Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of St. Louis County 14SL-CR00171-01
Honorable Tommy W. DePriest, Jr.
M. DOWD, CHIEF JUDGE.
Wilson pleaded guilty in the Circuit Court of St. Louis
County to one count of the class D felony of animal abuse.
The court sentenced Wilson to one year of confinement in the
county jail. Subsequently, Wilson filed a Rule
29.07(d) motion to withdraw his guilty plea. The
court denied it without an evidentiary hearing, and Wilson
that the court clearly erred in denying his Rule 29.07(d)
motion without an evidentiary hearing, Wilson raises one
point on appeal: that plea counsel rendered ineffective
assistance by failing to advise Wilson that he could have
filed a motion to suppress evidence acquired during the
seizure of Wilson's dogs pursuant to an administrative
search warrant, and that there was a reasonable probability
that it would have been successful. We affirm because even if
we accept Wilson's assertions as true, they do not
entitle him to relief because the trial court did not clearly
and Procedural Background
January 6, 2014, an alarm system located at Wilson's
residence sounded and St. Louis County police officers
responded. While at the residence on Wood Poppy Drive, the
officers observed a large number of dogs on the property. As
a result, on January 7, 2014, one of the investigating
officers applied to the St. Louis County municipal court for
an administrative search warrant of Wilson's residence.
The affidavit supporting the application described the
officers' appearance and observations at the residence
the previous day. The affidavit also averred that on several
previous occasions St. Louis County police officers had
observed a large number of dogs on the property, and that the
county had received numerous complaints and had issued
numerous notices of violations referencing these animals. The
administrative warrant was issued and executed on January 7,
2014, and pursuant to the search of Wilson's residence,
St. Louis County Animal Control seized eleven dogs. Later, a
criminal search warrant was applied for and issued and
pursuant to that warrant the dogs were transferred from
Animal Control to the Humane Society of Missouri.
an Animal Control veterinarian's examination of the
animals-but before the issuance and execution of the criminal
search warrant--the State charged Wilson by complaint with
the class D felony of animal abuse in violation of §
578.012. The State alleged that on January 7,
2014, Wilson had eleven dogs in his custody and knowingly
failed to provide adequate care for the animals, and that
previously, on September 5, 2003, he had pleaded guilty to
animal abuse in St. Louis County. The State subsequently
filed an amended information charging Wilson as a persistent
offender. In the amended information, the State reduced from
eleven to six the number of dogs it alleged Wilson abused.
pleaded guilty. The two attorneys who represented him through
his plea advised him that a constitutional challenge to the
administrative search would likely fail. Prior to sentencing,
Wilson dismissed these two attorneys and replaced them with
counsel who filed Wilson's Rule 29.07(d) motion to
withdraw his plea. Further facts, as relevant, are provided
review for clear error or abuse of discretion the denial of a
Rule 29.07(d) motion to withdraw a guilty plea. McCoy v.
State, 456 S.W.3d 887, 890 (Mo.App.W.D. 2015). The
defendant bears the burden of proving such error by a
preponderance of the evidence. Id. at 891.
first address the question of our jurisdiction to review the
denial of Wilson's Rule 29.07(d) motion. Contrary to the
State's arguments, the denial of a
post-sentencing motion to withdraw a guilty plea is
appealable. McCoy v. State, 456 S.W.3d 887, 892
(Mo.App.W.D. 2015) (citing, inter alia, Jack v.
State, 354 S.W.3d 659, 659 (Mo.App.S.D. 2011)). Although
the Missouri Supreme Court held in State v. Larson,
79 S.W.3d 891, 893 (Mo.banc 2002) that the denial of
apre-sentencing motion to withdraw a guilty plea
does not count as a final judgment and thus is not
appealable, "Missouri appellate courtfs] have repeatedly
exercised jurisdiction over appeals from the denial of
motions to withdraw guilty pleas under Rule 29.07(d), where
the motions were filed subsequent to the defendant's
sentencing." McCoy, 456 S.W.3d at 892. We
adhere to those authorities and consider Wilson's appeal.
29.07(d) provides that to correct a manifest injustice, a
court may, even after sentencing, set aside a judgment of
conviction and permit a defendant to withdraw his guilty
plea. McCoy, 456 S.W.3d at 892. In filing his Rule
29.07(d) motion to withdraw his plea, Wilson claimed that he
suffered manifest injustice because plea counsel rendered
ineffective assistance. To be entitled to post-conviction
relief for ineffective assistance of counsel, a movant must
demonstrate by a preponderance of the evidence that (1) his
counsel failed to exercise the level of skill and diligence
that reasonably competent counsel would have exercised in a
similar situation, and (2) that he was prejudiced by that
failure. Dorsey v. State, 448 S.W.3d 276, 286-87
(Mo.banc 2014) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)).
contends that reasonably competent counsel would have advised
him that he could have filed a successful motion to suppress
evidence from the seizure of his dogs pursuant to the
execution of the administrative search warrant in this case.
But we find that reasonably competent counsel would not have
so advised Wilson. There is no evidence in the record to
support Wilson's argument that a ...