State v. Hopkins

• Decision Date: 24 June 2014
• Docket Number: No. WD 76128.,WD 76128.
• Citation: 432 S.W.3d 208
• Parties: STATE of Missouri, Respondent, v. Nelson E. HOPKINS, Appellant.
• Court: Missouri Court of Appeals

432 S.W.3d 208

STATE of Missouri, Respondent,

v.Nelson E. HOPKINS, Appellant.

No. WD 76128.

Missouri Court of Appeals, Western District.

March 11, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 29, 2014.

Application for Transfer Denied June 24, 2014.

Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.

Damien de Loyola, Assistant Appellate Defender, Kansas City, MO, for Appellant.

Before Division One: CYNTHIA L. MARTIN, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.

KAREN KING MITCHELL, Judge.

Nelson E. Hopkins, Sr., appeals his convictions and sentences, following a guilty plea, for two counts of second-degree robbery in violation of section 569.030.¹ Because Hopkins entered a guilty plea and does not challenge the subject matter jurisdiction of the plea court or the sufficiency of the charging document, we dismiss Hopkins's direct appeal.

Factual and Procedural Background

On June 14, 2011, Hopkins entered a Domino's Pizza in Blue Springs, Missouri, and pulled a gun from his waistband. Hopkins waved the gun at five employees, demanding money.² All but two employees ran out the back door when Hopkins first entered the store brandishing his weapon. Hopkins ordered the two remaining employees to lie down on the ground; he pointed a gun at their heads and told them not to move. Hopkins then ran out the back door.

On February 9, 2012, Hopkins pled guilty to two counts of second-degree robbery. Before accepting Hopkins's guilty pleas, the court reviewed the terms of the plea agreement. Because Hopkins was found to be a prior and persistent offender, his maximum punishment was thirty years, or life imprisonment, for each count. See § 558.016.7(2); 558.011.1(1)-(2). The State, however, noted that, pursuant to the plea agreement, it would recommend a maximum sentence of twenty years. Hopkins and his attorney both confirmed that this was their understanding of the plea agreement as well. The plea court then asked Hopkins to confirm his understanding that, by pleading guilty, he was waiving certain rights, including the right to appeal.³ Hopkins said that he understood the rights he was waiving and stated that he had already discussed these rights with his attorney. Hopkins pled guilty, confirming his understanding that, because of his status as a prior and persistent offender, the range of punishment on each count was five to thirty years, or life imprisonment. A factual basis was presented for each count and Hopkins stated that he was entering his pleas voluntarily. The court accepted Hopkins's pleas, ordered a sentencing assessment report, and scheduled a sentencing hearing for April 6, 2012.

At the sentencing hearing, the State called one witness and Hopkins called three witnesses. Hopkins presented evidence related to his personal background, military experience, diagnosis of post traumatic stress disorder (PTSD), son's murder in 2009, and community involvement (particularly in the area of crime prevention). After the testimony concluded, Hopkins's attorney informed the court that Hopkins wanted to make a brief statement before sentencing.⁴ The State then presented its argument and recommended that Hopkins be sentenced to concurrent prison terms of twenty years on each count. Hopkins's attorney presented her argument and requested a sentence of “probation with a significant backup,” and, if possible, for probation to be monitored by the Veteran's Court program. The sentencing court asked the State if it had any follow-up, and when it indicated that it did not, the court made a statement about how it viewed the case and sentenced Hopkins to two concurrent terms of twenty years. After the sentence was pronounced, the court accepted Hopkins's Rule 24.035 acknowledgement form and asked him if he wanted more time to discuss his post-conviction opportunities with his attorney. At that time, Hopkins, who had not yet been addressed personally by the court or made a statement, responded by asking, “Your Honor, I would like to say something if I can?” The court replied, “I've already sentenced you,” to which Hopkins replied, “Yes, sir.” No further discussion occurred on the subject of allocution.⁵ Hopkins discussed his post-conviction opportunities privately with his attorney before the hearing concluded. Hopkins now files this direct appeal.⁶

