In the
Missouri Court of Appeals
Western District
TIMOTHY CAFFERTY,
WD76817
Appellant, OPINION FILED:
v.
November 4, 2014
STATE OF MISSOURI,
Respondent.
Appeal from the Circuit Court of DeKalb County, Missouri
The Honorable Thomas Nichols Chapman, Judge
Before Division Four: Alok Ahuja, C.J., Joseph M. Ellis, and James Edward Welsh, JJ.
Timothy Cafferty appeals the circuit court's judgment denying his Rule 24.035 motion for
post-conviction relief following an evidentiary hearing. In his sole point on appeal, Cafferty
contends that the circuit court clearly erred in denying his Rule 24.035 motion, in violation of
Rule 24.02(e) and his right to due process as guaranteed by the United States Constitution and
article I, section 10 of the Missouri Constitution, because his guilty plea was not knowingly,
intelligently, or voluntarily made. In particular, Cafferty asserts that the record does not establish
a sufficient factual basis to support his plea of guilty to one count of criminal nonsupport. We
reverse the circuit court's judgment denying Cafferty's post-conviction motion, and we vacate
Cafferty's conviction and sentence and remand for further proceedings on the criminal
nonsupport charge.
The State charged Cafferty by information with knowingly failing to provide, without
good cause, adequate food, clothing, lodging, and adequate medical attention for his minor child,
for whom Cafferty was legally obligated to support, in that Cafferty failed to pay any child
support in each of the six individual months within the twelve month time period from July 1,
2007, to June 30, 2008, in violation of §568.040, RSMo 2000.1
Prior to pleading guilty, Cafferty completed a Petition to Enter a Plea of Guilty. In the
written petition, Cafferty acknowledged that he had read the information and that he "fully
under[stood] every charge made against [him]." In his petition, Cafferty stated he committed
"the following acts in connection with the charge" against him: "I didn't pay my child support."
At the guilty plea hearing, the court informed Cafferty that the State had charged him
with the class D felony of nonsupport, in that he "knowingly failed to provide child support
payments to go toward providing adequate food and clothing" for his child and "failed to pay
child support for six of the months in a twelve month period of July 1, 2007 until June 30th,
2008." Cafferty said that he understood the charge and that he desired to plead guilty. The court
then asked Cafferty if he was acknowledging that "for six individual months, between July 1,
20082 to June 30th 2008, that you failed to provide any child support," and Cafferty said, "Yes."
The court then asked Cafferty, "Why was that . . . ?" Cafferty responded, "Because I couldn't
1
A defendant is to be tried for the offense as defined by the law that existed at the time the offense was
committed. State v. Edwards, 983 S.W.2d 520, 521 (Mo. banc 1999). The General Assembly amended section
568.040 in 2009 and in 2011, as discussed in footnote 4.
2
The parties do not contest that the time period was from July 1, 2007 (and not 2008 as the court stated)
until June 30, 2008.
2
find work. Ever since I got out of prison it has been hard to find work, but I have a job lined up
for when I get out of here so I can start paying."
To establish the factual basis, the court then asked the State to recite the evidence it
would present if Cafferty's case were to proceed to trial. The State responded:
Judge, if this case went to trial the State's evidence would be that that
applicable order of dissolution on March 16th, 2004 in the Circuit Court of Cole
County, Missouri. Pursuant to that, the defendant was ordered to pay $218.00
each month in support of Chance Ryder Cafferty. From the charging period of
July 1st, 2007 to June 30th, 2008 the defendant failed to provide at least six
months of that support. Judge, that would be the State's evidence if this case were
to go to trial.
The plea court asked Cafferty if he disagreed with the State's recitation of the factual basis, and
Cafferty responded:
Well the only thing I disagree on when she got custody of him I didn't
know I was supposed to because she lived in Jefferson County and I when I tried
to get a hold of her, she had moved. I did not know that I was supposed to pay
child support until it was up to like five thousand dollars and I was contacted--
At this point, Cafferty's attorney asked if she could have a moment with her client, and then the
attorney explained to the court that her client recognized that he did not have an address that
allowed him to get "letters of communication" related to the child support payments. Further, the
attorney stated that Cafferty recognized that he had "the responsibility of his son when he was
not still living in the household" and that he had the responsibility to "check into that."
