               In the Missouri Court of Appeals
                                   Western District

JASON D. GENERAUX,                        )
                               Appellant, )
v.                                        )              WD76917
                                          )
STATE OF MISSOURI,                        )              FILED: November 12, 2014
                             Respondent. )

     APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
             THE HONORABLE KEITH B. MARQUART, JUDGE

         BEFORE DIVISION ONE: THOMAS H. NEWTON, PRESIDING JUDGE,
          LISA WHITE HARDWICK AND ANTHONY REX GABBERT, JUDGES
       Jason Generaux appeals the circuit court's denial of his Rule 24.035 motion,

following his guilty plea to a felony charge of criminal nonsupport. Generaux argues

that his guilty plea was entered unknowingly and involuntarily because the State failed

to establish that his child support arrearages accrued within the applicable three-year

statute of limitations. Because we find that a sufficient factual basis existed to support

Generaux's guilty plea, we affirm the denial of post-conviction relief.

                           FACTUAL AND PROCEDURAL HISTORY

       The State charged Jason Generaux with criminal nonsupport, "in that during the

month of September 2009… [he] knowingly failed to provide, without good cause,

adequate food, clothing, lodging and medical attention," for A.G., his minor son. §
568.040, RSMo (Cum. Supp. 2009).1 The State further alleged that Generaux's crime

was elevated to a class D felony because the total arrearage was "in excess of an

aggregate of twelve monthly payments due under the order." § 568.040.5.2

          Generaux agreed to plead guilty to the charged offense. During the plea

proceeding, the court read the charge and Generaux responded that he understood the

charge. In further response to the court's questioning, Generaux admitted that during

September 2009: (1) he knew that A.G. was his biological, minor son; (2) he was aware

of an existing court order requiring him to support A.G.; and (3) he failed to provide

adequate food, clothing, lodging and medical attention for A.G. The court then asked

Generaux whether the arrearage was greater than twelve monthly payments due under

the order. Generaux stated, “I think there's 12, but not -- maybe not all in a row, but I

think there was 12 payments that was missed together." Generaux's attorney provided

the court with an estimated arrearage amount of $15,687.85, which the court noted

exceeded twelve times Generaux's monthly support obligation of $488.00 "by quite a

bit."

          The court asked Generaux if there were any reasons why he had not made the

required monthly payments. Generaux replied that he had been unemployed and was

incarcerated for a period of time. The court informed Generaux that both

unemployment and incarceration could be a defense to the charge and that if he

pleaded guilty, he would not get the opportunity to present his defense at trial.

Generaux responded, "I'm coherent to what you're saying. I just want to go ahead and

1
    All statutory citations are to RSMo (Cum. Supp. 2009) unless otherwise indicated.
2
 Section 568.040.5 provides that "Criminal nonsupport is a class A misdemeanor, unless the total
arrearage is in excess of an aggregate of twelve monthly payments due under any order of support… in
which case it is a class D felony."

                                                      2
get this over with. I'm going to plead guilty, and I feel that I am guilty, just to get this

over with so I can just move on." Generaux's attorney further stated, "Mr. Generaux

and I had a discussion about the possible defenses, specifically good cause defenses,

but all the defenses to the charge… and it was my understanding that Mr. Generaux

wanted to waive any defense that he might have."

       The court found that Generaux knowingly, voluntarily, and intelligently waived his

right to trial as well as the rights he would have at trial. The court further found that

there was an adequate factual basis for Generaux's guilty plea and accepted the plea.

The court suspended the imposition of Generaux's sentence and placed him on

probation for four years. After Generaux violated the probation conditions, the court

revoked the probation and sentenced him to the maximum, four-year term of

imprisonment.

       Generaux timely filed a pro se Rule 24.035 motion. Appointed counsel amended

the motion to allege, among other things, that Generaux's guilty plea was unknowing

and involuntary because the factual basis was insufficient to show an essential element

of felony nonsupport: that the total arrearage amount was in excess of an aggregate of

twelve monthly payments. Specifically, Generaux argued that nothing in the record

showed that the arrearage had not been accrued outside of the three-year limitations

period that is generally applicable to felonies. See § 556.036.2(1).

       The motion court rejected Generaux's contention that there was no factual basis

for the plea. The court concluded that Section 568.040.5, by its plain language,

indicates that "the legislature intended the total arrearage due under the order of

support to be the determining factor in deciding whether the offense is a felony." Thus,



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because Generaux's total arrearage exceeded twelve monthly payments, the court

denied Generaux's Rule 24.035 motion. Generaux appeals.

