MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI,

 Respondent,

 v.

CHAUNCEY LEE ELLIOTT,

 Appellant.

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WD77183

OPINION FILED:

December 9, 2014

Appeal from the Circuit Court of Saline County, Missouri

Honorable Dennis Allen Rolf, Judge

Before Division One: Thomas H. Newton, P.J., 

Lisa White Hardwick, and Anthony Rex Gabbert, JJ.

Mr. Chauncey Lee Elliott appeals the denial of a post-conviction relief motion. Mr. 

Elliott pled guilty to first-degree child molestation. We reverse and remand. 

Factual and Procedural Background

On February 26, 2007, Mr. Elliott pled guilty to first-degree child molestation, a class B 

felony, as defined by 566.067,1in the circuit court. At the plea hearing, Mr. Elliott indicated that 

he had plenty of time to discuss his case with plea counsel, that she had told him all “the facts 

and circumstances surrounding [his] case,” and that plea counsel had explained the charges and 

reviewed the evidence with him. Regarding plea counsel’s representation, the sentencing judge 

inquired:

 

1 All statutory references are to RSMo 2000.
2

Q: Has she done everything you asked her to do?

A: She has.

Q: Did she do anything you told her not to do?

A: No, sir.

Q: Are you happy with her representation and advice?

A: Yes, sir.

Q: Do you feel she’s done a good job for you?

A: Yes, sir.

Mr. Elliott was sentenced to fifteen years of incarceration. He was delivered to the Missouri 

Department of Corrections (DOC) on February 27, 2007. He did not appeal the conviction or 

sentence. 

He subsequently filed a motion to reopen post-conviction proceedings. The docket sheet 

and time stamp on Mr. Elliott’s motion indicate that it was filed in the office of the court 

clerk on December 5, 2013. The motion court denied the motion based on a review of the 

pleading and file. Mr. Elliott appeals.

Standard of Review

We review a court’s denial of a post-conviction relief motion to determine whether the 

findings and conclusions are clearly erroneous. Rule 24.035(k). A motion court’s findings and 

conclusions “are clearly erroneous if, after reviewing the entire record, there is a definite and 

firm impression that a mistake has been made.” Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 

2010).

Legal Analysis

In his sole point, Mr. Elliott argues that the motion court erred in denying the motion to 

reopen post-conviction proceedings because “it was unrefuted . . . that his appointed plea counsel 

deliberately lied to, threatened and deceived [him] into entering an unintelligent, unknowingly[,] 

and unwilling plea of guilty to a criminal case which was not timely charged.” Because the 

applicable statute of limitations had allegedly run, Mr. Elliott claims plea counsel’s threat, that if 
3

he did not plead guilty he would spend the rest of his life in prison, was improper. He further 

claims that “the plea was unintelligent, unwilling, unknowing, and involuntary” when he entered 

it because plea counsel failed to inform him of the expired statute of limitations, to conduct 

discovery, and to disclose the State’s lack of evidence substantiating the charge.

In the motion, Mr. Elliott argued that his plea counsel abandoned him. Although labeled 

a “motion to reopen,” Mr. Elliott’s motion substantively requested relief on the ground that his 

plea was invalid because plea counsel failed to inform him of the expired statute of limitations. 

Ineffective assistance of plea counsel claims are properly raised in timely post-conviction relief 

motions. Rule 24.035(a). 

Mr. Elliott, a defendant who did not appeal the conviction, had to file an original postconviction motion “within 180 days of the date the person is delivered to the custody of the 

department of corrections.” Rule 24.035(b). An original motion “that does not comply with 

Rule 24.035 in form or substance is deemed . . . untimely. State v. Trotter, 302 S.W.3d 819, 821 

(Mo. App. W.D. 2010). An untimely motion is regarded as a “complete waiver” of any right to 

seek relief under Rule 24.035(b). Hall v. State, 380 S.W.3d 583, 585 (Mo. App. E.D. 2012). A 

complete waiver deprives the movant of any and all rights to post-conviction relief. Dorris v. 

State, 360 S.W.3d 260, 268 (Mo. banc 2012). However, a late filing is permitted in cases of 

abandonment “when post-conviction counsel improperly acts or fails to act to the movant’s 

detriment.” Moore, 328 S.W.3d at 702. Moreover, generally “abandonment cannot excuse the 

tardiness of an initial motion,” but applies only to the timeliness of an amended motion. Price v. 

State, 422 S.W.3d292, 307 (Mo. banc 2014).
4

Mr. Elliott was placed into DOC custody on February 27, 2007. The motion to reopen 

that was filed, which we construe as an original Rule 24.035 motion, shows a time stamp of 

December 5, 2013. Mr. Elliott was required to file his Rule 24.035 motion on or before 

Monday, August 27, 2007.2 Thus, Mr. Elliott failed to timely file the original motion.3 He 

has therefore completely waived his right to challenge plea counsel’s representation in relation to 

the validity of his plea. Regardless of the tenor of Mr. Elliot’s claim, the motion court lacked 

authority to review it and should have dismissed the motion as untimely. Notwithstanding the 

improper disposition, Mr. Elliott’s sole point is denied. 

Conclusion

Therefore, we reverse and remand the cause to the trial court with instructions to dismiss 

Mr. Elliot’s motion for post-conviction relief as untimely.4 See Robinson v. State, 423 S.W.3d 

816, 819 (Mo. App. W.D. 2014); Hall, 380 S.W.3d at 585. 

/s/THOMAS H. NEWTON 

Thomas H. Newton, Presiding Judge

Hardwick and Gabbert, JJ. concur.

 

2

In computing the due date, the date that Mr. Elliott was delivered to DOC is not included in the 180 

days. See Rule 44.01(a); Phelps v. State, 351 S.W.3d 269, 272 (Mo. App. W.D. 2011). 

3When a time stamp indicates that the filing is untimely, the motion itself “‘must allege facts 

establishing the motion is timely filed.’” Vogl v. State, 437 S.W.3d 218, 226 (Mo. banc 2014) 

(quoting Dorris, 360 S.W.3d at 267). Mr. Elliott’s post-conviction relief motion alleged no facts that 

would excuse the delayed filing of his motion. 

4 A case is properly dismissed for lack of authority. See Moore v. State, 328 S.W.3d 700, 703 n.2 

(Mo. banc 2010) (“The motion court was correct in dismissing the untimely motion because, under 

Rule 29.15(b), the court had no ‘authority’ to hear the case.”).