Nelson E. Hopkins, Sr., appeals his convictions and sentences, following a guilty plea, for two counts of second-degree robbery in violation of section 569.030.
Factual and Procedural Background
On June 14, 2011, Hopkins entered a Domino’s Pizza in Blue Springs, Missouri, and pulled a gun from his waistband. Hopkins waved the gun at five employees, demanding money.
On February 9, 2012, Hopkins pled guilty to two counts of second-degree robbery. Before accepting Hopkins’s guilty pleas, the court reviewed the terms of the plea agreement. Because Hopkins was found to be a prior and persistent offender, his maximum punishment was thirty years, or life imprisonment, for each count. See § 558.016.7(2); 558.011.1(l)-(2). The State, however, noted that, pursuant to the plea agreement, it would recommend a maximum sentence of twenty years. Hopkins and his attorney both confirmed that this was their understanding of the plea agreement as well. The plea court then asked Hopkins to confirm his understanding that, by pleading guilty, he was waiving certain rights, including the right to appeal.
At the sentencing hearing, the State called one witness and Hopkins called three witnesses. Hopkins presented evidence related to his personal background, military experience, diagnosis of post traumatic stress disorder (PTSD), son’s murder in 2009, and community involvement (particularly in the area of crime prevention). After the testimony concluded, Hopkins’s attorney informed the court that Hopkins wanted to make a brief statement
Analysis
Hopkins raises four points on appeal. All of Hopkins’s claims relate to the fact that the plea court did not allow him to make a statement at sentencing (allocution). First, Hopkins claims that the court erred because allocution is required under Rule 29.07(b)(1) for all criminal defendants before sentence is pronounced.
Hopkins argues that, despite the limitations articulated by case law and Rule 24.035 regarding a defendant’s right to file a direct appeal following a guilty plea, he did not waive his right to file a direct appeal challenging court error at the sentencing hearing by pleading guilty. The State responds that, because Hopkins pled guilty, he waived his direct appeal, except for challenges related to subject matter jurisdiction and the sufficiency of the charging document, and his exclusive remedy to raise any claims related to his conviction or sentence is through a Rule 24.035 post-conviction motion. We agree with the State.
“ ‘There is no right to appeal without statutory authority.’ ” State v. Larson, 79 S.W.3d 891, 892-93 (Mo. banc 2002) (quoting State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994)). After final judgment, a defendant may appeal to the proper appellate court. § 547.070; see also Rule 30.01(a) (providing that after “final judgment in a criminal case, every party shall be entitled to any appeal permitted by law”). In a criminal case, “[a] final judgment occurs only when a sentence is entered.” Williams, 871 S.W.2d at 452 (emphasis omitted). In the context of a direct appeal following a guilty plea, however, the right to a direct appeal is limited.
“In Missouri, the general rule is that a guilty plea waives all nonjurisdic-tional defects, including statutory and constitutional guarantees.” Garris v. State, 389 S.W.3d 648, 651 (Mo. banc 2012). The general waiver rule exists because “ ‘[a] guilty plea not only admits guilt but also consents to judgment of conviction without a jury trial.’ ” Id. (quoting Cooper v. State, 356 S.W.3d 148, 153 (Mo. banc 2011)). Therefore, “ ‘[i]n a direct appeal of a judgment and sentence entered as a result of a guilty plea, our review is restricted to [claims involving] the subject-matter jurisdiction of the trial court and the sufficiency of the information or indictment.’ ” State v. Onate, 398 S.W.3d 102, 105 (Mo.App.W.D.2013) (quoting State v. Klaus, 91 S.W.3d 706, 706 (Mo.App.E.D.2002)); see also State v. Craig, 287 S.W.3d 676, 679 (Mo. banc 2009). Rule 24.035 creates an exception to the general rule that a plea of guilty waives the right to challenge alleged error relating to the plea and sentence. “Challenges to either the voluntariness of the plea or ‘the legality of the sentence imposed may be considered only in response to a Rule 24.035 motion.’ ” Onate, 398 S.W.3d at 106 (quoting Klaus, 91 S.W.3d at 706).
Hopkins concedes that a plea is an ac-knowledgement of guilt and, therefore, certain claims related to the underlying conviction are waived; he argues, however, that he waived only his right to a direct appeal of errors that occurred prior to the plea and “[c]ommon sense requires that a defendant does not waive a direct appeal from deficiencies brought about by plea court error during sentencing simply by the act of pleading guilty (absent an agreed upon sentence made as part of the
Hopkins, however, was not convicted by a jury; therefore, reliance on cases addressing the availability of a direct appeal in that context is misplaced. Moreover, in Missouri, existing precedent supports a finding that Hopkins’s claims are not cognizable on direct appeal and should be raised, instead, in a Rule 24.035 post-conviction motion. See, e.g., Taylor v. State, 392 S.W.3d 477, 486-87 (Mo.App.W.D.2012) (holding that, following a guilty plea, defendant’s claim of retaliatory sentencing was cognizable in a Rule 24.035 proceeding). In Taylor, we noted that although Glaviano provided “some authority for the proposition that a claim of retaliatory sentencing may not be cognizable in a Rule 29.15 post-conviction proceeding if the claim could have been raised in a direct appeal,” this holding was not applicable in Taylor “ ‘[bjecause no direct appeal lies from a guilty plea, [and] the defendant’s
The Southern District of this Court has also noted that, where an appellant does not challenge the plea court’s subject matter jurisdiction or sufficiency of the charging document in a direct appeal following a guilty plea, but is instead “concerned about the sentence he received ... [, s]uch claims of error must be raised through the procedures found in Rule 24.085.” State v. Carter, 62 S.W.3d 569, 570 (Mo.App.S.D.2001) (noting the defendant claimed plea court erred in that the pre-sentence investigation report “resulted in a harsher sentence than [he] should have received”). Likewise, the Eastern District has held that the appropriate remedy for a defendant who pleads guilty and then claims error in being sentenced as a prior and persistent offender lies not in a direct appeal, but in a Rule 24.035 motion. State v. Sharp, 39 S.W.3d 70, 72 (Mo.App.E.D.2001); see also State v. Brooks, 394 S.W.3d 454, 455-56 (Mo.App.E.D.2013) (dismissing a direct appeal and noting that when a defendant challenges a sentencing court’s evidentiary ruling following a guilty plea “[t]he proper procedural vehicle ... is a motion for post-conviction relief under Rule 24.035”); Klaus, 91 S.W.3d at 706-07 (dismissing a direct appeal following a guilty plea in which the defendant claimed the court erroneously failed to consider probation, and noting that “[Challenges to the legality of the sentence imposed may be considered only in response to a Rule 24.035 motion”). Following this precedent, we find that Hopkins’s claims related to alleged court error at his sentencing hearing are not cognizable in a direct appeal.
