STATE OF MISSOURI, Respondent v. BRYAN C. KEATHLEY, Appellant

• Court: Missouri Court of Appeals
• Decided: October 1, 2025
• Docket: SD38615
• Status: Published

Opinion

Missouri Court of Appeals Southern District

In Division

STATE OF MISSOURI,

Respondent,

v. No. SD38615

BRYAN C. KEATHLEY, Filed: October 1, 2025

Appellant.

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Jerry A. Harmison Jr., Judge

AFFIRMED

Bryan C. Keathley (“Defendant”) appeals the circuit court’s judgment dismissing,

on the ground of res judicata, his second Rule 29.07(d) 1 motion to set aside his February

25, 2015, judgment of conviction on five offenses and to permit him to withdraw his

1 Rule 29.07(d) provides, in relevant part, “to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” All rule references are to Missouri Court Rules (2025), unless otherwise noted. pleas on each. Defendant contends in his first point on appeal the circuit court committed

clear error and abused its discretion in applying res judicata in two respects: “his first

motion had been dismissed without prejudice and there is no bar to successive petitions

under Rule 29.07(d).” Finding no merit in either respect, we deny the point. Defendant’s

second point challenges the circuit court’s credibility determinations, factual findings and

conclusions of law in its judgment on the merits denying Defendant’s first Rule 29.07(d)

motion, which he did not timely appeal. Because that judgment is not the subject of this

appeal, we deny the point. Accordingly, the circuit court’s judgment dismissing

Defendant’s second Rule 29.07(d) motion is affirmed.

Factual Background

In accordance with the terms of an Alford Plea 2 agreement with the State, the

circuit court entered a judgment of conviction against Defendant on four felonies and one

misdemeanor on February 25, 2015, having sentenced Defendant to concurrent sentences,

the longest of which was five years in the Department of Corrections (“DOC”), but

suspended the execution of those sentences and placed Defendant on probation for a five-

2 “Pursuant to an Alford guilty plea, the defendant does not admit the acts of the crime but admits that in light of the State's evidence against him, he is likely to be found guilty beyond a reasonable doubt at trial. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).” Hackman v. State, 492 S.W.3d 669, 671 n.1 (Mo. App. E.D. 2016). An Alford plea is treated no differently than a guilty plea where the defendant admits the commission of the crime charged. Michaels v. State, 346 S.W.3d 404, 408 (Mo. App. S.D. 2011).

2 year term. Defendant completed that term of probation in February of 2020, without

having ever been delivered to DOC. 3

Over a year later, Defendant filed a Rule 29.07(d) motion in the circuit court on

April 20, 2021 (as amended on May 19, 2021, hereinafter referred to as the “first Rule

29.07(d) motion”). In his first Rule 29.07(d) motion, Defendant prayed for the circuit

court “upon hearing, to enter its order setting aside the judgment of conviction and

sentences in this case … and permitting [Defendant] to withdraw his plea of guilty to

these charges.” Among other reasons for granting the motion, Defendant alleged that his

“Guilty Plea Resulted in a Manifest Injustice Because of Plea Counsel’s Conflict of

Interest.” 4 Defendant alleged that his plea counsel had an actual conflict of interest in two

respects: plea counsel “contacted the court and informed it that Defendant had been

making threats against it” and

at the same time [plea counsel] was representing [Defendant] in this case, [plea counsel] was negotiating a settlement in [Defendant’s] divorce proceedings, and was making [Defendant’s] guilty plea part of the package to settle it.

Following an evidentiary hearing, the circuit court entered its judgment on the first

Rule 29.07(d) motion on October 31, 2022, finding and concluding, among other things,

that Defendant failed to prove by a preponderance of the evidence that plea counsel had

an actual conflict of interest. The judgment stated, “the [c]ourt overrules Defendant’s

Amended Motion to Set Aside Plea and Vacate Judgment under Rule 29.07(d) following

3 Defendant contends, and the State does not dispute, that in the absence of a remand to DOC, Rule 24.035 post-conviction relief was unavailable to him. 4 Defendant’s counsel in this appeal was not Defendant’s plea counsel. 3 an evidentiary hearing and Defendant’s claims are DENIED.” Defendant did not appeal

this judgment.

Ten months later, on September 1, 2023, Defendant filed a second Rule 29.07(d)

motion (hereinafter referred to as the “second Rule 29.07(d) motion”). As his sole reason

for granting this motion, Defendant alleged that plea counsel had an actual conflict of

interest because plea counsel had “contacted law enforcement and informed it that

[Defendant] had been making threats against the judge.” The State filed a motion to

dismiss the second Rule 29.07(d) motion because the claim raised by Defendant was

barred by res judicata as a result of the circuit court’s judgment denying the first Rule

29.07(d) motion. After both parties filed suggestions, the circuit court on August 1, 2024,

entered its judgment on the second Rule 29.07(d) motion sustaining the State’s motion to

dismiss based upon res judicata and dismissing the second Rule 29.07(d) motion.