                                    STANDARD OF REVIEW

       Appellate review of the trial court's action on a Rule 24.035 motion shall be

limited to a determination of whether the findings and conclusions of the trial court are

clearly erroneous. Rule 24.035(k). Such findings and conclusions are deemed clearly

erroneous only if, after a review of the entire record, the appellate court is left with the

definite and firm impression that a mistake has been made. Sanders v. State, 738

S.W.2d 856, 857 (Mo. banc 1987).

                                          ANALYSIS

       In his sole point on appeal, Generaux argues that the motion court clearly erred

in denying his Rule 24.035 motion because his plea was made unknowingly and

involuntarily. Generaux claims that, because the record does not show that the

arrearage accrued during the three-year limitations period, there was an insufficient

factual basis to establish that his crime could be elevated to a class D felony.

       Rule 24.02(e) states that the court "shall not enter a judgment upon a plea of

guilty unless it determines that there is a factual basis for the plea." Before accepting a

guilty plea, the court must "determine facts which defendant admits by his plea and that

those facts would result in defendant['s] being guilty of the offense charged." Brown v.

State, 45 S.W.3d 506, 508 (Mo. App. 2001) (citation omitted). If the facts presented do

not establish the commission of the offense, the court should reject the guilty plea. Id.

A factual basis exists if the defendant understands the facts recited by the court and

expresses an awareness of the nature and elements of the charge. Id. "When an



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accused admits in open court facts which constitute the offense for which he is charged,

he cannot thereafter withdraw his plea on the assertion that he did not understand the

nature of [the] charge to which he plead [sic] guilty." Saffold v. State, 982 S.W.2d 749,

753 (Mo. App. 1998) (citation omitted).

       The version of Section 568.040 under which Generaux was charged states that

“a parent commits the crime of nonsupport if such parent knowingly fails to provide,

without good cause, adequate support which such parent is legally obligated to provide

for his or her child or stepchild who is not otherwise emancipated by operation of law."

The crime is elevated to a class D felony if "the total arrearage is in excess of an

aggregate of twelve monthly payments due under any order of support." § 568.040.5.

Thus, by the plain language of the statute, the essential elements of the class D felony

of criminal nonsupport are: (1) the parent knowingly fails to provide adequate support,

(2) without good cause, (3) which the parent is legally obligated to provide an

unemanicipated child, and (4) the total arrearage exceeds an aggregate of twelve

monthly payments. The statute does not include any reference to the statute of

limitations.

       Despite the plain language of the statute, Generaux argues that the State must

also establish, in addition to these essential elements, that the arrearages accrued

within the limitations period. Generaux first points to Calvin v. State, 204 S.W.3d 220

(Mo. App. 2006) to support his contention. In Calvin, the defendant pled guilty to a

felony charge of criminal nonsupport. 204 S.W.3d at 221. The version of Section

568.040 in effect at the time justified a felony conviction if either: (1) the defendant

committed the crime in each of six individual months within a twelve-month period; or



                                              5
(2) the total arrearage for one child exceeded $5,000. The defendant in Calvin was

charged under the first ground for felony conviction. Although the second ground for

felony conviction was not at issue, the court noted, in dicta, that the defendant could

arguably have been convicted under the second ground and stated "however, he would

also have had to admit additional facts for his plea to be knowing and voluntary, i.e.,

that the arrearages were in excess of $5,000 as to each child and that the…total

arrearages did not include arrearages outside the three-year statute-of-limitations period

for a felony." Id. at 227 n.12.

       Generaux also relies on State v. Sellers, 77 S.W.3d 2 (Mo. App. 2002), which

was cited as part of the footnoted dicta in Calvin. In Sellers, the defendant was charged

with a class D felony under the prior version of the statute based on the fact that her

total arrearages exceeded $5,000. 77 S.W.3d at 6. The defendant had argued that the

total arrearage included amounts incurred outside of the limitations period. Id. at 5 n.2.

Notably, the court explicitly refused to address that argument because defendant's

conviction was reversed on other grounds. Id.

       Finally, Generaux points to State v. Williams, 119 S.W.3d 674 (Mo. App. 2003).

In Williams, the defendant appealed his felony conviction for criminal nonsupport under

the prior version of the statute on the grounds that the State failed to show that the

arrearages accrued within the limitations period. 119 S.W.3d at 675. The court did not

address the issue because the State conceded the point. However, Generaux relies on

the court's statement that "[t]he State candidly and correctly" conceded the essence of

the defendant's argument. Id.




