                                                    In the
                               Missouri Court of Appeals
                                           Western District
 STATE OF MISSOURI,                                       )
                                                          )
                    Respondent,                           )    WD78861
                                                          )
 v.                                                       )    OPINION FILED:
                                                          )    September 13, 2016
 PETE WRIGHT,                                             )
                                                          )
                      Appellant.                          )

                 Appeal from the Circuit Court of Jackson County, Missouri
                            The Honorable David M. Byrn, Judge

 Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
                             and Gary D. Witt, Judge


       Pete Wright ("Wright") appeals from an order denying a Rule 74.06(b)(3) motion

that sought to set aside an earlier order denying Wright's section 547.037 motion for release

from prison following DNA testing.1 Wright's Rule 74.06(b)(3) motion claimed the order

denying his motion for release was irregular because the trial court did not follow

procedures specified by section 547.037. Because Wright's appeal is not taken from a

writing that is denominated as a "judgment," his appeal is dismissed.


       1
           All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
                               Factual and Procedural Background

        On November 22, 1988, the trial court entered a judgment convicting Wright of

forcible sodomy and felonious restraint. He was sentenced to 25 years and 5 years of

incarceration, respectively, with the terms to run consecutively.

        On April 25, 2011, Wright was granted post-conviction DNA testing pursuant

section 547.035.2 Wright's counsel3 and the State reached an agreement regarding the DNA

testing, which was accepted by the court pursuant to an order issued on August 3, 2011.

The agreement required testing of Caucasian hairs recovered from Wright's clothing;

Negroid hairs recovered from the victim's clothing and underwear; cuttings of material

from the victim's clothing; the victim's pubic hair combings and pubic hair standards; and

the victim's blood standard. The agreement also indicated that Wright would provide a

buccal swab reference sample. The parties agreed that the testing would be performed in

an agreed upon sequence, and that results would be reported by the testing company before

testing of subsequent items would begin.

        Wright received a letter from his attorney's office dated January 19, 2012, indicating

that hairs were going to be subjected to DNA testing before the victim's clothing. That

same letter indicated that "[s]o far, testing has been completed on one of the hairs collected

from your shirt," and "[t]he testing shows that the hair did not come from the victim." At




         2
           The court's order granting DNA testing was entered in Case No. 01CV-206799, the case number assigned
to Wright's motion seeking postconviction DNA testing pursuant to section 547.035, although the motion should
have been filed in the underlying criminal case, Case No. 16CR-87005014, pursuant to section 547.035.1.
         3
           Wright was being represented by attorneys working with The Innocence Project in New York and by
attorneys working with the Midwest Innocence Project.

                                                       2
Wright's trial, an expert had testified that the hair recovered from Wright's shirt "matched

the victim's head hair standard." [Tr. 157]

         The next information in the record regarding the DNA testing is a report from the

testing laboratory dated May 22, 2012.4 The report noted: (i) that one hair found on

Wright's shirt could not be excluded as belonging to Wright, and that another hair found

on Wright's shirt could be excluded as belonging to Wright; (ii) that a hair found on

Wright's shorts could be excluded as belonging to Wright; and (iii) that a hair found on the

victim's skirt could be excluded as belonging to both Wright and the victim. Summarized,

one hair found on Wright might belong to Wright, two hairs found on Wright did not belong

to Wright, and a hair found on the victim did not belong to either the victim or Wright.

The same report noted that a hair found on the victim's panties had not yet been processed.

         On April 9, 2013, the testing laboratory issued another report regarding testing on

the hair that was found on the victim's panties, and on DNA extract from the hair.5 The

report found that no mitochondrial DNA results could be obtained from the extract; that

the hair itself was consistent with the DNA profile of the victim; and that Wright was

excluded as the contributor of the hair. In summary, testing on the hair found on the

victim's panties showed that the hair possibly belonged to the victim, but did not belong to

Wright. At Wright's trial, the same expert who testified about the hair on Wright's shirt

also testified that the hair found on the victim's panties "matched [Wright's] head hair."

[Tr. 161]


         4
          The May 22, 2012 report references a February 3, 2012 report that is not a part of the record.
         5
          The report references the hair with the same "code" assigned the hair found on the victim's panties in the
report dated May 22, 2012.

                                                          3
         In summary, DNA testing on the hairs produced results that did not connect Wright

with the victim, and that were inconsistent with the expert witness testimony at trial

regarding one hair found on Wright's shirt and regarding the hair found on the victim's

panties.6

         There are no other reports from the DNA testing laboratory in the record. However,

it appears that after concluding the DNA testing on hair samples, DNA testing proceeded

to the victim's clothing.7

         On December 19, 2013, Wright's counsel filed a motion to close the case. The

motion stated:

         Today's sophisticated state-of-the-art DNA technology makes it possible to
         test clothing for potential contact or "touch" DNA. Therefore, among other
         items, [the testing laboratory] tested several cuttings from the victim's
         underwear and skirt.

         On November 18, 2013, the parties received verbal results that [the testing
         laboratory] was able to generate a consistent male genetic profile from Y-
         STR DNA testing of the clothing cuttings. [Wright] could not be excluded
         from the samples tested.8 . . . A copy of the letter sent to the Court after
         receiving these results is attached hereto as Exhibit A.




