El-Vester Robinson v. State of Missouri

CourtMissouri Court of Appeals
DecidedFebruary 22, 2022
DocketWD84102
StatusPublished

This text of El-Vester Robinson v. State of Missouri (El-Vester Robinson v. State of Missouri) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
El-Vester Robinson v. State of Missouri, (Mo. Ct. App. 2022).

Opinion

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

2 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.

3 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.

4 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.

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Related

Patterson v. State
164 S.W.3d 546 (Missouri Court of Appeals, 2005)
Stidham v. State
963 S.W.2d 351 (Missouri Court of Appeals, 1998)
Nicholson v. State
151 S.W.3d 369 (Supreme Court of Missouri, 2004)
Anthony C. Washington v. State
515 S.W.3d 786 (Missouri Court of Appeals, 2017)
Dorris v. State
360 S.W.3d 260 (Supreme Court of Missouri, 2012)
Graves v. State
372 S.W.3d 546 (Missouri Court of Appeals, 2012)
Miller v. State
386 S.W.3d 225 (Missouri Court of Appeals, 2012)
Baird v. State
512 S.W.3d 867 (Missouri Court of Appeals, 2017)
State v. Robinson
549 S.W.3d 492 (Missouri Court of Appeals, 2018)

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Bluebook (online)
El-Vester Robinson v. State of Missouri, Counsel Stack Legal Research, https://law.counselstack.com/opinion/el-vester-robinson-v-state-of-missouri-moctapp-2022.