1

MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI,

 Respondent,

 v.

MAURICE PARNELL WEBBER,

 Appellant.

)

)

)

)

)

)

)

)

WD78851

OPINION FILED:

December 6, 2016

Appeal from the Circuit Court of Jackson County, Missouri 

Honorable Wesley Brent Powell, Judge

Before Division One: Thomas H. Newton, P.J., 

Cynthia L. Martin, and Edward R. Ardini, Jr., JJ.

Mr. Maurice P. Webber appeals his conviction in Jackson County Circuit Court, 

following a jury trial, for three counts of the class A felony of forcible rape, § 566.030, 1

three counts of the class A felony of forcible sodomy, § 566.060, and one count of the 

class A felony of attempted forcible sodomy, § 566.060, for which he was sentenced to 

a total thirty-four years imprisonment in the Department of Corrections. He challenges 

the forcible rape and forcible sodomy convictions under the necessarily incident 

provision of Missouri’s accomplice-liability statute, § 562.041.2(2), argues ineffective 

assistance of counsel, as cognizable on direct appeal, for failure to raise a statute -of-

 

1 Statutory references are to RSMo (1986), as supplemented through September 2, 1991, unless 

otherwise indicated.
2

limitations defense and the necessarily incident exception to accomplice liability, and 

asserts manifestly unjust court error in instructing the jury on sentencing. We affirm 

in part, reverse in part, and remand solely for retrial of his sentences.

The seventeen-year-old victim attended a rock concert in September 1991 at the 

former Sandstone Amphitheater in Kansas and consumed a beer on an empty stomach.2 

Afterward, a friend drove her to her car, which was parked at a 24-hour market where 

she worked. The victim quickly realized on her way home that she should not be 

driving and parked in an apartment lot so she could sleep for awhile. She testified at 

trial that she became aware after falling asleep that people had surrounded her car. 

When she was fully awakened, the victim realized that she was in another car, in the 

back seat, with her head in one person’s lap and her feet in another’s. Her head was 

covered with a cloth that was held firmly on her face, but she was aware from the sound 

of voices that two other individuals were in the front seat. The men pulled the rings 

off her fingers and took a small amount of cash out of her pockets. 

The car stopped near a picnic bench in what the victim later learned was Swope 

Park, in Jackson County, Missouri. It was still dark, and one or two of the men’s faces 

were partially covered with cloths. The victim pleaded with the men not to kill her, 

and she was told that if she cooperated she would not be killed. The men ordered her 

out of the car, told her to remove her pants, and then three of them took turns 

penetrating her vaginally and orally with their penises, at times simultaneously. One 

man tried to penetrate her anally with his penis, but was unsuccessful, and, after one 

 

2 We present the facts in the light most favorable to the verdict. State v. O'Brien, 857 S.W.2d 212, 

215-16 (Mo. banc 1993). 
3

of the men warned the victim not to tell anyone or he would kill her, they got back in 

the car and drove away. 

Terrified that the men would return, the victim ran or wandered around for some 

time, searching for a phone or help, and hiding when she saw approaching cars. A good 

samaritan finally called the police for her. The police took the victim to a hospital 

where evidence was collected, including swabs of her mouth, vagina, cervix, and anus, 

and her panties. The forensic testing available in the early 1990s could discern little 

more from the collected swabs than the presence of sperm from three individuals, so 

no suspects could be found until the case was reopened in 2009, when precise DNA 

testing allowed the identification of two of the perpetrators. The police learned that 

Mr. Webber was an alleged participant, and a buccal swab from him was definitively 

matched to DNA found on the victim’s panties.3 Though not definitive, Mr. Webber’s 

DNA also matched the victim’s cervical swab.4

Mr. Webber was tried by a jury in May 2015, and, after the trial court overruled 

his boilerplate motions for judgment of acquittal at the close of the State’s evidence 

and at the close of all evidence, he was convicted on all seven charges. 5 In a separate 

proceeding before the same jury, the court gave the following sentencing instruction as 

to each count:

[T]he punishment prescribed by law for [the offense] is one of the 

following:

 

3 The lab analyst found a genetic match of one in sixty-three quadrillion between the victim’s panty 

stains and Mr. Webber’s buccal swab. The Kansas City crime lab considers this to be a DNA 

identification because its threshold for a match is one in seven trillion.

4 The lab analyst found a one in 60.5 billion relationship between the cervical swab and Mr. Webber’s 

buccal swab.

5 Additional details about Mr. Webber’s objection to the court instructing the jury on a lesser-included 

offense on statute-of-limitations grounds appear below in the discussion of point five.
4

1. life imprisonment,

2. imprisonment for a term of years fixed by you, but not less than 

ten years.

Mr. Webber made only a “general objection” to these instructions. The jury sentenced 

Mr. Webber to twenty-four years on each count. The trial court then denied Mr. 

