Case Facts: 

On the evening of November 30, 1987, neighbors heard screams and thumping noises emanating from Cheri Johnson's Plaza Square apartment. A building security guard investigated the noises. He knocked on Johnson's apartment door several times before a male voice said that everything was okay and that the woman was sleeping. The security guard asked to be let inside the apartment, but there was no further response. Eventually, the security guard departed.

The next day, Johnson did not show up for work. Upon investigation, the police found her dead, beaten in the head and strangled with a distinctively colored necktie. During an examination of the apartment, the police discovered a carnation wrapped in purple paper.

They traced this carnation to a flower shop in St. Louis Centre, where the employees informed them that the purple paper was unique to their shop, and that the previous day the only person who had bought a carnation was a man wearing a tie matching the one around Johnson's neck. One of the employees thought that the man worked at Walgreen's. The police inquired at Walgreen's and found that although he no longer worked there, the man's name was Willie Simmons.

The police arranged for Simmons to come in for an interview in early December, but he did not appear. They then began searching for him.

On January 3, 1988, he came to them, showing up at the homicide office. He gave increasingly incriminating responses to police questioning: at first asserting that he had met Johnson but had never been to her apartment; next, saying that they had had a relationship, that she had given him a key to her apartment, and that he kept some items of clothing there, including the distinctive tie; then, saying that on November 30, he had gone to Johnson's apartment to take her the carnation and other items, but had left these items at her front door and had not gone in the apartment; finally, saying that he had gone inside the apartment that day. He could not, however, produce for police the alleged key to Johnson's apartment.

The police then arrested Simmons for Johnson's murder. They seized his billfold and recovered, among other items, three pawn tickets and claim checks for photographs being developed. Two of the pawn tickets were for jewelry belonging to Johnson and the other was for a watch owned by McClendon.

Simmons first explained the presence of these pawn tickets by saying that Johnson had given him the jewelry to pawn to raise money to fix his automobile, then changed his story and said that he had stolen the jewelry from Johnson's apartment after finding her dead on the floor.

The autopsy of Johnson revealed scratch marks on her fingers consistent with forcible removal of jewelry. The photographs that police recovered from the claim checks included numerous images of Simmons, including one of him wearing the distinctive tie found around Johnson's neck, and one of him at the flower shop where he had bought the carnation.

Willie Simmons, Jefferson City, pro se. Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Attorney Co-Counsel, Jefferson City, for respondent.

Willie Simmons (Defendant) appeals from an order denying his motion for plain error review under Rule 29.12(b).  The appeal is dismissed.

Defendant was convicted of first degree murder in the death of Leonora McClendon.   He was sentenced to life without parole on February 23, 2003.¹  On October 3, 2005, Defendant filed with the trial court a motion for plain error review under Rule 29.12(b).  On October 12, 2005, the trial court entered an order denying the motion.   After receiving leave from the Missouri Supreme Court to file a late notice of appeal, Defendant appealed to the Missouri Supreme Court on March 8, 2006.   The Supreme Court subsequently transferred the case to this Court.

No right of an appeal exists without statutory authority.  State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994).   In criminal cases, section 547.070, RSMo 2000, allows appeals from final judgments, which occur when the court enters a judgment of conviction and sentence.  State v. Larson, 79 S.W.3d 891, 893 (Mo. banc 2002).   Defendant is not appealing from his judgment of conviction or sentence, but rather an order denying his motion for plain error review under Rule 29.12(b).  Under Vernor v. State, this Court held that there is no independent basis for a motion under Rule 29.12(b) to enforce claims of plain error.  30 S.W.3d 196, 197 (Mo.App. E.D.2000).   Without an independent basis for the motion, there can be no appealable judgment.  Id. Moreover, there is no statute providing the right to appeal from a Rule 29.12(b) motion.  Id.

This Court has a duty to sua sponte determine our jurisdiction.   State v. Dunn, 103 S.W.3d 886, 887 (Mo.App. E.D.2003).   We issued an order directing Defendant to show cause why his appeal should not be dismissed for lack of jurisdiction.   In addition, the State has filed a motion to dismiss on the same grounds.   In his responses, Defendant presents three primary arguments to support his claim that this Court has jurisdiction.   First, Defendant contends the State did not challenge jurisdiction at the trial court, so should be precluded from challenging it here.   However, the question of jurisdiction may be raised at any stage of the proceedings, even for the first time on appeal.  Vance Bros., Inc. v. Obermiller Const.   Services, Inc., 181 S.W.3d 562, 564 (Mo. banc 2006).

Second, Defendant contends that two cases decided by the Jackson County Circuit Court in April of 2001 are controlling.   However, in this district of the Court of Appeals, the Vernor decision controls.   Moreover, after the Jackson County cases were decided, the Western District of the Court of Appeals adopted our decision in Vernor and the Jackson County cases are no longer good law in the Western District.  Harris v. State, 48 S.W.3d 71, 72-73 (Mo.App. W.D.2001).²

Finally, Defendant says the Missouri Supreme Court has concluded that it has jurisdiction in 29.12(b) cases and therefore, we should transfer the case to the Missouri Supreme Court since we disagree.   Defendant relies upon State ex. rel Mertens v. Brown, 198 S.W.3d 616 (Mo. banc 2006).   However, this case did not involve an appeal from a Rule 29.12(b) motion, but instead was an extraordinary writ petition filed in the Missouri Supreme Court.  Id. at 617-618.   Therefore, it does not support Defendant's assertions.

Under Vernor, this Court has no jurisdiction over Defendant's appeal.   The State's motion to dismiss is granted.   The appeal is dismissed for lack of a final, appealable judgment.

FOOTNOTES

1.   Simmons was also convicted in a separate trial of first degree murder in the death of Cheri Johnson.   He originally received the death penalty for both murders.   His convictions and the denial of his Rule 29.15 motion for post-conviction relief in each case was affirmed by the Missouri Supreme Court.  State v. Simmons, 955 S.W.2d 729 (Mo. banc 1997) (Johnson murder) and State v. Simmons, 955 S.W.2d 752 (Mo. banc 1997) (McClendon murder).   The Eighth Circuit Court of Appeals granted Simmons's petition for habeas relief in both cases as to the penalty phase of his trials and remanded the cases for new penalty phases.  Simmons v. Luebbers, 299 F.3d 929, 942 (8th Cir.2002).   At that time, Defendant received a punishment of life imprisonment without parole for each offense.   Defendant's current appeal relates only to the case involving the murder of Leonora McClendon.

2.   The Southern District has also concluded that Rule 29.12(b) does not provide an independent basis for a motion.  State v. Massey, 990 S.W.2d 201, 204 (Mo.App. S.D.1999).

GLENN A. NORTON, J. and PATRICIA L. COHEN, J., Concur.