In the Missouri Court of Appeals Eastern District DIVISION FOUR
DAVID L. ROSS, ) No. ED112454 ) Appellant, ) Appeal from the Circuit Court ) of Cape Girardeau County vs. ) 20CG-CC00339-01 ) STATE OF MISSOURI, ) Honorable Scott A. Lipke ) Respondent. ) Filed: March 18, 2025
David L. Ross (“Movant”) appeals the judgment denying his pro se Rule 24.035 1 motion
(“pro se motion”) for post-conviction relief following an evidentiary hearing. We affirm as
modified. Specifically, we affirm the motion court’s judgment to the extent the court finds: (1)
Movant’s pro se motion was untimely filed; (2) Movant failed to establish his untimely filing
was excused by an exception to the timing requirements of Rule 24.035; and (3) the motion court
did not have the authority to consider the merits of any claim in Movant’s pro se motion and the
motion must therefore be dismissed. However, because the conclusion of the motion court’s
judgment improperly denies Movant’s pro se motion, this Court modifies the judgment to state
that Movant’s pro se motion is dismissed rather than denied. See Rule 84.14. 2
1 All further references to Rule 24.035 are to the version of the rule effective from January 1, 2018, to November 3, 2021, which was the version of the rule in effect at the time Movant’s pro se motion for post-conviction relief was filed on November 19, 2020. 2 All further references to Rule 84.14 are to Missouri Supreme Court Rules (2024). I. BACKGROUND
In October 2019, Movant entered an Alford 3 plea to one count of domestic assault in the
first degree. The trial court sentenced Movant as a prior offender to nine years of imprisonment
on November 18, 2019. Because Movant did not directly appeal his conviction, his Rule 24.035
motion for post-conviction relief was due 180 days later on May 18, 2020. See Rule 24.035(b).
Movant did not file his pro se motion until November 19, 2020, and it is undisputed on appeal
that Movant’s pro se motion was untimely. Movant alleged in his pro se motion that the
COVID-19 pandemic “hindered [him] from filing [the] motion in a timely manner,” claiming his
“facility has been plagued by lockdowns, quarantines, and riots” and that he had “limited access
to the library and law library.”
Post-conviction counsel filed an amended Rule 24.035 motion (“amended motion”) in
May 2021. 4 The amended motion addressed the timeliness of Movant’s pro se motion, admitting
it was “facially untimely” but arguing that “very rare circumstances” beyond Movant’s control,
namely COVID-19 restrictions within the Missouri Department of Corrections, “impeded
[Movant’s] ability to timely file.” Movant asked the motion court to excuse the late filing of his
pro se motion.
On November 9, 2021, the motion court denied Movant’s amended motion without an
evidentiary hearing and without issuing any findings of fact or conclusions of law regarding the
timeliness of Movant’s pro se motion. Movant appealed the denial of post-conviction relief, and
this Court reversed the motion court’s judgment and remanded with directions to, inter alia,
determine whether an evidentiary hearing was warranted on Movant’s claim that the
untimeliness of his pro se motion should be excused and issue findings of fact and conclusions of
3 North Carolina v. Alford, 400 U.S. 25 (1970). 4 The amended motion was also untimely. See Ross v. State, 659 S.W.3d 368, 370 (Mo. App. E.D. 2023).
2 law as to the pro se motion’s timeliness. See Ross v. State, 659 S.W.3d 368, 375 (Mo. App. E.D.
2023).
Following remand, the motion court held an evidentiary hearing on October 17, 2023, “to
determine whether sufficient circumstances existed to excuse Movant’s untimely filing of his pro
se motion.” In December 2023, the motion court entered a judgment with findings of fact and
conclusions of law. The motion court’s judgment finds: (1) Movant’s pro se motion was
untimely filed; (2) Movant failed to establish his untimely filing was excused by an exception to
the timing requirements of Rule 24.035; and (3) the motion court did not have the authority to
consider the merits of any claim in Movant’s pro se motion and the motion must therefore be
dismissed. However, the conclusion of the motion court’s judgment denies Movant’s pro se
motion. This appeal followed. 5
II. DISCUSSION
Movant raises a single point on appeal, arguing the motion court clearly erred in finding
that Movant failed to establish the untimely filing of his pro se motion was excused by the active
interference of the COVID-19 pandemic. We disagree.