Webber’s motion for new trial, which included none of the issues raised before this 

Court, and sentenced him to twenty-four years of imprisonment on each of six counts, 

to run concurrently, and to a consecutive term of ten years’ imprisonment on one count 

of the class A felony of forcible sodomy. Mr. Webber filed this appeal.

Legal Analysis

Accomplice Liability

Necessarily Incident Exception

The first four points involve the necessarily incident exception to accomplice 

liability under section 562.041. Mr. Webber argues that (1) the evidence was 

insufficient to convict him of three counts of forcible rape and three counts of forcible 

sodomy under an accomplice-liability theory, because the State failed to prove that his 

acts were not necessarily incident to the crimes “where the victim is subjected to sexual 

intercourse [and deviate sexual intercourse] with more than one person,” and (2) the 

trial court erred in failing to instruct the jury that the necessarily incident exception 

applies “where a defendant is charged under accomplice liability with the crime[s] of 

forcible rape [and forcible sodomy] in which he subjects [the] victim to sexual 

intercourse with more than one person.”

The offenses here arose from a gang rape and sodomy involving three 

perpetrators. Section 566.030 classifies forcible rape as a class A felony where the 

actor “subjects the victim to sexual intercourse or deviate sexual intercourse with more 
5

than one person.” § 566.030.2. Similarly, as to forcible sodomy, section 566.060 states 

that where the actor “subjects the victim to deviate sexual intercourse or sexual 

intercourse with more than one person, . . . forcible sodomy or an attempt to commit 

forcible sodomy is a class A felony.” § 566.060.2. Missouri’s accomplice-liability 

statute makes a person criminally responsible for another person’s conduct under the 

following circumstances and subject to the following exceptions:

1. A person is criminally responsible for the conduct of another when

(1) The statute defining the offense makes him so responsible; or

(2) Either before or during the commission of an offense with the purpose of 

promoting the commission of an offense, he aids or agrees to aid or 

attempts to aid such other person in planning, committing or attempting 

to commit the offense.

2. However, a person is not so responsible if:

(1) He is the victim of the offense committed or attempted;

(2) The offense is so defined that his conduct was necessarily incident to the 

commission or attempt to commit the offense. If his conduct constitutes 

a related but separate offense, he is criminally responsible for that offense 

but not for the conduct or offense committed or attempted by the other 

person;

(3) Before the commission of the offense he abandons his purpose and gives 

timely warning to law enforcement authorities or otherwise makes proper 

effort to prevent the commission of the offense.

3. The defense provided by subdivision (3) of subsection 2 is an affirmative 

defense.

§ 562.041. We have observed that this statute “is designed to make individuals who 

could not be guilty of a crime solely on the basis of their own conduct, guilty 

nonetheless as an accessory.” State v. Barker, 442 S.W.3d 165, 168 (Mo. App. W.D. 

2014).
6

Mr. Webber argues that the necessarily incident exception set forth in the 

accomplice-liability statute applies to his case where the crimes charged required 

participation by more than one person. In other words, because Mr. Webber’s 

participation in relation to his accomplices was as the other person needed to 

reclassify/enhance their offenses as class A felonies, his participation was necessarily 

incident and he could not be held responsible as an accomplice for their crimes. He 

claims that this issue is not an affirmative defense that would be waived if not timely 

raised because only the third exception is specified as an affirmative defense in the 

statute. Concluding on a statutory-construction basis that the necessarily incident 

exception is an element that must be negated by the State and that the State failed to 

produce sufficient evidence to do so, Mr. Webber argues that his failure to assert the 

necessarily incident exception before or during trial or in his motion for new trial did 

not waive the issue for purposes of appeal.6 He claims that the appropriate remedy is 

to remand the case for entry of a judgment of acquittal on the three counts of class A 

felony rape and three counts of class A felony sodomy.

We find it unnecessary to determine how to classify this exception, agreeing 

with the State that it does not apply.7 In Bass v. State, 950 S.W.2d 940, 944 (Mo. App. 

 

6 See State v. Claycomb, 470 S.W.3d 358, 361 (Mo. banc 2015) (stating that, in a bench-tried case,

sufficiency claims are “preserved on appeal even if not raised or not timely raised in the trial court.”). 

Under Rule 29.11(d), a sufficiency of the evidence claim also need not be included in a motion for new 

trial in a jury-tried case to preserve the alleged error for appellate review. 

7 The outcome would be the same whether the matter were reviewed under a sufficiency standard or 

for plain error. Under a sufficiency standard, we review “all of the evidence . . . in the light most 

favorable to the prosecution.” State v. O'Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993). We conduct 

a two-step review for plain error: first we “examine[] the record to determine whether the trial court 

committed error, affecting substantial rights, that was ‘evident, obvious, and clear,’ and then we 

“determine whether a manifest injustice or a miscarriage of justice” will result from the error. State v. 

