Brown v. State

• Citation: 66 S.W.3d 721
• Decision Date: 13 February 2002
• Docket Number: No. SC 83406.,SC 83406.
• Parties: George BROWN, Jr., Appellant, v. STATE of Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

66 S.W.3d 721

George BROWN, Jr., Appellant, v. STATE of Missouri, Respondent.

No. SC 83406.

Supreme Court of Missouri, En Banc.

February 13, 2002.

Patrick W. Peters, Kansas City, George Brown, Jr., Jefferson City, pro se, for appellant.

Jeremiah W. (Jay) Nixon, Atty. General, Adriane D. Crouse, Assistant Attorney General, Jefferson City, for respondent.

LAURA DENVIR STITH, Judge.

Mr. Brown appeals the motion court's denial of his pro se motion under Rule 29.07(d) to withdraw his plea of guilty to forgery. He alleges his plea was involuntary because it was induced by promises that he would be referred to an institutional treatment program, that the court would retain authority for 120 days to sentence him to probation under section 559.115.2, RSMo Supp.1996, and that he would be released should he successfully complete the program. Instead, 87 days after his remand to the custody of the Missouri Department of Corrections ("DOC") he was denied probation without being sent to a treatment program. The State asserts that, while his claim is nominally brought under Rule 29.07(d), it states a ground for relief cognizable under Rule 24.035 and so should be barred by the 90-day time limit set out in Rule 24.035(b).

This Court reaffirms that Rule 29.07(d) cannot be used to circumvent the time limitations set out in Rule 24.035(b) as to claims enumerated in that rule. For the reasons set out below, this Court also holds that habeas corpus, rather than Rule 29.07(d), now provides the proper avenue for relief in those limited circumstances in which the petitioner asserts a claim that is of the type enumerated in Rule 24.035, but that is time-barred under that rule, if the petitioner can meet the "cause and prejudice" standard set out in State ex rel. Nixon v. Jaynes, 2001 Mo. LEXIS 98, 63 S.W.3d 210 (Mo. banc 2001).

Here, Mr. Brown mistakenly sought relief by motion under Rule 29.07(d) and appealed denial of that motion. He has not requested habeas corpus relief, and the allegations he raises about what occurred during his guilty plea would not be sufficient to meet the "cause and prejudice" standard even were this motion treated as a petition for habeas corpus. While he has alleged that the cause of his failure to timely raise this claim was a matter extraneous to the defense, he has failed to sufficiently show that his guilty plea was made in reliance on the judge's agreement to send him to an institutional treatment program. Affirmed.

I. FACTUAL AND PROCEDURAL HISTORY

On April 29, 1999, Mr. Brown appeared with counsel at a guilty plea hearing. He offered a six-page document, signed by him on each page, entitled "Petition to Enter a Plea of Guilty." It stated in typed print that "no officer or agent of any branch of government ... has promised or suggested that I will receive a particular sentence, or probation, or any other form of leniency if I plead GUILTY," and that "No one has told or promised me I would received (sic) probation or parole and I understand that I do not have a right to receive probation or parole and whether or not I receive probation or parole is solely in the Court's discretion." In addition, Mr. Brown added by hand, "The Prosecuting Attorney promised that if I plead GUILTY he will do the following: Recommend 3 yrs DOC on count I, dismiss counts II and III, concurrent to my present DOC sentence." The petition did not mention referral to a treatment program.

At the hearing, the court orally inquired as to the plea agreement. Mr. Brown agreed that the plea was for "three years concurrent on Count I, dismissing Counts II and III, Count I to run concurrent to the Defendant's present sentence." He further denied that any promises or threats other than the plea bargain had induced him to enter this plea, admitted the elements of his crime and said he wanted to plead guilty.

After reviewing Mr. Brown's legal rights and the range of sentence, the court inquired whether there was any legal reason not to enter sentence and judgment. At this point Mr. Brown's attorney requested the court to consider placing Mr. Brown in an institutional treatment program and retaining the authority for 120 days to grant probation under section 559.115, which states in pertinent part:

A circuit court only upon its own motion and not that of the state or the defendant shall have the power to grant probation to a defendant anytime up to one hundred twenty days after such defendant has been delivered to the custody of the department of corrections but not thereafter. The court may request information and a recommendation from the department concerning the defendant and such defendant's behavior during the period of incarceration.

Sec. 559.115.2. The judge agreed to this request. He sentenced Mr. Brown to the DOC for three years, the sentence to run concurrent with his present sentence, but retained power to grant probation under this section for 120 days and referred Mr. Brown to an institutional treatment program, a procedure often referred to as "120-day callback."

