In the
Missouri Court of Appeals
Western District
DE ANDREA GRAY, )
)
Appellant, ) WD78896
)
v. ) OPINION FILED: August 30, 2016
)
STATE OF MISSOURI, )
)
Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable W. Brent Powell, Judge
Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
and Gary D. Witt, Judge
De Andrea Gray ("Gray") appeals from a judgment denying his motion to vacate
and expunge prior convictions pursuant to Rule 29.07(d).1 Gray argues that he was
convicted of crimes for which he did not plead guilty, and that he received ineffective
assistance of counsel. Finding no error, we affirm.
1
Rule 29.07(d) addresses the withdrawal of guilty pleas.
Factual and Procedural History
The factual and procedural history relevant to this appeal is drawn primarily from
prior orders and judgments which have addressed Gray's efforts to vacate convictions in
Jackson County, Missouri of the Class B felony of attempted robbery in the first degree
and of the Class A felony of assault in the first degree. All of Gray's efforts to vacate his
convictions, including the motion giving rise to this appeal, were initiated several years
after Gray completed service of the sentences imposed for his convictions.
Gray was charged in Jackson County, Missouri in October 1991 with the Class A
felony of attempted robbery in the first degree and armed criminal action ("ACA") in Case
No. CR91-4773. The State later amended the robbery charge to the Class B felony of
attempted robbery. In 1991, the authorized range of punishment for a Class B felony was
five to fifteen years in prison. Section 558.011 (RSMo 1991)
Gray was charged in Jackson County, Missouri in January 1992 with the Class A
felony of assault in the first degree and ACA in Case No. CR92-0032. In 1992, the
authorized range of punishment for a Class A felony was ten to thirty years or life
imprisonment. Section 558.011 (RSMo 1992).
On October 7, 1992, Judge William Peters entered a written Guilty Plea/Judgment
in Case No. CR91-4773 finding Gray guilty of the Class B felony of attempted robbery in
the first degree pursuant to a guilty plea, and noting that the State had dismissed the ACA
charge. The judgment imposed a sentence of seven years' imprisonment, a sentence within
the authorized range of punishment. On the same date, Judge Peters also entered a written
Guilty Plea/Judgment in Case No. CR92-0032 finding Gray guilty of the Class A felony of
2
assault in the first degree pursuant to a guilty plea, and noting that the State had dismissed
the ACA charge. The judgment imposed a sentence of seven years' imprisonment, a
sentence that is not within, and is in fact less than, the authorized range of punishment.
The sentence imposed in Case No. CR92-0032 was ordered to run concurrent with the
sentence imposed in Case No. CR91-4773. Although both judgments were signed by Judge
Peters on October 7, 1992, they recite that Gray was present in court and entered his guilty
pleas on October 5, 1992. A written acknowledgement of guilty plea form signed by Gray,
and dated October 5, 1992, was filed in Case No. CR92-0032.2 The acknowledgment does
not describe the terms of Gray's guilty plea, but advises Gray of his rights pursuant to Rule
24.035. Gray did not file a post-conviction motion pursuant to Rule 24.035 in either case.
In or around 2011, and thus long after Gray had completed the service of his
concurrent seven-year sentences for his Missouri convictions, Gray was convicted of a
federal crime for which he received an enhanced sentence as a career criminal.3 The
enhancement of Gray's federal sentence was a result of his Missouri convictions. Gray
alleges that this was when he first realized that he had been convicted in Case No. CR91-
4773 and Case No. CR92-0032 of crimes for which he never pled guilty.
Gray claims instead that he agreed to enter an Alford plea to the Class C felony of
attempted robbery in the second degree in Case No. CR91-4773, with a seven-year
sentence, the execution of which was to be suspended while he served five years' probation.
And Gray claims that he agreed to plead guilty in Case No. CR92-0032 to the reduced
2
It is unclear from the record whether a similar acknowledgement was filed in Case No. CR91-4773.
3
United States v. De Andrea Gray, Case No. 10-00099-02-CR-W-DGK (W.D. Mo. 2011).
