El-Vester Robinson v. State of Missouri

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
EL-VESTER ROBINSON, )
)
Appellant, )
)
v. ) WD84102
)
STATE OF MISSOURI, ) Opinion filed: February 22, 2022
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
THE HONORABLE JALILAH OTTO, JUDGE
Division Two: Alok Ahuja, Presiding Judge,
Edward R. Ardini, Jr., Judge, and Janet L. Sutton, Judge
El-Vester Robinson (“Robinson”) appeals the denial of his Rule 29.15 motion for post-
conviction relief by the Circuit Court of Jackson County (“motion court”) following his conviction
for first-degree child molestation. Because Robinson’s Rule 29.15 pro se motion was untimely
filed, we vacate the judgment and remand to the motion court with directions to dismiss the post-
conviction proceeding.
Factual and Procedural Background
In the underlying criminal case, Robinson was charged, as a predatory sexual offender,
with one count of child molestation in the first degree based on the following facts:
In May 2014, Victim, who was just shy of his tenth birthday, reported to his mother
(“Mother”) that Robinson had previously molested him. Mother took Victim to the police station
where Victim described the abuse to an officer. The officer referred Victim to the Child Protection
Center where Victim again described the abuse.
Robinson was arrested and questioned, during which he admitted that Victim’s allegations
were true. Before trial, Robinson’s trial counsel moved to suppress those statements. The motion
was denied by the trial court.
At trial, Victim testified that he met Robinson at his grandmother’s home before he was
old enough to attend school. Victim recalled that Robinson took him to an upstairs bathroom and
told him to pull down his pants. When Victim refused, Robinson pulled down Victim’s pants, laid
face down, naked, in the bathtub, and told Victim to get on top of him. Victim stated that he
complied due to threats made by Robinson. Victim explained that, once seated on Robinson with
his penis and buttocks touching Robinson’s bare back, Robinson ordered him to bounce up and
down. Victim stated that this happened more than once. Victim also reported that Robinson had
touched his penis and pubic area multiple times.
Robinson did not testify at trial.
The jury found Robinson guilty, and the trial court sentenced him, as a predatory sexual
offender, to life imprisonment with eligibility for parole after twenty-five years. Robinson
appealed his conviction, which was affirmed by this Court in an order issued pursuant to Rule
30.25(b). State v. Robinson, 549 S.W.3d 492 (Mo. App. W.D. 2018). Our mandate issued on April
11, 2018.
Robinson filed his Rule 29.15 pro se motion for post-conviction relief in the Circuit Court
of Jackson County on August 9, 2018, 120 days after the mandate had issued. Attached to the
motion was a note in which Robinson explained that, although he had mailed the motion on July
10, 2018, it had been returned with a message indicating that the motion had been mailed to the
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wrong address. In fact, Robinson had mailed his pro se motion to this Court—the Western District
Court of Appeals—where it was stamped “Received” on July 13, 2018. Robinson indicated that
after the initial mailing was returned, it took an additional two weeks to obtain the correct address
for the Circuit Court of Jackson County.
The motion court appointed counsel for Robinson on August 24, 2018, and granted a thirty-
day extension for the filing of the amended motion. Post-conviction counsel filed an amended
motion on November 26, 2018. The amended motion did not address the timeliness of Robinson’s
pro se motion other than generally asserting that it had been timely filed. Post-conviction counsel
raised one claim in the amended motion, alleging that Robinson’s appellate counsel was ineffective
for failing to challenge the trial court’s denial of Robinson’s motion to suppress and the admission
of evidence related to Robinson’s statements to detectives during questioning. Following an
evidentiary hearing, the motion court denied the claim asserted in Robinson’s amended motion for
post-conviction relief. The motion court made additional findings relevant to the timeliness of the
pro se motion:
The Court notes that it received [Robinson’s] pro se motion after the deadline
established by Missouri Supreme Court Rule 29.15. However, the Court finds that
[Robinson’s] pro se motion was originally received and filed at the Missouri Court
of Appeals, Western District on July 13, 2018. The Court of Appeals returned the
filing to [Robinson] and he mailed it to the Jackson County Circuit Court, the
correct venue. When this Court received [Robinson’s] pro se motion on August 10,
2018, a note was attached explaining that [Robinson] initially sent the filing to the
wrong court. The Court finds that it is highly probable that [Robinson] timely
mailed his pro se Rule 29.15 motion, albeit to the wrong courthouse. The Court
deems [Robinson’s] pro se motion timely filed.
Robinson appeals from the denial of the claim raised in his amended post-conviction
motion.
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Discussion
Robinson raises a single point on appeal, arguing that the motion court erred in denying his
post-conviction claim that he had received ineffective assistance of appellate counsel. However,
before we can consider Robinson’s claim of error, we must first address the timeliness of his pro
se motion for post-conviction relief.
“Failure to file a motion within the time provided by . . . Rule 29.15 shall constitute a
complete waiver of any right to proceed under [the rule] and a complete waiver of any claim that
could be raised in a motion filed pursuant to [the rule].” Rule 29.15(b).1 If a pro se motion under
Rule 29.15 is untimely, “‘it must be dismissed, as neither the motion court nor this Court has any
authority to address the merits of [the movant’s] post-conviction claims.’” Miller v. State, 386
S.W.3d 225, 227 (Mo. App. W.D. 2012) (quoting Graves v. State, 372 S.W.3d 546, 548 (Mo. App.
W.D. 2012)) (additional citation omitted). “Our courts are obligated to enforce the mandatory time
limits associated with post-conviction relief[.]” Id. (citing Dorris v. State, 360 S.W.3d 260, 268
(Mo. banc 2012)).
