State v. Johnson

Decision Date28 April 2020
Docket NumberNo. ED 108481,ED 108481
Citation605 S.W.3d 119
Parties STATE of Missouri, Respondent, v. Joshua Jay JOHNSON, Appellant.
CourtMissouri Court of Appeals

ATTORNEYS FOR APPELLANT, Matthew G. Mueller, 3407 South Jefferson Avenue, St. Louis, MO 63118.

ATTORNEYS FOR RESPONDENT, Eric Schmitt, Attorney General, Richard A. Starnes, Asst. Attorney General, P. O. Box 899, Jefferson City, MO 65102.

ROBERT G. DOWD, JR., Judge

Joshua Johnson ("Defendant") appeals from the denial of a Rule 29.07(d) motion to withdraw his guilty plea, filed after sentencing, to one count of criminal nonsupport. We affirm.

On October 6, 2016, Defendant pled guilty pursuant to a plea agreement to one count of criminal nonsupport, a felony, admitting that he "knowingly failed to provide adequate support" for his children between April 1, 2015 and April 1, 2016 and that the total he owed at that point was $11,520. The court followed the plea agreement, suspending imposition of the sentence and placing Defendant on five years of probation, with the condition that, among other things, he make payments of $480 per month ($320 as originally ordered during the dissolution of his marriage, plus $160 toward arrearages). On January 22, 2018, the State moved to revoke Defendant's probation, alleging that he had violated the conditions of probation by failing to make those payments. While awaiting a hearing on that motion, Defendant committed burglary and property damage on February 8, 2018; he pled guilty to those crimes on June 1, 2018 and began serving eight-year and seven-year concurrent terms of imprisonment shortly thereafter. At the hearing on the State's motion to revoke probation on the nonsupport case, held on January 31, 2019, Defendant admitted that he violated the payment condition of his probation,1 and on that basis alone, the court revoked his probation. He was sentenced to three years in prison, to be served consecutively to the burglary and property damage sentences Defendant was already serving.2

On July 22, 2019, Defendant filed a motion to withdraw his guilty plea to nonsupport under Rule 29.07(d) based on manifest injustice. In that motion, Defendant alleged that the trial court erred in ordering him to pay $480 in child support and arrears as a condition of probation and erred in revoking his probation and sentencing him to a term in prison for failing to pay that amount. Defendant claimed the court failed to ascertain his income at the time it ordered the payments in violation of Section 568.040.6(1), which states that such payments "shall be in such aggregate sums as is not greater than fifty percent of the offender's adjusted gross income." Defendant asserted that the record showed he was unemployed at the time.3 At the hearing on this motion, counsel acknowledged that Defendant had also already filed a Rule 24.035 motion seeking to vacate the conviction and sentence imposed after probation was revoked, but argued that the Rule 29.07(d) motion could still be pursued because it challenged only "the legality of the probation order."4 The court initially entered an order consolidating the proceedings on the Rule 29.07(d) motion and the Rule 24.035 motion, but then vacated that order and denied the Rule 29.07(d) motion. There is an evidentiary hearing scheduled in the Ruled 24.035 case set for July 9, 2020. Defendant appeals from the denial of the Rule 29.07(d) motion.

In this appeal, Defendant raises many of the arguments raised in the trial court for why he should be allowed to withdraw his guilty plea, but he also presents new theories for relief. In his first point relied on, Defendant contends the court erred in denying his motion to withdraw his plea because he "was misled or induced to plead guilty by misapprehension or mistake," though he never presented such an argument in his Rule 29.07(d) motion. In his second point relied on, he contends the court erred in denying the motion to withdraw his plea because Defendant was "denied due process and equal protection" when his probation was revoked solely for failing to pay, though he never made any such constitutional claims in his Rule 29.07(d) motion. These new theories that were not before the trial court are not preserved for our review. State v. Wolf , 600 S.W.3d 852, 855–57 (Mo. App. W.D. April 7, 2020).5 Similarly, the arguments that were raised in the Rule 29.07 motion are not properly preserved because they were not included in the point relied on; they are presented only in the argument sections of the brief. See id. at 858, n.3 ; see also State v. Guinn , 453 S.W.3d 846, 851 (Mo. App. S.D. 2014) (holding additional legal basis contained only in argument section and not set forth in point relied not preserved for review) (citing Rule 84.04(e) and State v. Morrow, 541 S.W.2d 738, 740 (Mo. App. 1976) ).

Nevertheless, Rule 84.13(c) permits this Court to consider plain errors affecting substantial rights, though not raised or preserved, if manifest injustice or miscarriage of justice results therefrom. See Wolf , 600 S.W.3d at 855–57. Review for plain error is a two-step process. State v. McAfee , 462 S.W.3d 818, 823 (Mo. App. E.D. 2015). First, we determine whether there facially appear substantial grounds for believing that the trial court committed error that is evident, obvious and clear. Id. Second, if we find such an error, then we determine whether it resulted in manifest injustice or a miscarriage of justice. Id.

A motion to withdraw a plea of guilty may be made after sentence, as it was here, "to correct manifest injustice." Rule 29.07(d). The manifest injustice alleged in Defendant's motion was that his probation order included a payment condition that violated Section 568.040.6 and that his probation was revoked solely for failing to comply with that unlawful condition. These claims are, as Defendant has repeatedly insisted, an attack on the legality of the probation order and the order of revocation. The proper manner in which to challenge the conditions of probation and the revocation of probation is to seek an extraordinary writ. See State ex rel. Poucher v. Vincent, 258 S.W.3d 62, 64 (Mo. banc 2008) (holding validity of probation revocation order can "only be reviewed through an extraordinary writ") (emphasis added); State v. Williams , 871 S.W.2d 450, 452 n.2 (Mo. banc 1994) (listing remedies available to correct unlawful terms or conditions of probation to include extraordinary writs, but not mentioning motion to withdraw guilty plea). We have found no case in which a defendant was permitted to withdraw his plea under Rule 29.07(d) by attacking the validity of the probation order or the propriety of the order revoking probation.