The court accepted Cafferty's guilty plea, suspended imposition of sentence and placed
him on probation for five years. As a condition of probation, the court ordered Cafferty to pay
$218 a month in child support and $115 a month toward the child support arrearage and ordered
that the arrearage be paid by the end of his probationary period. Ultimately, Cafferty's probation
was revoked, and he was sentenced to four years imprisonment.
3
Cafferty timely filed his pro se Rule 24.035 motion, and counsel timely filed an amended
Rule 24.035 motion. In his amended motion, Cafferty alleged that his right to due process, as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and
article I, section 10 of the Missouri Constitution, was violated in that his guilty plea was not
knowing and voluntary. Cafferty claimed that no factual basis established that he failed to pay
child support "without good cause." The circuit court conducted an evidentiary hearing, which
Cafferty did not attend. At the hearing, Cafferty's attorney contended that whether or not a
sufficient factual basis existed for the plea was a question of law for the court to decide on the
basis of the guilty plea record. The State agreed that based upon the transcript of the guilty plea
hearing and "the case law" enough information existed for the circuit court to determine whether
or not a sufficient factual basis existed for the plea. On August 7, 2013, the circuit court denied
Cafferty's amended Rule 24.035 motion. Cafferty appeals.
Our review of the circuit court's ruling on a Rule 24.035 motion is limited to determining
whether its findings and conclusions are clearly erroneous.3 Rule 24.035(k). Findings and
conclusions are clearly erroneous only if we have a definite and firm impression that a mistake
was made. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006).
In his sole point on appeal, Cafferty contends that the circuit court clearly erred in
denying his Rule 24.035 motion, in violation of Rule 24.02(e) and his right to due process as
guaranteed by the United States Constitution and article I, section 10 of the Missouri
Constitution, because his guilty plea was not knowingly, intelligently, or voluntarily made.
Cafferty asserts that the record does not establish a sufficient factual basis to support his plea of
3
Where as here, when we have determined that the circuit court erred on a purely legal issue, we question
the applicability of the "clearly erroneous" standard and question whether we could have any impression other than a
definite and firm impression that a mistake has been made.
4
guilty to one count of criminal nonsupport. In particular, Cafferty claims that the factual basis
did not establish that he failed to pay child support without good cause.
Rule 24.02 sets forth the procedure a plea court must follow for pleas in felony
and misdemeanor cases. Pursuant to Rule 24.02(b)(1), "before accepting a plea of guilty, the
court must address the defendant personally in open court, and inform defendant of, and
determine that defendant understands . . . [t]he nature of the charge to which the plea is
offered[.]" Further, Rule 24.02(e) provides, "The court shall not enter a judgment upon a plea of
guilty unless it determines that there is a factual basis for the plea." The stated purposes of Rule
24.02 are to make sure that "'a defendant understand[s] the specific charges against him, that he
understand[s] the maximum penalty confronting him, and that he recognize[s] that he has waived
specific legal rights by pleading guilty.'" Calvin v. State, 204 S.W.3d 220, 225-26 (Mo. App.
2006) (citation omitted). "'A plea forms the factual basis for a guilty plea where it is voluntarily
and understandingly made, as well as unequivocal as to the factual requisites necessary to
establish every element of the offense.'" Id. at 226 (emphasis in the original and citation
omitted). "[B]ecause a guilty plea is an admission of all the elements of a formal criminal
charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in
relation to the facts." McCarthy v. U.S., 394 U.S. 459, 466 (1969) (footnote omitted),
superseded on other grounds by rule amendment as recognized by U.S. v. Jaramillo-Suarez, 857
F.2d 1368, 1371 (9th Cir. 1988).
The version of section 568.040 that was in effect at the time Cafferty committed the
offense of criminal nonsupport provided:
1. [A] parent commits the crime of nonsupport if such parent knowingly
fails to provide, without good cause, adequate support which such parent is
5
legally obligated to provide for his child or stepchild who is not otherwise
emancipated by operation of law.
