requirements of the new rule by Kirk’s appointed counsel, which would have occurred after counsel was appointed on December 21, 2017 – more than six months after the new rule went into effect. Aversman testified that, after being informed of the rule’s requirements by Kirk’s counsel, she "did a little research and discovered that we got a deployment last July, which is a methodology in letting clerks know when there is changes in procedure. So we got that last July." Aversman testified that, as a result of this case, "I have made sure that my staff is well aware of that rule."

The circuit court noted at the hearing that Kirk had not signed her motion for postconviction relief (although she had executed an in forma pauperis affidavit included in the motion). Kirk’s counsel offered to have Kirk sign the motion in the courtroom. Instead, she sent an executed version of her motion to the court following the hearing; it was file-stamped by the clerk’s office on March 27, 2018, eight days after the March 19 hearing at which the circuit court had noted the deficiency.

Following the hearing, the motion court granted the State’s motion to dismiss by docket entry. Kirk filed a motion to reconsider. Among other things, Kirk’s reconsideration motion presented new evidence that a postage calculator on the United States Postal Service website showed that a letter mailed from Chillicothe to Lexington was expected to take two days for delivery.

The motion court entered its judgment dismissing Kirk’s pro se motion on June 21, 2018. The circuit court’s judgment concludes:

Movant’s pro se motion was file-stamped December 21, 2017. Movant’s pro se motion was not signed, but even if deemed to have been promptly corrected, the motion did not allege facts establishing the motion was timely filed. Movant’s motion did not allege "active third-party interference", nor did the March 19 hearing prove the allegations of timeliness that were not in the pro se motion. Any showing that the pro se motion was completed timely, without more, does not tend to prove when the motion was "dispatched" to the Circuit Court, "much less when the court received it." Wadel v. State , 524 S.W.3d 575 (Mo. App. W.D. 2017).^{[1 ]}

This appeal by Kirk followed.

Standard of Review

Appellate review of a motion court’s dismissal of a postconviction relief motion is limited to determining whether the findings and conclusion are clearly erroneous. Propst v. State , 535 S.W.3d 733, 735 (Mo. banc 2017). A motion court’s findings and conclusions are clearly erroneous if the appellate court is left with a definite and firm impression that a mistake has been made after a review of the entire record. Id.

Discussion

When an inmate is convicted after a guilty plea, Rule 24.035(b) establishes the deadline for filing an initial motion for postconviction relief. Price v. State , 422 S.W.3d 292, 296 (Mo. banc 2014) (discussing Rule 29.15). At the time Kirk’s motion was due in December 2017, Rule 24.035(b) required an inmate who had not appealed her judgment or sentence to file her motion "within 180 days of the date the person is delivered to the custody of the department of corrections." Rule 24.035(b) (effective July 1, 2017). The rule also contained a new "mailbox rule":

If the motion is sent to the sentencing court by first-class United States Mail and is addressed correctly with sufficient postage and deposited in the mail on or before the last day for filing the motion, the motion shall be deemed to be filed timely.

Id.

In order to implement this new "mailbox rule," the new version of Rule 24.035(b) established a presumptive method for proving when a pro se motion had been filed: it stated that "[a] legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of the filing of the motion." Id. The new rule also added a provision requiring that the circuit court clerk preserve the envelope in which a pro se motion was mailed: "[t]he clerk shall file stamp the motion on the date it is received and retain in the court file the envelope in which the motion was sent. " Rule 24.035(c) (emphasis added).

The obvious reason to require the clerk to retain the envelope is that the envelope would contain the postmark that would presumptively establish the date on which a pro se motion was mailed, and therefore the date on which the motion would be deemed filed. By definition, there is only one copy of the postmarked envelope, and only the clerk would have it. Thus, the revised Rule 24.035(c) required the clerk to retain a unique, non-reproducible piece of evidence, which would be essential to establishing whether a pro se motion had been timely filed.²

Unfortunately, in this case the circuit clerk failed to fulfill the duty imposed upon her by Rule 24.035(c). Although the revised Rule had been in effect since July 1, 2017, and the clerk had received a "deployment" intended to advise her of the rule change, the clerk testified that she only became aware of the rule change six months later, when Kirk’s counsel asked her for the envelope in which Kirk had mailed her motion. At that point, the clerk realized that her staff had not been trained concerning the new rule; she testified that as a result of this case, "I have made sure that my staff is well aware of that rule."

Missouri statutes state that a clerk’s failure to preserve the records required to be maintained by Supreme Court rule shall be treated as a misdemeanor, and that the circuit court has a "special duty" to insure that the clerk is maintaining required records. Section 483.140, RSMo provides:

It shall be the special duty of every judge of a court of record to examine into and superintend the manner in which the rolls and records of the court are made up and kept; to prescribe orders that will

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