                                             6
       Generaux claims that Calvin, Sellers, and Williams all stand for the proposition

that the arrearages must be shown to have accrued within the limitations period in order

for a guilty plea to be made knowingly and voluntarily. Upon careful review, we

conclude that our court never decisively addressed the issues of the statute of

limitations in those cases. In Calvin, the reversal was based on the State's failure to

show a lack of good cause and not whether the arrearages accrued within the

limitations period. 204 S.W.2d at 227. In Sellers, the court explicitly declined to

address the statute of limitations argument raised by the defendant and, instead,

reversed because the State failed to establish an essential element of the offense: that

the total child support arrearage was in excess of $5,000. 77 S.W.3d at 5-6. Finally,

Williams did not involve the sufficiency of the factual basis for a guilty plea because the

defendant had been convicted of criminal nonsupport after a jury trial. 119 S.W.3d at

675. Moreover, the court never addressed any argument regarding arrearages accrued

outside of the limitations period and ultimately reversed the defendant's conviction

based on the circuit court's error in excluding evidence and in allowing improper

argument at trial. Id. at 676. Contrary to Generaux’s argument on appeal, these cases

do not hold that arrearages must be shown to have accrued within the limitations period

in order to establish a factual basis for a guilty plea under Section 568.040.

       Generaux also argues that the State must show that the arrearages accrued

within the limitations period in order to allow him to plead an acquittal or conviction in

bar of future prosecutions for the same offense. State v. Miller, 372 S.W.3d 455, 466

(Mo. banc 2012). Generaux asserts that because the charge never specified the

months for which he was being charged, "the same arrearages could be used as a



                                              7
basis to charge [him] with numerous future counts of felony nonsupport." As a result, he

claims that the State must be required to show that the arrearages for which he is

charged accrued within the statute of limitations period.

       Generaux fails to acknowledge that he explicitly waived the opportunity to

present these arguments when he entered his guilty plea. A voluntary guilty plea

waives all non-jurisdictional defects in the proceeding, including one based on the

statute of limitations. Longhibler v. State, 832 S.W.2d 908, 911 (Mo. banc 1992). Here,

the plea court methodically questioned Generaux in an effort to establish an adequate

factual basis for his guilty plea and to ensure that the plea was voluntarily made. When

Generaux expressed some confusion as to which defenses might have been available

to him, the judge explained that Generaux's unemployment and periods of incarceration

could be a defense to the charge. Generaux indicated that he understood and that he

did not want to present any defenses. The following exchange between the plea court

and Generaux took place:

       Q.     Did you want to have the opportunity to present your defense?

       A.     No.

       Q.     Do you understand if you do not take advantage of the opportunity
              to present your defense at trial, you'll not be given an opportunity to
              present your defense?

       A.     I understand.

       Q.     Do you understand if you do not present your defense, you will give
              up the right to present your defense?

       A.     Yes, I understand.




                                             8
       Q.      Is giving up the right to present your defense what you have
               decided to do?

       A.      Yeah. Yes, I did, Your Honor.

Moreover, Generaux's trial counsel went on record stating that he had fully discussed all

possible defenses with Generaux, and that Generaux desired to waive all defenses.

We can logically presume that this includes the basic statute of limitations defense to

the charge.

       As a result of Generaux’s admission to all of the essential elements of the class

D felony, as well as his decision to forego the opportunity to present any defense to the

charge, the motion court found that Generaux knowingly, voluntarily, and intelligently

waived his right to trial and his right to present any defenses to the charge. We cannot

say that this finding is clearly erroneous. Generaux clearly admitted that his total

arrearage was in excess of twelve monthly payments under the order, which is all that

the plain language of Section 568.040.5 requires in order for a charge to be elevated to

a class D felony. Generaux should not, therefore, be entitled to withdraw his voluntary

guilty plea in an effort to get a "second bite of the apple" or the opportunity to "cast his

luck with a jury." Simmons v. State, 429 S.W.3d 464, 471 (Mo. App. 2014). The point is

denied.

                                        CONCLUSION

       We affirm the motion court's denial of Generaux's Rule 24.035 motion for post-

conviction relief.


                                               ___________________________________
                                               _
                                               LISA W HITE HARDWICK, JUDGE


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ALL CONCUR.




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