ZACHARY LEE 24 035 v. STATE OF MISSOURI (2026)

Zachary Lee (“Lee”), pro se, appeals the judgment of the Circuit Court of Lafayette County (“motion court”) denying his amended Rule 24.035 ¹ motion for post-conviction relief after an evidentiary hearing. On appeal, Lee argues the motion court clearly erred in denying his amended motion because plea counsel was ineffective for failing to adequately communicate with him and failing to investigate mitigating factors during plea negotiations or as part of trial strategy. Lee additionally contends plea counsel was ineffective for failing to investigate a threat that Lee's stepfather would kill Lee if he did not take the plea offer. However, Lee, in contravention of Rule 81.12, did not file a transcript of the Rule 24.035 evidentiary hearing. Because the incomplete record on appeal precludes our ability to review Lee's claims, we dismiss this appeal for non-compliance with Rule 81.12.

Factual and Procedural Background

The State charged Lee with domestic assault in the first degree, section 565.072; two counts of armed criminal action, section 571.015; domestic assault in the third degree, section 569.120; and property damage in the second degree, section 569.120. Relevant to this appeal, the information alleged Lee:

[H]eld a knife to the throat of the victim, and such conduct was a substantial step toward the commission of the crime of attempting to kill or cause serious physical injury to [the victim], and was done for the purpose of committing such assault, and [the victim] and [Lee] were family or household members in that [the victim] and [Lee] were adults who had been in a continuing social relationship of a romantic or intimate nature.

On March 6, 2023, Lee pleaded guilty to domestic assault in the first degree. At the plea hearing, the court placed Lee under oath and asked him a series of questions regarding the voluntariness of his plea and plea counsel's performance and effectiveness.²

[THE COURT]: As we've discussed, you are represented by [plea counsel]?

[LEE]: Yes, sir.

[THE COURT]: Have you had plenty of time to discuss your case with him?

[LEE]: Yes, sir.

[THE COURT]: Have you told him all the facts and circumstances surrounding your case?

[LEE]: Yes, sir.

[THE COURT]: Has he explained the charges to you and gone over the evidence with you?

[LEE]: Yes.

[THE COURT]: Has he done everything you've asked him to do?

[LEE]: Yes.

[THE COURT]: Did he do anything you told him not to do?

[LEE]: No, sir.

[THE COURT]: Are you happy with his representation and advice?

[LEE]: Yes.

[THE COURT]: You feel he has done a good job for you?

[LEE]: Yes, sir.

The plea court additionally asked Lee if “anybody threatened [him] or abused [him]” or if a member of his family caused him to enter the plea, to which Lee responded, “No.”

The plea court accepted Lee's guilty plea, finding that Lee's decision to plead guilty was made voluntarily, intelligently, and knowingly. On April 3, 2023, at the sentencing hearing, the plea court found that Lee was afforded competent assistance of counsel and sentenced him to serve ten years in the Missouri Department of Corrections.

Subsequently, Lee timely filed a pro se post-conviction motion pursuant to Rule 24.035. Appointed counsel then filed a timely amended motion. In the amended motion, Lee alleged that his guilty plea was “involuntary, unknowing, and unintelligent” because plea counsel was ineffective for failing to provide Lee with a copy of discovery and “did not investigate any mitigating factors either for plea negotiations or trial strategy.” Lee further alleged that his guilty plea was entered involuntarily because his life was threatened by his stepfather if he did not plead guilty.³

The motion court conducted an evidentiary hearing on April 16, 2024. Following the hearing, the motion court issued its findings of fact and conclusions of law. As to Lee's claim that plea counsel was ineffective, the motion court stated that at the hearing, plea counsel testified that he had multiple conversations with Lee and believed that Lee understood “what was going on and made the choice to plead guilty after a negotiated plea agreement was reached.” The motion court, relying on plea counsel's testimony and the record of the plea, found Lee understood what he was pleading to and that he did so voluntarily. As such, the motion court concluded that plea counsel was effective. Furthermore, the motion court found that, even if plea counsel was ineffective, Lee failed to prove the deficiency caused him prejudice.

Regarding Lee's claim that his life was threatened if he did not plead guilty, the motion court found Lee's testimony at the evidentiary hearing regarding the alleged threat to not be credible. The motion court noted that when asked at the plea hearing if Lee had been threatened or coerced by anyone to enter the plea, Lee responded no. The motion court further stated that there was no corroboration to the alleged threat except for Lee's self-serving testimony and that Lee “directly contradicted his own claim” of being threatened during his guilty plea. The motion court denied Lee's amended Rule 24.035 motion.

This appeal follows.

