Ross v. State

• Decision Date: 17 January 2023
• Docket Number: ED110423
• Parties: DAVID L. ROSS, Appellant, v. STATE OF MISSOURI, Respondent,
• Court: Missouri Court of Appeals

DAVID L. ROSS, Appellant, v. STATE OF MISSOURI, Respondent,

No. ED110423

Court of Appeals of Missouri, Eastern District, Third Division

January 17, 2023

Appeal from the Circuit Court of Cape Girardeau County Cause No 20CG-CC00339 Honorable Scott A. Lipke

OPINION

John P. Torbitzky, J.

I. Introduction

David L. Ross appeals the judgment denying his Rule 24.035 motion without an evidentiary hearing. The judgment contains no findings of fact or conclusions of law regarding the timeliness of either Ross's pro se motion or the amended motion filed by appointed counsel. We reverse and remand.

II. Factual and Procedural Background

Ross entered an Alford plea^[1] to one count of first-degree domestic assault. The circuit court sentenced Ross on November 18, 2019. Ross did not appeal, and therefore his postconviction motion was due 180 days later on May 18, 2020. See Rule 24.035(b).^[2] Ross did not file a pro se motion until November 19, 2020, alleging that due to the COVID-19 pandemic he had been "hindered from filing this motion in a timely manner." He stated that "since the pandemic began this facility has been plagued by lockdowns, quarantines, and riots" and that "over the period of the pandemic there has been limited access to the library and law library."

The circuit court appointed postconviction counsel. Counsel sought and was granted an extension of time to file an amended motion, making it due ninety days after the transcript of the guilty plea hearing was filed on April 29, 2021. See Rule 24.035(g). Before that filing deadline, counsel sought a second extension, which was also granted but not until the deadline had passed. The parties agree that this was ineffective to extend the deadline. See Earl v. State, 628 S.W.3d 695, 699 (Mo. App. E.D. 2021) (holding that circuit court is without discretion to extend a deadline after it has passed). Thus, it is undisputed that the amended motion was untimely when it was filed on May 27, 2021. Ross acknowledged this in the amended motion and asked the circuit court to find that he had been abandoned by postconviction counsel.

Ross also acknowledged in the amended motion that his pro se motion was untimely, but asserted that circumstances related to the COVID-19 pandemic that were beyond his control excused the late filing. Ross stated that "COVID-19 restrictions at the Missouri Department of Corrections ("DOC") impeded [his] ability to timely file." If granted an evidentiary hearing, Ross alleged, he would testify that he was delivered to the Eastern Reception, Diagnostic, and Correction Center on November 20, 2019, two days after his sentence was imposed, and was then transferred to the Missouri Eastern Correctional Center on March 12, 2020. Ross stated that he would introduce evidence that on March 2, 2020, the Governor signed an executive order declaring a state of emergency in Missouri due to COVID-19. Thereafter, the DOC began implementing "enhanced pandemic protocols" at every prison including "using isolation cells, wings, and units for offenders exhibiting signs of communicable diseases." Ross attested in the amended motion that these pandemic protocols "prevented the timely filing of his Rule 24.035 motion" because:

(1) his housing unit was under lockdown for several weeks at a time due to suspected COVID-19 cases; (2) the pandemic protocols prevented him from accessing the law library to research and prepare his motion; (3) he did not have a copy of Form 40 while under lockdown and due to short-staffing at DOC was not sure how to obtain a copy without going to the library; and (4) he was extremely concerned for his health and safety during this time and stayed mostly in his cell to limit his possible exposure.

Ross contended that these COVID-19 restrictions were beyond his control and requested that the circuit court excuse his late filing.

The circuit court denied the amended motion without an evidentiary hearing. In its findings of fact and conclusions of law, the circuit court acknowledged Ross's argument that COVID-19 protocols prevented him from timely filing his pro se motion, but it did not issue any findings or conclusions regarding the timeliness of that motion. Instead, it stated: "Out of an abundance of caution, the Court will only address" the substantive claim in Ross's motion-namely, that plea counsel was ineffective for pressuring and coercing him to enter an Alford plea-which it denied. The circuit court also did not address the timeliness of the amended motion or Ross's request to deem him abandoned. Ross filed a motion to amend the judgment under Rule 78.07(c) (2022), asking the circuit court to issue findings and conclusions regarding the timeliness of both the pro se and amended motions as required by Rule 24.035(j) (2022). That motion was not ruled on and is deemed overruled by Rule 78.06 (2022). This appeal follows.

