Rupert v. State
| Decision Date | 22 April 2008 |
| Docket Number | No. ED 89980.,ED 89980. |
| Citation | 250 S.W.3d 442 |
| Parties | Ronald Paul RUPERT, Movant/Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Nancy C. McKerrow, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jaime W. Corman, Asst. Atty. Gen., Jefferson City, MO, for respondent.
In this post-conviction proceeding, the movant, Ronald P. Rupert, challenges the sufficiency of the information and the plea court's sentencing. First, the movant asserts that the plea court lacked jurisdiction to accept his guilty plea and to sentence him due to the insufficiency of the information. Second, the movant alleges that the plea court erred when it deviated from its oral pronouncement of sentence and entered a written judgment of consecutive terms of imprisonment. The motion court denied the movant's claims and he appeals. Because the circuit court's jurisdiction is not dependent on the sufficiency of the information and because a challenge to the sufficiency of the information is not cognizable in a post-conviction proceeding, we affirm the motion court's judgment denying relief on the movant's first claim. However, because the plea court erred in its entry of judgment, the motion court likewise erred in denying relief on the movant's second claim. Therefore, we reverse the motion court on this point and remand the cause for entry of the proper judgment.1
The State charged the movant by information with four counts of second-degree statutory rape, Section 566.034 RSMo. 2000.2 The movant pleaded guilty to all four counts. At sentencing, the State recommended sentences of three years on each count; the movant requested probation. The plea court denied the movant's request and pronounced sentence, stating as follows:
... the Court is hereby going to sentence you to three years in the Department of Corrections on each count.
In its written Judgment and Sentence, dated October 4, 2005, the same day as its oral pronouncement of sentence, the plea court ordered the sentences to run consecutively.
The movant filed a motion to correct judgment, requesting that the court remove all "consecutive" language in order to conform the written judgment to the court's oral pronouncement of sentence. The movant correctly noted that the plea court did not order his sentences to run consecutively at oral pronouncement of sentence in open court. Thus, the movant argued, pursuant to Section 558.026, these sentences should run concurrently. At a hearing on the movant's motion, the plea court acknowledged that it did not remember saying in open court that the counts were to run consecutively. Nevertheless, the court stated, it had always intended to impose consecutive terms of imprisonment. The court expressed a willingness to bring the movant back into open court for oral pronouncement of consecutive sentences. Movant's counsel declined this offer. In the end, the plea court denied the movant's motion to correct the judgment.
The movant then filed a pro se motion to vacate, set aside or correct the judgment. Appointed counsel then filed an amended motion for post-conviction relief. The movant propounded two grounds for relief. First, he alleged that the information in this case was fatally defective because it did not charge a criminal offense that he would be capable of committing; therefore, he argued, the trial court never obtained jurisdiction to accept his guilty plea or to sentence him. Secondly, the movant asserted that the written judgment improperly recorded that his three-year sentences should run consecutively, because he was sentenced to concurrent terms during the oral pronouncement of sentence, which controls. The motion court denied both of the movant's claims for relief, holding first that the court had jurisdiction and that the information was sufficient. As to the sentencing issue, the motion court held that Section 588.026.1 required consecutive sentences. The movant appeals, alleging that the motion court clearly erred in denying relief on both of his claims. We will consider each of the movant's contentions in turn.
This Court's review of a motion court's denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Dorsey v. State, 115 S.W.3d 842, 845 (Mo. banc 2003); Flores v. State, 186 S.W.3d 398, 399 (Mo. App. E.D.2006). A motion court's findings and conclusions are clearly erroneous only if, after a full review of the record, this Court is left with a definite and firm impression that a mistake has been made. State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997); Flores, 186 S.W.3d at 398.
The movant alleges the motion court clearly erred in denying relief on his claim of an insufficient information. The movant contends the information in this case is fatally defective in that it does not charge a criminal offense that he would be capable of committing.3 Therefore, he argues, because the information was fatally defective, the trial court never obtained jurisdiction to accept his guilty plea or to sentence him. Accordingly, the movant contends that because the plea court lacked jurisdiction, his convictions must be set aside.