Freeman, 189 S.W.3d 605, 608-09 (Mo. App. W.D. 2006). Because the exception does not apply, we 

are not concerned with whether sufficient evidence supported it or the court committed plain error.
7

W.D. 1997), this Court discussed the exception in upholding the conviction of a woman 

charged with rape for forcing her eleven-year-old daughter to have sexual intercourse 

with another person. As to the accomplice-liability statute, we quoted a comment to 

the proposed law and explained how it applies as follows:

The Comment first notes that Section 562.041.2(1) protects the victim of 

a crime from being found guilty as an accessory, as in the case of an 

underage girl who consents to sex with a man later convicted of statutory 

rape. The Comment then explains the exception for “necessarily 

incident” conduct, stating:

Subsection 2(2) extends the same protection to persons who 

do not fall neatly into the category of victims. For example, 

if a statute simply makes the giving of a bribe a crime should 

the recipient be guilty of a violation of that statute on the 

basis of aiding and abetting. If he should be, this should be 

covered in the statute on bribery. This subsection does not 

prevent his being criminally liable, it merely requires the 

statu[t]e defining the offense to so specify. The subsection 

does make it clear that it does not bar conviction for a related 

offense based on his own conduct, as, for example, if there 

were another statute making it a crime to receive a bribe.

Comment to 1973 Proposed Code § 562.041.

As one commentator has noted, using the same rationale, if a 

statute makes prostitution a criminal offense, a person soliciting that 

prostitute could not be found guilty under Section 562.041.2(2) based on 

aiding the prostitute because his conduct is “necessarily incident” to the 

crime of prostitution. The patron could, however, be found guilty under 

a separate statute which makes soliciting a prostitute a crime.

These examples make clear that the “necessarily incident” 

exception refers to situations where the crime could not have been 

committed without the other person’s participation. Here, Mr. Clark 

could have committed the rape without Ms. Bass’[s] participation. 

Therefore, her conduct was not “necessarily incident” to the crime, and 

she does not fall within the exception to accessory liability.

Id. (citation omitted).
8

Here, the evidence showed that Mr. Webber himself had sexual intercourse and 

deviate sexual intercourse with the victim and subjected the victim to sexual 

intercourse and deviate sexual intercourse with more than one person—himself and at 

least one of the other perpetrators. So the evidence was sufficient to convict him, based 

on his own conduct, of one count of the class A felony of forcible rape and one count 

of the class A felony of forcible sodomy. Because three men perpetrated these acts, 

each of Mr. Webber’s two accomplices could have committed felony A rape and felony 

A sodomy without Mr. Webber’s participation, because each of them subjected the 

victim to sexual intercourse and deviate sexual intercourse with more than one person, 

i.e., themselves and another person who need not have been Mr. Webber. His conduct 

was not necessarily incident to their crimes. Because the victim testified that she was 

penetrated vaginally and orally three times by three men, the evidence was sufficient 

to hold Mr. Webber criminally responsible for his own acts and for those of each of the 

other two perpetrators who were all acting in concert, and no exception to accomplice 

liability applied. Nor did the trial court err in failing to sua sponte instruct the jury as 

to the necessarily incident exception. Points one through four are denied.

Statute of Limitations

Attempted Forcible Sodomy

In the fifth point, Mr. Webber argues that the trial court plainly erred in failing 

to find the charge of attempted forcible sodomy barred when Mr. Webber raised the 

statute of limitations in objecting to a jury instruction on a lesser-included offense. Mr. 

Webber did not object on statute-of-limitations grounds to instruction no. 13—the 

verdict director for count VII, felony A attempted forcible sodomy—which 

inadvertently lacked the aggravating element of subjecting the victim to deviate sexual 
9

intercourse or intercourse with more than one person.

8 Nor did Mr. Webber raise 

anything other than a general objection to the accompanying sentencing form, which 

set forth the possible range of punishment for count VII as “life imprisonment” or 

imprisonment for a term of years but not less than ten years, which, albeit flawed, 

recited the punishment for a felony A offense.9 Counsel did, however, state during the 

 

8

Instruction no. 13 stated,

As to Count 7, if you find and believe from the evidence beyond a reasonable 

doubt:

First, that on or about September 2, 1991, in the County of Jackson, State of 

Missouri, the defendant or another person tried to place his penis in [the 

victim’s] anus, and

Second, that such conduct was a substantial step toward the commission of the 

offense of forcible sodomy, and

Third, that defendant or another person engaged in such conduct for the purpose 

of committing such forcible sodomy,

then you are instructed that the offense of forcible sodomy has occurred, and if you 

further find and believe from the evidence beyond a reasonable doubt:

Fourth, that with the purpose of promoting or furthering the commission of that 

forcible sodomy the defendant acted together with or aided the other persons 

in committing the offense,

then you will find the defendant guilty under County 7 of forcible sodomy.