III. Discussion

On appeal, there is no dispute that Ross's pro se motion and amended motion were untimely and that the circuit court erred in failing to issue findings and conclusions on these issues. The only question is whether remand to the circuit court to make the required findings is necessary in this case. We conclude that it is.

Time Limits and Exceptions

We start with the rule that the time limits for filing motions under Rule 24.035 are mandatory and strictly enforced. Palmer v. State, 643 S.W.3d 673, 676 (Mo. App. E.D. 2022). The "[f]ailure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed" thereunder. Rule 24.035(b). If a pro se motion is not timely filed, then the circuit court does not have authority to consider the merits of a claim raised therein and is "compelled to dismiss" the untimely motion. Palmer, 643 S.W.3d at 676. Therefore, a movant must plead and prove facts showing that the pro se motion was timely filed or that the untimeliness was excused because of a recognized exception to the time limits. Dorris v. State, 360 S.W.3d 260, 267 (Mo. banc 2012).^[3]

Ross did not file his pro se motion within the time limits applicable to his case. See Rule 24.035(b). As a result, in his pro se motion and amended motion,^[4] Ross alleged that he fell within a recognized exception to the mandatory time limits, namely that "very rare circumstances" beyond his control caused his late filing and "justified a late receipt of the motion by the proper court." Moore v. State, 328 S.W.3d 700, 703 (Mo. banc 2010) (internal quotation marks and citations omitted). Ross alleged that he was unable to timely prepare or file his motion because of the COVID-19 pandemic protocols imposed on him by the DOC, which were beyond his control.

Required Findings and Conclusions

Because an untimely pro se motion deprives the circuit court of authority to reach the movant's substantive claims, it is imperative that the court determine whether the pro se motion is timely before proceeding to rule on the merits. To that end, Rule 24.035(j) expressly requires the circuit court to issue findings of fact and conclusions of law "on all issues presented, including the timeliness of the pro se motion, the timeliness of the amended motion, and, when applicable, whether movant was abandoned by postconviction counsel." Rule 24.035(j) (2022).^[5] The directives of this rule-and its companion Rule 29.15(j), the previous versions of those rules, and their predecessor Rule 27.26-have long been held to be "clear and unambiguous" and "not a mere formality." Brown v. State, 810 S.W.2d 716, 717-18 (Mo. App. W.D. 1991).

Moreover, appellate courts must strictly enforce the rule requiring findings of fact and conclusions of law. State v. Jordan, 793 S.W.2d 905, 907 (Mo. App. E.D. 1990) (citing Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978)). Rule 24.035(k) limits appellate court review of the circuit court's actions in postconviction cases to "a determination of whether the findings and conclusions of the trial court are clearly erroneous." Only when the circuit court makes findings of fact and conclusions of law can the appellate court engage in the kind of review contemplated by the rule. Fields, 572 S.W.2d at 483. Without findings and conclusions, the appellate court necessarily must "engage in de novo review, which is not permitted under Rule 24.035(k)." Jackson v. State, 366 S.W.3d 656, 660 (Mo. App. E.D. 2012).

Here, although the circuit court acknowledged Ross's argument for why his untimely motion should be excused, it did not issue any findings or conclusions on the matter. The parties agree that this constituted error.

Remand Requirement and Exceptions

In general, "failure to issue findings and conclusions as contemplated by Rule 24.035(j) mandates reversal and remand." Jackson, 366 S.W.3d at 660. But several exceptions to this rule have developed in the case law involving situations where remand is unnecessary. See Mitchell v. State, 510 S.W.3d 366, 371 (Mo. App. E.D. 2017) (listing exceptions). The State contends that remand is unnecessary here because, even if all of Ross's allegations regarding timeliness are true, they do not excuse his untimely filing. The State suggests this situation fits two exceptions to the remand requirement: when the motion is "insufficient" and when it is clear the movant is entitled to no relief as a matter of law and will suffer no prejudice by forgoing remand. We do not agree that either exception applies here.

In support of its contention that remand is not required when the "motion itself is insufficient," the State cites Mitchell v. State. Mitchell simply identified "insufficiency of the motion" as a possible exception to the remand requirement, but it did not apply it. Id. at 371. In fact, although it is often cited by ...