3
charge of a Class C felony of carrying a concealed weapon, for which he would receive a
seven-year sentence. Gray claims that when he appeared in court on October 5, 1992, a
visiting judge would not accept his guilty pleas, and that his guilty plea hearing was
rescheduled to October 26, 1992.4 Gray was instead almost immediately transferred to
prison, and never reappeared before the trial judge. Gray explains that he assumed his
presence was not required to finalize his guilty pleas, and that he never questioned his
convictions because he was serving seven years, consistent with the plea agreement he
believed he had reached. Gray alleges that he never pled guilty to the crimes of which he
was actually convicted, and that he never participated in a guilty plea hearing where
questions were asked of him by the court.
When Gray was sentenced years later in federal court, and allegedly learned that he
had been convicted in Missouri of crimes for which he never pled guilty, Gray began efforts
to vacate his Missouri convictions. On May 9, 2012, Gray filed an application for writ of
coram nobis in Case No. CR91-4773 and Case No. CR92-0032. The trial court denied the
application on May 23, 2012, finding it had no authority to grant such relief. On November
15, 2012, Gray filed a motion for relief from judgment pursuant to Rule 74.06(d)5 in Case
No. CR91-4773 and Case No. CR92-0032. The trial court denied the motion on November
30, 2012, finding that Rule 74.06(d) is a rule of civil procedure that does not apply to
judgments in criminal cases.
4
The record supports Gray's contention that a hearing was scheduled for October 26, 1992, in both Case
No. CR91-4773 and Case No. CR92-0032.
5
Rule 74.06(d) addresses when a final civil judgment can be set aside.
4
On January 31, 2013, Gray filed a motion pursuant to Rule 29.12(b) and (c) in Case
No. CR91-4773 and Case No. CR92-0032, alleging plain errors resulting in a manifest
injustice, and a clerical mistake in his judgments of conviction. The trial court denied the
motion on July 16, 2013, finding that Rule 24.035 represented the exclusive procedure by
which Gray should have made claims that the judgments entered in his case violated the
constitutions of the State of Missouri or of the United States. The trial court found that
Rule 29.12(b) (involving plain error) does not create an independent basis for relief. The
trial court found that Gray's request to correct "clerical errors" in his State court judgments
was without merit because the errors he claims were not clerical in nature, and because
Gray could not establish that the judgments entered were not the judgments intended.
Finally, the trial court held:
Other than [Gray's] own self-serving statements that he did not plea guilty to
the offenses contained in the judgments, there is no evidence that the Court
intended to enter judgments reflecting that [Gray] pled guilty to offenses
other than the offenses listed in the judgment[s] entered by the Court on
October 7, 1992.
To the contrary, the record establishes that [Gray] did not plea guilty to the
Class C felonies of Attempted Robbery in the Second Degree and Carrying
a Concealed Weapon in the manner in which [Gray] claims in his motion. In
both cases, the record does not contain amended informations amending the
charges to which [Gray] claims to have pled guilty. In addition, the record
is completely void of any evidence, suggestion or indication that Defendant
pled guilty to offenses that are not reflected in the judgments. While the
Court is unable to locate or produce the transcript of [Gray's] guilty plea on
October 5, 1992, [Gray] bears the burden of establishing from the existing
record that mistake or clerical error occurred, and he is unable to meet this
burden.
Finally, [Gray's] claims are not credible as they are inconsistent with legal
rules and laws that existed in 1992. First, [Gray] claims that he pled guilty
to the Class C felony of Carrying a Concealed Weapon in CR 92-0032.
5
However, in 1992 Carrying a Concealed Weapon was a Class D felony with
a maximum range of punishment of five-years['] imprisonment. Second,
[Gray] claims that the Court "consolidated" the two cases into one
conviction. Yet, there is no legal basis for the Court to consolidate these two
cases. . . . Because [Gray's] claims are not credible and there is no support
for his claims in the record, [Gray] cannot establish that the judgments were
the result of a clerical error, and he is not entitled to relief pursuant to Rule
29.12(c).
(Citations omitted.)
Sometime in 2014, Gray filed a petition for writ of habeas corpus in the United
States District Court for the Western District of Missouri, Western Division. Though the
federal court concluded "that something seems amiss" with Gray's guilty pleas, it noted
that the "problem is compounded by the fact that because so much time has passed, the
state court has been unable to locate crucial records to sort out the inconsistencies alleged
by [Gray]." The federal court denied the writ because even assuming the accuracy of
Gray's account, its authority to afford habeas relief was limited by 28 U.S.C. section
2554(a) to addressing "custody pursuant to the judgment of a State court," and Gray was
not in custody pursuant to a state court judgment.6 The federal court observed: "Whether
the convictions and sentences entered against [Gray] in 1992 were or were not erroneous,
the fact remains that petitioner completed serving those sentences long ago."