However, unless you find and believe from the evidence beyond a reasonable 

doubt each and all of these propositions, you must find the defendant not guilty of that 

offense.

A person commits the crime of forcible sodomy when he has deviate sexual 

intercourse with another person without that person’s consent by the use of forcible 

compulsion.

As used in this instruction, “substantial step” means conduct which is strongly 

corroborative of the firmness of the defendant’s purpose to complete the commission 

of the offense of forcible sodomy.

Instruction nos. 7, 8, 9, 10, 11, and 12 all included as an element that “the defendant or other persons 

subjected [the victim] to sexual intercourse [or deviate sexual intercourse] with more than one person.” 

9 Further discussion about Mr. Webber’s sentences appears below.
10

instruction conference that Mr. Webber did not want to waive a statute-of-limitations 

defense by agreeing to a jury instruction on a lesser-included offense. The statement 

was made during a discussion that involved an instruction on “sexual assault” that the 

State had submitted as a lesser-included offense. No lesser-included offense instruction 

was given to the jury other than the mistaken verdict director noted above. 10 The 

verdict and sentence on count VII, which had been charged as a class A felony, were 

recorded as class A felony and twenty-four years, respectively.11

As Mr. Webber concedes, “[t]he failure of a defendant to raise a statute of 

limitations defense results in the waiver of that defense, and a defendant ‘is precluded 

from raising the issue on appeal.’” (citing State v. Cotton, 295 S.W.3d 487, 492 (Mo. 

App. E.D. 2009)). The Eastern District noted in Cotton that this requirement is 

supported by “sound reasoning.” Id. at 491. In this regard, the court stated that the 

Legislature has defined circumstances that toll the limitations period and set forth “a 

number of statutory exceptions whereby the State may nevertheless commence 

prosecution, even though the period of limitations has expired.” Id. at 491-92. In the 

court’s view, if the issue is raised for the first time on appeal, the State is not afforded 

the opportunity “to respond to the defense, showing that the statute has not run, that it 

 

10 The trial court read instruction no. 13 as written to the jury, and Mr. Webber made no objection to it 

when read. Nor did Mr. Webber object when the State closed and discussed the elements making rape, 

sodomy, and attempted sodomy class A felonies, i.e., subjecting the victim to deviate s exual intercourse 

and intercourse with more than one person. The State specifically argued as to count VII that the three 

perpetrators, including Mr. Webber, acted in concert.

11 If the attempted forcible sodomy count had been charged as an unclassified f elony and if Mr. Webber 

had been convicted of attempted forcible sodomy as an unclassified felony, he would have been subject 

to a term of imprisonment of “life imprisonment or a term of years not less than five years.” §

566.060.2. Nowhere has he argued that the sentencing instruction for count VII was incorrect, which 

would be a corollary to his claim that attempted forcible sodomy was a lesser-included offense, to 

which he purportedly objected on statute-of-limitations grounds, due to the way the trial court defined 

the offense for the jury in the verdict director for count VII.
11

has been tolled, or that an exception applies.” Id. at 492. Mr. Webber contends, 

however, that he did not waive the defense because he relied on it during the instruction 

conference to orally object to a lesser-included offense jury instruction and the State 

did not respond to his objection. He suggests that it was simply not preserved for 

review, so we may review the point for plain error. 12

To raise a statute-of-limitations defense, a defendant generally seeks to dismiss 

the time-limited charge by motion. See, e.g., State v. Graham, 149 S.W.3d 465, 466 

(Mo. App. E.D. 2004) (considering whether trial court erred in sustaining defendant’s 

motion to dismiss based on running of limitations period, court reverses ruling). The 

matter can be raised, however, at any time before “final disposition” of the case. Dorris 

v. State, 360 S.W.3d 260, 268 (Mo. banc 2012) (citing Longhibler v. State, 832 S.W.2d 

908, 910-11 (Mo. banc 1992) (in which our supreme court ruled that a statute-oflimitations defense, which is non-jurisdictional, raised in a post-conviction motion to 

set aside a sentence imposed as part of a plea bargain had been waived by the 

defendant’s guilty plea; as an affirmative defense, it must be raised at the earliest 

opportunity or, at the latest, before conviction or plea)). And, of some relevance, our 

courts have held that waiver can occur where a defendant submits a lesser-included 

offense instruction. See State v. Leisure, 796 S.W.2d 875, 879 (Mo. banc 1990) (noting 

jarring inconsistency in allowing defendant to gamble on “jury’s sense of mitigation or 

mercy by submitting” a lesser-included offense instruction “and in so doing sub silentio 

waive the bar of limitation” and then receiving merciful consideration, reverse course, 

“assert the bar and ask the Court on appeal to free him from all accountablility”). 

