Court of Appeals of Missouri, Southern District, First Division
From The Circuit Court of Laclede County Honorable Matthew P.
W. LYNCH, J.
Allen Borneman ("Movant") was charged with passing
a bad check with the intent to defraud, a class C felony
under section 570.120. He pleaded guilty to that charge as part
of a negotiated plea agreement (the "Plea
Agreement"), which the plea court accepted, requiring
that Movant (1) serve a seven-year prison sentence in the
Department of Corrections ("DOC") (to run
concurrently with any and all other prison sentences Movant
was then serving), and (2) be ordered to pay restitution, via
a separate judgment of restitution document submitted by the
State to the plea court at the time of Movant's plea (the
"Restitution Order"), in the amount of $3, 260.44,
plus a $75 handling fee, in monthly installments beginning
thirty days after Movant is released from the DOC.
he was sentenced in accordance with the Plea Agreement and
delivered to the DOC, Movant timely filed a pro se
Rule 24.035 motion for post-conviction relief ("PCR
motion"). Movant claimed, as relevant here, that he
was denied due process of law, in that the plea court lacked
authority under section 557.011 to sentence him to a term of
imprisonment and also order him to pay restitution. Following
an evidentiary hearing, the motion court issued its findings
of fact, conclusions of law, and judgment denying
post-conviction relief. Movant timely appeals. Because
Movant's claim was waived by his knowing, voluntary, and
intelligent guilty plea and the complained-of plea court
error, if any, was self-invited, we affirm.
and Procedural Background
Movant's plea hearing, counsel outlined the terms of the
Plea Agreement to the plea court. First, Movant's plea
counsel indicated that the terms were "[s]even years
concurrent to any and all other sentences." The plea
court then asked if Movant was serving time, and Movant
responded affirmatively. The plea court next asked the
prosecutor to confirm whether plea counsel had accurately
described the Plea Agreement. The prosecutor agreed and
added, "[t]he agreement also is that the State is filing
a judgment and order for restitution that [Movant] is to pay
while he's on parole." The plea court inquired
whether there was any reason it should not sign the
Restitution Order, and plea counsel responded and confirmed,
"No, that's part of our agreement." The
prosecutor added, "Your Honor, I would ask that you
inquire of [Movant]. He has a habit of, I think, filing
appeals saying that he did not realize he had to pay this on
parole, judging from his Case.net history." Addressing
Movant, the court asked, "Is that your understanding of
the negotiated plea, Mr. Borneman?" Movant then
responded, "Yes, [Y]our Honor."
plea court then examined Movant under oath. During this
exchange, Movant admitted to the facts underlying the charge
against him and indicated that he understood the possible
range of punishment and the terms of the Plea Agreement.
Regarding the restitution component of the Plea Agreement,
the plea court recited the terms that Movant would be
"required to pay restitution in the amount of $3, 260.44
plus a $75 administrative hearing - handling costs" and
that "[m]onthly payment will begin 30 days after [Movant
is] released from [DOC] confinement." Asked again if he
understood this component of the Plea Agreement, Movant
replied, "Yes, Your Honor." Movant also responded
affirmatively when asked whether he understood that he was
receiving a benefit by accepting the Plea Agreement. The plea
court accepted Movant's guilty plea, finding that
Movant's decision to plead guilty had been knowingly,
voluntarily, and intelligently made. The plea court also
accepted the Plea Agreement, announced Movant's sentence,
and executed his sentence in conformity with the
Movant filed his PCR motion, claiming, among other things,
that his sentence, which included a term of years in the DOC
and an order of restitution, exceeded the maximum sentence
allowed by section 557.011. Movant asserted that State v.
Schnelle, 398 S.W.3d 37 (Mo.App. 2013), Zarhouni v.
State, 313 S.W.3d 713 (Mo.App. 2010), and State v.
Roddy, 998 S.W.2d 562 (Mo.App. 1999), supported his
claim. Further, Movant admitted in his PCR motion, which he
certified as being "true and correct[, ]" that
before he entered his guilty plea he discussed his section
557.011 claim with his plea counsel and had shown plea
counsel his asserted supporting case law.
evidentiary hearing on the PCR motion, the motion court took
judicial notice of the underlying record (including the
transcript of Movant's plea hearing, the Plea Agreement,
the Restitution Order, and the plea court's formal
judgment) and heard the arguments of counsel. No witness
testimony was offered. Ultimately, the motion court denied
the PCR motion. Citing Bellamy v. State, 525 S.W.3d
166 (Mo.App. 2017), the motion court concluded that a 2013
amendment to section 559.105 changed the existing law to
allow an order of restitution as part of a sentencing
disposition that also includes a term of years in the DOC.
review is limited to a determination of whether the motion
court's findings and conclusions are clearly erroneous.
Rule 24.035(k). "The motion court's findings and
conclusions are clearly erroneous only if, after review of
the record, the appellate court is left with the definite and
firm impression that a mistake has been made."
Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc
"the judgment should be affirmed if the judgment is
sustainable on other grounds." Swallow v.
State, 398 S.W.3d 1, 3 (Mo. banc 2013). In other words,
"[t]his court may affirm the judgment on any legal
ground supported by the record if the motion court arrived at
the correct result." Greene v. State, 332
S.W.3d 239, 246 (Mo.App. 2010).
sole point ...