Court of Appeals of Missouri, Western District, Second Division
TIMOTHY A. WOLF, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Buchanan County, Missouri The
Honorable Keith Marquart, Judge
Before: Karen King Mitchell, Presiding Judge, and Alok Ahuja
and Edward R. Ardini, Jr., Judges
King Mitchell, Presiding Judge
Wolf appeals the denial of his Rule 24.035 motion for
post-conviction relief. Wolf argues that the motion court
erred in denying his motion, which alleged ineffective
assistance of plea counsel, without an evidentiary hearing.
But, after filing this appeal, Wolf absconded and remains at
large as of the date of this opinion. Accordingly, this
appeal is dismissed pursuant to the escape rule.
29, 2011, Wolf was charged with felony non-support of his
minor child. On August 30, 2011, Wolf filed a Petition to
Enter Plea of Guilty, in which he admitted that he knowingly
failed to provide, without good cause, food, clothing,
lodging, or medical attention for his child and that his
total arrears exceeded the amount of twelve monthly payments.
Included in the petition was Wolf's assertion, "My
lawyer has counseled and advised me on the nature of each
charge, on all lesser included charges, if any, and on all
possible defenses that I might have in this case." The
same day, Wolf pled guilty in open court, and after
satisfying itself that Wolf's plea was knowing and
voluntary and that there was a factual basis for the plea,
the court accepted Wolf's guilty plea. Under the terms of
the plea agreement entered between Wolf and the State, the
court suspended imposition of the sentence and placed Wolf on
probation for four years.
2, 2015, the State filed a motion to revoke Wolf's
probation. Wolf appeared in court on September 10, 2015,
admitted violating his probation, and waived his right to a
hearing, after which the court revoked his probation. The
court thereafter sentenced him to four years'
filed a pro se Rule 24.035 motion on November 20,
2015, and appointed counsel thereafter filed an amended
motion, alleging that plea counsel was ineffective for
"fail[ing] to fully investigate and explain to Mr. Wolf
the possible defenses to the charge he had." The motion
court denied Wolf's motion without an evidentiary
hearing, finding that his claim was refuted by the record.
Wolf filed his notice of appeal on June 7, 2017.
February 18, 2018, a warrant from the Board of Probation and
Parole issued for Wolf's arrest after he apparently
escaped from supervision. As of the date of this opinion, he has
not yet been located.
outset, the State urges us to dismiss this appeal pursuant to
the escape rule, based upon Wolf's decision to abscond.
escape rule is a judicially-created doctrine that operates to
deny the right of appeal to a criminal defendant who escapes
justice." State v. Miller, 536 S.W.3d 374, 378
(Mo. App. W.D. 2018) (quoting State v. Carter, 523
S.W.3d 590, 597 (Mo. App. W.D. 2017)). "The escape rule
authorizes the appellate court to dismiss an appellant's
appeal if the appellant absconds following a
conviction." Id. "The decision to apply
the escape rule rests within the sound discretion of the
appellate court." Id. (quoting Carter,
523 S.W.3d at 597). "The escape rule applies to appeals
on the merits as well as to motions for post-conviction
relief under Rules 29.15 and 24.035." Williams v.
State, 526 S.W.3d 367, 369 (Mo. App. E.D. 2017) (quoting
Nichols v. State, 131 S.W.3d 863, 865 (Mo. App. E.D.
2004)). "In determining whether to apply the escape rule
to dismiss the appellant's appeal, our central inquiry is
whether the appellant's escape adversely affected the
criminal justice system." Miller, 536 S.W.3d at
378. "If so, application of the escape rule and
dismissal of appellant's appeal is appropriate."
has been settled for well over a century that an appellate
court may dismiss the appeal of a defendant who is a fugitive
from justice during the pendency of his appeal."
Ortega-Rodriguez v. United States, 507 U.S. 234, 239
(1993). As the United States Supreme Court noted in
Molinaro v. New Jersey, 396 U.S. 365, 366 (1970),
No persuasive reason exists why this Court should proceed to
adjudicate the merits of a criminal case after the convicted
defendant who has sought review escapes from the restraints
placed upon him pursuant to the conviction. While such an
escape does not strip the case of its character as an
adjudicable case or controversy, we believe it disentitles