Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Charles County Honorable Nancy
T. Quigless, P.J.
McNeil ("Movant") appeals from the judgment of the
Circuit Court of St. Charles County denying her Rule
24.035 motion for post-conviction relief
without an evidentiary hearing. We dismiss Movant's
appeal pursuant to the escape rule. See Nichols v.
State, 131 S.W.3d 863, 865 (Mo. App. E.D. 2004).
AND PROCEDURAL BACKGROUND
was charged as a prior and persistent offender with two
counts of the class C felony forgery, in violation of RSMo
§ 570.090.1. After plea
negotiations, Movant signed a written plea petition agreeing
to the State's recommendation of two concurrent ten-year
sentences, with the execution of the sentences suspended, and
five years of supervised probation. Movant pled guilty to the
charges, and the court accepted Movant's pleas, finding
them knowing, voluntary, and intelligent. The court sentenced
Movant in accordance with the written plea petition.
violated her probation eighteen months later. The State filed
a motion to revoke probation and a hearing was scheduled for
October 3, 2013. Notice of the hearing was sent to Movant.
Movant failed to appear and the court issued a
capias warrant for her arrest. The hearing was
rescheduled for October 31, 2013, and Movant again failed to
appear. On June 30, 2014, more than eight months later,
Movant was arrested on the capias warrant and taken
into custody. The court then revoked Movant's probation
and executed the previously imposed concurrent ten-year
October 8, 2014, Movant timely filed a pro se Rule
24.035 motion for post-conviction relief. The motion court
appointed post-conviction counsel on October 21, 2014, and
granted a thirty-day extension of the deadline to file the
amended motion. On January 19, 2016, post-conviction counsel
timely filed an amended motion. The amended motion alleged plea counsel
was ineffective for "failing to inform movant of
State's plea offer calling for a ten-year suspended
sentence, rather than a seven-year suspended sentence as
movant believed at the time - and immediately before - she
offered her pleas."
motion court denied Movant's motion for post-conviction
relief without an evidentiary hearing, finding Movant's
claims were refuted by the record. The court noted the record
supported that Movant read the written plea petition, and
that she had enough time to speak with counsel. The motion
court further found that Movant was clearly aware of the
State's recommendation prior to the plea, and that she
pled guilty knowingly, intelligently, and voluntarily. This
Movant's sole point on appeal, she argues the motion
court erred in denying her Rule 24.035 motion for
post-conviction relief without an evidentiary hearing because
she pled facts, not refuted by the record, demonstrating that
her plea counsel was ineffective because she "failed to
inform, or timely inform, [Movant] about a change in the plea
agreement prior to the time [Movant] was brought before the
court to enter her pleas."
not reach Movant's claim of error regarding the motion
court's denial of her Rule 24.035 motion because we
dismiss Movant's appeal pursuant to the escape rule.
See State v. Troupe, 891 S.W.2d 808, 811
(Mo. banc 1995); Nichols v. State, 131 S.W.3d 863,
865 (Mo. App. E.D. 2004).
The escape rule is a judicially-created doctrine that
operates to deny the right of appeal to a defendant who
escapes justice. The escape rule applies to appeals on the
merits as well as to motions for post-conviction relief under
Rules 29.15 and 24.035. The escape rule can be invoked to
dismiss post-conviction appeals regardless of whether the
motion court reaches the merits of a movant's claim or
dismisses the motion based on its application of the escape
rule. The escape rule applies to errors that occur prior and
up to the time of escape, but errors occurring after
recapture remain appealable. A willful failure to appear for
sentencing can properly invoke the escape rule.
Nichols, 131 S.W.3d at 865 (internal citations
of a defendant's appeal pursuant to the escape rule is
warranted where a defendant's escape from justice results
in a lengthy delay in their criminal case causing an
"adverse impact on the criminal justice system."
Troupe, 891 S.W.2d at 811 (dismissing both
defendant's direct appeal and his motion for
post-conviction relief pursuant to the escape rule because
"appellant was at large for more than eight months and
delayed the proceedings" which had an adverse impact on
the criminal justice system); Fogle v. State, 99
S.W.3d 63, 65 (Mo. App. E.D. 2003) ("We find that
Movant's escape flouted the ...