Norris E. Payne, Jr. vs. State of Missouri

Kansas City, MO - Criminal defense lawyer represented defendant NORRIS E. PAYNE, JR with appealing from the Circuit Court of Jackson County’s denial of his Rule 24.0351 motion after an evidentiary hearing.

On October 16, 2015, Payne was indicted on four offenses including first-degree

assault, armed criminal action, unlawful use of weapon, and leaving the scene of a

shooting. On January 22, 2016, Payne was indicted in a separate case on first-degree

robbery and armed criminal action. On July 11, 2016, pursuant to a plea agreement

addressing both cases, Payne pled guilty to four charges: first-degree assault, firstdegree robbery, and two counts of armed criminal action. The State dismissed the

charges of unlawful use of a weapon and leaving the scene of a shooting. The plea

court accepted Payne’s guilty pleas and sentenced him to a total of 18 years

imprisonment in the Missouri Department of Corrections (“DOC”), with all sentences

to run concurrently.3

On July 12, 2016, Payne was delivered to the custody of the DOC.

One hundred eighty-four days later, on January 12, 2017, Payne filed his Rule

24.035 pro se motion. Payne’s amended motion was filed on May 1, 2018, and was

timely filed in accordance with the trial court’s grant of an extension of time. An

evidentiary hearing was held to address the merits of Payne’s motion after which the

trial court denied Payne’s motion for post-conviction relief on the merits.

Regarding the timeliness of Payne’s original 24.035 motion, the motion court

stated that “[a]t the time of Movant’s initial filing, Rule 24.035(b) mandated that any



2Dorris v. State, 360 S.W.3d 260, 263 (Mo. banc 2012).

3 The trial court also revoked Payne’s probation in unrelated cases.

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pro se motion filed under Rule 24.035 must be filed within 180 days of delivery to the

Department of Corrections.” The trial court found the motion was postmarked on

what appeared to be “either January 6 or 8, 2017 – either of which would have been

within the permitted 180-day time period.” In making this determination, the motion

court relied on the amendment to Rule 24.035(b), effective July 1, 2017, which

provides the motion is timely if it is mailed and postmarked within 180 days from the

date of incarceration.4

Payne appeals the underlying decision of the motion court. Further factual

details will be outlined as relevant in the analysis below.

Timeliness of Payne's Pro Se Rule 24.035 Motion

We do not reach the merits of Payne’s appeal as we must address the State’s

contention that Payne’s pro se motion was not timely filed, an issue the State raises

for the first time on appeal.5 The State argues that Payne’s claims were waived as a

result of the late filing. We agree.

Rule 24.035(b) sets forth the time requirements to which a movant must

adhere in filing a motion for post-conviction relief. Until July 1, 2017, Rule 24.035(b)

stated in pertinent part as follows:



4 The motion court also noted that Payne’s signature had been notarized prior to the 180-day

filing deadline. We observe nothing in 24.035 which makes the notarization date of pro se motions

relevant to the timeliness of the filed motion.

5 It is of no relevance the State asserts the timeliness issue for the first time on appeal. The

purpose of Rule 24.035 is to provide a prompt review of any deficiency in the judgment or sentence.

Swallow v. State, 398 S.W.3d 1, 4 (Mo. banc 2013). “It is the court’s duty to enforce the mandatory

time limits and the resulting complete waiver in the post-conviction rules – even if the State does not

raise the issue.” Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012). Ultimately, it is “of no

consequence that the State did not previously raise the issue, because the State cannot waive the

requirement that the movant timely file.” Henderson v. State, 372 S.W.3d 11, 15 (Mo. App. W.D. 2012).

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If no appeal of [the sentencing court’s] 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…. 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. 6

Effective July 1, 2017, Rule 24.035(b) was amended to read in pertinent part as

follows:

If no appeal of [the sentencing court’s] 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…. 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. …. 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 24.035.7 (emphasis ours)

Here, the applicable due date for movant’s motion was clearly contained in the

version of Rule 24.035 effective until July 1, 2017. His pro se motion was required to

be filed by January 8, 2017. Hence, his pro se motion filed on January 12, 2017, was

four days late. The version of Rule 24.035 which includes the mailbox rule did not

take effect until July 1, 2017. The trial court’s reliance on the post-July 1, 2017,

version of Rule 24.035 was clearly in error.



6 Here, no appeal was taken from the sentencing court’s action and thus the 180-day rule is

applicable.

7 The post-July 1, 2017, rule added what is commonly known as the “mailbox rule”, meaning

that a movant’s motion is timely if postmarked by the 180th day. Appellant and Respondent make use

of this shorthand and we do likewise.

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Further, the burden of pleading and proving facts showing the motion was

timely filed rests with the movant. Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc

2012). There is no question when his incarceration commenced. The one hundred

eighty-day window in which to file his pro se motion commenced on July 12, 2016,

based on Payne’s own, sworn pleading which asserts that he was delivered to the

custody of the DOC on that date. This was one hundred eight-four days prior to the

filing of his pro se motion. Accordingly, Payne’s original 24.035 motion was untimely

under the version of 24.035 in effect during his entire window of opportunity to file

said motion.8

When a movant fails to file the Rule 24.035 motion in a timely manner, “the

result is a complete waiver of the right to proceed under the rule, and neither the

motion court nor the appellate court has authority to consider the merits of a claim

raised in an untimely-filed post-conviction motion.” Miley v. State, 559 S.W.3d 97, 99

(Mo. App. E.D. 2018) (citing State v. Gibbs, 418 S.W.3d 522, 524 (Mo. App. E.D.

2013)). Neither does Payne’s amended motion cure the untimeliness of his original

motion. “[A]n untimely pro se motion for post-conviction relief is a fatal defect that

cannot be cured by filing a timely amended motion.” Swofford v. State, 323 S.W.3d

60, 62 (Mo. App. E.D. 2010). Here, the motion court granted Payne the relief

requested when asked for additional time to file an amended 24.035 motion. This



8 The Missouri Supreme Court “has recognized a narrow exception that excuses the untimely

filing of a pro se motion under Rule 24.035 . . . ‘when the active interference of a third party beyond the

inmate’s control frustrates th[e] [inmate’s] efforts and renders the inmate’s motion untimely.’” Propst

v. State, 535 S.W.3d 733, 735 (Mo. banc 2017) (quoting Price v. State, 422 S.W.3d 292, 302 (Mo. banc

2014) (emphasis added by Propst)). Payne has not argued that this narrow “active interference”

exception is applicable here, nor has he alleged any facts which might implicate the exception.

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grant, however, in no way cures the initial failure to file his motion in a timely

manner.

Finally, considering its purpose, “[t]he time filing deadlines for post-conviction

relief are mandatory, and cannot be waived.” Eckert v. State, 591 S.W.3d 903, 906

(Mo. App. W.D. 2019) (quoting Watson v. State, 536 S.W.3d 716, 717 (Mo. banc 2018)).

Neither the trial court nor this court may waive this fatal mistake.

Failure to timely file a Rule 24.035 motion constitutes a “complete waiver of

any right to proceed” under that rule. Rule 24.035(b). Because Payne’s pro se motion

was untimely, “the motion court lacked authority to review the merits of his claim

and should have dismissed the motion as untimely.” Rinehart v State, 503 S.W.3d

287, 289 (Mo. App. W.D. 2016) (citations omitted). Accordingly, we vacate the circuit

court’s order and remand with directions to dismiss Payne’s 24.035 motion as

untimely. Id.

For the reasons stated, we vacate the circuit court’s order and remand the

cause to the motion court with directions to enter its order dismissing Payne’s Rule

24.035 motion as being untimely filed.9