George Brown, Jr., Movant/Appellant v. State of Missouri, Respondent/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: George Brown, Jr., Movant/Appellant v. State of Missouri, Respondent/Respondent. Case Number: 23861 Handdown Date: 01/29/2001 Appeal From: Circuit Court of Scott County, Hon. T. Lynn Brown Counsel for Appellant: George Brown, Jr., Pro Se Counsel for Respondent: Adriane D. Crouse Opinion Summary: None Citation: Opinion Author: James K. Prewitt, Judge Opinion Vote: REVERSED AND REMANDED. Barney, C.J., and Garrison, J., concur. Opinion: Movant sought, under Rule 29.07(d), to set aside the judgment convicting him of forgery and to permit him to withdraw his plea of guilty to that charge. The trial court denied that motion without an evidentiary hearing, and Movant appealed. Movant contends that he was induced to enter a plea of guilty by the State's promise that he would receive a three-year term in the Department of Corrections and be placed in an institutional treatment center, and that he believed that if he successfully completed the institutional treatment center he would be placed on probation. Movant asserts he did not receive treatment at the institutional treatment center as he was promised. The record indicates that on April 29, 1999, Movant entered a plea of guilty and the court made an entry, stating in part: In keeping with the plea and finding on today's date it is the order, sentence and judgment of this Court defendant be committed to the custody of the Department of Corrections for a period of 3 years. Sentence to run concurrent with the present sentence which the defendant is

presently serving in Department of Corrections. Court retains jurisdiction for a period of 120 days under Section 559.115 [RSMo Supp. 1998], defendant referred to the Institutional Treatment Program provided through the Department of Corrections. The State asserts that the trial court correctly ruled when it denied Movant's Rule 29.07(d) motion because Movant's assertion "was cognizable under Rule 24.035 and therefore required him to raise his claim within ninety days of delivery to the Department of Corrections, which he failed to do." We do not believe that Movant's claim was barred by the ninety-day limitation of Rule 24.035. Movant was delivered to the Department of Corrections on April 30, 1999, and although the trial court retained jurisdiction for 120 days, on July 26, 1999, eighty-seven days after he was delivered to the Department of Corrections, probation was denied. When Movant learned of this is unknown, but it would be unreasonable to assume that with the three days remaining to file a motion under Rule 24.035 Movant could do so from the penitentiary. As this District discussed in State v. Ryan, 813 S.W.2d 898, 902 (Mo.App. 1991), the time limitation of Rule 24.035 may bar a claim under Rule 29.07(d). Ryan was followed by the Western District in Logan v. State, 22 S.W.3d 783 (Mo.App. 2000), and State v. Pendleton, 910 S.W.2d 268 (Mo.App. 1995). However, here, contrary to the State's assertion, Movant's basis for seeking to set aside his plea of guilty was not necessarily cognizable within the ninety-day time limit provided in Rule 24.035. As there was no evidentiary hearing, when Movant learned he would not be placed in an institutional treatment center cannot be told, nor do we know when he learned that probation was denied. Movant did not necessarily have a claim within the ninety-day period, so his claim could not be barred by Rule 24.035. In Ryan, Logan, and Pendleton, the movant appeared to be aware of his claim in sufficient time to file a timely motion under Rule 24.035. In Brown v. Gammon, 947 S.W.2d 437, 440 (Mo.App. 1997), the court held that although a complaint as to the voluntariness of a guilty plea is normally a matter that must be pursued in a Rule 24.035 motion, where the movant was not and could not have been cognizant of his claim until after the time limitation, that rule does not bar the claim. The court stated, "there is authority that an issue unknown or not reasonably discoverable to the inmate during the period in which he could file for relief under Rule 24.035 can provide the basis for habeas corpus relief under Rule 91." In Brown, the court concluded that it was impossible for the inmate to realize that he would not be denied probation until 120 days after the beginning of his sentence, which was after the time limitation under Rule 24.035 had run. In that habeas action, the court determined that habeas corpus was available where a manifest injustice would otherwise result. Similarly, Rule 29.07(d) allows the court to set aside a conviction and permit the defendant to withdraw

his guilty plea "to correct manifest injustice." We conclude that Movant's assertions are not time-barred and that he is entitled to an evidentiary hearing. The denial of Movant's motion is reversed and the cause remanded for further proceedings consistent with this opinion. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.