Standard of Review

Our review of the motion court's denial of post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Booker v. State, 552 S.W.3d 522, 526 (Mo. banc 2018). “The motion court's findings and conclusions are clearly erroneous only if, after a review of the record, the appellate court is left with a definite and firm impression that a mistake was made.” Id. (internal quotations omitted). The movant carries the burden to show by a preponderance of the evidence that the motion court clearly erred in its ruling. Cooper v. State, 356 S.W.3d 148, 152 (Mo. banc 2011).

Rule 81.12

Lee brings two points on appeal, arguing the motion court clearly erred in denying his amended Rule 24.035 motion for postconviction relief because: (1) “Mr. Lee alleged facts, not conclusions that plea counsel was ineffective for failing to adequately communicate with him and failing to investigate any mitigating factors for actual plea negotiations or sound trial strategy,” and (2) “Mr. Lee alleged facts not conclusions that plea counsel was ineffective for failing to investigate the mitigating factor that Mr. Lee's life was actually threatened by his stepfather if he did not plead guilty.”

Pursuant to Rule 81.12, Lee, as the appellant, had the duty “to file the transcript and to prepare a legal file so that the record contains all the evidence necessary for us to make determinations on the issues raised.” Walters v. State, 306 S.W.3d 208, 210 (Mo. App. W.D. 2010). Lee, however, failed to file the transcript of the evidentiary hearing with this Court. The motion court based its denial of Lee's amended Rule 24.035 motion on the evidence presented at the evidentiary hearing and the transcript from Lee's plea hearing. Indeed, the motion court specifically relied on the testimony of both plea counsel and Lee at the evidentiary hearing to conclude that plea counsel was not ineffective and that Lee's testimony that his life was threatened if he did not plead guilty was not credible. As the motion court found that Lee's claims were refuted by the evidence presented at the evidentiary hearing, without the evidentiary hearing transcript, this Court cannot ascertain what, if any, evidence was presented at the hearing that might support the motion court's findings. Consequently, as a result of Lee's failure to file the evidentiary hearing transcript with this Court, we are unable to review any claim that relies upon the transcript as support, and, thus, the appeal must be dismissed. See State ex rel. Koster v. Whispering Oaks Residential Care Facility, LLC, 479 S.W.3d 689, 691 (Mo. App. E.D. 2015) (“In the absence of a sufficient record, there is nothing for this court to review, and the appeal must be dismissed.”); Sanders v. State, 693 S.W.3d 144, 146 (Mo. App. E.D. 2024) (dismissing the appellant's appeal of the motion court's denial of the appellant's amended Rule 24.035 motion for failing to file as exhibits both the plea and sentencing transcripts, which precluded meaningful review of the matter).

The fact that Lee is acting pro se does not change this result, as pro se litigants are bound by the same rules of appellate procedure as attorneys. State v. Ricker, 400 S.W.3d 11, 14 (Mo. App. W.D. 2013) (“Although Appellant appeals pro se, we must hold him to the same standards to which we hold licensed attorneys; therefore, he must comply with all Supreme Court Rules, including Rule 81.12.”). “Accordingly, we cannot excuse Appellant's failure to file all transcripts necessary to determine the issue he raises on appeal and must dismiss this appeal.” Id. In fact, this Court advised Lee how to compile the record on appeal—consisting of the legal file, and, if he chose, a transcript—on November 20, 2024.⁴ Nonetheless, Lee filed his legal file but did not file a transcript. The Court acknowledged Lee's failure to file the transcript in an order on June 5, 2025, stating: “Appellant's Legal File has been filed this date. Although Appellant indicated on the Notice of Appeal that the record would consist of a legal file and transcript, Appellant did not file a transcript. Therefore, the appeal will proceed without a transcript.”⁵

Moreover, because it was Lee's duty to file a legal file with all records necessary for review, “[w]e are entitled to presume that omitted portions of the record are unfavorable to the appellant and favorable to the trial court's decision.” State v. Escalona, 619 S.W.3d 612, 615 n.3 (Mo. App. W.D. 2021). Given that the motion court's judgment provides that plea counsel's testimony was credible and Lee's testimony was not credible, in the absence of the transcript, we must presume that the evidence presented at the evidentiary hearing was favorable to the motion court's decision. Further, without the record of the evidentiary hearing, Lee cannot demonstrate those findings were clearly erroneous. Accordingly, even if we were to review Lee's claims, his arguments would fail, as we must presume, in accordance with the judgment of the motion court and in the absence of the record of the evidentiary hearing, that plea counsel's testimony was credible and Lee's testimony was not credible. See Lusk v. State, 655 S.W.3d 230, 235 (Mo. App. E.D. 2022) (“The motion court is not required to believe the testimony of the movant or any other witness, even if uncontradicted, and this Court defers to the motion court's determination of credibility.”).

