State v. Hudson

• Decision Date: 27 April 2021
• Docket Number: WD 83370
• Citation: 626 S.W.3d 800
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. T'Oddre D. HUDSON, Appellant.

626 S.W.3d 800

STATE of Missouri, Respondent,

v.T'Oddre D. HUDSON, Appellant.

WD 83370

Missouri Court of Appeals, Western District.

Opinion filed: April 27, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2021

Application for Transfer Denied August 31, 2021

Evan J. Buchheim, Jefferson City, for Respondent.

Rosemary E. Percival, Kansas City, for Appellant.

Division Three: Thomas H. Newton, Presiding Judge, Gary D. Witt, Judge and W. Douglas Thomson, Judge

W. DOUGLAS THOMSON, JUDGE

T'Oddre D. Hudson ("Hudson") appeals from the judgment of the Circuit Court of Jackson County convicting him of one count of first-degree sodomy, one count of attempted first-degree robbery, and two associated counts of armed criminal action. In his sole point on appeal, Hudson claims that the motion court clearly erred in overruling his pre-sentence Rule 29.07(d) motion to withdraw his guilty plea on the ground that his plea was entered involuntary and without understanding. We affirm.

Factual and Procedural History

In August 2014, two men approached a parked vehicle and, at gunpoint, demanded the occupants, a male and female, get out of the vehicle. The two men then ransacked the vehicle and attempted to drive away. However, because the men could not operate a manual transmission, they were unable to take the vehicle. The armed men then made the female victim get back into the vehicle, where one of the men forced her, at gunpoint, to perform oral sex upon him to completion. While this act of sodomy occurred, the male victim was held at gunpoint on the pavement some distance from the vehicle. After hearing sirens, the two men fled. Afterwards, the female victim was immediately transported to the hospital where her mouth was swabbed for evidence. The test results indicated the presence of semen which a DNA analyst later determined belonged to Hudson.

On October 2, 2015, Hudson was indicted on one count of sodomy in the first degree, one count of robbery in the first degree, and two counts of armed criminal action. On October 22, 2015, Hudson's counsel entered his appearance. A jury trial was scheduled to begin on April 24, 2017, but six days before trial was set to begin, Hudson's plea counsel filed a motion for a mental examination. The trial court sustained the motion and ordered a mental examination, canceled the April 24 trial date, and rescheduled Hudson's jury trial for September 25, 2017. However, the doctor who was to perform Hudson's mental examination reported to the court that Hudson had "refused transportation to the examination site or to participate in the evaluation" and that Hudson's plea counsel had not responded to the doctor's request about whether Hudson was willing to be examined. Hudson's September 25, 2017, trial date was later continued to May 21, 2018.

On May 18, 2018, at the pretrial conference, Hudson entered an Alford plea. In exchange for his plea, the parties agreed that the court would sentence Hudson to at least 16 years in prison, but to no more than 22 years in prison, and the State would dismiss an unrelated drug case. During the plea colloquy, Hudson testified to the plea court that he understood he was entering an Alford plea to the charges, that he had read the reports related to the evidence, and that he had an opportunity to talk with his attorney. Hudson acknowledged the rights which he was waiving by pleading guilty and the adverse consequences that would stem from his guilty plea. Hudson acknowledged that he was not threatened or coerced into entering his plea, that he had enough time to talk to plea counsel, and that counsel had done what he had asked him to do. Upon the State's recitation of the factual basis, Hudson's plea counsel confirmed to the court that the evidence described was the information he had received in discovery and shared with Hudson. Hudson reiterated the accuracy of the evidence and further agreed that based on the evidence, "there [was] a substantial likelihood a jury would find [him] guilty." The court accepted Hudson's guilty plea, finding it was made freely, voluntarily, and with understanding, and ordered a sentencing assessment report.

About two weeks before the sentencing hearing, Hudson's plea counsel withdrew from the case and new counsel entered a limited appearance on Hudson's behalf for the purpose of filing a motion to withdraw Hudson's plea. On September 27, 2018, Hudson filed a motion to withdraw his plea under Rule 29.07(d)¹ , claiming his plea was involuntary. In doing so, Hudson alleged that he "did not fully understand the consequences of his plea and did not have adequate time with his attorney to fully discuss his discovery, trial preparation, or trial strategy." Hudson furthered alleged that he "felt he had no other options" but to plead guilty because "[i]t was readily apparent to [Hudson] that counsel was unprepared for trial," and that this "induced" him into entering into the plea agreement. Following an evidentiary hearing, the court denied Hudson's motion.

On November 29, 2018, the court sentenced Hudson to twelve years imprisonment for the offense of sodomy, to run concurrently with consecutive sentences of five and three years for robbery and armed criminal action, respectively.

