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State v. McKay

Court of Appeals of Missouri, Eastern District, First Division

May 16, 2017

STATE OF MISSOURI, Respondent,
v.
MARK TIMOTHY MCKAY, Appellant.

         Appeal from the Circuit Court of the City of St. Louis 1222-CR05787 Honorable Edward W. Sweeney, Jr.

          OPINION

          Mary K. Hoff, Judge

         Mark Timothy McKay (Defendant) appeals from the trial court's judgment denying his motion to withdraw his guilty plea under Rule 29.07(d). We dismiss Defendant's appeal pursuant to the escape rule.

         Factual and Procedural Background

         Defendant was charged with driving while intoxicated for operating a motor vehicle while intoxicated, in violation of Section 577.010 RSMo 2000, [1] and with driving while his license was revoked, in violation of Section 302.321, for events occurring on October 13, 2012. Defendant was charged as a chronic offender, having pleaded guilty to driving while intoxicated twice in 2008 and twice in 2009.

         On September 24, 2013, Defendant was ordered released on bond pending trial. The trial court conditioned Defendant's release, requiring Defendant to refrain from possessing or consuming alcohol, submit to alcohol and drug testing, and submit to electronic monitoring for alcohol consumption through the SCRAM system.

         On June 30, 2014, Defendant entered pleas of guilty to both charges, not pursuant to a plea agreement. Sentencing was initially scheduled for September 5, 2014 and later continued to October 24, 2014, at the request of defense counsel.

         On October 17, 2014, Defendant retained new counsel and moved to withdraw his guilty plea pursuant to Rule 29.07(d), maintaining that his plea had been involuntary and unintelligent due to ineffective assistance of his original counsel. The trial court held multiple hearings on Defendant's motion.

         On January 19, 2015, the trial court ordered an additional condition to Defendant's bond, requiring that he desist from operating a motor vehicle.

         Prior to the August 26, 2015 hearing on Defendant's Rule 29.07(d) motion, Defendant was arrested in Saint Louis County for suspicion of driving while intoxicated and possession of a controlled substance. On August 17, 2015, the trial court revoked Defendant's bond and issued a capias warrant for Defendant's arrest. Defendant also failed to appear at the two subsequent hearings, on September 15, 2015 and October 30, 2015, regarding his 29.07(d) motion. On February 3, 2016, Defendant was arrested pursuant to the capias warrant. On February 19, 2016, the motion court denied Defendant's Rule 29.07(d) motion, denying the motion under the escape rule and finding on the merits that Defendant's plea was not involuntarily or unintelligently made. This appeal follows.[2]

         Standard of Review

         "'The escape rule is a judicially-created doctrine that operates to deny the right of appeal to a criminal defendant who escapes justice.'" Parsons v. State, 383 S.W.3d 71, 73 (Mo. App. E.D. 2012) (quoting Crawley v. State, 155 S.W.3d 836, 837 (Mo. App. E.D. 2005)). "The escape rule is applicable to both [direct] appeals on the merits and [from] motions for post-conviction relief under Rules 29.15 and 24.035." Id. "However, the escape rule only applies to errors that occurred prior to and up to the time of escape." Id. (citing Nichols v. State, 131 S.W.3d 863, 865 (Mo. App. E.D. 2004)). "In applying the escape rule, the relevant inquiry is whether the escape adversely affected the criminal justice system." Nichols, 131 S.W.3d at 865. The intentional failure to appear for sentencing is sufficient reason to invoke the escape rule. Id. The escape rule "operates to deny the right of appeal" if deemed appropriate in the exercise of an appellate court's discretion. Id.

         Discussion

         Defendant raises two points on appeal; however, because Point I is dispositive, we need not address Point II regarding ...


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