In denying relief, the motion court noted that subject-matter jurisdiction and sufficiency of an information are two distinct concepts. The court held it had jurisdiction and that, further, the information was sufficient. We find no clear error. The movant's challenge fails for two reasons: (1) an insufficient information does not affect the court's jurisdiction to accept a plea and impose sentence; and (2) his challenge to the sufficiency of the information is not cognizable in a post-conviction relief proceeding.
The movant asserts that because the information here was fatally defective, the plea court never had jurisdiction and, therefore, his convictions must be set aside. In support of this argument, the movant relies on two decisions, State v. Smith, 825 S.W.2d 388 (Mo.App. S.D.1992), and State v. Collins, 154 S.W.3d 486 (Mo. App. W.D.2005). In Smith, the court found that the information was fatally defective because it failed to charge an essential element of the charged crime. Therefore, the court held, the trial court never obtained jurisdiction and the conviction was a nullity. Smith, 825 S.W.2d at 391. A like result was reached in the Collins decision. There, the defendant was convicted of third-degree assault. On appeal, the court first found that third-degree assault was not a lesser-included offense of the charged crimes. Collins, 154 S.W.3d at 497. The court then held that because the State failed to charge the defendant with third-degree assault, the trial court lacked jurisdiction to enter a conviction thereon, rending the trial court's judgment purporting to convict the defendant of third-degree assault a nullity, and requiring the judgment of conviction to be set aside and held for naught. Id. The movant's reliance is misplaced.
The jurisdiction of the trial court is not dependent on the sufficiency of the information. State v. Parkhurst, 845 S.W.2d 31, 34-35 (Mo. banc 1992). The Supreme Court explained that subject-matter jurisdiction of the circuit court and the sufficiency of the charging document are two distinct concepts. Parkhurst, 845 S.W.2d at 34-35. It is true that a person cannot be convicted of a crime with which the person was not charged unless it is a lesser-included offense of a charged offense. Parkhurst, 845 S.W.2d at 35. Nevertheless, the Court explained, circuit courts have subject-matter jurisdiction to try crimes. Id. "Cases stating that jurisdiction is dependent upon the sufficiency of the indictment or information mix separate questions." Id. The Court directed that any language, such as that contained in Montgomery v. State, 454 S.W.2d 571, 575 (Mo.1970), State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983), State v. Brooks, 507 S.W.2d 375 (Mo.1974), and their progeny, stating that jurisdiction is dependent upon the sufficiency of the indictment or information, should not be relied on in the future. Id. Included among these progeny is the Smith decision, upon which the movant relies. The Smith decision, which predates the Parkhurst case, cites the criticized Gilmore decision as authority for its holding that the court acquires no jurisdiction if the charging instrument is insufficient. The Collins case, also relied on by the movant, and decided after the Parkhurst case, fails to acknowledge Parkhurst's holding. The Collins court relied on the Smith decision as well as the criticized Brooks decision as authority that "a conviction based on an offense not properly charged in the charging instrument is a nullity, as the trial court acquires no jurisdiction over non-charged offenses." Collins, 154 S.W.3d at 497. Again, as explained in Parkhurst, jurisdiction of the circuit court is distinct from, and not dependent on, the sufficiency of the charging instrument. In sum, because the plea court's jurisdiction is not dependent on the sufficiency of the information, the movant's first challenge is unavailing.
Even if we excise the jurisdictional component from the movant's challenge, he still is entitled to no relief premised on the insufficiency of the information. Such a challenge is not cognizable in a post-conviction relief proceeding. Dodds v. State, 60 S.W.3d 1, 5 (Mo.App. E.D.2001); Elverum v. State, 232 S.W.3d 710, 717 (Mo.App. E.D.2007); Soutee v. State, 51 S.W.3d 474, 480 (Mo.App. S.D. 2001). "A person who pleads guilty to a criminal offense has a right to challenge the sufficiency of the information or indictment by direct appeal." Dodds, 60 S.W.3d at 6 (). The...
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