After sentencing, Hudson appeals the trial court's denial of his Rule 29.07(d) motion.² Further factual details will be outlined as relevant in the analysis below.

Standard of Review

A trial court has discretion to grant or deny a motion to withdraw a guilty plea prior to sentencing. Johnson v. State , 529 S.W.3d 36, 41 n.5 (Mo. App. W.D. 2017). In reviewing the trial court's decision:

We are governed ... by certain well recognized principles: (1) on appeal from a denial of a motion to withdraw a guilty plea our review is limited to a determination of whether the ruling of the trial court was clearly erroneous, Young v. State , 438 S.W.2d 280, 283 (Mo. 1969), State v. Davis , 438 S.W.2d 232, 234 (Mo. 1969), or there was an abuse of discretion; (2) the burden is on the movant to prove by a preponderance of evidence that the court erred in overruling the motion to withdraw the plea of guilty, cf. Beach v. State , 488 S.W.2d 652, 656 (Mo. 1972) ; (3) a movant does not have an absolute right to withdraw his plea of guilty whether before or after sentence, State v. Jackson , 514 S.W.2d 638, 641 (Mo. App. 1974), and may do so only in extraordinary circumstances, Mooney v. State , 433 S.W.2d 542, 544 (Mo. 1968) ; and (4) if there is evidence that the defendant was misled or induced to plead guilty because of fraud, mistake, misapprehension, fear, persuasion or holding out of hopes which prove to be false or ill-founded, he should be permitted to withdraw his plea since the law favors a trial on the merits, State v. Rose , 440 S.W.2d 441, 443 (Mo. 1969).

State v. Knox, 553 S.W.3d 386, 393-94 (Mo. App. W.D. 2018) (quoting State v. Nielsen , 547 S.W.2d 153, 158 (Mo. App. 1977) ) (internal footnote omitted).

Analysis

Preliminarily, we address the State's arguments that this Court lacks authority to consider this appeal. First, the State asserts we have "no authority to consider the merits of Defendant's claim that the trial court erred in overruling his pre-sentence Rule 29.07(d)³ motion to withdraw his guilty plea, because ... a direct appeal of a conviction following a guilty plea is limited only to challenges involving the circuit court's subject-matter jurisdiction, the sufficiency of the charging document, or possibly excessive sentencing and Defendant's claim on appeal, which involves a claim of ineffective assistance of counsel before the plea, does not fall into any of these categories...." In making this assertion, the State relies upon State v. Rohra , 545 S.W.3d 344, 347 (Mo. banc 2018) and State v. Russell , 598 S.W.3d 133, 139 (Mo. banc 2020). However, the State fails to consider the differences in procedural posture of Rohra and Russell , as compared to the case at hand. Rohra challenged a motion to dismiss filed post-plea, not a 29.07 motion at all. State v. Rohra , 545 S.W.3d at 346. Russell addressed a 29.07 motion filed after sentencing (a post-sentence 29.07) whereas the case at hand involves a 29.07 motion filed before sentencing (a pre-sentence 29.07). State v. Russell , 598 S.W.3d at 136. Although Rule 29.07 has a very limited role following the imposition of sentence (a post-sentence 29.07), as suggested by the State's argument, it may permit broader relief at earlier stages of a criminal proceeding. See State v. Onate , 398 S.W.3d 102, 106 (Mo. App. W.D. 2013) (citing Brown v. State , 66 S.W.3d 721, 730-31 n.5 (Mo. banc 2002) (overruled on other grounds in State ex rel. Zinna v. Steele , 301 S.W.3d 510 (Mo. 2010) ). Because the cases relied upon by the State are not in same procedural posture as the case at bar, further analysis has no merit. See State v. Knox , 553 S.W.3d at 393. The Missouri Supreme Court has expressly held that a defendant who pleads guilty may appeal from a final judgment convicting and sentencing him to challenge the circuit court's denial of the defendant's pre-sentence Rule 29.07(d) motion. Stevens v. State , 208 S.W.3d 893, 894-95 (Mo. banc 2006) ; accord , State v. Knox , 553 S.W.3d at 392-93 (holding that the Court had appellate jurisdiction to consider a direct appeal from a final criminal judgment entered after a guilty plea to review whether the circuit court properly denied the defendant's pre-sentence Rule 29.07(d) motion); State v. McAfee , 462 S.W.3d 818, 822 (Mo. App. E.D. 2015) (same).

Second, the State asserts we have no authority to consider the merits of Defendant's claim because "the ‘exclusive procedure’ for asserting a claim of ineffective assistance of counsel affecting the voluntariness of the guilty plea is through a Rule 24.035 motion for postconviction relief." In making this assertion, they rely upon Brown , which is inapposite to their first argument, supra. Indeed, even the State admits "t...