         6
            The trial transcript indicates that the expert testimony connecting a hair found on the victim as Wright's
and a hair found on Wright as the victim's was not the only evidence connecting Wright to the assault on the victim.
Among other things, the jury also heard from the victim who identified Wright as her attacker.
          7
            We surmise that the DNA testing proceeded to the clothing because the DNA testing of the hair samples
did not connect Wright to the victim. The parties' agreement about DNA testing had anticipated sequencing the
testing, presumably until a result linked Wright to the victim, at which point testing would not proceed.
          8
            According to the motion, more discriminating STR DNA testing was then attempted, but "did not yield a
male profile suitable for comparison."

                                                          4
Because these results were not consistent with innocence, Wright's counsel sought to close

the section 547.035 DNA testing case. On December 19, 2013, the trial court sustained

Wright's counsel's motion, and ordered Wright's DNA testing case closed.9

        On March 11, 2014, Wright initiated a new civil action assigned Case No. 1416-

CV05938 by filing a pro se motion seeking to vacate his convictions based on newly

discovered evidence. The motion referenced the earlier DNA testing, and characterized it

as having exonerated Wright. The motion also referred to a plethora of other alleged newly

discovered evidence that Wright contended supported the vacation of his convictions. The

court appointed the Midwest Innocence Project10 to represent Wright. The Midwest

Innocence Project filed a motion asking the court to reconsider the appointment because

its mission is limited to representation of the wrongfully convicted, and earlier DNA testing

sought on Wright's behalf "d[id] not support his claim of innocence."                                The Court

subsequently dismissed Wright's motion for failure to state a claim on July 24, 2014,

mooting the Midwest Innocence Project's motion to reconsider.

        On September 9, 2014, Wright filed a motion in the instant case for release from

prison pursuant to section 547.037,11 along with exhibits and suggestions in support. On

September 18, 2014, the trial court entered an order denying the motion, noting that



        9
          The court's order closing Wright's DNA case was filed in both Case No. 01CV-206799 and Case No.
16CR-87005014.
         The record does not reflect whether Wright's counsel had consulted with Wright about closing his section
547.035 postconviction DNA testing case, a question that is not relevant to the resolution of this appeal.
         10
            Attorneys working with the Midwest Innocence Project had served as local counsel for the attorneys
working with the New York Innocence Project in connection with Wright's efforts to secure DNA testing pursuant
to section 547.035.
         11
            Section 547.037.1 provides that a motion for release from custody may be filed if the DNA testing
authorized by section 547.035 demonstrates innocence.

                                                         5
Wright's previously pursued DNA testing pursuant to section 547.035 had been closed at

the request of Wright's counsel because the DNA test results did not support Wright's claim

of innocence.

         On December 8, 2014, Wright filed a second motion in the instant case requesting

his release from prison pursuant to section 547.037, along with various exhibits and

suggestions in support. The motion was essentially identical to the motion Wright filed in

September 2014. On January 23, 2015, the trial court again entered an order denying the

motion, noting that Wright's DNA testing case pursuant to section 547.035 had been closed

at the request of Wright's counsel because DNA test results did not support Wright's claim

of innocence. Wright appealed. On March 10, 2015, Wright's appeal was dismissed by

this court because Wright failed to pay the required filing fee. Our mandate was issued on

March 25, 2015.

         On March 23, 2015, Wright filed a Rule 74.06(b)(3) motion in the instant case,

requesting relief from the January 23, 2015 order.12 Wright asserted that the January 23,

2015 order was irregular because the court did not require the State to file a response to his

section 547.037 motion pursuant to section 547.037.2 and .4; did not use a preponderance

of the evidence standard to deny his section 547.037 motion pursuant to section 547.037.4;




         12
            The January 23, 2015 order was not denominated a judgment or decree, raising a question about its
finality for purposes of appeal. See Rule 74.01(a); Mercer v. State, No. SD33779, 2015 WL 9481403, *2-3 (Mo.
App. S.D. Dec. 29, 2015) (holding the docket entry denying a request for DNA testing pursuant to section 547.035
was not denominated a judgment, and therefore was not appealable), transferred to the Missouri Supreme Court
pursuant to Rule 83.03, SC95451. We question, therefore, whether Rule 74.06(b) was even available to Wright as
the Rule is limited by its terms to seeking relief "from a final judgment or order." We need not resolve either issue
in this appeal.

                                                          6
and did not issue written findings of fact and conclusions of law pursuant to section

547.037.6.

       On May 26, 2015, the trial court entered an order denying Wright's section

74.06(b)(3) motion.

       Wright appeals.

                                  Standard of Review

       "[W]e review the circuit court's ruling on a motion to set aside a judgment under

Rule 74.06 for an abuse of discretion." Kerth v. Polestar Entm't, 325 S.W.3d 373, 378

(Mo. App. E.D. 2010) (citing In re Marriage of Hendrix, 183 S.W.3d 582, 587 (Mo. banc

2006)).