A. Standard of Review
Our Court reviews the denial of a Rule 24.035 motion for post-conviction relief only to
determine if the findings of fact and conclusions of law of the motion court are clearly erroneous.
Rule 24.035(k); Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019). Findings and
conclusions are clearly erroneous if, after a review of the entire record, we are left with the
definite and firm impression that a mistake has been made. Shockley, 579 S.W.3d at 892. This
Court presumes the motion court’s findings are correct, and we defer to the motion court’s
5 To avoid unnecessary repetition, additional facts relevant to Movant’s point on appeal will be set forth in Section II.B. of this opinion.
3 judgment on the credibility of witnesses. Id. The motion court may believe all, part, or none of
the evidence presented at a hearing for post-conviction relief. State v. Hunter, 840 S.W.2d 850,
863 (Mo. banc 1992).
B. General Law and Analysis of Movant’s Point on Appeal
In a case such as this one where no direct appeal is filed, a motion under Rule 24.035(b)
must be filed within 180 days of the date the movant’s sentence is entered. See id. “[T]he time
restrictions in Rule 24.035 are mandatory, strictly enforced, and may not be extended.” Miley v.
State, 559 S.W.3d 97, 99 (Mo. App. E.D. 2018). If a Rule 24.035(b) motion is untimely filed,
the result is a complete waiver of the movant’s right to proceed under the rule. Miley, 559
S.W.3d at 99.
Movant concedes his pro se motion under Rule 24.035 was untimely because it was not
filed within the 180-day window specified in Rule 24.035(b). See id. However, Missouri courts
have recognized “rare circumstances” in which late filings may be excused. Price v. State, 422
S.W.3d 292, 301 (Mo. banc 2014). Specifically, when a movant “prepares the motion and does
all he reasonably can do to ensure that it is timely filed under Rule [24.035(b)], any tardiness that
results solely from the active interference of a third party beyond the [movant’s] control may be
excused and the waivers imposed by [the rule] not enforced.” 6 Price, 422 S.W.3d at 301;
Mitchell v. State, 604 S.W.3d 331, 334-35 (Mo. App. E.D. 2020). Movant’s sole point on appeal
argues this exception should apply to his case and the untimely filing of his pro se motion was
excused by the active interference of circumstances beyond his control, namely the COVID-19
pandemic and the resulting restrictions put in place at the facilities where he was incarcerated.
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In the Missouri Court of Appeals Eastern District DIVISION FOUR
DAVID L. ROSS, ) No. ED112454 ) Appellant, ) Appeal from the Circuit Court ) of Cape Girardeau County vs. ) 20CG-CC00339-01 ) STATE OF MISSOURI, ) Honorable Scott A. Lipke ) Respondent. ) Filed: March 18, 2025
David L. Ross (“Movant”) appeals the judgment denying his pro se Rule 24.035 1 motion
(“pro se motion”) for post-conviction relief following an evidentiary hearing. We affirm as
modified. Specifically, we affirm the motion court’s judgment to the extent the court finds: (1)
Movant’s pro se motion was untimely filed; (2) Movant failed to establish his untimely filing
was excused by an exception to the timing requirements of Rule 24.035; and (3) the motion court
did not have the authority to consider the merits of any claim in Movant’s pro se motion and the
motion must therefore be dismissed. However, because the conclusion of the motion court’s
judgment improperly denies Movant’s pro se motion, this Court modifies the judgment to state
that Movant’s pro se motion is dismissed rather than denied. See Rule 84.14. 2
1 All further references to Rule 24.035 are to the version of the rule effective from January 1, 2018, to November 3, 2021, which was the version of the rule in effect at the time Movant’s pro se motion for post-conviction relief was filed on November 19, 2020. 2 All further references to Rule 84.14 are to Missouri Supreme Court Rules (2024). I. BACKGROUND
In October 2019, Movant entered an Alford 3 plea to one count of domestic assault in the
first degree. The trial court sentenced Movant as a prior offender to nine years of imprisonment
on November 18, 2019. Because Movant did not directly appeal his conviction, his Rule 24.035
motion for post-conviction relief was due 180 days later on May 18, 2020. See Rule 24.035(b).
