                                              In the
                           Missouri Court of Appeals
                                     Western District

                                                  
TIMOTHY CAFFERTY,                                 
                                                     WD76817
               Appellant,                            OPINION FILED:
v.                                                
                                                     November 4, 2014
STATE OF MISSOURI,                                
                                                  
               Respondent.                        
                                                  
                                                  


                 Appeal from the Circuit Court of DeKalb County, Missouri
                     The Honorable Thomas Nichols Chapman, Judge

     Before Division Four: Alok Ahuja, C.J., Joseph M. Ellis, and James Edward Welsh, JJ.


       Timothy Cafferty appeals the circuit court's judgment denying his Rule 24.035 motion for

post-conviction relief following an evidentiary hearing. In his sole point on appeal, Cafferty

contends that the circuit court clearly erred in denying his Rule 24.035 motion, in violation of

Rule 24.02(e) and his right to due process as guaranteed by the United States Constitution and

article I, section 10 of the Missouri Constitution, because his guilty plea was not knowingly,

intelligently, or voluntarily made. In particular, Cafferty asserts that the record does not establish

a sufficient factual basis to support his plea of guilty to one count of criminal nonsupport. We

reverse the circuit court's judgment denying Cafferty's post-conviction motion, and we vacate
Cafferty's conviction and sentence and remand for further proceedings on the criminal

nonsupport charge.

         The State charged Cafferty by information with knowingly failing to provide, without

good cause, adequate food, clothing, lodging, and adequate medical attention for his minor child,

for whom Cafferty was legally obligated to support, in that Cafferty failed to pay any child

support in each of the six individual months within the twelve month time period from July 1,

2007, to June 30, 2008, in violation of §568.040, RSMo 2000.1

         Prior to pleading guilty, Cafferty completed a Petition to Enter a Plea of Guilty. In the

written petition, Cafferty acknowledged that he had read the information and that he "fully

under[stood] every charge made against [him]." In his petition, Cafferty stated he committed

"the following acts in connection with the charge" against him: "I didn't pay my child support."

         At the guilty plea hearing, the court informed Cafferty that the State had charged him

with the class D felony of nonsupport, in that he "knowingly failed to provide child support

payments to go toward providing adequate food and clothing" for his child and "failed to pay

child support for six of the months in a twelve month period of July 1, 2007 until June 30th,

2008." Cafferty said that he understood the charge and that he desired to plead guilty. The court

then asked Cafferty if he was acknowledging that "for six individual months, between July 1,

20082 to June 30th 2008, that you failed to provide any child support," and Cafferty said, "Yes."

The court then asked Cafferty, "Why was that . . . ?" Cafferty responded, "Because I couldn't


         1
         A defendant is to be tried for the offense as defined by the law that existed at the time the offense was
committed. State v. Edwards, 983 S.W.2d 520, 521 (Mo. banc 1999). The General Assembly amended section
568.040 in 2009 and in 2011, as discussed in footnote 4.
         2
          The parties do not contest that the time period was from July 1, 2007 (and not 2008 as the court stated)
until June 30, 2008.


                                                           2
find work. Ever since I got out of prison it has been hard to find work, but I have a job lined up

for when I get out of here so I can start paying."

       To establish the factual basis, the court then asked the State to recite the evidence it

would present if Cafferty's case were to proceed to trial. The State responded:

               Judge, if this case went to trial the State's evidence would be that that
       applicable order of dissolution on March 16th, 2004 in the Circuit Court of Cole
       County, Missouri. Pursuant to that, the defendant was ordered to pay $218.00
       each month in support of Chance Ryder Cafferty. From the charging period of
       July 1st, 2007 to June 30th, 2008 the defendant failed to provide at least six
       months of that support. Judge, that would be the State's evidence if this case were
       to go to trial.

The plea court asked Cafferty if he disagreed with the State's recitation of the factual basis, and

Cafferty responded:

               Well the only thing I disagree on when she got custody of him I didn't
       know I was supposed to because she lived in Jefferson County and I when I tried
       to get a hold of her, she had moved. I did not know that I was supposed to pay
       child support until it was up to like five thousand dollars and I was contacted--

At this point, Cafferty's attorney asked if she could have a moment with her client, and then the

attorney explained to the court that her client recognized that he did not have an address that

allowed him to get "letters of communication" related to the child support payments. Further, the

attorney stated that Cafferty recognized that he had "the responsibility of his son when he was

not still living in the household" and that he had the responsibility to "check into that."