 

12 Mr. Webber observes that this point was not addressed in his motion for new trial, so it has not been 

preserved for purposes of appeal.
12

Conversely, it would appear, for the sake of argument, that an oral objection to a lesserincluded offense instruction on statute-of-limitations grounds could be sufficient to 

demonstrate non-waiver for purposes of appeal.

Still, we are not convinced that Mr. Webber did not waive his limitations 

objection to count VII. Under the mistaken impression that the verdict director 

contained all of the elements required for the jury to find Mr. Webber guilty of count 

VII as charged—a class A felony—no objection was made to its submission on 

limitations grounds. Further, the State, the court, the jury, and Mr. Webber treated the 

verdict as if the verdict director had led to a felony A conviction. Because no argument 

has been made that the verdict director, verdict, and sentence, based on a felony A 

charge, constituted a lesser-included offense or, in fact, was the lesser-included offense 

to which Mr. Webber did object, we find that he waived this affirmative defense as to 

count VII and is precluded from raising the issue on appeal. This point is denied. 13

Ineffective Assistance of Counsel

In points VI and VII, Mr. Webber asks this Court to allow him to raise an 

ineffective assistance of counsel claim in this direct appeal. He argues that counsel 

was ineffective for failing to raise the necessarily incident exception to accomplice 

liability and for failing to raise the statute of limitations on all counts. Because we 

have found that the necessarily incident exception does not apply, it is unnecessary for 

 

13 Mr. Webber filed a motion to correct the judgment the day before the case was argued, asking this 

Court to modify the judgment “to reflect Count VII as an unclassified felony,” or to grant him leave to 

file a motion for an order nunc pro tunc, so the trial court can correct the record. Because the matter 

will be remanded to the trial court for resentencing, we leave it to that court to address whether the 

judgment must be modified.
13

us to address an ineffectivenss claim on this basis, whether or not cognizable. Point

VII is accordingly denied.

As for whether an ineffectiveness claim is cognizable on direct appeal, Mr. 

Webber acknowledges that Missouri courts have held that ineffectiveness claims cannot 

be raised on direct appeal since Rule 29.15 was adopted. 

Rule 29.15(a) states,

A person convicted of a felony after trial 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 29.15. This 

Rule 29.15 provides the exclusive procedure by which such person may 

seek relief in the sentencing court for the claims enumerated. The 

procedure to be followed for motions filed pursuant to this Rule 29.15 is 

governed by the rules of civil procedure insofar as applicable.

Rule 29.15(b) also includes a timing provision that states, “[f]ailure to file a motion 

within the time provided by this Rule 29.15 shall constitute a complete waiver of any 

right to proceed under this Rule 29.15 and a complete waiver of any claim that could 

be raised in a motion filed pursuant to this Rule 29.15.”

Missouri courts have held that “a claim of ineffective assistance of counsel, even 

if compelling, is not cognizable on direct appeal.” State v. Nettles, 481 S.W.3d 62, 69 

(Mo. App. E.D. 2015). “‘[A] claim of ineffective assistance of counsel is not 

cognizable on direct appeal but must be presented pursuant to the procedure set forth 

in Rules 29.15 or 24.035 which provide for the development of a full and complete 

record.’” State v. Brown, 438 S.W.3d 500, 506 n.5 (Mo. App. S.D. 2014) (quoting State 

v. Riley, 787 S.W.2d 314, 316 (Mo. App. E.D. 1990)). “‘These rules provide the 
14

exclusive procedure through which post-conviction relief because of ineffective 

assistance of counsel may be sought.’” Id.

The foundational case for this holding is State v. Wheat, 775 S.W.2d 155 (Mo. 

banc 1989), overruled on other grounds by Joy v. Morrison, 254 S.W.3d 885, 888 n.7 

(Mo. banc 2008). Mr. Webber asserts that Wheat and its progeny should no longer be 

followed because it was decided under a prior version of Rule 29.15 in which waiver 

applied due to time constraints and because its plain language reading of Rule 29.15 

has been effectively overruled by subsequent decisions. Under the version of Rule 

29.15 in effect when Wheat was decided, a person seeking relief was required to file a 

motion to vacate using Criminal Procedure Form 40. Wheat, 775 S.W.2d at 157. If an 

appeal of the judgment sought to be vacated was taken, the motion was required to be 

filed within thirty days after the filing of the transcript in the appeal. Id. The current 

deadline for filing a post-conviction motion under Rule 29.15 is no later than ninety 

days after the date the appellate court’s mandate issues.

Mr. Webber argues that, when Wheat was decided, a defendant was required to 

file a Form 40 while his or her direct appeal was pending, whereas now a defendant is 

required to file a Form 40 after the mandate issues from the direct appeal. Accordingly, 

in his view, under current Rule 29.15, a defendant cannot be considered to have waived 

claims in a direct appeal that were not raised in a Form 40, because the defendant 

cannot even pursue a Rule 29.15 action until the direct appeal is complete. 