2. For purposes of this section:
....
(2) "Good cause" means any substantial reason why the defendant is
unable to provide adequate support. Good cause does not exist if the defendant
purposely maintains his inability to support;
(3) "Support" means food, clothing, lodging, and medical or surgical
attention;
....
3. The defendant shall have the burden of injecting the issues raised by
subdivision (2) . . . of subsection 2.
4. Criminal nonsupport is a class A misdemeanor, unless the person
obligated to pay child support commits the crime of nonsupport in each of six
individual months within any twelve-month period, or the total arrearage is in
excess of five thousand dollars, in either of which case it is a class D felony. 4
"An element of a criminal non-support charge is that the parent is without good cause in failing
to provide support. § 568.040.1." Calvin, 204 S.W.3d at 227. Although the circuit court does
not have to explain every element of a crime to the defendant, the defendant still must
understand the nature of the charges against him. Id. "A factual basis is established if the
defendant understands the facts recited by the judge or the prosecutor at the guilty plea
proceeding. A defendant, however, should express an awareness of the nature and elements of
4
The 2009 amendment to section 568.040 kept "without good cause" as an element of the offense but added
that the "[i]nability to provide support for good cause" was an affirmative defense and that the person raising the
affirmative defense had "the burden of proving the defense by a preponderance of the evidence." § 568.040.3. The
2009 amendment also kept the provision that the defendant had the burden of injecting good cause. § 568.040.4.
The 2011 amendment to section 568.040 deleted the language "without good cause" from the elements of the
offense and deleted the provision that the defendant had the burden of injecting good cause. The 2011 amendment,
however, kept the provision that the "[i]nability to provide support for good cause" was an affirmative defense and
that the person raising the affirmative defense had "the burden of proving the defense by a preponderance of the
evidence." §568.040.3
6
the charge to which he or she pleads guilty." Id. at 225 (citation and internal quotation marks
omitted).5
In this case, in reciting the charge to Cafferty, the circuit court did not mention on the
record that an element of criminal nonsupport was that the parent failed to provide support
without good cause. Indeed, at the guilty plea hearing, the court informed Cafferty:
Mr. Cafferty, the Assistant Prosecuting Attorney has charged you with the
class D felony of non-support in that you knowingly failed to provide child
support payments to go toward providing adequate food and clothing for your
child, and during said time, the defendant failed to pay child support for six of the
months in a twelve month period of July 1, 2007 until June 30th, 2008.
The court then asked Cafferty if he understood the charge, and Cafferty said that he did and that
he wanted to plead guilty. Although Cafferty unequivocally agreed that he was pleading guilty to
the charge as recited by the court, nothing in the plea hearing indicates that Cafferty understood
that failing to provide support "without good cause" was an element of the offense of criminal
nonsupport. No one advised Cafferty during the plea hearing that if he was unable to provide
5
This court recently addressed the issue whether a sufficient factual basis for a plea is established where an
information charges a defendant with all the elements of the crime, the nature of the charge is explained to the
defendant, and the defendant admits guilt. Frantz v. State, WD76733 (Mo. App. W.D. Sept. 16, 2014). In Frantz,
the record established that the defendant pled guilty voluntarily and understood the nature of the charge, but the
record did not establish whether or not the defendant knew that his conduct actually fell within the charge. Id. slip
op at 7. The Frantz court found that the defendant's conduct did not fall within the charge and concluded that the
motion court clearly erred in finding that there was a factual basis for the defendant's guilty plea. Id. slip op. at 11.
