Jacob A. Bergner vs. State of Missouri

Bergner’s Rule 24.035 motion was untimely filed, but its untimeliness is excused and its merits may be considered because the circuit court misinformed Bergner about the appropriate deadline to file his motion and he was entitled to rely upon that misinformation when determining the filing deadline. In this case, Bergner pleaded guilty to two counts of forgery and was given five years of supervised probation, with two consecutive suspended sentences of seven years’ imprisonment. Subsequently, he appeared before the court for a probation revocation hearing. The parties agree that this hearing, where the circuit court ordered Bergner committed to a CODS program under § 559.036.4, was the proper occasion for the court to inform Bergner that he would have 180 days to file a motion for post-conviction relief upon his delivery to the DOC for the CODS commitment. Rule 24.035 as previously written and applicable here states that a person seeking to correct, vacate, or set aside a judgment or sentence following a guilty plea under the rule must file their motion within 180 days after the person is delivered to the custody of the DOC. Because Bergner was to be delivered to the DOC pursuant to the CODS commitment, and it is the movant’s initial delivery to the DOC—even if just to complete a 120-day program pursuant to § 559.036— that triggers the 180-day period to file a Rule 24.035 motion under the applicable version of the

rule, Miley v. State, 559 S.W.3d 97, 99 (Mo.App.E.D. 2018), the court should have informed Bergner that he was about to enter his 180-day window. During the probation revocation hearing, however, the court incorrectly asserted, “Since this is a CODS commitment it is unnecessary to review with [Bergner] his PCR rights.” The court thus misinformed Bergner about the deadline for filing his motion, because the court should have advised him that the CODS commitment triggered the running of the 180 days to file his Rule 24.035 motion, but the court instead suggested mistakenly that the fact Bergner was being ordered committed to a CODS program meant that his post-conviction rights were not at issue.

Bergner failed to plead facts, not conclusions, warranting relief, and failed to raise allegations that resulted in prejudice. He failed to support with any facts or evidence his bare conclusion that counsel made a positive misrepresentation on which he was entitled to rely that he would not have to serve his sentences if his probation were revoked.