                                         Analysis

       Wright raises two points on appeal. In Point One, Wright argues that the trial court

erred in denying his Rule 74.06(b)(3) motion because the court's January 23, 2015 order

was irregular in that it was entered without following the procedures described by section

547.037. In Point Two, Wright alleges that the trial court erred in denying his Rule

74.06(b)(3) motion because the court's January 23, 2015 order was irregular in that the

court failed to use a preponderance of the evidence standard of proof in denying Wright's

section 547.037 motion.

       Before reaching the merits, we must address our authority to entertain Wright's

appeal. "Barring statutory exception, an appeal can only be taken from a final judgment."

Johnson v. State, 470 S.W.3d 1, 4 (Mo. App. W.D. 2015) (citing section 512.020). Section

512.020(5) provides in pertinent part:

                                            7
       Any party to a suit aggrieved by any judgment of any trial court in any civil
       cause from which an appeal is not prohibited by the constitution, nor clearly
       limited in special statutory proceedings, may take his or her appeal to a court
       having appellate jurisdiction from any . . . [f]inal judgment in the case or
       from any special order after final judgment in the cause . . . .

"[T]his Court must determine, sua sponte, if there is a final judgment." Ndegwa v. KSSO,

LLC, 371 S.W.3d 798, 801 (Mo. banc 2012). "A final judgment is a prerequisite to

appellate review." Id.

       Rule 74.01(a) provides that "[a] judgment is entered when a writing signed by the

judge and denominated 'judgment' or 'decree' is filed." The May 26, 2015 order from which

this appeal is taken is denominated "order." Because the May 26, 2015 order is not

denominated "judgment" or "decree," it "does not constitute a final 'judgment' for purposes

of appeal." Basta v. Kansas City Power & Light Co., 410 S.W.3d 743, 746 (Mo. App.

W.D. 2013). As such, this appeal must be dismissed. Id. at 748; Ndegwa, 371 S.W.3d at

802.

       Wright's appeal is not spared by a claim that the May 26, 2015 order is a "special

order after final judgment." Section 512.020(5). A "special order" within the meaning of

section 512.020(5) refers to "orders in special proceedings attacking or aiding the

enforcement of the judgment after it has become final in the action in which it was

rendered." State ex rel. Westmoreland v. O'Bannon, 87 S.W.3d 31, 34 (Mo. App. W.D.

2002) (quotation omitted). "The phrase 'contemplates that a judgment has become final

and that one of the parties is attempting to enforce the judgment or to attack the

enforcement of the judgment.'" Id. (quoting GUI, Inc. v. Adams, 978 S.W.2d 515, 517

(Mo. App. W.D. 1998)). Though a Rule 74.06(b) motion is an attack on a judgment that

                                             8
has become final, and thus falls technically within the broad definition of a "special order,"

special orders are not exempt from Rule 74.01(a). Stated another way, an order from which

an appeal lies still must be denominated "judgment" or "decree" in order to be appealable.13

Rule 74.01(a) (defining "judgment" as "a decree and any order from which an appeal

lies").14

         Our conclusion is consistent with the decision reached in State v. Callies, 389

S.W.3d 249 (Mo. App. E.D. 2012). In Callies, a surety appealed from an order denying

the surety's Rule 74.06(b) motion to set aside a judgment of bond forfeiture. Id. at 251.

The Eastern District found that "[t]he independent nature of a Rule 74.06 proceeding

requires that a new final judgment be entered in that proceeding" to invoke the statutory

authority to appeal pursuant to section 512.020(5). Id. at 252 (citing Lake Osage Condo.

Ass'n v. Prewitt, 179 S.W.3d 331, 335 (Mo. App. S.D. 2005) (addressing the requirement

that denial of a motion to set aside a default judgment must be denominated as a "judgment"

to be final for purposes of appeal). Because the denial of the surety's Rule 74.06(b) motion

was not denominated as a "judgment," the appeal was dismissed. Id.

         Because the May 26, 2015 order denying Wright's Rule 74.06(b) motion is not

denominated as a judgment, Wright's appeal must be dismissed.



         13
             However, mere designation of a "special order" as a judgment won't ensure its appealability if it is not
truly a "special order." Basta, 410 S.W.3d at 746 (holding that although post-judgment order awarding costs may be
a "special order" under section 512.020(5), where the order awarding costs "follows a judgment that is not final for
purposes of appeal, it does not constitute an 'appealable special order [ ] pursuant to [s]ection 512.020'") (quoting
A.L. v. Peeler, 969 S.W.2d 262, 265 (Mo. App. E.D. 1998)).
          14
             An exception to this rule has been recognized for orders denying a Rule 24.035 or Rule 29.15 motion.
State v. Reber, 976 S.W.2d 450, 451 (Mo. banc 1998) (holding that an appeal can be taken from an order denying a
Rule 24.035 or Rule 29.15 motion even though the order is not denominated a "judgment"); Johnson, 470 S.W.3d at
4; Sittner v. State, 405 S.W.3d 635, 637 (Mo. App. E.D. 2013).

                                                         9
                                      Conclusion

      Wright's appeal is dismissed.



                                        __________________________________
                                        Cynthia L. Martin, Judge


All concur




                                         10
