State v. Paden

• Decision Date: 20 June 2017
• Docket Number: WD 79544
• Citation: 533 S.W.3d 731
• Parties: STATE of Missouri, Respondent, v. Darren L. PADEN, Appellant.
• Court: Missouri Court of Appeals

533 S.W.3d 731

STATE of Missouri, Respondent,

v.Darren L. PADEN, Appellant.

WD 79544

Missouri Court of Appeals, Western District.

OPINION FILED: JUNE 20, 2017

MODIFIED July 5, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2017

Application for Transfer Denied December 19, 2017

John P. O'Connor, Kansas City, MO, Counsel for Appellant.

Evan J. Buchheim, Jefferson City, MO, Counsel for Respondent.

Before Division Three: Anthony Rex Gabbert, Presiding Judge, Victor Howard, Judge, Cynthia L. Martin, Judge

Anthony Rex Gabbert, Judge

Darren L. Paden appeals the circuit court's denial of his Rule 29.07¹ motion to withdraw his guilty plea which alleged a pre-plea misapprehension of the proper range of sentencing induced by the prosecutor, the court, and his own counsel. In his sole point on appeal he contends that the circuit court abused its discretion in denying his Rule 29.07(d)² motion because Rules 29.07(d) and 24.02(b)(1)³ require that a defendant be informed of the proper range of punishment and the prosecutor, the court, and his own counsel all informed him of the wrong range of punishment resulting in prejudice. We affirm.

Paden was charged with two counts of first-degree statutory sodomy involving Victim that occurred between January 1 and December 23, 2002 (Count I) and January 1 and December 23, 2008 (Count II), when she was under twelve years of age. On August 17, 2015, Paden entered a guilty plea to both counts. During the plea hearing, the prosecutor and defense counsel agreed that Paden was not pleading guilty pursuant to a sentencing recommendation by the State and that the State could "argue ... up to their lid" of thirty years. The record reflects that the State, the court, defense counsel, and Paden all believed that both counts were required by statute to run consecutively.

The factual basis for the guilty plea was that Paden began watching pornographic videos with Victim when she was five or six years old in 2001 or 2002; he then removed her clothes and put his mouth on her vagina. When he finished doing that, he made Victim put his penis in her mouth. A general pattern of sexual abuse followed, with Paden telling Victim that "this was just their little secret" and that she should not tell her mother or anyone else. The sexual abuse occurred one or two times per month for six years. The last time Victim recalled being sexually abused by Paden was in 2008 or 2009 when she was twelve or thirteen years old. She asked Paden if she could go to a friend's house and he refused to give her permission until she performed oral sex on him. Items found during execution of a search warrant corroborated Victim's statements to police, and Paden later admitted to police that he had sexually abused Victim twice per month from 2001 to 2009.

Paden acknowledged the rights he was waiving by entering a guilty plea, including the right to appeal, and he pleaded guilty to both counts. The court accepted Paden's plea and found him guilty on both counts.

At the beginning of the October 30, 2015 sentencing hearing, the prosecutor stated that the range of punishment was ten to thirty years or life imprisonment, but that the State had agreed to "cap [its] recommendation at thirty years on each count to be run consecutively by operation of law." The court then stated that "the range on this particular charge with consecutive sentence would be a minimum of twenty years and a maximum of sixty years." Defense counsel agreed with the court's assessment on the range of punishment.

Defense counsel argued for leniency because Paden had "accepted responsibility for his conduct" by pleading guilty, and that when Paden entered the plea, "[h]e did so ... knowing that the best that could happen to him today is twenty years in prison, basically seventeen years or up to sixty years in prison, which would be eighty-five percent of sixty, forty-eight years." Defense counsel asked for a sentence the court deemed appropriate, but noted that even a sentence of fifteen years on each count run consecutively would be the equivalent of a life sentence, considering Paden's age and life expectancy. The State asked for "thirty years on each count to be run consecutively by operation of law." The court sentenced Paden to twenty-five years on each count and ordered "that those terms, by statute, will run consecutively." The Judgment was entered on November 2, 2015.

On January 27, 2016, Paden and the State filed a "Joint Motion to Remand for Further Proceedings" pursuant to Rule 29.12(b)⁴ , in which the parties informed the plea court that Paden was sentenced to consecutive sentences on the mistaken belief that Section 558.026.1, RSMo 2000, required consecutive sentences. The parties alleged that this was inaccurate because Paden pleaded guilty to crimes that occurred before the 2013 amendment to Section 558.026.1 went into effect. The parties alleged that "[a]t a minimum, further proceedings are required for resentencing" of Paden.

