               IN THE MISSOURI COURT OF APPEALS
                       WESTERN DISTRICT

STATE OF MISSOURI,                                       )
                                                         )
                                       Respondent,       )
                                                              WD82746
v.                                                       )
                                                         )
                                                              OPINION FILED:
                                                         )
                                                              January 28, 2020
BRENT E. TRITLE,                                         )
                                                         )
                                         Appellant.      )


                     Appeal from the Circuit Court of Platte County, Missouri
                         The Honorable James W. Van Amburg, Judge

                  Before Division One: Thomas N. Chapman, Presiding Judge, and
                         Mark D. Pfeiffer and Anthony Rex Gabbert, Judges

       Mr. Brent Tritle (“Tritle”), appearing pro se, appeals the ruling of the Circuit Court of

Platte County, Missouri (“motion court”), denying his Rule 29.07(d)1 motion to withdraw his

guilty plea to felony driving while intoxicated (“DWI”) from sixteen years earlier. However,

because the exclusive procedure to raise the claims Tritle raises is via Rule 24.035 and not

Rule 29.07(d), the claims asserted in Tritle’s Rule 29.07(d) motion are time-barred, and his

appeal is dismissed.




       1
           All rule references are to I MISSOURI COURT RULES – STATE 2019.
                                  Factual and Procedural Background

        Tritle was charged as a persistent offender in the Platte County Circuit Court in March of

2003 with the class D felony DWI. On April 24, 2003, Tritle appeared with plea counsel and

pleaded guilty, as charged, to felony DWI. As part of his guilty plea agreement, the State

dismissed “all companion traffic charges pending in Division V.” The circuit court accepted

Tritle’s guilty plea and sentenced him to five years’ imprisonment. Tritle did not pursue relief

via a Rule 24.035 motion subsequently.

        Sixteen years later, on April 8, 2019, Tritle filed a Rule 29.07(d) motion 2 to withdraw his

guilty plea on the ground that he was guilty of only a class A misdemeanor, not a class D felony,

because one of the convictions used to enhance his sentence was a municipal-court conviction

for driving while intoxicated that resulted in a suspended imposition of sentence. The motion

court denied this motion on May 28, 2019.

        Tritle appealed.

                                                    Analysis

        In his sole point on appeal, Tritle argues that the motion court erred in denying his

motion to withdraw his guilty plea of sixteen years earlier because his sentence was in excess of

that which the circuit court was authorized to impose3 and he was misled to plead guilty and,

therefore, his conviction constitutes a manifest injustice.




        2
            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 manifest injustice the court after sentence may
set aside the judgment of conviction and permit the defendant to withdraw his plea.”
          3
            Tritle relies upon the holding of Turner v. State, 245 S.W.3d 826, 829 (Mo. banc 2008), that “the use of
prior municipal offenses resulting in an SIS [(suspended imposition of sentence)] cannot be used to enhance
punishment under section 577.023.” Turner was later superseded by a statutory amendment of section 577.023,
which now permits municipal offenses resulting in a suspended imposition of sentence to be used for enhancement
purposes (though the amended version is not applicable to this case).


                                                         2
         The argument that “Rule 29.07(d) provides a basis to set aside . . . guilty pleas even if the

motion would be time-barred because not timely filed under Rule 24.035”4 is one that “has been

repeatedly and properly rejected by Missouri’s appellate courts.” Brown v. State, 66 S.W.3d

721, 727 (Mo. banc 2002) (collecting cases) (overruled on unrelated grounds by State ex rel.

Zinna v. Steele, 301 S.W.3d 510, 517 (Mo. banc 2010)). Continuing, the Missouri Supreme

Court concluded that “[w]here . . . the movant was or reasonably should have been aware of his

or her claim in sufficient time to file a timely motion under Rule 24.035 and simply failed to do

so, resort to Rule 29.07(d) is impermissible[.]” Id. “Challenges to either the voluntariness of the

plea or ‘the legality of the sentence imposed may be considered only in response to a

Rule 24.035 motion.’” State v. Onate, 398 S.W.3d 102, 106 (Mo. App. W.D. 2013) (quoting

State v. Klaus, 91 S.W.3d 706, 706 (Mo. App. E.D. 2002)).

         “[A]lthough 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.’” Gray v. State, 498 S.W.3d 522, 528 (Mo. App. W.D. 2016) (quoting Onate,



         4
             Rule 24.035(a) provides:

         A person convicted of a felony on a plea of guilty claiming that the conviction or sentence
         imposed violates the constitution and laws of this state or the constitution of the United States,
         including claims of ineffective assistance of trial and appellate counsel, that the court imposing the
         sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the
         maximum sentence authorized by law may seek relief in the sentencing court pursuant to the
         provisions of this Rule 24.035. This Rule 24.035 provides the exclusive procedure by which such
         person may seek relief in the sentencing court for the claims enumerated.

(Emphasis added.)

          Rule 24.035(b) provides that the time for filing such motion is “no earlier than the date the sentence is
entered if no appeal is taken, including if no appeal is taken after any remand of the judgment or sentence following
a prior appeal, or the date the mandate of the appellate court issues affirming the judgment or sentence”[;] if no
appeal is taken, “within 180 days of the date the sentence is entered”; and if an appeal is taken, “within 90 days after
the date the mandate of the appellate court issues[.]”



                                                           3
398 S.W.3d at 106). “[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.” Id. (internal quotation marks

omitted).    See also State ex rel. Fite v. Johnson, 530 S.W.3d 508, 510 (Mo. banc 2017)

(“Rule 29.07(d) does not apply to claims enumerated within Rule 24.035.” “Because [the

defendant] pleaded guilty, his claims for post-conviction relief are governed by Rule 24.035,”

and the circuit court exceeded its authority in granting the defendant’s Rule 29.07(d) motion.).5

        Plainly, Tritle’s claims that his sentence was in excess of that which the circuit court was

authorized to impose and his guilty plea was the result of misleading advice from his plea

counsel were claims within the ambit of Rule 24.035. There is no dispute that Tritle did not raise

these claims in accordance with the terms and conditions of Rule 24.035, including, most

notably, its time limitations. Therefore, “[Tritle’s] claims are time-barred and procedurally

defaulted.” Gray, 498 S.W.3d at 529. Consistent with our ruling in State v. Backues, 568

S.W.3d 892, 893 (Mo. App. W.D. 2018), Tritle’s appeal must be dismissed.

                                                  Conclusion

        The claims asserted by Tritle in his Rule 29.07(d) motion are time-barred and his appeal

is dismissed.

                                                     /s/Mark D. Pfeiffer
                                                     Mark D. Pfeiffer, Judge

Thomas N. Chapman, Presiding Judge, and Anthony Rex Gabbert, Judge, concur.




         5
           State ex rel. Fite v. Johnson, 530 S.W.3d 508 (Mo. banc 2017), is also pertinent because, like here, the
defendant had pleaded guilty to felony stealing prior to subsequent precedent concluding that the factual basis for
the defendant’s plea may not have supported felony stealing; but, like here, the precedent that gave rise to the
Rule 29.07(d) motion filed by the defendant was issued after the defendant’s judgment of conviction had become
final and after the time for filing a Rule 24.035 motion for postconviction relief had expired.


                                                        4