Defendant cites State v. Werbin for the proposition that a challenge to probation conditions can be brought in a Rule 29.07(d) motion, but that case says no such thing. 597 S.W.2d 663 (Mo. App. W.D. 1980). Rather, in Werbin the court merely acknowledged that the defendant had filed a motion to withdraw his plea because he was dissatisfied with the conditions of probation. Id. at 664. The court did not say those complaints were properly raised in that motion and it ultimately dismissed the appeal as untimely without reaching the merits. Id. at 665.

Defendant also cites to the common refrain of cases discussing that Rule 29.07(d) cannot be used to circumvent the parameters of Rule 24.035: A Rule 29.07(d) motion is allowed following the defendant's sentencing and remand to the Department of Corrections on a felony "only if it raises grounds for relief other than those enumerated in Rule 24.035." Wolf , 600 S.W.3d at 856 (citing State v. Paden , 533 S.W.3d 731, 738 (Mo. App. W.D. 2017) ; State v. Onate , 398 S.W.3d 102, 106 (Mo. App. W.D. 2013) ; Brown v. State , 66 S.W.3d 721, 730-31, 731 n.5 (Mo. banc 2002), disagreed with on unrelated grounds by State ex rel. Zinna v. Steele , 301 S.W.3d 510, 516-17 (Mo. banc 2010) ; State v. Tritle , 599 S.W.3d 233, 235 (Mo. App. W.D. January 28, 2020) ; Gray v. State , 498 S.W.3d 522, 528 (Mo. App. W.D. 2016) ; State ex rel. Fite v. Johnson , 530 S.W.3d 508, 510 (Mo. banc 2017) ). As Defendant correctly points out, claims like his challenging a probation order or an order revoking probation are not cognizable in a Rule 24.035 motion. See Trams v. State, 555 S.W.3d 480, 482–83 (Mo. App. E.D. 2018) ; Prewitt v. State , 191 S.W.3d 709, 711 (Mo. App. W.D. 2006). In other words, his claims fall into the general category of claims "other than those enumerated in Rule 24.035." But these particular non-Rule 24.035 claims attacking probation rulings are, nevertheless, still not grounds for withdrawing a plea under Rule 29.07(d) because they are only properly raised in a petition for an extraordinary writ. See generally Poucher, 258 S.W.3d at 64 ; Williams , 871 S.W.2d at 452 n.2 ; see also State v. Gibb s, 418 S.W.3d 522, 524 (Mo. App. E.D. 2013) ; Trams, 555 S.W.3d at 482–83 ; Prewitt , 191 S.W.3d at 711.

Defendant has attempted to broaden the nature of his claims on appeal, but to no avail. Defendant's new assertion that he "was misled or induced to plead guilty by misapprehension or mistake" is a challenge to the voluntariness of his plea. Wolf , 600 S.W.3d at 855–57. While a challenge to the voluntariness of the guilty plea can provide a basis to withdraw one's plea under Rule 29.07(d) when the motion to withdraw is filed before the defendant is sentenced and remanded to the DOC, after sentence and remand to the DOC, Rule 24.035 kicks in and provides the exclusive means for challenging the conviction and sentence on the grounds enumerated therein, including a challenge to the voluntariness of one's guilty plea. See id. Defendant's reliance on cases in which the motion challenging the voluntariness of the pleas was filed before sentencing or befo...

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3 cases
  • Williams v. State
    • United States
    • Missouri Court of Appeals
    • June 7, 2022
    ...in a post-conviction proceeding under Rule 24.035 following a guilty plea or Rule 29.15 following trial. See State v. Johnson, 605 S.W.3d 119, 123 (Mo. App. E.D. 2020) (internal citations omitted) ("[C]laims ... challenging a probation order or an order revoking probation are not cognizable......
  • Williams v. State
    • United States
    • Missouri Court of Appeals
    • June 7, 2022
    ... ... Only if a movant challenges the underlying ... sentence and conviction rather than a term of probation is ... the claim properly reviewed in a post-conviction proceeding ... under Rule 24.035 following a guilty plea or Rule 29.15 ... following trial. See State v. Johnson, 605 S.W.3d ... 119, 123 (Mo. App. E.D. 2020) ... (internal citations omitted) ("[C]laims ... challenging a probation order or an order revoking probation ... are not cognizable in a Rule 24.035 motion."); Trams ... v. State, 555 S.W.3d 480, 482 (Mo. App. E.D ... ...
  • Williams v. State, ED109960
    • United States
    • Missouri Court of Appeals
    • June 7, 2022
    ... ... Only if a movant challenges the underlying ... sentence and conviction rather than a term of probation is ... the claim properly reviewed in a post-conviction proceeding ... under Rule 24.035 following a guilty plea or Rule 29.15 ... following trial. See State v. Johnson, 605 S.W.3d ... 119, 123 (Mo. App. E.D. 2020) ... (internal citations omitted) ("[C]laims ... challenging a probation order or an order revoking probation ... are not cognizable in a Rule 24.035 motion."); Trams ... v. State, 555 S.W.3d 480, 482 (Mo. App. E.D ... ...

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