Defendant Earl Reynolds’ Rule 24.035 and Rule 29.07(d) motions for post-conviction re
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Reynolds wаs charged with three counts of first-degree armed robbery and two counts of armed criminal action in connection with separate robberies of three pizza deliverymen. The case came to trial on June 3, 1991. At that time, Mr. Reynolds pleaded guilty to the robbery counts pursuant to a plea agreement. As part of the agreement, the State dismissed the armed criminal action counts and recommended three concurrent fifteen year sentences for the armed robbery counts.
At that time, Mr. Reynolds discussed the terms of his plea agreement with his attorney аnd in open court with the trial judge. Mr. Reynolds does not dispute the adequacy of the plea colloquy conducted by the trial judge. In the plea colloquy, Mr. Reynolds stated that his plea was voluntary and that no one had promised him anything not before the court to induce his plea. Nо mention was made of any promise that he would be released after serving 120 days. The judge sentenced Mr. Reynolds to three concurrent fifteen year terms.
Nonetheless, almost four years later, on April 17,1995, Mr. Reynolds filed a motion to correct judgment and sentence or, in the alternative, to withdraw his guilty plea in which he alleged that his attorney told him that he had reached an unconditional agreement that he would be released after serving 120 days.
In fact, there is no provision in Missouri law under which a lawyer could unconditionally guarantee a prisoner releasе in 120 days after imposition of the sentence. Trial courts in Missouri do, however, have the power to grant probation to defendants up to 120 days after they have been delivered to the custody of the Department of Corrections. § 559.115(2), RSMo 1994. 2 This procedure, called “120-day callbаck,” allows trial courts to sentence certain defendants to “shock detention.” See § 559.120 (providing guidelines for the use of probation). The decision to grant such probation is always discretionary with the trial judge, and is made after he receives a report and recommendation frоm the Department of Corrections. § 559.115(2).
The court below held a hearing on Mr. Reynolds’ motion. At the hearing, Mr. Reynolds and his family testified that his attorney affirmatively told him he had a plea bargain under which he would spend 120' days in jail and then he would definitely be called back and placed on fifteen years of probation, and they were not told by his attorney that the callback was subject to any conditions.
Mr. Reynolds further alleged that his lawyer had told him that both the judge and prosecutor had agreed to his release in 120 days, but that as a part of the agreement no mention of thе deal could be made on the record. He also alleged that his attorney then told him that when he was asked in court whether any other deals or promises had been made in exchange for his guilty plea, he was to answer “no.” He claimed that he would not have entered his guilty plea without the promise that he would be released in 120 days.
The motion court judge dismissed the post-conviction motion without reaching its merits or determining issues of credibility. He found that the Rule 24.085 motion was time-barred and that Rule 29.07(d) relief was unavailablе because the claim was really for Rule 24.035 relief. This appeal followed.
II. RULE 24.035 RELIEF IS TIME-BARRED
Rule 24.035 allows persons who pleaded guilty to a felony charge to challenge their conviction or sentence in the sentencing court:
A person convicted of a felony on a pleа of guilty and delivered to the custody of the department of corrections who claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and aрpellate counsel, that the court imposing the sentence was without jurisdiction to do so, 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_
Rule 24.035(a). Where, as herе, no direct appeal is taken, persons seeking relief under Rule 24.035 must file a motion under that rule within ninety days of their delivery to the custody of the Department of Corrections. Rule 24.035(b).
Mr. Reynolds admits that if the usual rules applied his Rule 24.035 motion would be untimely in that he filed it in 1995, almost four years after he was delivered to the custody of the Department of Corrections. He claims that the ninety-day time limit does apply here, however, because: (1) he could not have been aware of his grounds for seeking Rule 24.035 relief until he was not paroled after 120 days, and that at the latter point the ninety days to file for relief under Rule 24.035 had passed; and (2) his counsel’s misrepresentations regarding his release in 120 days and failure to advise him of his rights under Rule 24.035 effectively constituted abandonment and entitle him to relief under Rule 29.07(d), which does not contain a ninety-day time limit.
Our review of the denial of a Rule 24.035 motion is limited to determining whether the trial court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k).
See also Day v. State,
Numerous eases have determined that the ninety-day time limit for filing Rule 24.035 motions is reasonable, mandatory, and valid, and satisfies the requirements of due process.
See, e.g., Day,
By promulgating Rule 24.035 with such a strict time limit, the Supreme Court of Missouri has decided that any inequities created
Mr. Reynolds recognizes the rule stated in these cases, but urges us to take note of the quandary сreated by the interaction of the 120-day callback provision and the ninety-day filing limit for Rule 24.035 motions. He argues that he was placed in the position of either filing a timely Rule 24.035 motion to allege that the 120-day callback was a secret part of his plea agreement at a timе when he was not yet aggrieved and he fully believed he had an unconditional agreement to be released, or waiting to see if he would be given probation after 120 days, by which time the filing deadline for Rule 24.035 motions would have passed. Other courts have recognized this catch-22 but have hеld that they are powerless to change the ninety-day time limit set out in Rule 24.035.
