JOHN R. THOMAS,                                  )
                                                 )
                  Appellant,                     )
                                                 )
     vs.                                         ) No. SD35994
                                                 )
STATE OF MISSOURI,                               ) FILED: March 16, 2020
                                                 )
                  Respondent.                    )

           APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY
                              Honorable W. Keith Currie, Judge
AFFIRMED
           Per a plea agreement, John Thomas was sentenced to prison with the court
retaining § 559.115 callback authority. 1 Having already been in jail for some time,
Thomas asked the court for a “brief furlough” before his imprisonment, which the
court granted after securing Thomas’s agreement to certain conditions and to
losing the callback option if he violated them, which he did. After the court
withdrew the § 559.115 option and Thomas reached prison, he filed an
unsuccessful Rule 24.035 challenge to the callback rescission, and now appeals.

                                         Background
           Thomas’s furlough conditions included no illegal drug use and that he turn
himself in ten days later (October 26, 2017). After Thomas acknowledged these on
the record, the court continued:


1   Statutory citations are to RSMo 2017; rule references are to Missouri Court Rules (2017).
              THE COURT: Well, I want to explain something to you. If
          you were to violate those conditions, any of those conditions, or
          if you failed to turn yourself in to the custody of the sheriff on
          October 26th, this 120 days would be withdrawn, you’d be going
          to the Department of Corrections on a 10-year sentence and it
          would be up to the parole board to determine when to release
          you; do you understand that?
             [THOMAS]: Yes, sir.
              THE COURT: So the 120-day consideration would be
          completely withdrawn from this sentence and judgement today
          and it would be up to the parole board as to when you would be
          released on a 10-year sentence. Now, do you understand those
          conditions?
             [THOMAS]: Yes.
            THE COURT: And, do you understand the possibility and
          what will happen if you were to violate those conditions?
             [THOMAS]: Yes, Your Honor.
              THE COURT: That being said, I’ll allow Mr. Thomas to be
          released without objection from the state. He’s to turn himself in
          to the custody of the sheriff on Thursday, October 26th, by 5
          p.m. for transport the next morning.
      Thomas did not turn himself in. Arrested in November on a capias warrant,
Thomas was brought to court and admitted he “got strung out on meth.” The court
withdrew the § 559.115 callback option before Thomas went to prison:
              The Court finds that Mr. Thomas violated the conditions of
          his furlough that were afforded him on October 16th, of 2017 in
          that by his own admissions, he used controlled substances, more
          particularly methamphetamine, while on furlough. That he
          failed to turn himself into the custody of the sheriff by 5 p.m. on
          October 26th for transport. Those were specific conditions upon
          him being considered for 120-day release pursuant to Chapter
          559 of the Revised Statutes of Missouri, and the Court -- and the
          Court having found that Mr. Thomas violated the conditions of
          his furlough does hereby withdraw and rescind any
          consideration for sentencing pursuant to Chapter 559.115.
      Thomas’s amended Rule 24.035 motion raised three challenges to this
rescission of the 120-day-callback option. The motion court rejected all three, and
Thomas reasserts all three in this court, so for brevity’s sake we move straight to


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the points on appeal. 2 To prevail here, Thomas must show the motion court clearly
erred in denying relief. Rule 24.035(k).

                        Point 1/Claim 8(a) – Jurisdiction
       Thomas first claims the plea court “exceeded its jurisdiction” in rescinding
the § 559.115 option. In finding otherwise, the motion court accurately analogized
Cupp v. State, 982 S.W.2d 304 (Mo.App. 1998), as follows:
               In Cupp, the Defendant was sentenced, in accordance with a
           plea agreement, pursuant to § 559.115, and, like the present
           case, it was decided that he was to be released pending his
           delivery to the institutional treatment program. However, in
           Cupp, the Defendant agreed that his release was subject to the
           condition that if he failed to appear as ordered, the § 559.115
           provision of his sentence would be withdrawn. When Defendant
           failed to appear for delivery to the DOC, the sentencing court
           deleted the portion of the sentence and judgment pertaining to
           § 559.115.
             In affirming the denial of the Defendant’s Rule 24.035
           motion, the Southern District said:
               “Movant chose to be released, and he did so subject
               to the condition that the § 559.115 provision would
               be removed from his sentence if he failed to report
               to the Sheriff by 6 p.m. on April 20, 1997. In taking
               away that provision after Movant failed to appear,
               the court was enforcing an agreement that Movant
               voluntarily made”. Id at 307.
       The motion court observed that Thomas likewise “was warned during the
plea proceeding that if he did not surrender himself to the sheriff on October 26,
2017 that his 120-day treatment would be withdrawn and he would receive a
straight sentence.” Therefore, as in Cupp, Thomas “was given the option of
accepting or rejecting the conditions imposed for the furlough and was warned of
the consequences of failing to live up to his agreement with the sentencing Judge,”
who “did not violate [Thomas’s] right by holding him to his agreement.”




2We have reviewed the record to confirm timeliness of Thomas’s pro se and amended Rule
24.035 motions. All of Thomas’s points on appeal violate Rule 84.04(d)(1), but we discern the
complaints sufficiently to review them in our discretion.

