Wartenbe v. State

Decision Date13 August 2019
Docket NumberNo. ED 106462,ED 106462
Citation583 S.W.3d 115
Parties Michael D. WARTENBE, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Alexandria A. Shah, 1010 Market St., Suite 1100, St. Louis, MO 63101, for appellant.

Gregory L. Barnes, P.O. Box 899, Jefferson City, MO 65102, for respondent.

KURT S. ODENWALD, Judge

Introduction

Michael D. Wartenbe ("Wartenbe") appeals the motion court’s dismissal of his Rule 24.0351 motion based on the escape rule. Wartenbe raises two points on appeal. Point One posits that the motion court improperly invoked the escape rule without ruling on the merits of Wartenbe’s claims, thereby violating his constitutional rights. Point Two maintains that the motion court violated Wartenbe’s statutory right to seek post-conviction relief by dismissing his Rule 24.035 motion. Recognized judicial authority clearly establishes that the motion court’s application of the escape rule did not violate Wartenbe’s constitutional rights. Further, Section 547.3 602 does not create an absolute statutory right to seek post-conviction relief. Because the motion court did not abuse its discretion in applying the escape rule to dismiss Wartenbe’s post-conviction motion, Wartenbe fails to establish clear error. Accordingly, we affirm the motion court’s dismissal.

Factual and Procedural History

Wartenbe was involved in various activities that culminated with Wartenbe driving and losing control of a truck in which two minor children were passengers. Wartenbe drove the truck into a ditch and damaged a nearby mailbox. The two children were injured as a result of the incident. Wartenbe left the scene before the police arrived. The State charged Wartenbe with two counts of endangering the welfare of a child in the first degree, two counts of tampering in the first degree, two counts of assault in the second degree, one count of leaving the scene of a motor vehicle accident, and one count of property damage in the second degree.

On December 3, 2014, Wartenbe entered a group plea in which he pleaded guilty to the two tampering charges and to leaving the scene of a motor vehicle accident. The State dismissed the remaining counts. The plea court accepted Wartenbe’s guilty plea and sentenced him to eighteen years in prison. The plea court then suspended the execution of Wartenbe’s sentence and placed him on supervised probation for five years.

On October 28, 2015, after reviewing an allegation that Wartenbe violated his conditions of probation, the circuit court suspended Wartenbe’s probation and scheduled a probation revocation hearing for December 2, 2015. The circuit court rescheduled the hearing for May 3, 2016. At the hearing, Wartenbe admitted to violating his probation by failing to pay restitution. The circuit court instructed Wartenbe to make a payment toward restitution and it reinstated his probation with the expectation that the remaining restitution be paid in full by the next court date. The circuit court then continued the case to August 2, 2016 for a probation violation hearing.

On June 13, 2016, Wartenbe’s mother informed the probation officer that she had checked Wartenbe into a hospital due to severe panic attacks. The probation officer instructed the mother to have Wartenbe contact the officer if the hospital did not discharge him within one week. On June 22, 2016, Wartenbe failed to report to his probation officer. The probation officer unsuccessfully attempted to contact Wartenbe. Wartenbe again failed to report to the probation officer on June 29, 2016, July 6, 2016, and July 27, 2016. When Wartenbe did not appear for the August 2, 2016 probation violation hearing, the circuit court issued a warrant for his arrest. Wartenbe was taken into custody on November 15, 2016.

On December 6, 2016, the circuit court revoked Wartenbe’s probation and executed his eighteen-year sentence after Wartenbe admitted his failure to report to his probation officer. Wartenbe later sought post-conviction relief pursuant to Rule 24.035, alleging various errors by the plea court and plea counsel when Wartenbe initially entered his guilty plea. The motion court first granted Wartenbe’s request for an evidentiary hearing, but later, upon the State’s motion, dismissed Wartenbe’s Rule 24.035 motion without an evidentiary hearing, pursuant to the escape rule. Wartenbe now appeals.

Points on Appeal

Wartenbe raises two points on appeal, both alleging motion-court error. In Point One, Wartenbe contends that the motion court’s application of the escape rule without ruling on the merits of his post-conviction claims denied Wartenbe his constitutional rights. In Point Two, Wartenbe posits that the motion court’s dismissal of his Rule 24.035 motion under the escape rule violated his statutory right to seek post-conviction relief.

Standard of Review

We review a motion court’s dismissal of a movant’s Rule 24.035 motion for clear error. Rule 24.035(k) ("Appellate review of the [motion] court’s action on the motion filed under this Rule 24.035 shall be limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous."); Musgrove v. State, 567 S.W.3d 237, 239 (Mo. App. S.D. 2018). "Findings and conclusions are clearly erroneous only if, after a review of the entire record, the court is left with a definite and firm impression that a mistake has been made." Echols v. State, 168 S.W.3d 448, 451 (Mo. App. W.D. 2005) (internal citation omitted).

