Brown v. State

600 S.W.3d 829

Angela L. BROWN, Appellant,

v.STATE of Missouri, Respondent.

ED 108001

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: March 10, 2020

Steven Kratky, 1010 Market Street, Suite 1100, Saint Louis, MO 63101, for appellant.

Eric Schmitt, Shaun J. Mackelprang, P.O. Box 899, Assistant Attorney General, Jefferson City, MO 65102, for respondent.

OPINION

Robin Ransom, J.

Angela Brown ("Brown") appeals from the motion court's order dismissing without prejudice her Rule 24.035¹ post-conviction motion to vacate, set aside, or correct the judgment and sentence. Brown argues the trial court clearly erred in dismissing her post-conviction motion because "premature" motions for post-conviction relief, such as hers, do not warrant dismissal—rather, they should be held in abeyance until such time as they mature. We affirm the motion court's order dismissing Brown's motion without prejudice.

Background

The State charged Brown by information with one count of stealing a controlled substance, a class D felony, in violation of Section 570.030,² and one count of possession of a controlled substance in county jail, a class D felony, in violation of Section 221.111. Brown pleaded guilty to the stealing charge in exchange for the State entering a nolle prosequi on the possession charge. On February 1, 2019, the trial court suspended imposition of sentence and placed Brown on five years of supervised probation.

On February 13, 2019, Brown filed a pro se motion to vacate, set aside, or correct the judgment or sentence pursuant to Rule 24.035. The motion court sua sponte dismissed Brown's Rule 24.035 motion without prejudice. In its order of dismissal, the motion court reasoned that, because the trial court had suspended imposition of Brown's sentence, "there is no sentence which may be vacated, set aside or corrected." Brown, through her appointed counsel, filed a motion to vacate or amend the order of dismissal pursuant to Rules 75.01 and 78.07(d), which the motion court denied after a hearing. This appeal follows.

Standard of Review

We review the dismissal of a Rule 24.035 post-conviction motion for whether the motion court's findings and conclusions were clearly erroneous. Mo. R. Crim. P. 24.035(k) ; McKay v. State , 520 S.W.3d 782, 785 (Mo. banc 2017). Clear error occurs when a review of the entire record leaves us with a "definite and firm impression" the motion court was mistaken. Id. We presume the motion court's ruling was correct.

Garris v. State , 389 S.W.3d 648, 652 (Mo. banc 2012).

Discussion

In her sole point on appeal, Brown argues the motion court clearly erred in dismissing without prejudice the Rule 24.035 motion she filed following her guilty plea, for which she received a suspended imposition of sentence ("SIS"). Brown contends her motion should not have been dismissed and, rather, should have been held in abeyance because it was "premature." We disagree.

a. A movant lacks standing to file a Rule 24.035 motion where no conviction is entered and imposition of sentence remains suspended

Rule 24.035 provides an avenue for post-conviction relief from a felony conviction or sentence following a guilty plea. Mo. R. Crim. P. 24.035(a). Because an individual who has received an SIS has neither a conviction nor a sentence imposed—and may never have a conviction or a sentence imposed—she or he does not have standing to file for post-conviction relief pursuant to Rule 24.035.

To have standing to file a post-conviction motion pursuant to Rule 24.035, a movant must have a conviction entered and sentence imposed. Mo. R. 24.035(a) ; Johnson v. State , 833 S.W.2d 451, 452 (Mo. App. S.D. 1992) (stating " Rule 24.035(a) defines who is entitled to file a motion under that Rule"); see also Ramsey v. State , 98 S.W.3d 578, 579 (Mo. App. E.D. 2002) (discussing requirements listed in Rules 29.15 and 24.035 as "requirement[s] for standing to file the motion[s]"). The plain language of Rule 24.035 imposes this standing requirement by defining the nature of the remedy as for "[a] person convicted of a felony on a plea of guilty claiming that the conviction or sentence imposed violates the constitution and laws...." Mo. R. Crim. P. 24.035(a) (emphasis added). We must give effect to the intent of the Missouri Supreme Court as manifested by the plain language of the Rule. State ex rel. Vee-Jay Contracting Co. v. Neill , 89 S.W.3d 470, 472 (Mo. banc 2002) ("[t]his Court's intent is determined by considering the plain and ordinary meaning of the words in the Rule"); cf. Lane House Const., Inc. v. Ogrowsky , 427 S.W.3d 882, 885–86 (Mo. App. E.D. 2014) (stating "the plain, unambiguous, and simple directive of Rule 59.01 controls" when deciding whether Rule allowed premature propounding of requests for admission).