On March 9, 2015, Gray filed a motion in Case No. CR91-4773 and Case No. CR92-
0032 to vacate and expunge his convictions as unconstitutional pursuant to Rule 29.07(d)
6
The federal court noted that Maleng v. Cook, 490 U.S. 488, 492 (1989), held that "once the sentence
imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves
sufficient to render an individual 'in custody' for the purposes of habeas attack on it."
6
and 28 U.S.C. section 1651(a) writ of error coram nobis.7 On May 29, 2015, the trial court
denied the motion "for the reasons cited in its Judgment and Orders entered on May 23,
2012, November 30, 2012, and July 16, 2013." The trial court expressly found that all of
the claims raised by Gray could have been raised in a timely filed Rule 24.035 motion.
On April 23, 2015, Gray filed another motion to vacate and expunge his convictions
as unconstitutional pursuant to Rule 29.07(d), though this time as an independent civil
action. Gray's motion was denied on July 13, 2015 "for the reasons cited [by the trial court]
in its Judgment and Order entered on May 29, 2015 in case numbers [CR91-4773] and
[CR92-0032]."
Gray appeals from the denial of his April 23, 2015 motion.
Deficiencies in Gray's Brief
Gray's brief suffers from a variety of Rule 84.04 violations but most notably a
violation of Rule 84.04(d). Rule 84.04(d)(1) requires each point relied on to:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant's claim of reversible
error; and
(C) explain in summary fashion why, in the context of the case, those legal
reasons support the claims of reversible error.
Our Supreme Court explained the purpose of this Rule in Thummel v. King, 570 S.W.2d
679, 686 (Mo. banc 1978):
The requirement that the point relied on clearly state the contention on appeal
is not simply a judicial word game or a matter of hypertechnicality on the
7
The trial court did not address, nor will we, Gray's request for relief pursuant to 28 U.S.C. section 1651(a)
which only applies, by its plain terms, to the United States Supreme Court and courts established by Acts of
Congress.
7
part of appellate courts. . . . Perhaps the most important objective of the
requirement relative to the points relied on is the threshold function of giving
notice to the party opponent of the precise matters which must be contended
with and answered. . . . [S]uch notice is essential to inform the court of the
issues presented for resolution. . . . If the appellate court is left to search the
argument portion of the brief . . . to determine and clarify the nature of the
contentions asserted, much more is at stake than a waste of judicial time . . .
. The more invidious problem is that the court may interpret the thrust of the
contention differently than the opponent or differently than was intended by
the party asserting the contention. If that happens, the appellate process has
failed in its primary objective of resolving issues related and relied on in an
appeal.
Both of Gray's points relied on fail to comply with Rule 84.04(d)(1). Gray's points relied
on are nothing more than a free flowing argument replete with vague references to a
plethora of perceived grievances. The points do not state wherein and why the trial court
erred in denying relief pursuant to Rule 29.07(d). However, "[d]espite the mandatory
nature of the requirements of Rule 84.04, this Court has discretion to review non-compliant
briefs ex gratia where the argument is readily understandable." Null v. New Haven Care
Ctr., Inc., 425 S.W.3d 172, 177-78 (Mo. App. E.D. 2014) (citing Moreland v. Div. of Emp't
Sec., 273 S.W.3d 39, 41 (Mo. App. W.D. 2008)). It is evident that Gray is seeking relief
from convictions of crimes for which he claims he never pled guilty, and that he is doing
so pursuant to Rule 29.07(d). Because we prefer to decide appeals on their merits, we
exercise our discretion to review Gray's points on appeal ex gratia. Id. at 178.