       The court accepted Cafferty's guilty plea, suspended imposition of sentence and placed

him on probation for five years. As a condition of probation, the court ordered Cafferty to pay

$218 a month in child support and $115 a month toward the child support arrearage and ordered

that the arrearage be paid by the end of his probationary period. Ultimately, Cafferty's probation

was revoked, and he was sentenced to four years imprisonment.


                                                     3
        Cafferty timely filed his pro se Rule 24.035 motion, and counsel timely filed an amended

Rule 24.035 motion. In his amended motion, Cafferty alleged that his right to due process, as

guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and

article I, section 10 of the Missouri Constitution, was violated in that his guilty plea was not

knowing and voluntary. Cafferty claimed that no factual basis established that he failed to pay

child support "without good cause." The circuit court conducted an evidentiary hearing, which

Cafferty did not attend. At the hearing, Cafferty's attorney contended that whether or not a

sufficient factual basis existed for the plea was a question of law for the court to decide on the

basis of the guilty plea record. The State agreed that based upon the transcript of the guilty plea

hearing and "the case law" enough information existed for the circuit court to determine whether

or not a sufficient factual basis existed for the plea. On August 7, 2013, the circuit court denied

Cafferty's amended Rule 24.035 motion. Cafferty appeals.

        Our review of the circuit court's ruling on a Rule 24.035 motion is limited to determining

whether its findings and conclusions are clearly erroneous.3 Rule 24.035(k). Findings and

conclusions are clearly erroneous only if we have a definite and firm impression that a mistake

was made. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006).

        In his sole point on appeal, Cafferty contends that the circuit court clearly erred in

denying his Rule 24.035 motion, in violation of Rule 24.02(e) and his right to due process as

guaranteed by the United States Constitution and article I, section 10 of the Missouri

Constitution, because his guilty plea was not knowingly, intelligently, or voluntarily made.

Cafferty asserts that the record does not establish a sufficient factual basis to support his plea of

        3
          Where as here, when we have determined that the circuit court erred on a purely legal issue, we question
the applicability of the "clearly erroneous" standard and question whether we could have any impression other than a
definite and firm impression that a mistake has been made.

                                                         4
guilty to one count of criminal nonsupport. In particular, Cafferty claims that the factual basis

did not establish that he failed to pay child support without good cause.

       Rule 24.02 sets forth the procedure a plea court must follow for pleas in felony

and misdemeanor cases. Pursuant to Rule 24.02(b)(1), "before accepting a plea of guilty, the

court must address the defendant personally in open court, and inform defendant of, and

determine that defendant understands . . . [t]he nature of the charge to which the plea is

offered[.]" Further, Rule 24.02(e) provides, "The court shall not enter a judgment upon a plea of

guilty unless it determines that there is a factual basis for the plea." The stated purposes of Rule

24.02 are to make sure that "'a defendant understand[s] the specific charges against him, that he

understand[s] the maximum penalty confronting him, and that he recognize[s] that he has waived

specific legal rights by pleading guilty.'" Calvin v. State, 204 S.W.3d 220, 225-26 (Mo. App.

2006) (citation omitted). "'A plea forms the factual basis for a guilty plea where it is voluntarily

and understandingly made, as well as unequivocal as to the factual requisites necessary to

establish every element of the offense.'" Id. at 226 (emphasis in the original and citation

omitted). "[B]ecause a guilty plea is an admission of all the elements of a formal criminal

charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in

relation to the facts." McCarthy v. U.S., 394 U.S. 459, 466 (1969) (footnote omitted),

superseded on other grounds by rule amendment as recognized by U.S. v. Jaramillo-Suarez, 857

F.2d 1368, 1371 (9th Cir. 1988).