See Leatherwood,
Mr. Reynolds notes, however, that in
State v. Pendleton,
This case presents us with the same scenario. We need not resolve the issue of whether the Rule 24.035 ninety-day time limit should have begun to run only when Mr. Reynolds first learned of the grounds for relief at the time that he was not called back after serving 120 days in prison, because he did not file suit for over three years after he learned he would not be called back. 3
III. RULE 29.07 RELIEF IS NOT AVAILABLE WHEN THE CLAIM IS COGNIZABLE UNDER RULE 24.035
Mr. Reynolds alternatively claims that the motion court committed clear error by denying his motion for Rule 29.07 relief because the claim raised in his motion is not cognizable undеr Rule 24.035. His motion for Rule 29.07(d) relief again alleges that his counsel misled him into believing that the judge agreed he would be released in 120 days, and that this was part of his plea agreement. He argues that letting his guilty plea stand would result in manifest injustice because it was based on his counsel’s affirmative misrеpresentation.
Rule 29.07(d) allows a defendant to withdraw a guilty plea to- correct manifest injustice, stating:
to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
Rule 29.07(d).
Rule 29.07(d) itself imposes no time restrictions on the granting of relief under that rule. Thus, if it is considered alone, Mr. Reynolds’ motion would not be untimely. Rule 29.07(d) must be read in pari materia with Rule 24.035, however, which declares itself to be the “exclusive procedure” for challenging the validity of a guilty plea in a felony case in the sentencing court. Rule 24.035(a).
To hold otherwise would emasculate Rule 24.035 and constitute Rule 29.07(d) an escape hatch through which any claim procedurally barred by Rule 24.035 could scurry into trial courts. Such circumstances would render the Supreme Court’s repeal of Rule 27.26 and adoрtion of Rule 24.035 a useless act and reopen the trial courts to stale claims, contrary to the declared objective of Rule 24.035.
Ryan,
Faced with the problem of reconciling Rule 29.07(d) and Rule 24.035 where a constitutional violation is alleged, we similarly held in Pendleton that “[i]f the asserted grounds for relief were not cognizable under Rule 24.035, then the Rule 24.035 time limitations would not apply.” Pendleton, 910 S.W.2d at 271. In that case, however, we found that the essence of the defendant’s claim — that he was induced to enter a plea agreement through fraud, coercion, and duress — was that the plea was not vоluntary and he was denied due process. Because a claim of due process denial is cognizable under Rule 24.035, we held Mr. Pendleton could not bypass Rule 24.035 time restrictions simply by asserting his claim for relief under Rule 29.07. Id.
In the present case, Mr. Reynolds alleges that he entered into his plea agreement because of his counsel’s affirmative misrepresentation that he would be released in 120 days. The essence of this claim, like that in
Pendleton,
is that he did not enter his guilty plea voluntarily — this, of course, is a violation of his constitutional due process rights.
See Boykin v. Alabama,
The unavailability of relief under Rules 24.035 or Rule 29.07(d) does not mean that Mr. Reynolds is without any avenue of relief. The Missouri Supreme Court specifically recognized in
State ex rel. Simmons v. White,
A judge could find that Mr. Reynolds’ allegations of an affirmative misrepresentation that thе judge had already agreed to release him in 120 days, in the facts and circumstances of this case, constitute just such manifest injustice as will allow habeas relief. At oral argument counsel for Mr. Reynolds invited us to consider Mr. Reynolds’ Rule 29.07(d) motion as one for habeas corpus relief in the present case. We are without jurisdiction to do so, however. Ha-beas corpus proceedings must be brought in a court having jurisdiction over the place of confinement or detention, and against the person confining the movant. Rule 91.02(a);
White v. State,
For these reasons, we affirm the motiоn court’s dismissal of Mr. Reynolds’ motions for post-conviction relief without prejudice to his right to seek habeas corpus relief on the basis of manifest injustice.
All concur.
Notes
. Rule references are to Missouri Supreme Court Rules (1995).
. Statutory references are to RSMo 1994.
. It is possible that during this three year delay Mr. Reynolds sought relief on this ground in the pro se petitions for habeas corpus relief he filed in both state and federal courts. The courts denied relief in each case. The records of these actions were not made part of our record, so we are unable to determine if and when those suits were filed or what they asserted. In any event, the filing of such habeas motions does not stay the time for filing a motion under Rule 24.035.