Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Boone County, Missouri The
Honorable Jodi C. Asel, Judge
Before: Mark D. Pfeiffer, Chief Judge, Presiding, Cynthia L.
Martin, Judge and Anthony Rex Gabbert, Judge.
CYNTHIA L. MARTIN, JUDGE.
McNeal Gates ("Gates") appeals from the motion
court's judgment that granted his post-conviction request
for relief from a conviction and sentence for felony
stealing. Though Gates prevailed on his post-conviction
motion, he appeals because the motion court vacated his
guilty plea and restored his case on the trial docket,
instead of vacating his felony conviction and entering a
conviction for misdemeanor stealing with an appropriate
sentence. We dismiss Gates's appeal as moot.
and Procedural Background
15, 2016, Gates pleaded guilty to the class C felony of
stealing under section 570.030. Gates admitted that he acted
together with another person to steal a gun from a gun store.
In exchange for his guilty plea, the State agreed to
recommend a four-year sentence that would run concurrently
with the other sentences he was serving. The trial court
accepted Gates's guilty plea and sentenced him pursuant
to the State's recommendation.
timely filed a pro se Rule 24.035 motion on
September 22, 2016. The motion court referred the case to the
Public Defender, and on January 23, 2017, Gates timely filed
an amended motion ("Amended Motion"). The Amended
Motion asserted that Gates was denied due process of law
because he was unlawfully convicted and sentenced for the
class C felony of stealing, when he should have been
convicted and sentenced for the class A misdemeanor of
stealing in light of the Missouri Supreme Court's
decision in State v. Bazell, 497 S.W.3d 263 (Mo.
banc 2016). The Amended Motion asked the motion court to
vacate the unlawful felony conviction and sentence, and to
enter an amended judgment to reflect Gates's conviction
of the class A misdemeanor of stealing with a one-year
sentence in the county detention center.
March 23, 2017, the motion court issued its findings of fact,
conclusions of law, and judgment ("Judgment"). The
Judgment found that Gates was entitled to relief pursuant to
the authority of Bazell. However, instead of
affording Gates the remedy requested in the Amended Motion,
the motion court vacated Gates's guilty plea and placed
his criminal matter back on the docket. The motion court
reasoned that Rule 24.035(j) authorizes such remedy as is
appropriate, and that it was more appropriate to return the
parties and the case to their positions before Gates's
guilty plea, permitting the State to determine how it wanted
to charge Gates.
timely appealed the motion court's Judgment. After
Gates's appeal was filed, the trial court before whom
Gates's criminal matter was once again
pending granted the State leave to file a
substitute information charging Gates with the class C felony
of receiving stolen property in violation of section
570.080. Gates pleaded guilty to the amended charge
and received a four-year sentence, with credit for time
served. The trial court recommended Gates "for 559 Shock
Program, if eligible and qualified." On October 4, 2017,
the trial court found that Gates "has completed the 120
day program pursuant to 559.115 RSMo, " and ordered
supervision of Gates by the Missouri Board of Probation and
Parole for a term of five years.
single point on appeal asserts that the motion court clearly
erred in vacating Gates's guilty plea because that remedy
was neither requested by him nor appropriate. Gates claims
that, pursuant to State v. Bazell, the appropriate
remedy when a trial court sentences a defendant in excess of
the maximum sentence authorized by law is to resentence the
defendant within the range of punishment for the proper
degree of the offense. Thus, Gates asserts that instead of
vacating his voluntary guilty plea, the motion court should
have vacated the judgment of conviction and sentence for the
class C felony of stealing and entered a new judgment of
conviction and sentence for the class A misdemeanor of
we consider the merits of Gates's appeal, we must
determine, as a threshold question, whether the controversy
is moot. In re Estate of Pethan, 475 S.W.3d 722, 726
(Mo. App. W.D. 2015). Mootness implicates the justiciability
of the case, so we may dismiss a case for mootness sua
sponte. State ex rel. Reed v. Reardon, 41
S.W.3d 470, 473 (Mo. banc 2001). To exercise appellate
jurisdiction, the case must present "an actual and vital
controversy susceptible of some relief." Id.
"[A] cause of action is moot when the question presented
for decision seeks a judgment upon some matter which, if the
judgment was rendered, would not have any practical effect
upon any then existing controversy." Id. If
"'an event occurs that makes a court's decision
unnecessary or makes granting effectual relief by the court
impossible, the case is moot and generally should be
dismissed.'" Estate of Pethan, 475 S.W.3d
at 726 (quoting Dotson v. Kander, 435 S.W.3d 643,
644 (Mo. banc 2014)). "This is true even if the case was
not moot at its inception." Matter of Mo-Am. Water
Co., 516 S.W.3d 823, 828 (Mo. banc 2017). A case
"may be mooted by an intervenient event which so alters
the position of the parties that any judgment rendered merely
becomes a hypothetical opinion." State ex rel.
Reed, 41 S.W.3d at 473. In determining whether the
controversy is moot, we may consider facts outside the
record. In re J.T.S., 462 S.W.3d 475, 478 (Mo. App.
appeal asks us to reverse the motion court's Judgment and
to remand this matter to the motion court with instructions
to enter a judgment of conviction and sentence for the class
A misdemeanor of stealing. However, Gates's decision to
plead guilty to the amended charge of receiving stolen
property renders it impossible to grant this relief. The
factual circumstances giving rise to Gates's guilty plea
to the amended charge of receiving stolen property are the
same as those giving rise to the felony conviction for
stealing Gates now wants reduced to a misdemeanor. Any
opinion we might issue regarding the motion court's
authority to vacate Gates's guilty plea when that remedy
was not sought by the Amended Motion would have no practical
effect, as Gates has voluntarily agreed to an alternative
resolution of his criminal matter.
argues that this matter is not moot because once he filed a
notice of appeal from the Judgment disposing of his Amended
Motion, "the circuit court lacked the authority to allow
the state to file an amended motion in the underlying
criminal case or . . . to take any further action until the
resolution of this appeal." Gates is correct that,
generally, once a notice of appeal is filed, the trial
court's jurisdiction over that case ceases, as
jurisdiction is relinquished to the appellate court.
Sanford v. CenturyTel of Mo., LLC, 490 S.W.3d 717,
721 (Mo. banc 2016). Gates's notice of appeal thus
divested the motion court of the authority to take
any further action in Boone County Cause No. 16BA-CV03343,
the civil proceedings involving the Amended Motion.
Gates's notice of appeal did not, however, divest the
trial court of the authority to act in Boone County
Cause No. 15BA-CR04395-01, the criminal matter reopened by
operation of the ...