       The version of section 568.040 that was in effect at the time Cafferty committed the

offense of criminal nonsupport provided:

                1. [A] parent commits the crime of nonsupport if such parent knowingly
       fails to provide, without good cause, adequate support which such parent is


                                                  5
        legally obligated to provide for his child or stepchild who is not otherwise
        emancipated by operation of law.

                 2. For purposes of this section:

        ....

               (2) "Good cause" means any substantial reason why the defendant is
        unable to provide adequate support. Good cause does not exist if the defendant
        purposely maintains his inability to support;

                (3) "Support" means food, clothing, lodging, and medical or surgical
        attention;

        ....

               3. The defendant shall have the burden of injecting the issues raised by
        subdivision (2) . . . of subsection 2.

                4. Criminal nonsupport is a class A misdemeanor, unless the person
        obligated to pay child support commits the crime of nonsupport in each of six
        individual months within any twelve-month period, or the total arrearage is in
        excess of five thousand dollars, in either of which case it is a class D felony. 4

"An element of a criminal non-support charge is that the parent is without good cause in failing

to provide support. § 568.040.1." Calvin, 204 S.W.3d at 227. Although the circuit court does

not have to explain every element of a crime to the defendant, the defendant still must

understand the nature of the charges against him. Id. "A factual basis is established if the

defendant understands the facts recited by the judge or the prosecutor at the guilty plea

proceeding. A defendant, however, should express an awareness of the nature and elements of


        4
           The 2009 amendment to section 568.040 kept "without good cause" as an element of the offense but added
that the "[i]nability to provide support for good cause" was an affirmative defense and that the person raising the
affirmative defense had "the burden of proving the defense by a preponderance of the evidence." § 568.040.3. The
2009 amendment also kept the provision that the defendant had the burden of injecting good cause. § 568.040.4.
The 2011 amendment to section 568.040 deleted the language "without good cause" from the elements of the
offense and deleted the provision that the defendant had the burden of injecting good cause. The 2011 amendment,
however, kept the provision that the "[i]nability to provide support for good cause" was an affirmative defense and
that the person raising the affirmative defense had "the burden of proving the defense by a preponderance of the
evidence." §568.040.3

                                                        6
the charge to which he or she pleads guilty." Id. at 225 (citation and internal quotation marks

omitted).5

         In this case, in reciting the charge to Cafferty, the circuit court did not mention on the

record that an element of criminal nonsupport was that the parent failed to provide support

without good cause. Indeed, at the guilty plea hearing, the court informed Cafferty:

                 Mr. Cafferty, the Assistant Prosecuting Attorney has charged you with the
         class D felony of non-support in that you knowingly failed to provide child
         support payments to go toward providing adequate food and clothing for your
         child, and during said time, the defendant failed to pay child support for six of the
         months in a twelve month period of July 1, 2007 until June 30th, 2008.

The court then asked Cafferty if he understood the charge, and Cafferty said that he did and that

he wanted to plead guilty. Although Cafferty unequivocally agreed that he was pleading guilty to

the charge as recited by the court, nothing in the plea hearing indicates that Cafferty understood

that failing to provide support "without good cause" was an element of the offense of criminal

nonsupport. No one advised Cafferty during the plea hearing that if he was unable to provide


         5
           This court recently addressed the issue whether a sufficient factual basis for a plea is established where an
information charges a defendant with all the elements of the crime, the nature of the charge is explained to the
defendant, and the defendant admits guilt. Frantz v. State, WD76733 (Mo. App. W.D. Sept. 16, 2014). In Frantz,
the record established that the defendant pled guilty voluntarily and understood the nature of the charge, but the
record did not establish whether or not the defendant knew that his conduct actually fell within the charge. Id. slip
op at 7. The Frantz court found that the defendant's conduct did not fall within the charge and concluded that the
motion court clearly erred in finding that there was a factual basis for the defendant's guilty plea. Id. slip op. at 11.
In so ruling, the court instructed that, rather than relying on a defendant's response that his counsel advised him
regarding the nature of the charge, the circuit court, when conducting a guilty plea hearing, should "ascertain facts
on the record regarding the defendant's specific conduct that the State believes supports the elements of the charged
crime." Id. slip op. at 10 (emphasis in the original). The Frantz court explained:

         Simply reciting the charging document, which, in all likelihood, merely quotes the statutory
         elements is not sufficient to establish a factual basis for the defendant's guilty plea. In addition to
         the charge and statutory elements, the record must reflect the defendant's actual, factually-specific
         conduct leading to the charge. In other words, after advising the defendant of the charge, the court
         should inquire of either the prosecutor or the defendant or both what the defendant actually did to
         warrant the charge. The court should then satisfy itself that the conduct described meets the
         elements required for the charged crime before declaring that a factual basis has been made.