In Wheat, the defendant conceded that he failed to file a motion to vacate in the 

trial court under Rule 29.15, and he recognized “the nominal effect of this failure.” 

Wheat, 775 S.W.2d at 157. Mr. Wheat then argued that, under former Rule 27.26, 
15

appellate courts had consented in cases of direct appeal to review post-conviction 

claims of ineffective assistance of trial counsel where a record in the trial court was 

sufficient to permit appellate review. Id. The court declined Mr. Wheat’s argument 

and held that the new rule explicitly provides the “exclusive procedure” by which a 

person may seek relief in the sentencing court for ineffective assistance of counsel, and 

“failure to file such motion constitutes a complete waiver of the right.” Id. at 157-58. 

A change to the Rule 29.15 timing requirement does not change its plain language ,

which continues to provide the exclusive means by which an ineffective assistance of 

counsel claim may be raised. And this has been confirmed in cases decided since 

Wheat. See, e.g., Brown, 438 S.W.3d at 506 n.5 (holding that ineffective assistance of 

counsel claim was not cognizable on direct appeal because it was not presented under 

the post-conviction procedures set forth in Rules 29.15 or 24.035, which allow for the 

development of a full and complete record); State v. Celis-Garcia, 420 S.W.3d 723, 731 

(Mo. App. W.D. 2014) (holding that Defendant’s claim for ineffective assistance of 

counsel due to a conflict of interest was not cognizable on direct appeal); State v. 

Finster, 985 S.W.2d 881, 884 (Mo. App. S.D. 1999) (holding that, to the extent 

Defendant's claim is one of ineffective assistance of counsel, it is not cognizable on 

direct appeal and Rule 29.15 is the exclusive procedure by which a claim of ineffective 

assistance of counsel can be advanced).

Mr. Webber asserts that the Missouri Supreme Court effectively overruled Wheat 

in State ex rel. Laughlin v. Bowersox, 318 S.W.3d 695, 702 (Mo. banc 2010). In 

Laughlin, the defendant had previously asserted a subject-matter jurisdiction challenge 

in a Rule 29.15 motion, while his appeal was pending. Id. at 697. The State argued 
16

that the claim was barred and could not be asserted in a subsequent petition for a writ 

of habeas corpus under Rule 91.06. Id. Our supreme court observed that, while Rule 

29.15 had provided the “exclusive procedure” for initially asserting the subject-matter 

jurisdiction claim before the “sentencing court,” and that the Missouri Supreme Court 

was not the sentencing court, Rule 91.06 provided a separate means to assert the 

jurisdictional challenge before the Missouri Supreme Court. Id. at 701-02. The court 

also observed that, when Mr. Laughlin chose to challenge the circuit court’s 

jurisdiction, a Rule 29.15 motion was his exclusive means of relief before the 

sentencing court. Id. at 702. 

Mr. Webber contends that, because the Missouri Supreme Court said that it was 

not a sentencing court, then it would follow that the court of appeals is not a sentencing 

court; thus the “exclusive procedure” language in Rule 29.15 means that the 

enumerated claims can be raised in other types of motions, but if raised before the 

sentencing court, they must be raised by post-conviction motion. Laughlin does not 

change the meaning of Rule 29.15 in this way. The court there stated that, insofar as 

Rule 29.15 had provided a means for asserting the subject-matter jurisdiction claim, a 

Rule 29.15 motion was Mr. Laughlin’s exclusive means of relief in the sentencing court 

when filed within its applicable time limits. Laughlin, 318 S.W.3d at 702. The court 

concluded that, now that the time for filing a Rule 29.15 motion had passed, Mr. 

Laughlin could seek a writ of habeas corpus under Rule 91.06 to challenge his illegal 

confinement under the judgment of a court that purportedly lacked subject-matter 

jurisdiction. Id. This does not, however, alter the meaning of Rule 29.15 as to 
17

ineffective assistance of counsel.14 Our supreme court acknowledged that postconviction motions for relief are “designed to provide a ‘single unitary, post-conviction 

remedy, to be used in place of other remedies,’ including the writ of habeas corpus.” 

Id. at 701 (quoting State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001)). 

The court noted, however, that subsequent habeas relief is not barred under certain 

conditions, including an alleged jurisdictional defect. Id. The ability to assert an 

ineffectiveness claim on direct appeal does not follow from the allowance of a petition 

for writ of habeas corpus under Rule 91.06. No analogous rule gives a defendant a 

means other than Rule 29.15 to assert an ineffective assistance of counsel claim. 

Although the Missouri Supreme Court said that it was not a sentencing court, it did not 

undo Missouri’s long-standing procedure for asserting ineffectiveness claims under 

Rule 29.15. 