Without a conviction entered or a sentence imposed, an individual has nothing to challenge by means of a post-conviction motion. See Searcy v. State , 103 S.W.3d 201, 204 (Mo. App. W.D. 2003) ("[t]o permissibly challenge a conviction or sentence with a Rule 24.035 post-conviction motion, a movant must be (1) convicted of a felony, and (2) delivered to the custody of the department of corrections for the same conviction being contested"); McGowan v. State , 949 S.W.2d 657, 658 (Mo. App. S.D. 1997) (same); Johnson , 833 S.W.2d at 452–53 ("the first sentence of Rule 24.035(a) indicates that, in order to seek Rule 24.035 relief, a person must (1) be convicted of a felony on a guilty plea, (2) be delivered to the custody of the department of corrections, and (3) claim the judgment or the sentence imposed to be unconstitutional or illegal") (internal quotations omitted).³

It is well settled under Missouri law that an SIS is neither a conviction nor a sentence. Roe v. Replogle , 408 S.W.3d 759, 762 n.2 (Mo. banc 2013) (confirming SIS is not considered "conviction" under Missouri law); Hoskins v. State , 329 S.W.3d 695, 698 n.3 (Mo. banc 2010) (contrasting suspended execution of sentence with SIS and stating SIS "defers the sentencing as well as the entry of a conviction on defendant's record"); Yale v. City of Independence , 846 S.W.2d 193, 195 (Mo. banc 1993) ("the term ‘conviction,’ standing alone, does not include a plea or finding of guilt where imposition of sentence is suspended ..."). Indeed, Brown correctly concedes she does not have a judgment of conviction and sentence to set aside. Because an SIS is not a conviction or sentence, an individual who has received an SIS after a guilty plea cannot file for relief pursuant to Rule 24.035.

Had the Missouri Supreme Court intended to allow an individual to file a Rule 24.035 motion after receiving an SIS, prior to entry of conviction or imposition of sentence, the Supreme Court would have written so in the Rule.⁴ Cf. Carr v. Sheriff of Clay Cty. , 210 S.W.3d 414, 417 (Mo. App. W.D. 2006) (noting that, "if the legislature intended to enable persons who plead guilty to a crime and receive a suspended imposition of sentence to be granted a permit to acquire a concealable firearm, the legislature would not have included" the language "persons who have pled guilty to a specified class of crimes," which includes an SIS, in addition to the language "persons who have been convicted of a specified class of crimes"). Rule 24.035 contains none of the phrases recognized by the Missouri Supreme Court to include suspended impositions of sentence, such as "pleaded guilty to or had been found guilty of," "prior pleas of guilty, pleas of nolo contendere and findings of guilt," or "plea of guilty, finding of guilt, or disposition of suspended imposition of sentence." See, e.g. , Yale , 846 S.W.2d at 195 (discussing language of three statutes amended to include SIS dispositions). Instead, Rule 24.035 expressly limits its remedy to "[a] person convicted of a felony on a plea of guilty claiming that the conviction or sentence imposed violates the constitution and laws...." Mo. R. Crim. P. 24.035(a) (emphasis added).

Therefore, under the plain language of the Rule, an individual who has received an SIS and does not have a conviction entered and sentence imposed—and who may never have a conviction entered and a sentence imposed—lacks standing to file a Rule 24.035 post-conviction motion until the time conviction is entered and sentence is imposed.⁵ Because Brown received an SIS and remains on probation, she has neither a conviction nor a sentence to challenge. Therefore, at this time, Brown does not have standing to file a post-conviction motion pursuant to Rule 24.035.

b. A Rule 24.035 motion filed where imposition of sentence is suspended is not "premature"

Brown's argument that her Rule 24.035 motion should be held in abeyance rather than dismissed without prejudice rests primarily on McKay v. State , 520 S.W.3d 782 (Mo. banc 2017). In McKay , the Missouri Supreme Court clarified that "premature" post-conviction motions under Rules 29.15 and 24.035 are to be held in abeyance until such time as they mature, rather than be dismissed. Id. at 784–87. We agree with Brown's contention that premature post-conviction motions must be held in abeyance until the time they mature, as dictated by McKay . However, we disagree that Brown's motion should be considered "premature" under Rule 24.035 ; instead, as discussed above, she lacks standing to file the motion.

In McKay v. State , the Missouri Supreme Court held the trial court erred in dismissing as successive movant's Rule 29.15 post-conviction motion. Id. at 788. In so holding, the Court found that movant's initial Rule 29.15 motion was premature, because it was filed prior to a determination on appeal whether the entire judgment of conviction would be affirmed, and therefore the premature initial motion could not provide the basis for dismissing a subsequent motion as successive. Id. at 785–88. The Court also directed that the motion court should have held the prematurely filed initial motion in abeyance until "the time for filing of the ...