Todd M. OLIVER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent, 196 S.W.3d 643

NANCY STEFFEN RAHMEYER, Presiding Judge. Movant, Todd M. Oliver, was charged with the felony of attempted forcible rape and attempted forcible sodomy. On October 23, 2003, Movant submitted a guilty plea to the attempted forcible sodomy and the charge of attempted forcible rape was dismissed by the State. Movant timely filed his pro se Rule 24.035 motion on July 14, 2004.

A first amended motion was filed on September 17, 2004, claiming (1) ineffective assistance of counsel on five separate bases, (2) the information was insufficient and the trial court was without jurisdiction to accept Movant’s guilty plea and subsequently sentence him, and (3) that the factual basis as set forth in the guilty plea transcript was insufficient for eight separate reasons.

A second amended motion was filed on November 16, 2004, which claimed for the first time that “[t]he facts as stated do not constitute the crime of attempted forcible sodomy.” On March 9, 2005, the court held a hearing on Appellant’s second amended motion. Movant brings one point in this appeal, that the guilty plea was not knowingly and intelligently made because there was not a factual basis for the plea in that (1) the facts as alleged by the prosecutor did not amount to a crime under

section 566.060 in that (

a) the elements of “for the purpose of arousing or gratifying the sexual desires of any person” and “penetration” were never read, discussed nor admitted to; and (

b) the meaning of the term “fingering” herself was never discussed or described so as to show facts establishing the crime;

(2) Movant alleges he was never told about the nature and element of the crimes charged; and (3) after the prosecutor stated the alleged facts, Movant simply answered “yes” when the trial court asked if the facts were “basically true.” Initially, we address the issue raised by the State that the second amended motion was not timely and, therefore, any issue raised in that motion was not properly before the trial court. The time limits for filing an amended motion are found in Rule 24.035(g), which states in pertinent part: Any amended motion shall be signed by movant or counsel.

The amended motion shall not incorporate by reference material contained in any previously filed motion. If no appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of: (1) the date both a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and counsel is appointed or (2) the date both a complete transcript has been filed in the trial court and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of mov-ant.

The time limits contained in Rule 24.035 for filing an amended motion are valid and mandatory. Wilkins v. State, 802 S.W.2d 491 (Mo. banc 1991); Bollinger v. State, 144 S.W.3d 335, 337 (Mo.App. E.D.2004). A court lacks jurisdiction to review the merits of any claims asserted in an untimely filed amended prose motion. State v. White, 873 S.W.2d 590, 596 (Mo. banc 1994). Arguments raised for the first time in an untimely second amended motion are waived and cannot be considered on appeal. Edgington v. State, 869 S.W.2d 266, 269 (Mo.App. W.D.1994). The guilty plea transcript was filed on March 23, 2004.

On July 16, 2004, the court entered an order appointing the public defender to represent Movant and granted an additional thirty days within which to file the amended motion. According to the rule, the time period for filing began to run on July 16, 2004, the date wherein both the transcript was filed and counsel was appointed; the ninety days ended on October 14, 2004. The first amended motion, filed on September 17, 2004, was timely but the second amended motion, filed on November 16, 2004, was not.

We shall then only review any findings of fact and conclusions of law that were addressed in the first amended motion. The first amended motion claimed: II c. The factual basis as set forth in the guilty plea transcript is insufficient in that: (

b) Facts set forth by the prosecutor were not contained in the information and [Movant] was not reasonably apprised of the facts as testified to by the Prosecutor ahead of the plea hearing; (c) [Movant] only stated that the facts alleged by the Prosecutor were “Basically true”. (

d) In connection with the sentencing aspect of the trial, Movant’s attorney did not sufficiently put forth [Movant’s] mental and drug history, and did not suppress the allegations of things that occurred between [Movant] and his sister. (

e) The attorney did not bring to the Court’s attention that the [Movant] suffers from blackouts and at times does not know what he has done during those periods of blacking out. (f) [Movant’s] attorney told [Movant] that if he plead guilty he would get no more than fifteen (15) years, and likely he would get only seven (7) to ten (10) years. When the [Movant] plead guilty he was under the impression that a maximum of fifteen (15) year sentence would be imposed, despite the fact that the judge told him, as he tells all Defendants that sentencing is totally up to him.