In so ruling, the court instructed that, rather than relying on a defendant's response that his counsel advised him
regarding the nature of the charge, the circuit court, when conducting a guilty plea hearing, should "ascertain facts
on the record regarding the defendant's specific conduct that the State believes supports the elements of the charged
crime." Id. slip op. at 10 (emphasis in the original). The Frantz court explained:
Simply reciting the charging document, which, in all likelihood, merely quotes the statutory
elements is not sufficient to establish a factual basis for the defendant's guilty plea. In addition to
the charge and statutory elements, the record must reflect the defendant's actual, factually-specific
conduct leading to the charge. In other words, after advising the defendant of the charge, the court
should inquire of either the prosecutor or the defendant or both what the defendant actually did to
warrant the charge. The court should then satisfy itself that the conduct described meets the
elements required for the charged crime before declaring that a factual basis has been made.
Id. slip. op. at 10-11 (emphasis in the original).
7
support for any substantial reason that he could not be held criminally liable for the offense.
Thus, it cannot be said that he understood the nature and elements of the charge against him.
Indeed, when the court asked Cafferty why he failed to pay child support, Cafferty
responded, "Because I couldn't find work. Ever since I got out of prison it has been hard to find
work, but I have a job lined up for when I get out of here so I can start paying."6 Given
Cafferty's explanation as to why he failed to pay support for his child, Cafferty did not
unequivocally state that he lacked good cause to provide adequate support for this child. In light
of his response, "the circuit court was obligated, before accepting the guilty plea, to explore the
issue further to determine either that [Cafferty] had the ability to pay support or purposely
maintained his inability to provide support during the specific months charged." Calvin, 204
S.W.3d at 228.
We recognize that Cafferty signed a Petition to Enter Plea of Guilty and stated that he
read the information and that he fully understood the charge made against him. "[A] plea
petition," however, "cannot act as a substitute for the trial court insuring, on its own right, that a
defendant understands the implications of his guilty plea." State v. Thomas, 96 S.W.3d 834, 844
(Mo. App. 2002). As this court recognized in Thomas:
"The Supreme Court obviously did not want to entrust to anyone other than the
court the extremely important determination that a defendant's plea was
voluntarily and knowingly made. The best way to ascertain that a defendant was
6
Section 568.040.3, RSMo 2000, provided that the defendant had the burden of injecting good cause. The
Missouri Supreme Court has stated that a defendant does not have to produce substantial evidence of good cause to
inject the issue and does not have to prove good cause with substantial evidence. State v. Latall, 271 S.W.3d 561,
564 (Mo. banc 2008). As the Latall court explained, "Defendant's burden is merely to produce evidence of good
cause. Once that is done, the state must prove that the defendant did not have good cause and must do so beyond a
reasonable doubt." Id. "The question of the defendant's burden is not a question of sufficiency but is . . . an issue of
whether the defendant's contention is 'supported by evidence.'" Id. at 565-66. Indeed, section 556.051, RSMo 2000,
instructs, "When the phrase "The defendant shall have the burden of injecting the issue" is used in the code, it means
(1) The issue referred to is not submitted to the trier of fact unless supported by evidence; and (2) If the issue is
submitted to the trier of fact any reasonable doubt on the issue requires a finding for the defendant on that issue." Id.
8
acting voluntarily with sufficient knowledge and awareness was for the court,
personally in open court while the defendant stood before it, to inform the
defendant of his or her rights and then to determine whether the defendant waived
those rights and understood the nature of the proceeding. Although a writing can
inform an individual of his or her rights, the court cannot determine that the
individual truly understands those rights unless it follows Rule 24.02's mandate
that it inform the individual of those rights personally in open court."
Id. at 844-45 (quoting Dean v. State, 901 S.W.2d 323, 327 (Mo. App. 1995)). Thus, even though
Cafferty admitted in the plea petition that he read the information and understood the charge
against him, the court still had an obligation to make sure that Cafferty understood the nature of
the charge against him.
Because the record does not establish that Cafferty understood the specific nature and
elements of the charge against him, his plea was not knowing and voluntary. We are under a
definite and firm impression that a mistake has been made and conclude that the circuit court
erred in denying Cafferty's request for post-conviction relief. We, therefore, reverse the circuit
court's denial of Cafferty's Rule 24.035 motion, vacate his conviction and sentence, and remand
for further proceedings on the criminal nonsupport charge.
/s/ JAMES EDWARD WELSH
James Edward Welsh, Judge
All concur.
9