Conclusion
Because we have no authority to review Hopkins’s arguments on direct appeal related to allegations of court error at his sentencing hearing following a guilty plea, the appeal is dismissed.
CYNTHIA L. MARTIN, Presiding Judge, and MARK D. PFEIFFER, Judge, concur.
. All statutory references are to the Missouri Revised Statutes 2000, as updated through the 2011 Cumulative Supplement, unless otherwise noted.
. Hopkins stole money from the store and one of the employees.
. In addition to waiving the right to appeal if he was found guilty at trial, the court noted that Hopkins was waiving the following rights: the right to plead not guilty and to have an attorney represent him at trial; the right to be tried by either a judge or jury; the right to cross-examine witnesses; the right to testify at trial; the right not to testify at trial; and the right to present his defenses to the charges. The court also noted that if Hopkins went to trial, the State would have the burden of proof, Hopkins would be presumed innocent until proven guilty, and Hopkins would have to be found guilty by a unanimous jury verdict. The plea court noted further that by pleading guilty, there would be no trial and Hopkins was waiving any opportunity to attack shortcomings in the State's case against him.
. A statement made by the defendant to the court before sentencing, either after defendant's request to make a statement or in response to the court's questioning, is commonly referred to as "allocution.”
. The judgment indicates, via a checked box on a form document, that the court "inform[ed] the defendant of the verdict/finding, ask[ed] the defendant whether (s)he has anything to say why judgment should not be pronounced, and [found] that no sufficient cause to the contrary has been shown or appears to the court.” See Rule 29.07(b)(1). The judgment is dated April 6, 2012. As noted, the transcript reflects that the court did not ask Hopkins whether there was any legal cause to show why judgment should not be pronounced during either his plea or sentencing hearing. Because we dismiss this appeal without reviewing the merits of Hopkins's claims, we express no opinion regarding Hopkins’s right to allocution. We merely note the inconsistency between the judgment form and the transcript.
. Hopkins also filed a timely Rule 24.035 post-conviction motion with the circuit court. However, because Hopkins was granted leave to file his direct appeal out of time, his Rule 24.035 proceeding was stayed pending the outcome of this direct appeal.
. All rule references are to Missouri Supreme Court Rules (2013), unless otherwise noted.
. Hopkins was sentenced to the maximum penalty recommended by the State. He was not sentenced to the maximum penalty allowed by law, as noted, supra.
. Relying on McKelvey v. State, Hopkins also argues that Missouri courts have previously recognized that claims of plea court error are cognizable on direct appeal. 303 S.W.3d 612, 614, 614 n. 3 (Mo.App.S.D.2010). We disagree. In McKelvey, following a guilty plea and sentencing, the defendant filed a Rule 24.035 motion claiming that he was sentenced in excess of the maximum allowed because the State failed to prove beyond a reasonable doubt that he was a persistent offender. Id. at 613. At the evidentiary hearing, the State conceded the point and defendant was resentenced later the same day — a notation was made in the docket sheet indicating that the motion was sustained. Id. At the resentencing in the underlying criminal case, the State filed an amended information adding a prior conviction that had not previously been included. Id. McKelvey objected, arguing that proof of his persistent offender status should have been shown before sentencing. Id. The plea court accepted the amended information at the resentencing hearing and sentenced McKelvey accordingly. Id. at 613-14. Approximately three months after the evidentiary hearing and resentencing on the underlying conviction, the motion court issued a written order. Id. McKelvey then appealed the motion court's order, arguing that the motion court erred in resentenc-ing him before the written order was issued. Id. at 614. On appeal, the Southern District affirmed the motion court's order and noted that the factual premise of McKelvey’s claim was not supported by the record because the motion court did not resentence him, the plea court in the underlying criminal case did; therefore, he did not claim any error in the motion court’s findings. Id. at 614-15. The Southern District noted, in dicta, that “[w]hile claims of error in the plea court’s actions in the actual re-sentencing of Movant and in subsequently entering another judgment of conviction in the underlying criminal case are issues which could come before this Court by direct appeal or by another post-conviction motion, they are not before us in this appeal.” Id. at 614 (citing Bain v. State, 59 S.W.3d 625, 627 (Mo.App.E.D.2001) for support). Bain, however, is a case involving a jury verdict followed by the dismissal of an untimely direct appeal, a post-conviction motion, a resentencing, a second direct appeal, and a second post-conviction motion; it is not a case involving a direct appeal following a guilty plea. 59 S.W.3d at 626-27. Thus, we note that the reference to direct appeals in McKelvey was dicta and, in any event, the Southern District’s reliance on Bain is misplaced. We do not read McKelvey so broadly as to hold that a defendant who pleads guilty and is sentenced can raise any claim of trial court error on direct appeal.