Pettry v. State
345 S.W.3d 335
| Mo. Ct. App. | 2011Background
- Pettry was charged with driving while intoxicated as a chronic offender and pleaded guilty to one count of the class B felony on May 14, 2009.
- On June 25, 2009, the trial court sentenced Pettry to five years in the Department of Corrections.
- At the plea hearing, Pettry stated he understood the charge, acknowledged the facts, and that no one promised him anything for the plea; the court found the plea voluntary.
- At sentencing, the court informed Pettry of Rule 24.035 and the 180-day filing deadline after delivery to the DOC, warning that failure to file within that period would waive relief.
- Pettry was delivered to the DOC on July 1, 2009.
- Pettry filed a pro se Rule 24.035 motion on January 14, 2010, later amended to assert ineffective assistance of plea counsel and misrepresentations about sentencing.
- The motion court denied an evidentiary hearing on June 15, 2010 and denied the motion on the merits on August 31, 2010; Pettry timely appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Rule 24.035 motion | Pettry argues the motion should be considered on the merits despite filing. | State contends the motion was not timely filed under Rule 24.035(b). | Rule 24.035(b) mandatory; untimely filing waives post-conviction relief. |
Key Cases Cited
- Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005) (standard of review for Rule 24.035 findings)
- Mullins v. State, 262 S.W.3d 682 (Mo. App. E.D. 2008) (prejudice and merits-based inquiry in Rule 24.035)
- Day v. State, 770 S.W.2d 692 (Mo. banc 1989) (time limits for post-conviction relief are mandatory)
- Swofford v. State, 323 S.W.3d 60 (Mo. App. E.D. 2010) (untimely pro se Rule 24.035 motion cannot be cured)
- Snyder v. State, 334 S.W.3d 735 (Mo. App. W.D. 2011) (state-waiver of untimeliness can occur when raised on appeal)
- Gerlt v. State, 339 S.W.3d 578 (Mo. App. W.D. 2011) (confirms approach to untimeliness and Rule 24.035)
- McCracken v. Wal-Mart Stores E., LP, 298 S.W.3d 473 (Mo. banc 2009) (non-jurisdictional procedural rules may be waived if not raised timely)