Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis 1222-CR05787
Honorable Edward W. Sweeney, Jr.
K. Hoff, Judge
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.
and Procedural Background
was charged with driving while intoxicated for operating a
motor vehicle while intoxicated, in violation of Section
577.010 RSMo 2000,  and with driving while his license was
revoked, in violation of Section 302.321, for events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.
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.
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.
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
January 19, 2015, the trial court ordered an additional
condition to Defendant's bond, requiring that he desist
from operating a motor vehicle.
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.
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.
raises two points on appeal; however, because Point I is
dispositive, we need not address Point II regarding ...