                         MISSOURI COURT OF APPEALS
                             WESTERN DISTRICT


MARK JARVIS,                                         )
                                                     )   WD77679
                          Appellant,                 )
      v.                                             )   OPINION FILED:
                                                     )
STATE OF MISSOURI,                                   )   October 6, 2015
                                                     )
                           Respondent.               )


            Appeal from the Circuit Court of Lafayette County, Missouri
                       Honorable Dennis Allen Rolf, Judge

                                 Before Division Two:
           Thomas H. Newton, P.J., Victor C. Howard, and Mark D. Pfeiffer, JJ.


           Mr. Mark Jarvis appeals the denial of a 24.035 post-conviction motion.

We dismiss the appeal.

                             Factual and Procedural Background

           Mr. Jarvis appeals the denial of his Rule 24.035 motion for post-

conviction relief from the Lafayette County Circuit Court. The State charged

Mr. Jarvis with two counts of statutory sodomy and one count of child

molestation. 1 The parties appeared before the court on a continuance motion.


1
    The child molestation charge was not filed until the day of Mr. Jarvis’s plea hearing.
Although Mr. Jarvis’s defense counsel had indicated his desire for a

continuance, the plea court 2 informed Mr. Jarvis at this hearing that his case

was set for trial. At this hearing Mr. Jarvis indicated that he would plead guilty

to three counts in two cases pursuant to an open plea agreement. Mr. Jarvis’s

plea was accepted as freely, voluntarily and intelligently entered. During the

sentencing hearing the court deviated from the State’s recommendation 3 and

sentenced Mr. Jarvis to life in prison on both counts of first degree statutory

sodomy and fifteen years on the third charge of third degree child molestation.

          Mr. Jarvis filed a timely pro se motion for post-conviction relief under

Rule 24.035 4 alleging that the plea court violated Rule 24.02(d)(4) by not

advising him of the right to withdraw his guilty plea nor allowing him the

opportunity to withdraw. He further asserted that his attorney was ineffective

for failing to inform him of his right to withdraw.                     Post-conviction counsel

timely amended this motion to claim that Mr. Jarvis’s plea was not knowingly,

intelligently, or voluntarily entered, because the plea court violated Rule

24[.02](d)(1)(a) and (b) by "knowingly participat[ing] in the plea agreement

and never specifically inform[ing] Mr. Jarvis of his right to withdraw his guilty

pleas," and because Mr. Jarvis "was not advised of his right to withdraw his

plea by the Court nor at anytime by his attorney" in violation of Rule
2
    The same judge presided over the plea hearing and motion hearing in Mr. Jarvis’s case.
3
  The prosecution recommended fifteen years on each count concurrent with eighty -five percent
served on every sentence.
4
  Rule references are to the Missouri Supreme Court Rules of Criminal Procedure (2012), unless
otherwise indicated.

                                                    2
24.02(d)(4).      Mr. Jarvis's amended motion claimed that Mr. Jarvis was

prejudiced because he "was never clearly given an opportunity to withdraw his

plea."

         The motion court denied Mr. Jarvis’s amended motion because it found

that the plea court explained to Mr. Jarvis that an “open plea” meant that the

court would consider the State’s recommendation, but may not follow it and

Mr. Jarvis chose to plead guilty despite that advice.

         This appeal follows.

                                Standard of Review

         Our review of the denial of a Rule 24.035 post-conviction motion “shall

be limited to a determination of whether the findings and conclusions of the

trial court are clearly erroneous.” Rule 24.035(k). The motion court’s findings

and conclusions are clearly erroneous only if “after review of the record the

appellate court is left with the definite and firm impression that a mistake has

been made.” Cooper v. State, 356 S.W.3d 148, 152 (Mo. banc 2011). The Rule

24.035 movant must show “by a preponderance of the evidence that the motion

court clearly erred in its ruling.”     Id.   Claims not included in the post-

conviction motion are not reviewable on appeal. State v. Shafer, 969 S.W.2d

719, 740 (Mo. banc 1998).

                                  Legal Analysis

         Mr. Jarvis raises one point on appeal: whether the motion court erred in

denying his Rule 24.035 motion because the plea court "failed to comply with

                                         3
Rule 24.02(d)" because the plea court "did not advise Mr. Jarvis that his plea

could not be withdrawn if the court did not adopt" the State’s sentencing

recommendation and did not allow Mr. Jarvis to withdraw the plea once the

plea court refused to follow the State’s recommendation. The State argues that

Mr. Jarvis’s point on appeal differs from the claim raised in his amended

motion and is not preserved for our review. We agree.

      Mr. Jarvis's amended motion complained that the plea court violated Rule

24.02(d) by failing to inform him that he could withdraw his guilty plea. Mr.

Jarvis's point on appeal claims the opposite, contending the plea court violated

Rule 24.02(d) by failing to inform him that he could not withdraw his guilty

plea. These are materially different claims, arising out of materially different

types of plea agreements.

       By examining Rule 24.02(d) it is clear that a distinction exists between

the plea agreement procedure for pleas reached pursuant to sections (d)(1)(A),

(C), and (D) and pleas reached pursuant to section (d)(1)(B). Where the record

validates that the defendant understands that the prosecutor's promise is a

recommendation the court is not required to implement, a plea agreement

qualifies as a non-binding plea pursuant to 24.02(d)(1)(B).    See Harrison v.

