Mark Jarvis v. State of Missouri , 472 S.W.3d 238 ( 2015 )

MISSOURI COURT OF APPEALS
WESTERN DISTRICT
MARK JARVIS, )
) WD77679
Appellant, )
v. ) OPINION FILED:
)
STATE OF MISSOURI, ) October 6, 2015
)
Respondent. )
Appeal from the Circuit Court of Lafayette County, Missouri
Honorable Dennis Allen Rolf, Judge
Before Division Two:
Thomas H. Newton, P.J., Victor C. Howard, and Mark D. Pfeiffer, JJ.
Mr. Mark Jarvis appeals the denial of a 24.035 post-conviction motion.
We dismiss the appeal.
Factual and Procedural Background
Mr. Jarvis appeals the denial of his Rule 24.035 motion for post-
conviction relief from the Lafayette County Circuit Court. The State charged
Mr. Jarvis with two counts of statutory sodomy and one count of child
molestation. 1 The parties appeared before the court on a continuance motion.
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The child molestation charge was not filed until the day of Mr. Jarvis’s plea hearing.
Although Mr. Jarvis’s defense counsel had indicated his desire for a
continuance, the plea court 2 informed Mr. Jarvis at this hearing that his case
was set for trial. At this hearing Mr. Jarvis indicated that he would plead guilty
to three counts in two cases pursuant to an open plea agreement. Mr. Jarvis’s
plea was accepted as freely, voluntarily and intelligently entered. During the
sentencing hearing the court deviated from the State’s recommendation 3 and
sentenced Mr. Jarvis to life in prison on both counts of first degree statutory
sodomy and fifteen years on the third charge of third degree child molestation.
Mr. Jarvis filed a timely pro se motion for post-conviction relief under
Rule 24.035 4 alleging that the plea court violated Rule 24.02(d)(4) by not
advising him of the right to withdraw his guilty plea nor allowing him the
opportunity to withdraw. He further asserted that his attorney was ineffective
for failing to inform him of his right to withdraw. Post-conviction counsel
timely amended this motion to claim that Mr. Jarvis’s plea was not knowingly,
intelligently, or voluntarily entered, because the plea court violated Rule
24[.02](d)(1)(a) and (b) by "knowingly participat[ing] in the plea agreement
and never specifically inform[ing] Mr. Jarvis of his right to withdraw his guilty
pleas," and because Mr. Jarvis "was not advised of his right to withdraw his
plea by the Court nor at anytime by his attorney" in violation of Rule
2
The same judge presided over the plea hearing and motion hearing in Mr. Jarvis’s case.
3
The prosecution recommended fifteen years on each count concurrent with eighty -five percent
served on every sentence.
4
Rule references are to the Missouri Supreme Court Rules of Criminal Procedure (2012), unless
otherwise indicated.
2
24.02(d)(4). Mr. Jarvis's amended motion claimed that Mr. Jarvis was
prejudiced because he "was never clearly given an opportunity to withdraw his
plea."
The motion court denied Mr. Jarvis’s amended motion because it found
that the plea court explained to Mr. Jarvis that an “open plea” meant that the
court would consider the State’s recommendation, but may not follow it and
Mr. Jarvis chose to plead guilty despite that advice.
This appeal follows.
Standard of Review
Our review of the denial of a Rule 24.035 post-conviction motion “shall
be limited to a determination of whether the findings and conclusions of the
trial court 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.” Cooper v. State, 356 S.W.3d 148, 152 (Mo. banc 2011). The Rule
24.035 movant must show “by a preponderance of the evidence that the motion
court clearly erred in its ruling.” Id. Claims not included in the post-
conviction motion are not reviewable on appeal. State v. Shafer, 969 S.W.2d
719, 740 (Mo. banc 1998).
Legal Analysis
Mr. Jarvis raises one point on appeal: whether the motion court erred in
denying his Rule 24.035 motion because the plea court "failed to comply with
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Rule 24.02(d)" because the plea court "did not advise Mr. Jarvis that his plea
could not be withdrawn if the court did not adopt" the State’s sentencing
recommendation and did not allow Mr. Jarvis to withdraw the plea once the
plea court refused to follow the State’s recommendation. The State argues that
Mr. Jarvis’s point on appeal differs from the claim raised in his amended
motion and is not preserved for our review. We agree.
Mr. Jarvis's amended motion complained that the plea court violated Rule
24.02(d) by failing to inform him that he could withdraw his guilty plea. Mr.
Jarvis's point on appeal claims the opposite, contending the plea court violated
Rule 24.02(d) by failing to inform him that he could not withdraw his guilty
plea. These are materially different claims, arising out of materially different
types of plea agreements.
By examining Rule 24.02(d) it is clear that a distinction exists between
the plea agreement procedure for pleas reached pursuant to sections (d)(1)(A),
(C), and (D) and pleas reached pursuant to section (d)(1)(B). Where the record
validates that the defendant understands that the prosecutor's promise is a
recommendation the court is not required to implement, a plea agreement
qualifies as a non-binding plea pursuant to 24.02(d)(1)(B). See Harrison v.