Mr. Webber also argues that a number of jurisdictions allow for these claims to 

be raised on direct appeal. He proposes that this court adopt the procedures and 

standards from North Carolina, where ineffectiveness claims brought on direct review 

can be decided on the merits when the cold record reveals that no further inve stigation 

is required. State v. Fair, 557 S.E.2d 500, 524 (N.C. 2001), cert. denied, 535 U.S. 1114 

(2002). In North Carolina, however, “should the reviewing court determine that IAC 

claims have been prematurely asserted on direct appeal, it shall dismiss those claims 

 

14 During oral argument, Mr. Webber asserted that Missouri courts have allowed two of the three 

enumerated claims under Rule 29.15 to be raised on direct appeal, i.e., those involving court error, and 

thus we should similarly consider ineffectiveness claims on direct appeal. He failed to cite any 

compelling case law explaining which particular ineffectiveness claims could be addressed on direct 

appeal, acknowledging that those requiring the development of a factual record post-conviction could 

not be resolved before an appellate court in the first instance.
18

without prejudice to the defendant's right to reassert them during a subsequent MAR 

[motion for appropriate relief] proceeding.” Id. at 525. 

Missouri case law prior to the adoption of Rule 29.15 was similar to that of 

North Carolina. Missouri would allow ineffective assistance of counsel claims to be 

presented on appeal from the judgment of conviction if the claims could be disposed 

of on the record. See State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985); see also State 

v. Koetting, 691 S.W.2d 328, 332 (Mo. App. E.D. 1985); State v. Settle, 670 S.W.2d 7, 

13 (Mo. App. W.D. 1984), superseded by statute as stated in State v. Wheat, 775 S.W.2d 

155 (Mo. banc 1989). Mr. Wheat had argued that, under Rule 27.26, appellate courts 

had consented in cases of direct appeal to review claims of ineffective assistance of 

trial counsel where the trial court record was sufficient to permit appellate review. In 

this regard, he cited Settle. Wheat, 775 S.W.2d at 157. The court in Wheat discussed 

former Rule 27.26, which was in effect when Settle was decided, noting that Rule 27.26 

was markedly different from Rule 29.15, particularly in the lack of time constraints for 

filing the motion to vacate. Id. The court further noted that the appellate court faced 

a different question when determining whether the claim should be considered on direct 

appeal because, under Rule 27.26, the court would determine if the record was adequate 

or whether to require the defendant to return to the trial court with a motion and the 

opportunity to present further evidence. Id. In contrast, those options are replaced 

under Rule 29.15 by significantly different procedures and new standards for postconviction proceedings. Id.

Under the explicit language of the new rule, the “exclusive procedure” by which 

a person may seek relief in the sentencing court for ineffective assistance of counsel is 
19

through Rule 29.15. Id. It necessarily follows that claims for relief cognizable under 

the rule may not be considered when presented on direct appeal. Id. at 157-58. Though 

the previous rule allowed claims of ineffective assistance of counsel to be raised on 

direct appeal under limited circumstances, the explicit language of Rule 29.15 replaced 

Rule 27.26. By proposing that this court adopt North Carolina’s procedures and 

standards, Mr. Webber is effectively asking this court to disregard the plain language 

of Rule 29.15 and adopt a procedure very similar to Rule 27.26, which Rule 29.15 

replaced. We are not inclined to do so.

In addition, as noted above, a statute-of-limitations defense is waived if not 

raised before a plea or finding of guilt and cannot be considered on appeal. Mr. Webber 

has asserted instead that counsel was ineffective in failing to raise this defense, in effect 

circumventing the waiver rule and attempting to put the merits of this defense before 

us on appeal. We will not allow him to do this. Regardless whether the open-ended 

general statute of limitations for a class A felony applies here or is supplanted by the 

ten-year statute of limitations for unlawful sexual offenses involving minors, we cannot 

allow Mr. Webber to circumvent our waiver rules in this direct appeal. Mr. Webber 

contends that “no possible trial strategy . . . would support not raising the statute of 

limitations defense,” and thus implies that we can rule on this issue on the existing 

record. While we may be able to discern from the present record that counsel’s failure 

to assert a statute-of-limitations defense fell below an objective standard of 

reasonableness, we have no way of determining if the defense even applies and thus 

whether Mr. Webber can show prejudice. Addressing Mr. Webber’s substantive 

argument that changes to the statute of limitations for a sexual offense involving a 
20

minor were not made before they expired in his case, the State contends that periods of 

tolling, i.e., when and if he was absent from the jurisdiction, extended the limitations 

period. These matters, as well as the victim’s birthdate, a fact we are asked to assume, 

must be established by proof during an evidentiary hearing.