Mr. Brown was delivered to the custody of the DOC on April 30, 1999. His probation was denied 87 days later, on July 26, 1999, without placement in a treatment program. Nothing in the record indicates why he was not placed in a program, when he learned that he would not be so placed or when he learned that he was denied probation. The record does reveal that some eleven months later, in June 2000, Mr. Brown filed a collateral civil action under Rule 24.035 seeking to vacate, set aside or correct the judgment or sentence. The Rule 24.035 motion was denied as untimely because it was filed outside of Rule 24.035's 90-day time limit. In the same action, Mr. Brown then filed a "Motion to Correct Manifest Injustice" under Rule 29.07(d), requesting that he be permitted to withdraw his plea of guilty. He argued the plea was involuntary because it was induced by a promise that he would be placed in a treatment program and, if successful, released on probation, yet neither occurred. This motion was denied. After opinion by the Court of Appeals, Southern District, this Court granted the State's application for transfer. Mo. Const. art. V, sec. 10.

II. HISTORY OF RULE 29.07(d) AND ITS RELATIONSHIP TO RULE 27.26

Mr. Brown claims he is entitled to withdraw his guilty plea under the second clause of Rule 29.07(d), which states:

(d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

Rule 29.07(d) (emphasis added). The State argues that his motion is time-barred because the claim raised is one that is cognizable under Rule 24.035. Mr. Brown argues that the time limitation set out in Rule 24.035(b) does not apply to his claim. To understand the parties' arguments, it is helpful to know the history of Rule 29.07 and its relationship to Rule 24.035 and to the latter's predecessor, Rule 27.26.

Rule 29.07(d) became effective January 1, 1980, and is identical in form and content to former Rule 27.25, which it replaced. See State v. Cowan, 615 S.W.2d 510, 511 n. 2 (Mo.App. E.D.1981). While neither rule sets out the procedures to be followed in seeking to withdraw a guilty plea, at least since 1967 this Court has recognized that motions under both Rules 27.25 and 27.26 are collateral civil claims and that the procedures set forth in Rule 27.26 for setting aside a sentence following a guilty plea should also govern a parallel motion to withdraw a plea under Rule 27.25, stating:

An application made pursuant to Rule 27.25 after the imposition of sentence to withdraw a plea of guilty is necessarily an attack on the validity of that sentence within the meaning of Rule 27.26, and the procedure to be followed is set forth in that rule....

State v. Mountjoy, 420 S.W.2d 316, 323 (Mo.1967).

State v. Davis, 438 S.W.2d 232, 234 (Mo.1969), similarly said, "Motions under S.Ct Rules 27.25 and 27.26 by a prisoner to withdraw a plea of guilty and set aside the judgment of conviction and sentence are in the nature of civil actions and the procedure before the trial court and on appeal is governed by the rules of civil procedure insofar as they are applicable. S.Ct. Rules 27.25 and 27.26(a) and (j) . . .". See also Drew v. State, 436 S.W.2d 727, 729 (Mo.1969) (an "application, made after sentence, to withdraw a plea of guilty, is an attack on the validity of that sentence and will be treated as a proceeding to vacate under Rule 27.26"); Bradley v. State, 564 S.W.2d 940, 942 (Mo.App.1978) (accord); State ex rel. Reece v. Campbell, 551 S.W.2d 292, 296 (Mo.App.1977) (Rule 27.26 proceedings are collateral civil actions and governed by civil rules at trial and appellate levels so far as they are applicable).¹

When the content of Rule 27.25 was moved to Rule 29.07(d) in 1980, motions under it continued to be treated procedurally as were motions filed under Rule 27.26. See State v. Rahberger, 747 S.W.2d 724, 724-25 (Mo.App. W.D.1988) (quoting Mountjoy for the principle that the procedures set forth in Rule 27.26 necessarily apply to a Rule 29.07(d) motion, and would govern appeals under both rules). See also, State v. Mandel, 814 S.W.2d 16, 18 (Mo.App. E.D.1991) (applying section 512.020 to appeal of denial of motion to withdraw plea of guilty under Rule 29.07(d)); Cowan, 615 S.W.2d at 511 n. 2 (accord) Samuels v. State, 770 S.W.2d 717, 722-723 (Mo.App. S.D.1989) (accord).

III. Effect of Adoption of Rules 29.15 and 24.035

The application of Rule 29.07(d) to motions to withdraw a guilty plea after sentence became more complex in 1988, when Rule 27.26 was replaced by Rules 29.15 and 24.035. Now, Rule 29.15 governs the bringing of a motion to set aside a conviction and sentence following a trial, while Rule 24.035 governs the bringing of...