State v. Thomas

• Decision Date: 17 December 2002
• Docket Number: No. WD 59995.,WD 59995.
• Parties: STATE of Missouri, Respondent, v. Jerald W. THOMAS, Appellant.
• Court: Missouri Court of Appeals

96 S.W.3d 834

STATE of Missouri, Respondent, v. Jerald W. THOMAS, Appellant.

No. WD 59995.

Missouri Court of Appeals, Western District.

December 17, 2002.

Motion for Rehearing and/or Transfer to Supreme Court January 28, 2003.

Application for Transfer Denied March 4, 2003.

David E. Fischer, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Philip M. Koppe, Assistant Attorney General, Kansas City, MO, for Respondent.

Before: PAUL M. SPINDEN, P.J., PATRICIA A. BRECKENRIDGE and THOMAS H. NEWTON, JJ.

THOMAS H. NEWTON, Judge.

Mr. Jerald W. Thomas appeals the judgment of the plea court, which, pursuant to his guilty plea to four counts of drug trafficking, sentenced him to serve an aggregate term of forty-five years incarceration.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 15, 2000, Mr. Thomas was charged by indictment in Lafayette County Circuit Court with four counts of distribution, delivery, or sale of a controlled substance in violation of § 195.211¹. On July 10, 2000, the Lafayette County prosecuting attorney filed an information in lieu of indictment which added the allegations that Mr. Thomas was a "prior drug offender" under §§ 195.275, 195.285.1, 195.291.1 and also, that he was a "persistent drug offender" under §§ 195.275, 195.285.2, and 195.291.2.

On July 19, 2000, Mr. Thomas filed a motion for change of venue and change of judge. The motion was sustained and this matter was transferred to the Clay County Circuit Court.

Mr. Thomas withdrew his prior pleas of not guilty to the aforementioned charged crimes on February 9, 2001. He formally entered guilty pleas on all four counts. At the plea hearing, the State presented evidence that Mr. Thomas was a "prior drug offender," and the sentencing range on each count was ten to thirty years, or life imprisonment.

Finally, during the hearing, the plea agreement that Mr. Thomas had reached with the State was discussed. In this plea agreement, the State promised not to seek a finding that Mr. Thomas was a "persistent drug offender," which would have required that the sentence be served without the possibility of parole. In addition, it was explained that, pursuant to the plea agreement, the State was going to recommend concurrent sentences on each of the four counts but would not request sentences of any particular length.

After the terms of the plea agreement were explained, the plea court stated for the record that "in this circuit there is also no such thing as a binding plea agreement" and that "the court is not bound by anything you all agree to." After this admonition, the plea court granted a brief recess to allow Mr. Thomas to consult with his attorney. When the hearing resumed, the plea court went back over the aforementioned terms of Mr. Thomas' guilty plea. Upon the plea court's satisfaction that Mr. Thomas understood all of these terms, it found that there was a factual basis to accept his guilty plea in light of the fact that it was knowingly and voluntarily entered into by him. At the conclusion of this hearing, the plea court made the finding that Mr. Thomas was a "prior drug offender," and, therefore, "the range of punishment is therefore enhanced."

On May 2, 2001, the parties reconvened in court for sentencing. After hearing arguments by the opposing parties, the court announced Mr. Thomas' sentence: twenty years for each count of Count I and II to run concurrently, and twenty-five years for each count of Count III and IV to run concurrently. However, Counts I and II were ordered to run consecutively with Counts III and IV, for an aggregate sentence of forty-five years.

Immediately after the sentence was handed down by the plea court, Mr. Thomas objected to the sentencing on the basis that it was his understanding that any sentence imposed on the counts was to run concurrently based on the agreement reached with the prosecuting attorney. The plea court replied that it was not bound by such an agreement and that that fact was explained to Mr. Thomas orally before he entered his plea of guilty, and it was also explained in writing in a petition to enter a guilty plea. Mr. Thomas then made an oral motion to withdraw plea of guilty, which was denied by the court. On May 14, 2001, Mr. Thomas filed his [Notice of Appeal] in regard to his judgment and sentencing.

On or about May 15, 2001,² Mr. Thomas made a written motion to withdraw guilty plea under Rule 29.07(d),³ raising similar arguments to those that he brought before the court in his oral motion. Citing Rule 24.02(d)(4), it was argued in the motion that the plea court failed to follow the Supreme Court rules in regard to entering guilty pleas by not allowing Mr. Thomas an opportunity to withdraw his guilty plea after the plea court rejected the plea agreement reached between him and the State. A hearing was held on this motion on May 30, 2001. On that same day, the court denied the motion to withdraw the guilty plea.

