Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF POLK COUNTY Honorable John C.
W. LYNCH, JUDGE.
Wayne Kelsall ("Defendant") was charged with one
count of possession of a controlled substance, see
section 195.202, and one count of tampering with physical
evidence, see section 575.100. The case went to
trial on September 8, 2016, and a jury found Defendant guilty
of the charged offenses. Following the verdict, Defendant was
ordered to appear in court for a sentencing hearing at 9:00
a.m. on November 21, 2016, and, at his request, was released
on bond. Defendant, however, failed to appear for his
scheduled sentencing. The trial court ordered the issuance of
a capias warrant, which was then served on Defendant
nine days later on November 30, 2016. Another twelve days
passed before Defendant appeared in court on December 12,
2016, at which time his post-trial motions were taken up and
denied and sentences were entered.
now appeals his judgments of conviction, contending in three
points that his convictions were unsupported by sufficient
evidence. The State responds that Defendant's appeal
should be dismissed pursuant to the "escape rule"
because of his failure to voluntarily appear for his
sentencing hearing as ordered by the court. We agree with the
escape rule is a judicially-created doctrine, the primary
purpose of which is to deny the right of appeal to a
defendant who escapes justice. State v. Troupe, 891
S.W.2d 808, 809 (Mo. banc 1995). A defendant's failure to
appear constitutes "escape" for purposes of
applying the escape rule. State v. Crump, 128 S.W.3d
642, 642-43 (Mo.App. 2004). The escape rule is applicable to
alleged errors occurring before a defendant's escape.
State v. Marsh, 248 S.W.3d 648, 650 (Mo.App. 2008).
As is the case here, this court is authorized to dismiss an
appeal if the defendant fails to appear for sentencing.
See Portis v. State, 214 S.W.3d 349, 350 (Mo.App.
2007) ("Willful failure to appear for sentencing invokes
the escape rule.").
application of the escape rule is discretionary. State v.
Hall, 504 S.W.3d 88, 90 (Mo.App. 2016). In deciding
whether to apply it, the relevant inquiry is whether the
defendant's escape adversely affects the criminal justice
system. Id. The escape rule has been justified on
many grounds, including: (1) the need for a court to have
control over a defendant before making a decision on appeal;
(2) curtailment of administrative problems caused by the
defendant's absence; (3) preventing prejudice to the
State in the event of remand for a new trial; (4) preventing
defendants from selectively abiding by court decisions; (5)
discouraging escape; (6) encouraging voluntary surrender; (7)
preserving respect for the criminal justice system; and (8)
promoting the dignified operation of the appellate courts.
State v. Brown, 974 S.W.2d 630, 632 (Mo.App. 1998).
Defendant offered the trial court no evidence that his escape
from sentencing was for any reason other than his willful
disobedience of the trial court's order to appear at 9:00
a.m. on November 21, 2016. In his reply brief, responding to
the State's request to apply the escape rule, Defendant
offers no explanation for why he failed to appear for
sentencing. In the absence of credible evidence that
Defendant's failure to appear for sentencing was not
willful, we determine justifications four through seven,
supra, are applicable. See, e.g., State
v. Boone, 409 S.W.3d 595, 598 (Mo.App. 2013). Because
Defendant escaped from sentencing, a capias warrant
was issued for Defendant's arrest, law enforcement
resources had to be expended to execute the warrant, and
Defendant's sentencing hearing was delayed three weeks.
See id. Dismissing Defendant's appeal
discourages other defendants from attempting an escape from
sentencing and preserves respect for the criminal justice
system. See id.
reply brief, Defendant argues that "this Court does not
have the authority to dismiss his appeal because a specific
Missouri statutory provision, section 547.070 [(providing
"[i]n all cases of final judgment . . . an appeal to the
proper appellate court shall be allowed to the
defendant")], forbids it." Defendant is
incorrect-the statutory right to appeal may be waived under
various circumstances, including those present in this case.
See, e.g., Garris v. State, 389 S.W.3d 648,
651 (Mo. banc 2012) (guilty plea); State v. Castro,
417 S.W.3d 390, 391 (Mo.App. 2014) (voluntary payment of
fine); State v. Vaughn, 223 S.W.3d 189, 191 (Mo.App.
to the escape rule, Defendant's appeal is dismissed.
W. SHEFFIELD, P.J. - concurs
BURRELL, JR., J. - concurs
 References to section 195.202 are to
RSMo Cum.Supp. 2011. References to section 575.100 are to