State, 903 S.W.2d 206, 208-210 (Mo. App. W.D. 1995). Upon examining the
four subsections, section (d)(1)(B) is the only subsection to express that the
sentencing recommendation is made “with the understanding that such
recommendation or request shall not be binding on the court.” These non-
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binding agreements are addressed in Rule 24.02(d)(2), which provides that “the
court shall advise the defendant that the plea cannot be withdrawn if the
court does not adopt the recommendation or request.” [Emphasis added] In
sharp contrast, the plea court's obligation when it rejects a plea agreement
reached pursuant to 24.02(d)(1)(A),(C), or (D) is governed by section
24.02(d)(4). That section requires the plea court to inform the parties of the
rejection, advise the defendant that the court is not bound by the plea
agreement and “afford the defendant the opportunity to then withdraw.”
Simply stated, the type of plea agreement reached controls the guidance a plea
court must provide a defendant, and, correspondingly, the right the defendant
has (or does not have) to withdraw a rejected plea.
Our Supreme Court confirmed that a Rule 24.035 claim based on not
being informed of the right to withdraw a guilty plea is materially different
from a claim based on not being informed that there is no right to withdraw a
guilty plea in Stanley v. State, 420 S.W.3d 532 (Mo. banc 2014). In Stanley, the
defendant entered into non-binding plea agreements pursuant to Rule 24.02(d)(1)(B), and
the plea court failed to inform him that he could not withdraw his guilty pleas if the court
deviated from the recommended sentence. After sentencing which deviated from the
State's recommendation, Mr. Stanley filed an amended Rule 24.035 motion which
claimed, among other things, that the court “violated Rule 24.02(d)(4) and this court’s
holding in Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978), when it failed to afford
movant an opportunity to withdraw his plea after the court rejected the plea agreement.”
5
After Mr. Stanley’s first post-conviction counsel withdrew, substitute post-conviction
counsel filed an untimely second amended motion which alleged that the plea court
violated Rule 24.02(d)(2) by failing to inform Mr. Stanley that his plea agreement could
not be withdrawn should the State's sentencing recommendation not be followed.
Relevant to this case, the Court made clear that the claim asserted in the untimely second
amended motion was not preserved by the allegations in the first amended motion
because:
The first amended motion does not state that the plea court violated Rule
24.02(d)(2) by failing to inform Mr. Stanley he could not withdraw his
guilty pleas should the court decide to deviate from the prosecuting
attorney's recommendation and impose a higher sentence. Rather, the first
amended motion's claims that the trial court erred are based on Rule
24.02(d)(4), which discussed the court's procedure for rejecting certain
types of plea agreements.
Stanley, 420 S.W.3d at 539. As a result, the Supreme Court did not reach Mr. Stanley's
claim that Rule 24.02(d)(2) had been violated, deeming the claim untimely and not
encompassed within the claimed violation of Rule 24.02(d)(4) asserted in the first
amended motion. Id. at 539, 543 ("Unlike the first amended motion, the second
amended motion alleges that the plea court violated Rule 24.02(d)(2) . . . .")
("Accordingly, arguments raised only in Mr. Stanley's late-filed second amended motion
are time-barred, and this Court confines its review to arguments raised in the first
amended motion.").
It is uncontested in this case that Mr. Jarvis's plea agreement was of the Rule
24.02(d)(1)(B) variety. And it is uncontested in this case that the claim of trial court
error asserted in Mr. Jarvis's amended motion was, just as in Stanley, a claim that the plea
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court failed to comply with Rule 24.02(d)(4). “Rule 24.02(d)(4) does not apply to plea
agreements of the Rule 24.02(d)(1)(B) variety.” Stanley, 420 S.W.3d at 545.
Mr. Jarvis's situation is thus substantively indistinguishable from Stanley. Mr.
Jarvis’s claim on appeal materially differs from the claim raised in his amended motion.
Claims not included in the post-conviction motion are not reviewable on appeal. State v.
Shafer, 969 S.W.2d 719, 740 (Mo. banc 1998). Because Mr. Jarvis's point on appeal is
not preserved for our review, his appeal is dismissed.5
Conclusion
In order to preserve a post-conviction issue for appeal counsel must
include the post-conviction issue in the Rule 24.035 motion. Issues not
included within the motion are non-reviewable on appeal. Therefore, we
dismiss the appeal.
/s/THOMAS H. NEWTON
Thomas H. Newton, Presiding Judge
Howard and Pfeiffer, JJ. concur.
5
We note, ex gratia, that were we to conclude that the error claimed in Mr. Jarvis's point on appeal
had been preserved for our review, we would agree with Mr. Jarvis that the trial court failed to
inform him that he could not withdraw his plea as required by Rule 24.02(d). However, we would
nonetheless deny Mr. Jarvis's appeal because he failed to plead prejudice in his amended motion of
the nature required to claim a Rule 24.02(d)(2) violation. See Stanley, 420 S.W.3d at 540 (noting, by
comparison, that "unlike the first amended motion, the second amended motion alleges . . . that Mr.
Stanley would not have pleaded guilty and would have gone to trial" had he been told he could not
withdraw his guilty plea if the court deviated from the prosecutor's sentencing recommendation).
Here, Mr. Jarvis did not sufficiently allege that but for the plea court's violation of Rule 24.02(d),
Mr. Jarvis would not have pled guilty and would have insisted on going to trial. Instead, the
amended motion pled that Mr. Jarvis was not given an opportunity to file a motion to withdraw his
plea--an assertion of prejudice that is facially inconsistent with the claim that Mr. Jarvis should have
been told he could not withdraw his plea.
7