Id. slip. op. at 10-11 (emphasis in the original).

                                                            7
support for any substantial reason that he could not be held criminally liable for the offense.

Thus, it cannot be said that he understood the nature and elements of the charge against him.

         Indeed, when the court asked Cafferty why he failed to pay child support, Cafferty

responded, "Because I couldn't find work. Ever since I got out of prison it has been hard to find

work, but I have a job lined up for when I get out of here so I can start paying."6 Given

Cafferty's explanation as to why he failed to pay support for his child, Cafferty did not

unequivocally state that he lacked good cause to provide adequate support for this child. In light

of his response, "the circuit court was obligated, before accepting the guilty plea, to explore the

issue further to determine either that [Cafferty] had the ability to pay support or purposely

maintained his inability to provide support during the specific months charged." Calvin, 204

S.W.3d at 228.

         We recognize that Cafferty signed a Petition to Enter Plea of Guilty and stated that he

read the information and that he fully understood the charge made against him. "[A] plea

petition," however, "cannot act as a substitute for the trial court insuring, on its own right, that a

defendant understands the implications of his guilty plea." State v. Thomas, 96 S.W.3d 834, 844

(Mo. App. 2002). As this court recognized in Thomas:

         "The Supreme Court obviously did not want to entrust to anyone other than the
         court the extremely important determination that a defendant's plea was
         voluntarily and knowingly made. The best way to ascertain that a defendant was

         6
           Section 568.040.3, RSMo 2000, provided that the defendant had the burden of injecting good cause. The
Missouri Supreme Court has stated that a defendant does not have to produce substantial evidence of good cause to
inject the issue and does not have to prove good cause with substantial evidence. State v. Latall, 271 S.W.3d 561,
564 (Mo. banc 2008). As the Latall court explained, "Defendant's burden is merely to produce evidence of good
cause. Once that is done, the state must prove that the defendant did not have good cause and must do so beyond a
reasonable doubt." Id. "The question of the defendant's burden is not a question of sufficiency but is . . . an issue of
whether the defendant's contention is 'supported by evidence.'" Id. at 565-66. Indeed, section 556.051, RSMo 2000,
instructs, "When the phrase "The defendant shall have the burden of injecting the issue" is used in the code, it means
(1) The issue referred to is not submitted to the trier of fact unless supported by evidence; and (2) If the issue is
submitted to the trier of fact any reasonable doubt on the issue requires a finding for the defendant on that issue." Id.

                                                           8
       acting voluntarily with sufficient knowledge and awareness was for the court,
       personally in open court while the defendant stood before it, to inform the
       defendant of his or her rights and then to determine whether the defendant waived
       those rights and understood the nature of the proceeding. Although a writing can
       inform an individual of his or her rights, the court cannot determine that the
       individual truly understands those rights unless it follows Rule 24.02's mandate
       that it inform the individual of those rights personally in open court."

Id. at 844-45 (quoting Dean v. State, 901 S.W.2d 323, 327 (Mo. App. 1995)). Thus, even though

Cafferty admitted in the plea petition that he read the information and understood the charge

against him, the court still had an obligation to make sure that Cafferty understood the nature of

the charge against him.

       Because the record does not establish that Cafferty understood the specific nature and

elements of the charge against him, his plea was not knowing and voluntary. We are under a

definite and firm impression that a mistake has been made and conclude that the circuit court

erred in denying Cafferty's request for post-conviction relief. We, therefore, reverse the circuit

court's denial of Cafferty's Rule 24.035 motion, vacate his conviction and sentence, and remand

for further proceedings on the criminal nonsupport charge.



                                                      /s/ JAMES EDWARD WELSH
                                                      James Edward Welsh, Judge


All concur.




                                                 9