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       Thomas claims clear error on appeal, citing Allen v. State, 219 S.W.3d 273
(Mo.App. 2007), which reversed a plea court for rescinding a § 559.115 sentencing
option after the defendant failed to return as scheduled for transport to prison.3
Yet Thomas overlooks Allen’s observation of its critical difference from Cupp:
           However, in Cupp, the defendant agreed that his release was
           subject to the condition that if he failed to appear as ordered, the
           Section 559.115 provision of his sentence would be withdrawn.
                                               ***
               Cupp is distinguishable, in that, the record in the present
           case does not reflect that Movant agreed that his release was
           subject to the condition that the Section 559.115 provision would
           be removed from his sentence if he failed to appear on
           September 18, 2003.
Allen, 219 S.W.3d at 279. Plainly Cupp, not Allen, controls here. Cases to
similar effect include Finley v. State, 891 S.W.2d 507, 508-09 (Mo.App. 1994);
Harris v. State, 766 S.W.2d 460, 463 (Mo.App. 1989); State v. Weatherford,
631 S.W.2d 668, 669 (Mo.App. 1982); and Brown v. State, 607 S.W.2d 801, 805
(Mo.App. 1980). 4 Point denied.

                 Point 2/Claim 8(b) – Right to Withdraw Plea
       Thomas next alleges that the plea court violated Rule 24.02 by not offering
to let him withdraw his guilty plea before the court rescinded the § 559.115 option.
The motion court followed Finley, which rejected a similar claim under
comparable circumstances, in denying this claim.
       We find no clear error. As Finley notes, id., our courts consistently have
reached similar conclusions under similar facts. See Harris, 766 S.W.2d at 463;
Weatherford, 631 S.W.2d at 669; Brown, 607 S.W.2d at 805. Point 2 fails.


3 Thomas’s no-jurisdiction theory cites Allen’s use of terminology then in vogue – a trial court
“exhausts its jurisdiction” after criminal sentencing unless otherwise provided by law, with
subsequent action not so authorized “considered a nullity.” Id. at 277 (citations omitted).
Such principles no longer are deemed jurisdictional “following the clarification of authority
and jurisdiction set forth in Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009)….”
Newton v. Missouri Dep’t of Corr., 572 S.W.3d 531, 540 n.8 (Mo.App. 2019).
4 The U.S. Supreme Court vacated Brown twice on an unrelated double-jeopardy issue. See

Missouri v. Brown, 450 U.S. 1027 (1981), reexamined Brown v. State, 619 S.W.2d 68
(Mo. banc 1981), judgment vacated Missouri v. Haggard, 459 U.S. 1192 (1983).

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                    Point 3/Claim 8(c) – Right to Counsel
       Thomas, who appeared without counsel when the 120-day-callback option
was rescinded, claims the plea court erred in not first appointing him a lawyer.
       Again the motion court cited Cupp in denying this claim, noting that Cupp’s
core complaint was that the court deleted his § 559.115 provision without a hearing.
982 S.W.2d at 306. Cupp’s motion court found no prejudice because Cupp
admitted having violated clearly-stated conditions, so the plea court needed no
hearing to rescind the callback option. Id. We affirmed. “While it is true that
Movant was not brought back before the court prior to the elimination of the
§ 559.115 provision from his sentence, it is significant that this was the result that
Movant agreed to upon his release in the event he failed to appear as ordered.” Id.
at 307.
       Here, the motion court similarly reasoned that Thomas
          was not prejudiced by the lack of counsel standing at his side
          during the November 14, 2017 hearing, because he admitted that
          he understood the conditions of his furlough, he acknowledged
          that his receiving the 120-day treatment program was
          contingent upon him complying with those conditions, and he
          admitted to knowingly and willfully violating two of the three
          furlough conditions. According to the Southern District in
          Cupp, Movant’s appearance on November 14, 2017 was
          unnecessary and the sentencing court could have enforced the
          furlough agreement in Movant’s absence. Therefore, the
          hearing on November 14, 2017 was not a critical stage of the
          criminal process.
       Thomas’s response on appeal is that Allen fits this case better than does
Cupp. Having showed otherwise under Point 1, we also deny Point 3.

                                    Conclusion
       Thomas already was on felony probation, having been given a break, when
he committed a second serious felony. The prosecutor “graciously offered a second
chance via the 120 release,” to quote Thomas’s own lawyer. The plea court
accepted the deal and sentenced Thomas accordingly.
       Thomas then asked for yet a third break beyond the original terms – to be
released without bond for ten days. Before committing, the court proposed clear
conditions to help Thomas stay out of trouble (no intoxicants, no illegal drugs) and

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incent him to timely return (§ 559.115 option rescinded if not). Thomas, with his
lawyer present, agreed and got his requested third break.
      He then violated the no-drug condition, followed by the condition to timely
return. In fact, he never voluntarily returned. Eventually arrested and brought to
court, Thomas acknowledged his prior agreements and release conditions and that
he violated them.
      Of all the cases we have cited supporting the plea court’s response, Finley,
891 S.W.2d at 509, says it shortest and best: Thomas “was given the option of
accepting or rejecting the condition imposed for delay and was warned of the
consequences of failing to live up to his agreement. There is no injustice in
imposing the promised consequences after his undisputed misconduct.” We affirm
the judgment denying Rule 24.035 relief.


DANIEL E. SCOTT, P.J. – OPINION AUTHOR
JEFFREY W. BATES, C.J. – CONCURS
DON E. BURRELL, J. – CONCURS




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