Particularly instructive for our purposes is that “[a]ppellate courts uniformly 

note that where a claim of ineffective assistance of trial counsel could be more fully 

developed by evidence outside the trial record, the preferable procedure is to present it 

initially in a setting that permits an evidentiary hearing.” WAYNE R. LAFAVE, ET AL.,

CRIMINAL PROCEDURE, § 11.7(e), (4th ed. 2015). This can be done in one of three ways: 

in a motion for new trial, “a remand or other procedure that will stay a pending appeal 

and return the case to the trial court,” or a post-appeal collateral challenge. Id. Not 

only do we reject the contention that an ineffectiveness claim may be asserted on direct 

appeal in Missouri, we also lack a sufficient record to make a determination on the 

merits of the statute-of-limitations issue in this case. We will not therefore address it 

on direct appeal. Point VI is denied.

Sentencing Range Misdirection

Mr. Webber argues in points VIII, IX, and X that the trial court plainly erred 

when it erroneously instructed the jury as to sentencing for the class A felony charges 

of forcible rape, forcible sodomy, and attempted forcible sodomy. As noted above, the 

range of punishment submitted to the jury, without anything other than a general 

objection from Mr. Webber, was life imprisonment or a term of years not less than ten 

years. When Mr. Webber committed these offenses, the range of punishment for a class 

A felony was “a term of years not less than ten and not to exceed thirty years, or life 
21

imprisonment.” § 558.011.1(1). The State concedes that the range submitted to the 

jury was erroneous, but suggests that, as a matter of plain error, no manifest injustice 

came of the error because the sentences the court imposed on each count—twenty-four 

years on six counts and ten years on one count—did not exceed the thirty-year upper 

limit for a term of imprisonment that was not life imprisonment. We disagree.

Under Rule 30.20, we may, in our discretion, review “plain errors affecting 

substantial rights,” if we find “that manifest injustice or miscarriage of justice has 

resulted therefrom.” We first determine whether “the claimed error ‘facially

establishes substantial grounds for believing that “manifest injustice or miscarriage of 

justice has resulted[.]”’” State v. Williams, 465 S.W.3d 516, 519 (Mo. App. W.D. 2015) 

(quoting State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995)). “[P]lain errors are 

those which are evident, obvious and clear.” Id. Once we determine that plain error 

has occurred, “we must continue to the second step to consider whether or not a 

miscarriage of justice or manifest injustice will occur if the error is left uncorre cted.” 

Id. In Williams, we determined that the defendant’s claim, i.e., that the sentencing 

court had a mistaken belief about the range of punishment, facially established 

substantial grounds for believing that a manifest injustice or miscarriage of justice had 

resulted. Id. Accordingly, we reversed and remanded for resentencing. Id. at 520-21. 

While Williams involved the sentencing court’s mistaken belief as to the minimum end 

of the range, we have no reason to believe that a mistake on the maximum end should 

be treated any differently. “A sentence passed on the basis of a materially false 

foundation lacks due process of law and entitles the defendant to a reconsideration of 

the question of punishment in the light of the true facts, regardless of the eventual 
22

outcome . . . even if it is likely the court will return the same sentence.” Id. at 520 

(internal citations omitted).

Mr. Webber cites State v. Shaw, 844 S.W.2d 20 (Mo. App. W.D. 1992), to support 

his argument that misinforming the jury as to the maximum sentence requires a remand 

for resentencing. The State attempts to distinguish Shaw, arguing that the jury in that 

case, unlike here, imposed a sentence far in excess of the maximum allowed by law. 

Id. at 20. We do not believe that this is a meaningful distinction, particularly in light 

of other case law requiring resentencing on plain-error review even where it is likely 

that the same sentence may be imposed on remand. 

The law is clear that an erroneous jury instruction on sentencing and a sentence 

passed on the basis of a materially false foundation constitute evident, obvious, and 

clear error and that such error results in manifest injustice if left uncorrected. Had the 

jury known that the upper limit of punishment for a term of years for a class A felony 

was thirty years, it may or may not have sentenced Mr. Webber to twenty-four years on 

each count. Without any way of knowing what effect this knowledge would have had 

on the jury, we are constrained to grant points VIII, IX, and X and remand solely for 

resentencing for each count. See State v. Chapman, 167 S.W.3d 759, 763 (Mo. App. 

E.D. 2005) (ruling that sentencing error arising from bifurcated proceeding may be 

redressed on remand by means of a new trial as to the sentencing phase only).

Conclusion

Because the necessarily incident exception to accomplice liability does not 

apply, Mr. Webber waived a statute-of-limitations defense to the class A felony of 

attempted forcible sodomy, and Mr. Webber cannot raise an ineffectiveness claim on 
23

direct appeal, we affirm his convictions. Because the trial court did not correctly 

instruct the jury on the range of punishment for his class A felony convictions, we 

vacate the sentences and remand for re-sentencing. On remand, the trial court may 

consider Mr. Webber’s request to correct the judgment as to Count VII.

/s/ THOMAS H. NEWTON

Thomas H. Newton, Presiding Judge

Martin and Ardini, JJ. concur.