Analysis
8
In Point One, Gray argues that the trial court erred in denying his Rule 29.07(d)
motion because Gray never plead guilty to the crimes of which he was convicted, and was
not present during his conviction and sentencing. In Point Two, Gray argues that the trial
court erred in denying his Rule 29.07(d) motion because Gray received ineffective
assistance of counsel because counsel knew that Gray was convicted inconsistent with the
plea agreement he reached, and that Gray never participated in a guilty plea hearing. We
address the points collectively.8
Rule 29.07(d) provides that "[a] motion to withdraw a plea of guilty may be made
only before sentence is imposed or when imposition of sentence is suspended; but to correct
a manifest injustice the court after sentence may set aside the judgment of conviction and
permit the defendant to withdraw his plea." Rule 29.07(d) does not express a temporal
limitation on when a motion to withdraw a guilty plea can be filed "after sentence" is
imposed. However, our Supreme Court has addressed this very issue, clarifying that Rule
29.07(d) is not a substitute for other forms of post-conviction relief. Brown v. State, 66
S.W.3d 721, 730 (Mo. banc 2002), disagreed with on unrelated grounds by State ex rel.
Zinna v. Steele, 301 S.W.3d 510, 516-17 (Mo. banc 2010). After addressing the history of
Rule 29.07(d) and its interaction with other post-conviction remedies, the Supreme Court
observed:
8
The State argues that this Court does not have jurisdiction to entertain this appeal because the denial of a
Rule 29.07(d) motion is not appealable. In McCoy v. State, this Court found that it has "jurisdiction over appeals
from the denial of motions to withdraw guilty pleas under Rule 29.07(d), where the motions were filed subsequent
to the defendant's sentencing." 456 S.W.3d 887, 892 (Mo. App. W.D. 2015). Because Gray's motion was filed after
his sentencing, we decline the State's invitation to revisit our holding in McCoy.
9
While Rule 29.07(d) traditionally was available to provide the kind of relief
that these courts9 now state should be sought by means of a petition for
habeas corpus, Rule 29.07(d) does not have its own procedures or separately
developed jurisprudence and, for this reason, has fallen into disuse since the
adoption of Rule 24.035. In the meantime, Missouri's courts have developed
the law of habeas corpus in cases such as Jaynes and Simmons to
accommodate claims time-barred under Rule 29.15 . . . . Moreover, Rules
29.15 and 24.035 are otherwise interpreted in pari materia. Given this
history, to reinstate Rule 29.07(d) as a necessary means of raising claims
time-barred under Rule 24.035 would serve no useful purpose. To the
contrary, it would add another level of complexity to what can already be a
lengthy and complex post-conviction process.
Id. at 730. Thus, "although Rule 29.07(d) may permit broader relief at earlier stages of a
criminal proceeding, following the defendant's sentencing and remand to the Department
of Corrections a Rule 29.07(d) motion is allowed only if it raises 'grounds [for relief] other
than those enumerated in Rule 24.035.'" State v. Onate, 398 S.W.3d 102, 106 (Mo. App.
W.D. 2013) (quoting Brown, 66 S.W.3d at 731 n.5). "[I]f a defendant raises claims in a
Rule 29.07(d) motion which are within those enumerated in Rule 24.035, the motion
remains a Rule 24.035 motion and subject to all the terms and conditions of Rule 24.035,
including time limitations." Elam v. State, 210 S.W.3d 216, 219 (Mo. App. W.D. 2006).
Here, Gray complains that his convictions were based on a guilty plea that was not
knowing and voluntary; that his sentence was illegally imposed because he was not present
at the time he was convicted and sentenced;10 and that he received ineffective assistance of
counsel. "A claim that a defendant's guilty plea was not knowing and voluntary is a claim
'that the conviction . . . violates the constitution and laws of this state or the constitution of
9
Referring to Brown v. Gammon, 947 S.W.2d 437 (Mo. App. W.D. 1997), and Reynolds v. State, 939
S.W.2d 451 (Mo. App. W.D. 1996).
10
"[A] defendant's presence at sentencing is required by statute and rule." State ex rel. Zinna v. Steele, 301
S.W.3d 510, 515 n.4 (Mo. banc 2010) (citing sections 546.550 to 546.570; Rule 29.07(b))
10
the United States,' and therefore falls within the post-conviction claims enumerated in Rule
24.035(a)." Onate, 398 S.W.3d at 107 (quoting Rule 24.035(a)). Similarly, a claim that a
defendant was illegally sentenced following a guilty plea "'may be considered only in
response to a Rule 24.035 motion.'" Id. at 106 (quoting State v. Klaus, 91 S.W.3d 706, 706
(Mo. App. E.D. 2002)). Finally, a claim that a defendant received "ineffective assistance
of trial and appellate counsel" is a claim that is expressly enumerated in Rule 24.035.
