Court of Appeals of Missouri, Western District, First Division
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.
H. Newton, Judge.
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
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.
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).
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.
State filed this timely appeal on January 24,
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.
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.
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.
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.
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 ...