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State v. Backues

Court of Appeals of Missouri, Western District, First Division

July 3, 2018

STATE OF MISSOURI, Appellant,
v.
KAREN A. BACKUES, Respondent.

          Appeal from the Circuit Court of Platte County, Missouri Honorable James Walter Van Amburg, Judge.

          Before: Lisa White Hardwick, P.J., Thomas H. Newton, and Edward R. Ardini, JJ.

          Thomas H. Newton, Judge.

         The State of Missouri appeals a Platte County judgment granting Rule 29.07 relief to Ms. Karen A. Backues and, thereby, altering the sentences imposed against her after she pleaded guilty to stealing and forgery in 2011. It challenges the trial court's authority, the application of Bazell, and the lack of conformity between the court's oral and written sentencing pronouncements. We reverse.

         On March 31, 2011, Ms. Backues pleaded guilty to three counts of then-felony stealing and three counts of forgery. On June 2, 2011, the court sentenced Ms. Backues to nine years in prison on each stealing count, to be served concurrently with one another, and to six years in prison on each forgery count, to be served concurrently with one another but consecutive to the stealing counts.

         On October 13, 2016, five years after the judgment became final, Ms. Backues filed a motion to set aside the guilty plea under Rule 29.07(d). Ms. Backues argued that relief was warranted under 29.07(d) because of the holding in State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016).[1]

         On January 19, 2017, the trial court sustained the Rule 29.07 motion and permitted the withdrawal of Ms. Backues's guilty pleas to three counts of felony stealing. The court amended the judgment and re-sentenced Ms. Backues to one year in the Platte County jail on each of the three counts of Class A misdemeanor stealing to be served concurrently. The court stated that counts IV, V, and VI would remain unchanged. In the written amended judgment, however, the court stated that those counts would run concurrently with the altered sentences for stealing, rather than consecutively as had been previously announced.

         The State filed this timely appeal on January 24, 2017.[2]

         Legal Analysis

         In the first point on appeal, the State argues that the trial court abused its discretion by granting the Rule 29.07 motion because it lacked the authority to do so and Ms. Backues should have filed her claims in a timely Rule 24.035 motion.

         "[O]nce judgment and sentencing occur in a criminal proceeding, the trial court has exhausted its jurisdiction. It can take no further action in that case except when otherwise expressly provided by statute or rule." State ex rel. Fite v. Johnson, 530 S.W.3d 508, 510 (Mo. banc 2017) (citation omitted). Rule 29.07 states that, "[a] motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea." § 29.07(d) RSMo. (2016) (emphasis added). Rule 29.07(d) allows the court to consider a post-sentence civil matter, and therefore, the motion court had jurisdiction to adjudicate Ms. Backues's Rule 29.07(d) motion. Id.

         The court, however, lacked the authority to sustain the motion in this case. In Fite, the Missouri Supreme Court held that, because the Defendant had pleaded guilty, any claims for post-conviction relief were governed by Rule 24.035. Id. Rule 24.035 was the "exclusive procedure" by which the Defendant "could have collaterally attacked the final judgment based on his claim [that] his sentence exceed[ed] the maximum sentence authorized by law." Id.

         Like the Defendant in Fite, Ms. Backues pleaded guilty to stealing under section 570.030. Because Ms. Backues pleaded guilty, her claims for post-conviction relief are governed by Rule 24.035(a). Ms. Backues's claim that her sentence was in excess of the maximum authorized by statute falls under the purview of 24.035 and, therefore, cannot be raised under 29.07(d). Like the trial court in Fite, the trial court here lacked the authority to grant relief. Point one is granted which resolves this matter. And even though a discussion of points two and three is unnecessary, we will briefly discuss the issues.

         In point two, the State argues that the motion court erred in amending the judgment and reducing Ms. Backues's sentence because Bazell did not apply retroactively. When reviewing the grant of a motion to withdraw a guilty plea under 29.07(d), we must determine whether the trial court abused its discretion or its ruling was clearly erroneous; the State has the burden to prove by a ...


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