Court of Appeals of Missouri, Western District, Fourth Division
Appeal from the Circuit Court of DeKalb County, Missouri. The Honorable Thomas Nichols Chapman, Judge.
For Appellant: S. Kate Webber, Kansas City, MO.
For Respondent: Andrew Hooper, Jefferson City, MO.
Before Division Four: Alok Ahuja, C.J., Joseph M. Ellis, and James Edward Welsh, JJ. All concur.
James Edward Welsh, Judge.
Timothy Cafferty appeals the circuit court's judgment denying his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. In his sole point on appeal, Cafferty contends that the circuit court clearly erred in denying his Rule 24.035 motion, in violation of Rule 24.02(e) and his right to due process as guaranteed by the United States Constitution and article I, section 10 of the Missouri Constitution, because his guilty plea was not knowingly, intelligently, or voluntarily made. In particular, Cafferty asserts that the record does not establish a sufficient factual
basis to support his plea of guilty to one count of criminal nonsupport. We reverse the circuit court's judgment denying Cafferty's post-conviction motion, and we vacate Cafferty's conviction and sentence and remand for further proceedings on the criminal nonsupport charge.
The State charged Cafferty by information with knowingly failing to provide, without good cause, adequate food, clothing, lodging, and adequate medical attention for his minor child, for whom Cafferty was legally obligated to support, in that Cafferty failed to pay any child support in each of the six individual months within the twelve month time period from July 1, 2007, to June 30, 2008, in violation of § 568.040, RSMo 2000.
Prior to pleading guilty, Cafferty completed a Petition to Enter a Plea of Guilty. In the written petition, Cafferty acknowledged that he had read the information and that he " fully under[stood] every charge made against [him]." In his petition, Cafferty stated he committed " the following acts in connection with the charge" against him: " I didn't pay my child support."
At the guilty plea hearing, the court informed Cafferty that the State had charged him with the class D felony of nonsupport, in that he " knowingly failed to provide child support payments to go toward providing adequate food and clothing" for his child and " failed to pay child support for six of the months in a twelve month period of July 1, 2007 until June 30th, 2008." Cafferty sad that he understood the charge and that he desired to plead guilty. The court then asked Cafferty if he was acknowledging that " for six individual months, between July 1, 2008 to June 30th 2008, that you failed to provide any child support," and Cafferty said, " Yes." The court then asked Cafferty, " Why was that . . . ?" Cafferty responded, " Because I couldn't find work. Ever since I got out of prison it has been hard to find work, but I have a job lined up for when I get out of here so I can start paying."
To establish the factual basis, the court then asked the State to recite the evidence it would present if Cafferty's case were to proceed to trial. The State responded:
Judge, if this case went to trial the State's evidence would be that that applicable order of dissolution on March 16th, 2004 in the Circuit Court of Cole County, Missouri. Pursuant to that, the defendant was ordered to pay $218.00 each month in support of Chance Ryder Cafferty. From the charging period of July 1st, 2007 to June 30th, 2008 the defendant failed to provide at least six ...