Gray's claims are within the scope of Rule 24.035, and were thus required to be
asserted in a timely filed Rule 24.035 motion. Gray did not file a Rule 24.035 motion. His
claims are time-barred and procedurally defaulted.
Gray alleges that he did not know that he was convicted and serving sentences for
crimes as to which he never pled guilty. Gray thus alleges that he should be excused from
failing to raise his claims in a timely filed Rule 24.035 motion. The only recognized means
for achieving relief where "'a detainee has failed to timely seek Rule 24.035 relief, if the
detainee can establish that his grounds for relief were not known to him while Rule 24.035
proceedings were available,'" is pursuant to Rule 91 addressing habeas relief. Brown, 66
S.W.3d at 730 (quoting Reynolds v. State, 939 S.W.2d 451, 455 (Mo. App. W.D. 1996)).
Gray's underlying motion did not seek habeas relief pursuant to Rule 91.
In fairness, Gray appears to be facially ineligible for Rule 91 habeas relief, as he is
presently detained in Tennessee on a federal conviction, and as he has long since completed
service of the sentences that had him detained in Missouri. See Rule 91.01(b) (providing
that a "person restrained of liberty within this state may petition for a writ of habeas
corpus") (emphasis added). The unusual circumstances in this case involve a scenario
11
neither anticipated by nor discussed in Brown. It is not at all clear, therefore, that Rule
29.07(d) is unavailable to prevent manifest injustice where claims that should have been
raised in a Rule 24.035 motion can no longer be remediated by Rule 91 habeas relief
because the grounds for relief were not known to the defendant until after a sentence is
fully served and the defendant is no longer detained.
We need not decide whether Rule 29.07(d) affords a viable post-conviction option
in such an unusual circumstance to correct a manifest injustice. Even if it does, Gray is
foreclosed from seeking relief pursuant to Rule 29.07(d) because it has already been
determined that he has not suffered a manifest injustice.
Gray's January 31, 2013 motion filed in Case No. CR91-4773 and Case No. CR92-
0032 alleged that plain errors resulted in a manifest injustice pursuant to Rule 29.12(b).
Gray's Rule 29.12(b) motion was denied by the trial court's July 16, 2013 judgment. The
July 16, 2013 judgment expressly found that Gray's claim that he did not plead guilty to
the offenses of which he was convicted and instead pled guilty to other offenses was neither
credible nor supported by any evidence. These same findings were expressly incorporated
into the trial court's May 29, 2015 judgment which denied Gray's first attempt to seek relief
pursuant to Rule 29.07(d). Neither judgment was appealed by Gray. Both judgments are
now final.
"Collateral estoppel, or issue preclusion, provides that a fact judicially determined
in one action may not be litigated again in another action involving different issues."
Johnson v. Raban, 702 S.W.2d 134, 136 (Mo. App. E.D. 1985). Collateral estoppel applies
where "the issue decided in the prior adjudication was identical with the issue presented in
12
the present action; . . . the prior adjudication resulted in a judgment on the merits; . . . the
party against whom collateral estoppel is asserted was a party . . . to the prior adjudication;
and . . . the party against who collateral estoppel is asserted had a full and fair opportunity
to litigate the issue in the prior suit." Id. at 136-37. It was determined in connection with
Gray's Rule 29.12(b) motion, and again in connection with Gray's first Rule 29.07(d)
motion, that Gray's claim that he did not plead guilty to the crimes of which he was
convicted and pled instead to other crimes is neither credible nor supported by evidence.
Gray is bound by this determination in connection with the Rule 29.07(d) motion giving
rise to this appeal. As such, Gray is foreclosed from claiming that the circumstances of his
guilty plea resulted in a manifest injustice, an essential prerequisite to relief pursuant to
Rule 29.07(d).
Points One and Two are denied.
Conclusion
The trial court's April 23, 2015 judgment is affirmed.
__________________________________
Cynthia L. Martin, Judge
All concur
13