State v. Ryan

• Decision Date: 15 July 1991
• Docket Number: No. 17193,17193
• Citation: 813 S.W.2d 898
• Parties: STATE of Missouri, Respondent, v. Jerry S. RYAN, Appellant.
• Court: Missouri Court of Appeals

Page 898

813 S.W.2d 898

STATE of Missouri, Respondent, v. Jerry S. RYAN, Appellant.

No. 17193.

Missouri Court of Appeals,

Southern District,

Division One.

July 15, 1991.

Motion for Rehearing or to Transfer to

Supreme Court Denied Aug. 6, 1991.

Application to Transfer Denied Sept. 10, 1991.

John A. Klosterman, Columbia, for appellant.

William L. Webster, Atty. Gen., Barbara J. Wood, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

On December 15, 1989, appellant Jerry S. Ryan was arraigned on a charge of driving while intoxicated. The information averred appellant, in violation of § 577.010, ¹ operated a motor vehicle October 31, 1989, while in an intoxicated condition. The information also pled appellant was a persistent offender as defined by § 577.023.1(2) in that "on January 13, 1989, [appellant] was convicted of Driving Under the Influence of Alcohol in Union County, Illinois and on July 25, 1988, [appellant] was convicted of Driving Under the Influence of Alcohol in Jackson County, Illinois."

Section 577.023 reads, in pertinent part:

"1. For purposes of this section, unless the context clearly indicates otherwise:

(1) An 'intoxication-related traffic offense' is driving while intoxicated, driving with excessive blood alcohol content, or driving under the influence of alcohol ... in violation of state law;

(2) A 'persistent offender' is one who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses committed at different times within ten years of a previous intoxication-related traffic offense conviction; and

....

3. Any person who pleads guilty to ... a violation of section 577.010 or 577.012 who is alleged and proved to be a persistent offender shall be guilty of a class D felony....

...."

Appellant pled guilty and, in accordance with a plea agreement, was sentenced to three years' imprisonment.

Over seven months later, on July 17, 1990, appellant sought to invoke Rule 29.07(d) ² by filing a motion for an order setting aside the judgment of conviction and permitting him to withdraw his plea. Rule 29.07(d) reads:

"A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."

Appellant's motion asserted the term "intoxication-related traffic offense" as defined by § 577.023.1(1) is restricted to violations of § 577.010 (driving while intoxicated) or § 577.012 (driving with excessive blood alcohol content) resulting in conviction "in a Missouri state court." Consequently, reasoned the motion, appellant's two Illinois convictions could not supply a basis for finding him a persistent offender under § 577.023. The motion maintained appellant was chargeable only with driving while intoxicated, first offense, a class B misdemeanor. § 577.010.2. The maximum term of imprisonment for a class B misdemeanor is six months. § 558.011.1(6).

In an order unadorned with conclusions of law, the trial court denied appellant's motion. This appeal followed.

Appellant presents one point relied on; it reads:

"The [trial] court abused its discretion by denying appellant's motion to set aside his judgment and sentence and allow him to withdraw guilty plea because the court did not have jurisdiction to enter its judgment and sentence of guilty of felony driving while intoxicated, sections [sic] 577.010 as enhanced by section 577.023, in that appellant's previous convictions in Illinois did not fulfill the requirement of two previous convictions for intoxication-related traffic offenses because section 577.023 defines alcohol related offenses as violations of Missouri law."

Before addressing this issue, we confront the question of appealability of the trial court's order. There are cases holding an order denying a defendant's motion to withdraw his plea of guilty is appealable. In some of them, the motion was made before sentence was pronounced. Belcher v. State, 801 S.W.2d 372 (Mo.App.1990); State v. England, 599 S.W.2d 942 (Mo.App.1980); State v. Nielsen, 547 S.W.2d 153 (Mo.App.1977). In State v. Skaggs, 248 S.W.2d 635 (Mo.1952), the motion was made after sentence was pronounced. It is inferable from Forsythe v. State, 779 S.W.2d 309 (Mo.App.1989), that the motion there was also filed after sentencing. Consequently, there is authority that an appeal lies from the order challenged here.

There is, however, a crucial procedural issue unaddressed by either side.

Appellant was sentenced the date he pled guilty--December 15, 1989. His motion of July 17, 1990, to set aside the conviction and permit withdrawal of his guilty plea averred he had served at least six months in the Department of Corrections at the time the motion was filed.