In fact however the Prosecuting Attorney never mentioned a fifteen (15) year cap to the Judge as [Movant’s] attorney had indicated he would. (

g) That counsel for [Movant] was ineffective in that he failed to properly advise [Movant] that he could only be charged or convicted of either Count I or Count II, as they were charged in the alternative. [Movant], when pleading guilty was under the impression that he could have been convicted of both Counts and had two (2) life sentences, rather than just one count. (

h) The counsel was ineffective for failing to attack the insufficiency of the information or to file a motion for particulars. (

i) The counsel was ineffective and [Movant’s] plea was not knowingly and intelligently made because he was not told of the 85% rule. A careful reading of the first amended motion clearly shows Movant did not allege that the facts alleged by the prosecutor do not amount to a crime under

section 566.060. Movant first alleged that the facts set forth by the prosecutor were not contained in the information and Movant was not reasonably apprised of the facts as testified to by the prosecutor ahead of the plea hearing. That allegation does not set forth any indication that the facts did not amount to a crime. The second allegation was that Movant only stated that the facts alleged by the prosecutor were “basically true.” Again, there is no allegation that the facts as stated do not constitute the crime of attempted forcible sodomy.

The remaining allegations are unconnected to the allegation of an insufficient factual basis. Furthermore, at the evidentiary hearing, the court asked Movant, So basically your complaint with the system and with your sentencing is you got more time than you thought you were going to get? You don’t have a complaint with the facts that occurred that gave rise to the charge that [the] Prosecutor indicated, do you? You’re just unhappy you got more time than you thought you were going to get? Appellant responded: “Basically.

I was under the impression and told by my lawyer or promised by my lawyer I wouldn’t get no [sic] more than 15.” We, therefore, do not address the first prong of Movant’s point relied on. The second prong of Movant’s point is that there was an insufficient factual basis in that Movant was never told about the nature and element of the crimes charged. Although it is questionable whether Movant properly preserved that allegation in the amended motion, it is clear that Movant failed to carry his burden on this theory.

We review the motion court’s ruling on a motion for post-conviction relief to determine whether the court’s findings of fact and conclusions of law are clearly erroneous. Bantle v. State, 165 S.W.3d 233, 235 (Mo.App. S.D.2005). The findings of the motion court are presumptively valid; the clearly erroneous standard is satisfied only, if after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Id. We are not convinced of any error. Movant testified at the evidentiary hearing that counsel “went over the charges” with him.

He also testified that during plea negotiations, his counsel informed him that the prosecutor’s offer to plead to attempted sodomy was based on testimony from the victim that he told her to finger herself. Plea counsel also testified at the evidentiary hearing that he advised Mov-ant of the nature of the charges that were filed against Movant and that he told Mov-ant that the prosecutor wished him to plead guilty to the attempted sodomy charge because that was the charge with the factual basis.

He stated Movant was told prior to the guilty plea that to prove guilt, the State had to prove that Movant told the victim to finger herself because “[t]hat was the nature of the element of the crime charged.” There is no merit to Movant’s second claim that his plea was not knowingly and intelligently made.

Movant’s final argument is that Movant’s admission of the facts was not “unequivocal”; he arrives at this conclusion because he responded “yes” to a question by the court whether the facts the prosecutor recited were “basically true.” Movant claims the facts as given by the prosecutor did not include a discussion of “penetration,” what “finger herself’ meant, or the meaning of “arousal or sexual gratification.” Movant claims that “basically” limits Movant’s agreement with the prosecutor’s statements to “mostly true.” We disagree.

Movant did not indicate to the court that he disagreed with any of the facts presented by the prosecutor. His response was simply “yes” to the question of whether the facts were basically true. Significantly, he did not deny or try to explain any inaccurate rendition of the facts by the prosecutor. We do not read the question by the court to mean that some of the facts were not true; we believe a more realistic

interpretation of the question is to substitute “essentially” for “basically.” The court asked whether the facts as set forth by the prosecutor were essentially true. Combined with Movant’s statement at the evidentiary hearing that he “basically” did not have a complaint with the facts that occurred that gave rise to the charge that the prosecutor indicated, we find no error in the trial court’s findings of fact and conclusions of law that Movant failed to satisfy his burden of showing that his plea was unknowing and involuntary. The point is denied. The judgment is affirmed. PARRISH, J., LYNCH, J., concur. .

All rule references are to Missouri Court Rules (2006), unless otherwise specified. . All references to statutes are to RSMo 2000, unless otherwise specified.