State, 903 S.W.2d 206, 208-210 (Mo. App. W.D. 1995). Upon examining the

four subsections, section (d)(1)(B) is the only subsection to express that the

sentencing recommendation is made “with the understanding that such

recommendation or request shall not be binding on the court.”       These non-

                                       4
binding agreements are addressed in Rule 24.02(d)(2), which provides that “the

court shall advise the defendant that the plea cannot be withdrawn if the

court does not adopt the recommendation or request.”              [Emphasis added] In

sharp contrast, the plea court's obligation when it rejects a plea agreement

reached pursuant to 24.02(d)(1)(A),(C), or (D) is governed by section

24.02(d)(4). That section requires the plea court to inform the parties of the

rejection, advise the defendant that the court is not bound by the plea

agreement and “afford the defendant the opportunity to then withdraw.”

Simply stated, the type of plea agreement reached controls the guidance a plea

court must provide a defendant, and, correspondingly, the right the defendant

has (or does not have) to withdraw a rejected plea.

       Our Supreme Court confirmed that a Rule 24.035 claim based on not

being informed of the right to withdraw a guilty plea is materially different

from a claim based on not being informed that there is no right to withdraw a

guilty plea in Stanley v. State, 420 S.W.3d 532 (Mo. banc 2014). In Stanley, the

defendant entered into non-binding plea agreements pursuant to Rule 24.02(d)(1)(B), and

the plea court failed to inform him that he could not withdraw his guilty pleas if the court

deviated from the recommended sentence. After sentencing which deviated from the

State's recommendation, Mr. Stanley filed an amended Rule 24.035 motion which

claimed, among other things, that the court “violated Rule 24.02(d)(4) and this court’s

holding in Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978), when it failed to afford

movant an opportunity to withdraw his plea after the court rejected the plea agreement.”

                                             5
After Mr. Stanley’s first post-conviction counsel withdrew, substitute post-conviction

counsel filed an untimely second amended motion which alleged that the plea court

violated Rule 24.02(d)(2) by failing to inform Mr. Stanley that his plea agreement could

not be withdrawn should the State's sentencing recommendation not be followed.

Relevant to this case, the Court made clear that the claim asserted in the untimely second

amended motion was not preserved by the allegations in the first amended motion

because:

       The first amended motion does not state that the plea court violated Rule
       24.02(d)(2) by failing to inform Mr. Stanley he could not withdraw his
       guilty pleas should the court decide to deviate from the prosecuting
       attorney's recommendation and impose a higher sentence. Rather, the first
       amended motion's claims that the trial court erred are based on Rule
       24.02(d)(4), which discussed the court's procedure for rejecting certain
       types of plea agreements.

Stanley, 420 S.W.3d at 539. As a result, the Supreme Court did not reach Mr. Stanley's

claim that Rule 24.02(d)(2) had been violated, deeming the claim untimely and not

encompassed within the claimed violation of Rule 24.02(d)(4) asserted in the first

amended motion.      Id.   at 539, 543 ("Unlike the first amended motion, the second

amended motion alleges that the plea court violated Rule 24.02(d)(2) . . . .")

("Accordingly, arguments raised only in Mr. Stanley's late-filed second amended motion

are time-barred, and this Court confines its review to arguments raised in the first

amended motion.").

       It is uncontested in this case that Mr. Jarvis's plea agreement was of the Rule

24.02(d)(1)(B) variety.    And it is uncontested in this case that the claim of trial court

error asserted in Mr. Jarvis's amended motion was, just as in Stanley, a claim that the plea

                                             6
court failed to comply with Rule 24.02(d)(4). “Rule 24.02(d)(4) does not apply to plea

agreements of the Rule 24.02(d)(1)(B) variety.” Stanley, 420 S.W.3d at 545.

        Mr. Jarvis's situation is thus substantively indistinguishable from Stanley. Mr.

Jarvis’s claim on appeal materially differs from the claim raised in his amended motion.

Claims not included in the post-conviction motion are not reviewable on appeal. State v.

Shafer, 969 S.W.2d 719, 740 (Mo. banc 1998). Because Mr. Jarvis's point on appeal is

not preserved for our review, his appeal is dismissed.5


                                            Conclusion

        In order to preserve a post-conviction issue for appeal counsel must

include the post-conviction issue in the Rule 24.035 motion.                              Issues not

included within the motion are non-reviewable on appeal.                             Therefore, we

dismiss the appeal.



                                                /s/THOMAS H. NEWTON
                                                Thomas H. Newton, Presiding Judge

Howard and Pfeiffer, JJ. concur.


5
 We note, ex gratia, that were we to conclude that the error claimed in Mr. Jarvis's point on appeal
had been preserved for our review, we would agree with Mr. Jarvis that the trial court failed to
inform him that he could not withdraw his plea as required by Rule 24.02(d). However, we would
nonetheless deny Mr. Jarvis's appeal because he failed to plead prejudice in his amended motion of
the nature required to claim a Rule 24.02(d)(2) violation. See Stanley, 420 S.W.3d at 540 (noting, by
comparison, that "unlike the first amended motion, the second amended motion alleges . . . that Mr.
Stanley would not have pleaded guilty and would have gone to trial" had he been told he could not
withdraw his guilty plea if the court deviated from the prosecutor's sentencing recommendation).
Here, Mr. Jarvis did not sufficiently allege that but for the plea court's violation of Rule 24.02(d),
Mr. Jarvis would not have pled guilty and would have insisted on going to trial. Instead, the
amended motion pled that Mr. Jarvis was not given an opportunity to file a motion to withdraw his
plea--an assertion of prejudice that is facially inconsistent with the claim that Mr. Jarvis should have
been told he could not withdraw his plea.

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