“Where the movant in a post-conviction motion proceeding fails to provide us with the necessary record on appeal to review the claim of error raised, we must dismiss.” Walters, 306 S.W.3d at 210 (dismissing the appellant's appeal from the motion court's denial of his Rule 29.15 motion, after an evidentiary hearing, because the appellant failed to include the trial transcript in the record on appeal, which was necessary to review his claim of error). See also Carter v. State, 253 S.W.3d 580, 582 (Mo. App. S.D. 2008) (dismissing the appellant's appeal of the motion court's denial of his motion for post-conviction relief because the appellant failed to provide the trial transcript on appeal). Therefore, we must dismiss the appeal.

Conclusion

Because Lee failed to file a necessary transcript required by Rule 81.12, the appeal is dismissed.

FOOTNOTES

1.   Rule references are to the Missouri Supreme Court Rules (2025). Statutory references are to RSMo (2016), as supplemented through 2023, unless otherwise indicated.

2.   We note that the transcript of the plea hearing provided to the Court by Lee has been altered with handwritten notes. Our quotation of the transcript includes the typed portions of the transcript only and not the handwritten markings that appear to have been added by Lee.

3.   Lee alleged his stepfather, who “abused [Lee] his whole life” had threatened to kill Lee if he did not plead guilty. Lee asserted he would not have pleaded guilty if his stepfather had not threatened his life.

4.   Lee was provided with ample time and opportunity to file the transcript of the evidentiary hearing. Lee filed his notice of appeal on July 10, 2024. On October 8, 2024, the Court notified Lee that his appeal had been placed on the dismissal docket for his failure to file the record on appeal, which had been due October 7, 2024. The Court dismissed Lee's appeal pursuant to Rule 84.08 on October 29, 2024 for failure to prosecute the appeal within the periods of time allowed under the Rules of Civil Procedure. Lee moved for reconsideration of the dismissal order, and this Court sustained the motion on November 20, 2024. The Court, on its own motion, extended the time for Lee to file the record on appeal until January 6, 2025. That same day, the Court sent Lee a letter explaining what the record on appeal consists of and how to compile it.Lee failed to file the record on appeal by January 6, 2025, and the Court again placed this appeal on the dismissal docket on January 9, 2025. Lee moved for extension of time to file the record on appeal, and the Court sustained the motion, ordering the record on appeal be filed on or before March 5, 2025. The Court received a letter from Lee dated February 26, 2025, requesting a 90-day extension to file the record on appeal. The Court sustained Lee's motion for extension of time and ordered the record on appeal be filed on or before April 23, 2025. On March 31, 2025, Lee moved for extension of time to file the record on appeal, and the Court sustained the motion and ordered the record on appeal be filed on or before May 9, 2025.On May 15, 2025, the Court dismissed Lee's appeal for the second time pursuant to Rule 84.08 due to Lee's failure to prosecute the appeal. Lee moved for reconsideration of the dismissal order on May 28, 2025. On June 5, 2025, the Court sustained the motion and stated that Lee's legal file had been filed as of June 5, 2025. In that order, the Court noted that, though Lee had indicated on the notice of appeal that the record would consist of a legal file and transcript, Lee had not filed a transcript, and the appeal would proceed without a transcript.

5.   We note that Lee argues in his reply relief that the trial court “failed to send” him the evidentiary hearing transcript. Lee filed a motion to compel on July 21, 2025, after he had filed the legal file, “requesting this Court to order the County of [Lafayette] to produce my discovery of all all[e]ged evidence and my 24.035 hearing transcripts and evidence.” This Court overruled the motion to compel on July 29, 2025, explaining:Appellant was advised how to compile the record on appeal in the letter dated November 20, 2024, from this Court's staff counsel. On June 5, 2025, Appellant filed his legal file in this case but did not file a transcript. This Court entered an Order on June 5, 2025, stating: “Appellant's Legal File has been filed this date. Although Appellant indicated on the Notice of Appeal that the record would consist of a legal file and transcript, Appellant did not file a transcript. Therefore, the appeal will proceed without a transcript.”This Court gave Lee multiple extensions to file the record on appeal, including the evidentiary hearing transcript, over the nearly 11 months that passed between the date Lee filed his notice of appeal and the date on which he filed the legal file. Despite these opportunities, he failed to provide this Court with the records necessary to review his appeal, and the time to do so has passed.

EDWARD R. ARDINI, JR., JUDGE

All concur.