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Wartenbe v. State

Court of Appeals of Missouri, Eastern District, Second Division

August 13, 2019

MICHAEL D. WARTENBE, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of St. Francois County Honorable Troy K. Hyde

          KURT S. ODENWALD, JUDGE

         Introduction

         Michael D. Wartenbe ("Wartenbe") appeals the motion court's dismissal of his Rule 24.035[1] motion based on the escape rule. Wartenbe raises two points on appeal. Point One posits that the motion court improperly invoked the escape rule without ruling on the merits of Wartenbe's claims, thereby violating his constitutional rights. Point Two maintains that the motion court violated Wartenbe's statutory right to seek post-conviction relief by dismissing his Rule 24.035 motion. Recognized judicial authority clearly establishes that the motion court's application of the escape rule did not violate Wartenbe's constitutional rights. Further, Section 547.360[2] does not create an absolute statutory right to seek post-conviction relief. Because the motion court did not abuse its discretion in applying the escape rule to dismiss Wartenbe's post-conviction motion, Wartenbe fails to establish clear error. Accordingly, we affirm the motion court's dismissal.

         Factual and Procedural History

         Wartenbe was involved in various activities that culminated with Wartenbe driving and losing control of a truck in which two minor children were passengers. Wartenbe drove the truck into a ditch and damaged a nearby mailbox. The two children were injured as a result of the incident. Wartenbe left the scene before the police arrived. The State charged Wartenbe with two counts of endangering the welfare of a child in the first degree, two counts of tampering in the first degree, two counts of assault in the second degree, one count of leaving the scene of a motor vehicle accident, and one count of property damage in the second degree.

         On December 3, 2014, Wartenbe entered a group plea in which he pleaded guilty to the two tampering charges and to leaving the scene of a motor vehicle accident. The State dismissed the remaining counts. The plea court accepted Wartenbe's guilty plea and sentenced him to eighteen years in prison. The plea court then suspended the execution of Wartenbe's sentence and placed him on supervised probation for five years.

         On October 28, 2015, after reviewing an allegation that Wartenbe violated his conditions of probation, the circuit court suspended Wartenbe's probation and scheduled a probation revocation hearing for December 2, 2015. The circuit court rescheduled the hearing for May 3, 2016. At the hearing, Wartenbe admitted to violating his probation by failing to pay restitution. The circuit court instructed Wartenbe to make a payment toward restitution and it reinstated his probation with the expectation that the remaining restitution be paid in full by the next court date. The circuit court then continued the case to August 2, 2016 for a probation violation hearing.

         On June 13, 2016, Wartenbe's mother informed the probation officer that she had checked Wartenbe into a hospital due to severe panic attacks. The probation officer instructed the mother to have Wartenbe contact the officer if the hospital did not discharge him within one week. On June 22, 2016, Wartenbe failed to report to his probation officer. The probation officer unsuccessfully attempted to contact Wartenbe. Wartenbe again failed to report to the probation officer on June 29, 2016, July 6, 2016, and July 27, 2016. When Wartenbe did not appear for the August 2, 2016 probation violation hearing, the circuit court issued a warrant for his arrest. Wartenbe was taken into custody on November 15, 2016.

         On December 6, 2016, the circuit court revoked Wartenbe's probation and executed his eighteen-year sentence after Wartenbe admitted his failure to report to his probation officer. Wartenbe later sought post-conviction relief pursuant to Rule 24.035, alleging various errors by the plea court and plea counsel when Wartenbe initially entered his guilty plea. The motion court first granted Wartenbe's request for an evidentiary hearing, but later, upon the State's motion, dismissed Wartenbe's Rule 24.035 motion without an evidentiary hearing, pursuant to the escape rule. Wartenbe now appeals.

         Points on Appeal

         Wartenbe raises two points on appeal, both alleging motion-court error. In Point One, Wartenbe contends that the motion court's application of the escape rule without ruling on the merits of his post-conviction claims denied Wartenbe his constitutional rights. In Point Two, Wartenbe posits that the motion court's dismissal of his Rule 24.035 motion under the escape rule violated his statutory right to seek post-conviction relief.

         Standard of Review

         We review a motion court's dismissal of a movant's Rule 24.035 motion for clear error. Rule 24.03 5(k) ("Appellate review of the [motion] court's action on the motion filed under this Rule 24.035 shall be limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous."); Musgrove v. State, 567 S.W.3d 237, 239 (Mo. App. S.D. 2018). "Findings and conclusions are clearly erroneous only if, after a review of the entire record, the court is left with a definite and firm ...


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