Mr. Thomas brings two points on appeal. In his first point, it is argued that the plea court erred in denying his motion to withdraw guilty plea because the court failed to follow Rule 24.02(d)(4) in accepting his plea of guilty "without first (1) informing Appellant of its intent to [deviate from the plea agreement], and (2) giving Appellant the opportunity to withdraw his guilty pleas." In the second point, he contends that the plea court erred in denying his motion to disqualify the judge and transfer the matter because of the court's alleged bias and prejudice.

The State brings a third point on appeal, alleging that this court does not have jurisdiction to hear Mr. Thomas' arguments. This alleged lack of jurisdiction is because the appeal was allegedly brought as a direct appeal, and the limited scope of arguments that can be heard in regard to a direct appeal of a guilty plea precludes Mr. Thomas from raising the arguments that he did in his brief before this court.

II. STANDARD OF REVIEW

The standard of review of the circuit court's denial of a Rule 29.07 motion was recently stated by this court in State v. Ralston, 41 S.W.3d 620, 621-22 (Mo.App. W.D.2001), as follows:

A defendant does not have an absolute right to withdraw a guilty plea. State v. Mandel, 837 S.W.2d 571, 573 (Mo.App. 1992). Such relief should be granted by a motion court only upon a showing that the relief of withdrawal of the plea is necessary to correct manifest injustice. State v. Hasnan, 806 S.W.2d 54, 55 (Mo. App.1991). 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. Scroggins v. State, 859 S.W.2d 704, 706 (Mo.App.1993). It is the burden of the defendant to prove by a preponderance of the evidence that the motion court erred. Id. at 706-07.

If appellant's plea of guilty was voluntary and was made with an understanding of the charges against him, there can be no manifest injustice inherent in the plea. Winford v. State, 485 S.W.2d 43 49 (Mo. banc 1972); Scroggins, 859 S.W.2d at 707. If a defendant is misled or induced to enter a plea of guilty by fraud, mistake, misapprehension, coercion, duress or fear, he or she should be permitted to withdraw the plea. Latham v. State, 439 S.W.2d 737, 739 (Mo. 1969); Scroggins, 859 S.W.2d at 707. "Unawareness of certain facts at the time of a plea does not necessarily render the plea unintelligent or involuntary." Id.; State v. Nielsen, 547 S.W.2d 153, 161 (Mo.App.1977).

Id. (quoting State v. Pendleton, 910 S.W.2d 268, 270 (Mo.App. W.D.1995)).

III. LEGAL ANALYSIS

At the outset of this appeal, we must address the State's argument that jurisdiction to hear the substance of Mr. Thomas' appeal is not proper before this court. It is the State's contention that Mr. Thomas failed to appeal the plea court's denial of his Rule 29.07(d) motion to withdraw his guilty plea, and, therefore, Mr. Thomas' appeal in this matter is restricted solely to those issues that may be brought in a direct appeal from the entry of a guilty plea. "In a direct appeal of a guilty plea, our review is restricted to the subject-matter jurisdiction of the trial court and the sufficiency of the information or indictment." State v. Sharp, 39 S.W.3d 70, 72 (Mo.App. E.D.2001) (citing State v. Le-Page, 536 S.W.2d 834, 835 (Mo.App. W.D. 1976)).

In making this argument, the State asserts that Mr. Thomas filed his notice of appeal in this matter on May 14, 2001, which was after the plea court handed down his sentence pursuant to his guilty plea on May 2, 2001. However, because this notice of appeal was filed before Mr. Thomas filed his Rule 29.07(d) motion on May 15, 2001, and before the plea court issued a written order denying the motion on May 30, 2001, it is contended that this notice is ineffective to appeal the denial of his Rule 29.07(d) motion. Moreover, the State demonstrates from the absence in the legal file, that Mr. Thomas failed to file an additional notice of appeal for the denial of his Rule 29.07(d) motion. Finally, the argument concludes, because Mr. Thomas' two points on appeal go beyond the limited scope of a direct appeal from the entry of a guilty plea, this court does not have jurisdiction to hear his appeal.

We find that Mr. Thomas' appeal was properly filed, and, therefore, we have jurisdiction to hear its merits. "A Rule 29.07(d) motion to revoke a guilty plea is a civil proceeding." State v. Larson, 79 S.W.3d 891, 893 (Mo. banc 2002) (citing Brown v. State, 66 S.W.3d 721, 724-25 (Mo. banc 2002)). Recently, the Supreme Court of Missouri reviewed the history of Rule 29.07 at length in Brown and concluded that "[w]hen the content of Rule 27.25 was moved to Rule 29.07(d) in 1980, motions under it continued to be treated procedurally as were motions filed under Rule 27.26." 66 S.W.3d at 725 (emphasis added). This is significant because "[m]otions under S.Ct. Rule 27.25 and 27.26 by a prisoner to...