Movant did not file his pro se motion until November 19, 2020, and it is undisputed on appeal
that Movant’s pro se motion was untimely. Movant alleged in his pro se motion that the
COVID-19 pandemic “hindered [him] from filing [the] motion in a timely manner,” claiming his
“facility has been plagued by lockdowns, quarantines, and riots” and that he had “limited access
to the library and law library.”
Post-conviction counsel filed an amended Rule 24.035 motion (“amended motion”) in
May 2021. 4 The amended motion addressed the timeliness of Movant’s pro se motion, admitting
it was “facially untimely” but arguing that “very rare circumstances” beyond Movant’s control,
namely COVID-19 restrictions within the Missouri Department of Corrections, “impeded
[Movant’s] ability to timely file.” Movant asked the motion court to excuse the late filing of his
pro se motion.
On November 9, 2021, the motion court denied Movant’s amended motion without an
evidentiary hearing and without issuing any findings of fact or conclusions of law regarding the
timeliness of Movant’s pro se motion. Movant appealed the denial of post-conviction relief, and
this Court reversed the motion court’s judgment and remanded with directions to, inter alia,
determine whether an evidentiary hearing was warranted on Movant’s claim that the
untimeliness of his pro se motion should be excused and issue findings of fact and conclusions of
3 North Carolina v. Alford, 400 U.S. 25 (1970). 4 The amended motion was also untimely. See Ross v. State, 659 S.W.3d 368, 370 (Mo. App. E.D. 2023).
2 law as to the pro se motion’s timeliness. See Ross v. State, 659 S.W.3d 368, 375 (Mo. App. E.D.
2023).
Following remand, the motion court held an evidentiary hearing on October 17, 2023, “to
determine whether sufficient circumstances existed to excuse Movant’s untimely filing of his pro
se motion.” In December 2023, the motion court entered a judgment with findings of fact and
conclusions of law. The motion court’s judgment finds: (1) Movant’s pro se motion was
untimely filed; (2) Movant failed to establish his untimely filing was excused by an exception to
the timing requirements of Rule 24.035; and (3) the motion court did not have the authority to
consider the merits of any claim in Movant’s pro se motion and the motion must therefore be
dismissed. However, the conclusion of the motion court’s judgment denies Movant’s pro se
motion. This appeal followed. 5
II. DISCUSSION
Movant raises a single point on appeal, arguing the motion court clearly erred in finding
that Movant failed to establish the untimely filing of his pro se motion was excused by the active
interference of the COVID-19 pandemic. We disagree.
A. Standard of Review
Our Court reviews the denial of a Rule 24.035 motion for post-conviction relief only to
determine if the findings of fact and conclusions of law of the motion court are clearly erroneous.
Rule 24.035(k); Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019). Findings and
conclusions are clearly erroneous if, after a review of the entire record, we are left with the
definite and firm impression that a mistake has been made. Shockley, 579 S.W.3d at 892. This
Court presumes the motion court’s findings are correct, and we defer to the motion court’s
5 To avoid unnecessary repetition, additional facts relevant to Movant’s point on appeal will be set forth in Section II.B. of this opinion.
3 judgment on the credibility of witnesses. Id. The motion court may believe all, part, or none of
the evidence presented at a hearing for post-conviction relief. State v. Hunter, 840 S.W.2d 850,
863 (Mo. banc 1992).
B. General Law and Analysis of Movant’s Point on Appeal
In a case such as this one where no direct appeal is filed, a motion under Rule 24.035(b)
must be filed within 180 days of the date the movant’s sentence is entered. See id. “[T]he time
restrictions in Rule 24.035 are mandatory, strictly enforced, and may not be extended.” Miley v.
State, 559 S.W.3d 97, 99 (Mo. App. E.D. 2018). If a Rule 24.035(b) motion is untimely filed,
the result is a complete waiver of the movant’s right to proceed under the rule. Miley, 559
S.W.3d at 99.