Under the version of Rule 29.15 applicable to Robinson’s post-conviction proceeding, his
pro se motion was due “within 90 days after the date the mandate of the appellate court issue[d]
affirming [his] judgment or sentence.” Rule 29.15(b). In this case, the mandate in Robinson’s
direct appeal was issued on April 11, 2018, thereby establishing July 10, 2018, as the deadline for
the filing of his pro se motion.
“‘A post-conviction motion is considered filed when deposited with the circuit court
clerk.’” Miller, 386 S.W.3d at 227 (quoting Graves, 372 S.W.3d at 548-49) (additional quotation
and citation omitted). Here, Robinson’s pro se motion was not filed with the Circuit Court of
1
Unless otherwise noted, rule references are to the Missouri Supreme Court Rules, effective January 1, 2018.
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Jackson County until August 9, 2018, thirty days after it was due. Despite this tardiness, Robinson
argues that his motion should be deemed timely filed based on Nicholson v. State, 151 S.W.3d 369(Mo. banc 2004).
In Nicholson, the movant timely filed his Rule 29.15 pro se motion with the Circuit Court
of St. Louis City; however, proper venue for his post-conviction proceeding lied with the Circuit
Court of Cape Girardeau County. Id. at 370. The Circuit Court of St. Louis City forwarded the pro
se motion to Cape Girardeau County, where it was received two days after the deadline. Id. The
motion court in Cape Girardeau County found the pro se motion had been untimely filed and
dismissed the proceeding. Id. The Missouri Supreme Court reversed relying on the interplay of
section 476.410, RSMo, and Rule 51.10. Id. Section 476.410 states that a “court in which a case
is filed laying venue in the wrong division or wrong circuit shall transfer the case to the division
or circuit in which it could have been brought.” Id. (quoting § 476.410, RSMo). Rule 51.10 requires
a court to which such a transfer occurs to treat the case “as if it had originated in the receiving
court.” Id. at 371 (quoting Rule 51.10). Based on these provisions, the Supreme Court held that
the pro se motion was to be considered filed as of the date it was received by the Circuit Court of
St. Louis City. Id. Because the Circuit Court of St. Louis City had received the pro se motion
before the Rule 29.15 deadline, it was declared timely filed.
The State argues that Nicholson has no relevance to the present case asserting that section
476.410, RSMo, and Rule 51.10 pertain only to trial courts and do not apply to pleadings misfiled
with an appellate court.2 It is unnecessary for us to resolve that issue because, regardless of the
reach of those provisions, Nicholson provides no assistance to Robinson. Under its broadest
2
Compare Mo. Const. Art. 5, § 11 and section 477.080, RSMo, which require a district of the court of appeals to
transfer a case to the correct district or the Supreme Court if an appeal or writ has been filed in the wrong appellate
court. However, neither of these provisions impose a requirement that an appellate court transfer a matter to a trial
court when the proceeding was mistakenly initiated in the appellate court.
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possible reading, Nicholson simply holds that when a Rule 29.15 pro se motion has been
misdirected by a movant to an incorrect court, it is deemed filed when received by that court.
However, this only translates to a meaningful benefit inuring to a movant when the pro se motion
is received by that court prior to the expiration of the Rule 29.15 filing deadline. Robinson’s was
not. Instead, Robinson’s pro se motion was received by this Court three days after it was required
to be filed with the Circuit Court of Jackson County. Therefore, even if we were to apply Nicholson
and consider the pro se motion filed the day it was received by this Court, it was still untimely and
dismissal by the motion court was required.
The motion court nevertheless attempted to avoid this outcome by finding it was “highly
probable that [Robinson] timely mailed his pro se Rule 29.15 motion, albeit to the wrong
courthouse.” This effort by the motion court to invoke the mailbox rule and deem the pro se motion
filed as of the date it was originally mailed by Robinson must fail as the undisputed record
precludes application of the mailbox rule to this situation. Under Rule 29.15(b), “[i]f 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.” Thus, in order to invoke the benefits of this rule, in
addition to other requirements, a pro se motion must be both 1) placed in the mail on or before the
last day for filing the motion and 2) “addressed correctly.” Here, although Robinson originally
mailed his pro se motion prior to the applicable Rule 29.15 deadline, it was not “addressed
correctly.” Therefore, under the plain language of Rule 29.15(b), the mailbox rule cannot aid
Robinson.3
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Separate from the mailbox rule now contained in Rule 29.15(b), Missouri courts have repeatedly held that an
offender’s post-conviction relief motion is deemed filed only upon receipt by clerk of the circuit court. See, e.g.,
Washington v. State, 515 S.W.3d 786, 790 (Mo. App. W.D. 2017); Baird v. State, 512 S.W.3d 867, 869 (Mo. App.
S.D. 2017); Patterson v. State, 164 S.W.3d 546, 548 (Mo. App. E.D. 2005); Stidham v. State, 963 S.W.2d 351, 353
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Because Robinson’s pro se motion was not timely filed, his post-conviction claims are
waived, and his post-conviction proceeding should have been dismissed. See Rule 29.15(b);
Miller, 386 S.W.3d at 227.
Conclusion
This motion court’s judgment is vacated, and the case is remanded for dismissal.
__________________________________________
EDWARD R. ARDINI, JR., JUDGE
All concur.
(Mo. App. W.D. 1998). Because Robinson’s initial mailing of his pro se motion to this Court does not come within
Rule 29.15(b), the pro se motion could only be deemed “filed,” at the earliest, on the date it was received by this Court
– not the date it was mailed – which was untimely.
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