Analysis

Hopkins raises four points on appeal. All of Hopkins's claims relate to the fact that the plea court did not allow him to make a statement at sentencing (allocution). First, Hopkins claims that the court erred because allocution is required under Rule 29.07(b)(1) for all criminal defendants before sentence is pronounced.⁷ Hopkins argues that the denial of allocution is per se prejudicial and requires resentencing. Second, Hopkins claims that he has a due process right to allocution under Article I, section 10, of the Missouri Constitution, as well as under the Sixth and Fourteenth Amendments to the United States Constitution, when a specific request for allocution is made to the court. Hopkins claims that he preserved this issue for appeal because he made a request for allocution through his attorney before sentencing and a pro se request after sentencing. Third, Hopkins claims that, consistent with sections 557.036 and 558.021, he has a due process right under both the Missouri and Federal Constitutions to present mitigating evidence at sentencing, and that denying a defendant the opportunity to personally address the court is an abuse of discretion requiring resentencing. Fourth, Hopkins claims that Article I, section 18(a), of the Missouri Constitution provides all criminal defendants with the right to appear and defend, in person and by counsel, and that this constitutional guarantee includes the right to personally address the court at sentencing. Hopkins argues that the denial of this constitutional right cannot be harmless error because he was denied allocution and sentenced to the maximum penalty. ⁸ Before we address the merits of Hopkins's claims, we must address whether this court has jurisdiction over Hopkins's direct appeal.

Hopkins argues that, despite the limitations articulated by case law and Rule 24.035 regarding a defendant's right to file a direct appeal following a guilty plea, he did not waive his right to file a direct appeal challenging court error at the sentencing hearing by pleading guilty. The State responds that, because Hopkins pled guilty, he waived his direct appeal, except for challenges related to subject matter jurisdiction and the sufficiency of the charging document, and his exclusive remedy to raise any claims related to his conviction or sentence is through a Rule 24.035 post-conviction motion. We agree with the State.

“ ‘There is no right to appeal without statutory authority.’ ” State v. Larson, 79 S.W.3d 891, 892–93 (Mo. banc 2002) (quoting State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994)). After final judgment, a defendant may appeal to the proper appellate court. § 547.070; see alsoRule 30.01(a) (providing that after “final judgment in a criminal case, every party shall be entitled to any appeal permitted by law”). In a criminal case, “[a] final judgment occurs only when a sentence is entered.” Williams, 871 S.W.2d at 452 (emphasis omitted). In the context of a direct appeal following a guilty plea, however, the right to a direct appeal is limited.

“In Missouri, the general rule is that a guilty plea waives all nonjurisdictional defects, including statutory and constitutional guarantees.” Garris v. State, 389 S.W.3d 648, 651 (Mo. banc 2012). The general waiver rule exists because “ ‘[a] guilty plea not only admits guilt but also consents to judgment of conviction without a jury trial.’ ” Id. (quoting Cooper v. State, 356 S.W.3d 148, 153 (Mo. banc 2011)). Therefore, “ ‘[i]n a direct appeal of a judgment and sentence entered as a result of a guilty plea, our review is restricted to [claims involving] the subject-matter jurisdiction of the trial court and the sufficiency of the information or indictment.’ ” State v. Onate, 398 S.W.3d 102, 105 (Mo.App.W.D.2013) (quoting State v. Klaus, 91 S.W.3d 706, 706 (Mo.App.E.D.2002)); see also State v. Craig, 287 S.W.3d 676, 679 (Mo. banc 2009). Rule 24.035 creates an exception to the general rule that a plea of guilty waives the right to challenge alleged error relating to the plea and sentence. “Challenges to either the voluntariness of the plea or ‘the legality of the sentence imposed may be considered only in response to a Rule 24.035 motion.’ ” Onate, 398 S.W.3d at 106 (quoting Klaus, 91 S.W.3d at 706).

Hopkins concedes that a plea is an acknowledgement of guilt and, therefore, certain claims related to the underlying conviction are waived; he argues, however, that he waived only his right to a direct appeal of errors that occurred prior to the plea and “[c]ommon sense requires that a defendant does not waive a direct appeal from deficiencies brought about by plea court error during sentencing simply by the act of pleading guilty (absent an agreed upon sentence made as part of the plea and followed by the court).” In support of his argument, Hopkins notes that, in the context of a conviction and sentence following a jury trial, allegations of trial court error are generally not cognizable in post-conviction proceedings and must be raised on direct appeal. See Glaviano v. State, 298 S.W.3d 112, 114–15 (Mo.App.W.D.2009) (noting that, in the context of a jury trial and sentencing by the court, allegations of trial court error during the sentencing hearing are cognizable in a direct appeal, not a post-conviction proceeding, “ ‘except where fundamental fairness requires otherwise and only in rare and exceptional circumstances' ” (quoting State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992))).⁹

Hopkins, however, was not convicted by a jury; therefore, reliance...