Discussion

Wartenbe raises a myriad of constitutional and statutory challenges to the motion court’s application of the escape rule to dismiss his post-conviction claims. In his constitutional challenge, Wartenbe argues that the application of the escape rule denies him his rights to substantive and procedural due process, to be free from cruel and unusual punishment, to separation of powers, to access to the courts, and to be free from double jeopardy in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I §§ 10, 14, 18(a), 19, and 21, and Article II, Sect. 1 of the Missouri Constitution. Because Wartenbe raises multiple constitutional challenges in one point on appeal, his point on appeal is multifarious. See Peters v. Johns, 489 S.W.3d 262, 268 n.8 (Mo. banc 2016) ; see also Kirk v. State, 520 S.W.3d 443, 450 n.3 (Mo. banc 2017) (internal citation omitted) ("A point relied on violates Rule 84.04(d) when it groups together multiple, independent claims rather than a single claim of error, and a multifarious point is subject to dismissal."). "Multifarious points relied on are noncompliant with Rule 84.04(d) and preserve nothing for review." Kirk, 520 S.W.3d at 450 n.3 (quoting Peters, 489 S.W.3d at 268 n.8 ). We nonetheless exercise our discretion to address Wartenbe’s most developed constitutional claim: whether application of the escape rule violates Wartenbe’s right to due process.

Importantly, neither the United States nor Missouri Constitutions grants Wartenbe a right to post-conviction relief. And because the judicially created escape rule empowers a motion court to invoke a valid exception to Wartenbe’s otherwise statutorily permissive motion for post-conviction relief, the motion court did not err in dismissing Wartenbe’s Rule 24.035 motion.

I. Point One—the Escape Rule and Wartenbe’s Constitutional Right to Due Process

Post-conviction proceedings are not criminal proceedings, but are considered civil in nature. Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Post-conviction proceedings are "collateral attack[s] that normally occur[ ] only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief[.]" Id. at 557, 107 S.Ct. 1990 (holding that defendants have no constitutional right to counsel for post-conviction proceedings). Instead, "[i]t is within the ‘substantial discretion’ of the states to determine post-conviction procedures." Smith v. State, 887 S.W.2d 601, 602 (Mo. banc 1994) (quoting Finley, 481 U.S. at 559, 107 S.Ct. 1990 ). In pursuing a post-conviction motion, the movant "is entitled only to the procedures available under the Rule." Id. The escape rule is a procedural doctrine established "to protect the orderly and efficient use of [the court’s] resources" in post-conviction proceedings. State v. Troupe, 891 S.W.2d 808, 811 (Mo. banc 1995) ; Nichols v. State, 131 S.W.3d 863, 865 (Mo. App. E.D. 2004).

"The escape rule is a judicially-created doctrine that operates to deny the right of appeal to a criminal defendant who escapes justice." Parsons v. State, 383 S.W.3d 71, 73 (Mo. App. E.D. 2012) (quoting Crawley v. State, 155 S.W.3d 836, 837 (Mo. App. E.D. 2005) (per curiam)); see also State v. McKay, 519 S.W.3d 886, 888 (Mo. App. E.D. 2017). "In post-conviction cases, the escape rule has been invoked both to dismiss appeals where the motion court reached the merits of the movant’s claim and to affirm the motion court’s dismissal of a motion based on its own application of the rule." Echols, 168 S.W.3d at 451. "There is no threshold amount of time an appellant must have escaped justice before dismissal is allowed." Holmes v. State, 92 S.W.3d 193, 196 (Mo. App. W.D. 2002). "In applying the escape rule, the relevant inquiry is whether the escape adversely affects the criminal justice system. If so, dismissing the escapee’s appeal is appropriate." Troupe, 891 S.W.2d at 811.

Missouri courts have justified using the escape rule to procedurally bar review of an appeal or post-conviction motion of an escaping defendant on the following grounds:

(1) the need for a court to have control over the defendant before making a decision on appeal; (2) curtailment of administrative problems caused by the defendant’s long absence; (3) preventing prejudice to the State in the event of remand for a new trial; (4) preventing the defendant from
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    ...Id. "There is no threshold amount of time an appellant must have escaped justice before dismissal is allowed." Wartenbe v. State , 583 S.W.3d 115, 121 (Mo. App. E.D. 2019) (quoting Holmes v. State , 92 S.W.3d 193, 196 (Mo. App. W.D. 2002) ). The central inquiry is whether "the escape advers......
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