On February 24, 2015, Paden filed a Rule 29.07(d) motion to withdraw his guilty plea. Paden alleged that his guilty plea was entered on the mistaken belief that any sentences he received were required to run consecutively, which made the effective range of punishment from twenty to sixty years. He claimed that he would not have entered into any agreement that deprived him of the opportunity to argue for the statutory minimum of ten years, and that he would have sought a different plea agreement or taken the matter to trial. He claimed that if he had known that he could be awarded a ten-year minimum sentence from a jury, then he would have taken that risk, or sought a different plea arrangement from the prosecution.

A hearing was held on March 11, 2016, addressing the Rule 29.12(b) motion and the Rule 29.07(d) motion. At that hearing, the State offered three pre-plea emails sent by the State to defense counsel that showed that, if Paden chose not to accept the plea offer and intended to proceed to trial, the State intended to amend the charges "to reflect multiple additional counts as a predatory sexual offender." No other evidence or witnesses were presented.

The motion court entered an order on March 21, 2016, denying Paden's Rule 29.07(d) motion to withdraw his guilty plea, granting the parties' joint motion under Rule 29.12(b) to remand for further proceedings, and scheduling a resentencing hearing for April 15, 2016. Before the resentencing hearing took place, Paden appealed the court's denial of his Rule 29.07(d) motion. We address that appeal herein.

In Paden's sole point on appeal he contends that the motion court abused its discretion in denying his Rule 29.07(d) motion to withdraw his guilty plea because Rules 29.07(d) and 24.02(b)(1) require that a defendant be informed of the proper range of punishment, and Paden was not informed of the proper range of punishment, in that the State, the court, and his own counsel all informed him of the wrong range of punishment, and he was prejudiced thereby because he entered into a plea of guilty that he would not otherwise have entered. He argues that the court had authority to consider his Rule 29.07(d) motion, and decide his included Rule 24.02(b)(1) complaint, because he was recalled from the Department of Corrections for resentencing and his Rule 29.07(d) motion was filed before resentencing and remand to the Department of Corrections. Paden further contends that, pursuant to State v. Ralston, 39 S.W.3d 546, 549 (Mo. App. 2001), because he has been remanded from the custody of the Department of Corrections for resentencing he need only show by a preponderance of the evidence that his guilty plea was entered upon mistake or misapprehension, rather than prove the more stringent manifest injustice standard required under Rule 29.07(d) when the motion is made after sentencing.

"In reviewing the denial of a motion to withdraw guilty plea pursuant to Rule 29.07, the reviewing court is to determine whether the trial court abused its discretion or was clearly erroneous." McCoy v. State, 456 S.W.3d 887, 890 (Mo. App. 2015). "It is the burden of the defendant to prove by a preponderance of the evidence that the motion court erred." Id.

As a preliminary matter, we first address whether the circuit court had authority to entertain Paden's and the State's Rule 29.12(b) "Joint Motion to Remand for Further Proceedings." Although the appeal herein involves the court's denial of Paden's Rule 29.07(d) motion,⁵ Paden argues that the court's ruling on the Rule 29.12(b) motion authorizes his Rule 29.07 motion and also governs his burden of proof on his Rule 29.07 motion. Because our analysis of the Rule 29.07 motion hinges on the validity of the Rule 29.12(b) order, we first review the status of that order.

Paden pled guilty to the charges on August 17, 2015. The court's sentencing Judgment was signed and filed on November 2, 2015. On January 27, 2016, Paden and the State filed their "Joint Motion to Remand for Further Proceedings" pursuant to Rule 29.12(b). The court granted that motion, ordering "that this cause is set for resentencing on the 15^th day of April, 2016 at 1:30 P.M." The court had no authority to enter that order.

"A final judgment in a criminal case occurs ‘when a sentence is entered.’ " State v. Joordens, 347 S.W.3d 98, 100 (Mo. App. 2011) (quoting State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994) ).

When a judgment becomes final, the circuit court's ability to act is halted and the appellate court's ability to review commences. City of Greenwood v. Martin Marietta Materials, Inc., 311 S.W.3d 258, 267 (Mo. App. 2010). ‘[O]nce judgment and sentencing occur in a criminal proceeding, the trial court has exhausted its jurisdiction. The trial court can take no further action in that case except when otherwise expressly provided by statute or rule.’ State ex rel. Simmons v. White, 866 S.W.2d 443, 445 (Mo. banc 1993) (emphasis added) (citing State ex rel. Wagner v. Ruddy

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