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Borneman v. State

Court of Appeals of Missouri, Southern District, First Division

February 20, 2019

STATE OF MISSOURI, Respondent-Respondent.

          Appeal From The Circuit Court of Laclede County Honorable Matthew P. Hamner


          GARY W. LYNCH, J.

         Christopher Allen Borneman ("Movant") was charged with passing a bad check with the intent to defraud, a class C felony under section 570.120.[1] 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.

         After 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").[2] 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.

         Factual and Procedural Background

         During 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 history." Addressing Movant, the court asked, "Is that your understanding of the negotiated plea, Mr. Borneman?" Movant then responded, "Yes, [Y]our Honor."

         The 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[3] 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 agreement's terms.

         Thereafter, 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.

         At the 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.

         Standard of Review

         Our 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 2009).

         Moreover, "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).


         Movant's sole point ...

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