600 S.W.3d 852
Mo. Ct. App.2020Background
- Wolf pleaded guilty (Aug 30, 2011) to class D felony child nonsupport pursuant to a plea agreement: suspended imposition of sentence, 4 years probation, and monthly payments totaling $500 ($395 current support + $105 toward arrears).
- He admitted facts supporting the plea and that he knowingly and voluntarily waived rights; the court accepted the plea and imposed the payment condition as part of probation.
- Over several years the State filed repeated motions to revoke for nonpayment; Wolf repeatedly failed to appear, admitted violations, and in 2015 waived a revocation hearing and admitted a violation. The court revoked probation and sentenced him to four years’ imprisonment (Oct. 2015).
- Wolf filed a Rule 24.035 postconviction motion (Nov. 2015) alleging ineffective assistance; it was denied and an appeal was dismissed under the escape rule.
- In July 2019 Wolf filed a Rule 29.07(d) motion to withdraw his guilty plea for manifest injustice, alleging he was misled/mistaken because the $500/month condition did not have evidence it complied with § 568.040.6(1) (aggregate payments not over 50% of adjusted gross income). The trial court denied the motion (Aug. 8, 2019), and Wolf appealed.
Issues
| Issue | Plaintiff's Argument (Wolf) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Wolf may withdraw his plea post-sentencing for manifest injustice because he was misled/mistaken about the probation payment condition (§ 568.040.6(1) compliance) | The $500/month condition was imposed without evidence it was not greater than 50% of his adjusted gross income; thus plea was induced by mistake/misapprehension and is manifest injustice. | The claim attacks plea voluntariness and therefore falls within Rule 24.035; Wolf did not raise it in his timely Rule 24.035 motion, so it is time‑barred and procedurally defaulted; moreover he agreed to the payment in the plea. | The claim is within Rule 24.035, was not preserved there, and is procedurally barred; appeal dismissed. |
| Whether absence of a transcript of the Sept. 10, 2015 revocation hearing prevents meaningful appellate review | The missing revocation hearing transcript prevents review of whether the revocation/sentence or related facts support his 29.07(d) motion. | Wolf did not show due diligence in obtaining the transcript or how the missing record prejudiced his appeal; the dispositive Rule 24.035 procedural bar makes the transcript issue unnecessary to decide. | Court declined to reach the point because point one is dispositive; Wolf failed to show diligence or prejudice regarding the missing transcript. |
Key Cases Cited
- Brown v. State, 66 S.W.3d 721 (Mo. banc 2002) (post-sentencing Rule 29.07(d) relief is limited; voluntariness claims fall under Rule 24.035)
- State v. Paden, 533 S.W.3d 731 (Mo. App. W.D. 2017) (Rule 29.07(d) post-sentencing relief restricted; plea voluntariness belongs in Rule 24.035)
- State v. Onate, 398 S.W.3d 102 (Mo. App. W.D. 2013) (same principle limiting post-sentencing Rule 29.07(d) relief)
- Loutzenhiser v. Best, 565 S.W.3d 723 (Mo. App. W.D. 2018) (issues not raised below are not preserved for appeal)
- State v. Backues, 568 S.W.3d 892 (Mo. App. W.D. 2018) (affirming dismissal where Rule 29.07(d) claim was procedurally barred under Rule 24.035)
- State v. Barber, 391 S.W.3d 2 (Mo. App. W.D. 2012) (appellant must show due diligence and prejudice to obtain reversal for missing transcript)