Rule 24.035 reads:

"(a) Nature of Remedy--Rules of Civil Procedure Apply. A person convicted of a felony on a plea of guilty and delivered to the custody of the department of corrections who claims that the judgment of conviction or sentence imposed violate the ... laws of this state or ... that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this Rule 24.035. This Rule 24.035 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated....

(b) Form of Motion--Time to File--Cost Deposit Not Required--Failure to File, Effect of. ... The motion shall be filed within ninety days after the movant is delivered to the custody of the department of corrections. Failure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed under this Rule 24.035.

...."

Appellant's motion acknowledged the time for seeking relief under Rule 24.035 had expired. This is evidently why he seized upon Rule 29.07(d), which has no time limit for setting aside a judgment of conviction and allowing withdrawal of a guilty plea after sentence is imposed.

Rule 29.07(d) antedates Rule 24.035. Rule 29.07(d) was adopted by order of the Supreme Court of Missouri June 13, 1979, effective January 1, 1980. Pages XXI to CXXXIII, Missouri Cases, Vol. 580-581 S.W.2d (West 1979). Prior to January 1, 1980, a rule identical to current Rule 29.07(d) carried the number 27.25. Rule 27.25 was adopted April 14, 1952, effective January 1, 1953. Pages 4908 and 4924, Vol. 4, RSMo 1959. Rule 27.25 was repealed effective January 1, 1980, by the order that adopted current Rule 29.07(d). It is thus documented that the rule currently numbered 29.07(d) has existed unchanged since at least January 1, 1953.

By contrast, Rule 24.035 is a newcomer, having been adopted by order of the Supreme Court of Missouri effective January 1, 1988, simultaneously with the adoption of new Rule 29.15 and the repeal of former Rule 27.26. Pages XXV to XXXVII, Missouri Cases, Vol. 721-722 S.W.2d (West 1987).

Former Rule 27.26, like current Rule 29.07(d), had no time limit for commencing a proceeding to invoke it.

The time limitations for commencing a proceeding under Rule 24.035 serve the legitimate end of avoiding delay in the processing of prisoners' claims and prevent the litigation of stale claims. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, sub nom., State v. Walker, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989). Failure to file a motion under Rule 24.035 within the deadline specified therein constitutes a complete waiver of the right to proceed thereunder. Day, 770 S.W.2d at 696.

Rule 24.035(a), as we have seen, states it is the exclusive procedure by which a person convicted of a felony on a plea of guilty and incarcerated in the Department of Corrections may seek relief on certain enumerated grounds. Those grounds include a claim that the sentence violates the laws of Missouri or is in excess of the maximum authorized by law. Those are the contentions appellant asserted in the trial court and seeks to present for review here.

Appellant thus endeavors to obtain post-conviction relief under Rule 29.07(d) on grounds time-barred by Rule 24.035. We find no case since the advent of Rule 24.035 deciding whether this is allowable.

As a primary rule of construction, courts generally attempt to reconcile and harmonize rules of the Supreme Court of Missouri that appear to be in conflict if it is reasonably possible to do so. Southwest Forest Industries, Inc. v. Loehr Employment Service of Kansas City, Inc., 543 S.W.2d 322, 324 (Mo.App.1976). Rules relating to the same subject matter must be read together. Id. at 324. The purpose and intent of the Supreme Court in adopting a rule must be ascertained in order to construe the rule. Gooch v. Spradling, 523 S.W.2d 861, 866 (Mo.App.1975).

Additionally, in interpreting rules of the Supreme Court of Missouri, we use the canons of construction that guide courts in construing legislative enactments. State ex rel. DeGeere v. Appelquist, 748 S.W.2d 855, 857 (Mo.App.1988); State v. Windmiller, 579 S.W.2d 730, 732 (Mo.App.1979). Where repugnance or inconsistency exists between two statutes, courts will attempt to reconcile them and apply both, but if this is impossible the later of the two will be held to have repealed the earlier by implication, thereby giving effect to the most recently expressed legislative intent. State ex rel. McNary v. Stussie, 518 S.W.2d 630, 635 (Mo. banc 1974). In ascertaining legislative intent it is presumed the legislature, in enacting a statute, intended to effect some change in existing law, otherwise the enactment would accomplish nothing and legislatures are not presumed to have intended a useless act. Kilbane v. Director of the Department of Revenue, 544 S.W.2d 9, 11 (Mo. banc 1976).

As noted earlier, Rule 24.035 (which pertains to post-conviction relief from felony...