Movant concedes his pro se motion under Rule 24.035 was untimely because it was not
filed within the 180-day window specified in Rule 24.035(b). See id. However, Missouri courts
have recognized “rare circumstances” in which late filings may be excused. Price v. State, 422
S.W.3d 292, 301 (Mo. banc 2014). Specifically, when a movant “prepares the motion and does
all he reasonably can do to ensure that it is timely filed under Rule [24.035(b)], any tardiness that
results solely from the active interference of a third party beyond the [movant’s] control may be
excused and the waivers imposed by [the rule] not enforced.” 6 Price, 422 S.W.3d at 301;
Mitchell v. State, 604 S.W.3d 331, 334-35 (Mo. App. E.D. 2020). Movant’s sole point on appeal
argues this exception should apply to his case and the untimely filing of his pro se motion was
excused by the active interference of circumstances beyond his control, namely the COVID-19
pandemic and the resulting restrictions put in place at the facilities where he was incarcerated.
6 Other exceptions exist to excuse a late filing for post-conviction relief under Rule 24.035, but these exceptions are not pertinent to Movant’s appeal. See Wiley v. State, 368 S.W.3d 236, 238 (Mo. App. E.D. 2012).
4 At the evidentiary hearing in this case, Movant admitted that from the time immediately
following his sentencing on November 18, 2019, until March 2, 2020, there were no COVID-19
restrictions in place at the facility where he was incarcerated. Movant also testified that he knew
the process for requesting the necessary paperwork for post-conviction relief, but waited until
March 2020 to make such a request. After making his request, Movant was transferred to a
different facility before it was fulfilled and never made a similar request after arriving at the
second facility.
Based on the foregoing, this case is not one of the rare circumstances in which the
untimely filing of Movant’s pro se motion would be excused due to the active interference of
circumstances beyond Movant’s control. See Price, 422 S.W.3d at 301; Mitchell, 604 S.W.3d at
334-35. Although Movant argues COVID-19 restrictions prevented him from timely filing his
pro se motion, his incarceration began over three months prior to the implementation of any such
restrictions and the record in this case shows Movant made no attempt to file during this time.
Accordingly, Movant did not do all he could reasonably do to ensure timely filing of his pro se
motion and his failure to meet the applicable deadline did not result solely from the active
interference of a third party beyond his control. See id.; see also Henneha v. State, 669 S.W.3d
667, 671 (Mo. App. S.D. 2023) and McCartney v. State, 655 S.W.3d 380, 384 (Mo. App. S.D.
2022) (both similarly holding and finding movants subject to COVID-19 restrictions had
opportunities to file timely motions for post-conviction relief).
The motion court’s judgment did not clearly err in finding that Movant’s pro se motion
was untimely filed and that Movant failed to establish his untimely filing was excused by an
exception to the timing requirements of Rule 24.035. See id.; Price, 422 S.W.3d at 301. The
motion court also did not clearly err in finding it did not have the authority to consider the merits
5 of any claim in Movant’s pro se motion and the motion must therefore be dismissed. See Palmer
v. State, 643 S.W.3d 673, 676 (Mo. App. E.D. 2022). Accordingly, we affirm the motion court’s
judgment to the extent it made the aforementioned findings. However, the conclusion of the
motion court’s judgment improperly states Movant’s pro se motion is “denied.” (emphasis
omitted). Pursuant to this Court’s authority under Rule 84.14, we modify the motion court’s
judgment to state the following: “WHEREFORE, the above findings of fact and conclusions of
law having been made, it is hereby ORDERED, ADJUDGED and DECREED that Movant’s
Rule 24.035 Motion be DISMISSED.” See Rule 84.14; Lay v. Cunningham, 688 S.W.3d 768,
773, 781-82 (Mo. App. E.D. 2024); Ziegler v. State, 799 S.W.2d 161, 167 (Mo. App. S.D. 1990).
Movant’s sole point on appeal is denied.
III. CONCLUSION
The motion court’s judgment is affirmed as modified.
ROBERT M. CLAYTON III, Judge
John P. Torbitzky, P.J., and Michael S. Wright, J., concur.