Defendant timely appeals the circuit court judgment dismissing his second Rule

29.07(d) motion asserting two points on appeal. In his first point, Defendant claims the

circuit court committed clear error and abused its discretion in applying res judicata

because “his first motion had been dismissed without prejudice and there is no bar to

successive petitions under Rule 29.07(d).” In his second point, Defendant challenges the

circuit court’s credibility determinations, factual findings and legal conclusions in its

judgment on the merits denying his first Rule 29.07(d) motion.

4 Standard of Review

“Although a Rule 29.07 motion is filed in the criminal case, it is a civil collateral

attack on a criminal conviction just as are Rule 24.035 and Rule 29.15 motions.” State v.

Ison, 270 S.W.3d 444, 445 (Mo. App. W.D. 2008).

“In reviewing the denial of a motion to withdraw guilty plea pursuant to Rule 29.07, the reviewing court is to determine whether the trial court abused its discretion or was clearly erroneous.” State v. Guyer, 353 S.W.3d 458, 460 (Mo. App. W.D. 2011) (quoting State v. Thomas, 96 S.W.3d 834, 837 (Mo. App. W.D. 2002)). “It is the burden of the defendant to prove by a preponderance of the evidence that the motion court erred.” Id. (quoting Thomas, 96 S.W.3d at 837).

State v. Doolin, 572 S.W.3d 112, 119 (Mo. App. W.D. 2019).

Discussion

In his argument under his first point, reversing his two contentions as stated in that

point, Defendant first contends that res judicata has no application in a Rule 29.07(d)

proceeding “because Rule 29.07(d) does not bar second or successive petitions.”

Contrasting Rule 29.07(d) to the Rule 24.035(l) explicit prohibition of successive Rule

24.035 motions, Defendant argues that the “clear language” of Rule 29.07(d) does not

“bar him from filing a second or successive motion to correct a ‘manifest injustice.’”

Other than the tangential reference to Rule 24.035 and the Rule 29.07(d) omission of a

prohibition against successive motions, Defendant cites no legal authority supporting his

argument.

Defendant’s first contention has no merit for two reasons. First, Defendant’s rule-

construction theory that an omission of a prohibition of an action in the rule must be

construed as an unrestricted and unconstrained authorization to take that action seems

5 dubious at best. This doubtful view is reinforced by Defendant’s lack of citation to any

legal authority supporting the existence of his asserted theory. Surely, if this theory had

any legal vitality, the case law would be replete with volumes of cases discussing and

ruling upon its application in many situations and circumstances where a party is

asserting legal authority to take an action. It is beyond the function of this Court to serve

as an advocate for Defendant by engaging upon its own research quest for supporting

authority. See Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978) (“It is not the

function of the appellate court to serve as advocate for any party to an appeal.”).

Logically, the most that can be gleaned from the omission of a prohibition against

successive motions in Rule 29.07(d) is that the rule does not expressly bar them, which is

the premise of Defendant’s contention. That omission in Rule 29.07(d) standing alone,

however, does not logically support the conclusion that successive motions are

necessarily authorized by the rule.

Second and in any event, even assuming without deciding that Rule 29.07(d)

authorizes successive motions, Defendant proffers no explanation or legal analysis as to

why or how that proposition logically or legally prevents the otherwise appropriate

application of res judicata as in any other civil case. 5 Without citation to any supporting

legal authority or any expressed or supporting argument whatsoever, Defendant merely

5 To be clear, Defendant did not challenge in the circuit court and does not challenge on appeal whether the facts of the case fail to satisfy any of the particular elements required for invoking either the doctrine of res judicata or the doctrine of collateral estoppel. Rather, Defendant challenges the applicability of those doctrines in any Rule 29.07(d) proceeding because Rule 29.07(d) “allows for second or successive petitions.” 6 implicitly assumes, in a somewhat circular fashion, that res judicata does not apply

because “Rule 29.07(d) does not bar second or successive petitions.” 6 Once again, we

cannot act as an advocate for Defendant to craft an argument for him in order to bridge

this logical gap in his legal analysis. Thummel, 570 S.W.2d 686.

Next, in his argument under his first point, Defendant contends “that res judicata

does not apply to his [second Rule 29.07(d)] motion” because the circuit court judgment

on his first Rule 29.07(d) motion was a “dismissal without prejudice.” Defendant reasons

that because the circuit court did not designate its “dismissal” of his first Rule 29.07(d)

motion as being with prejudice, then pursuant to Rule 67.03 it was an involuntary

“dismissal” without prejudice, which under Rule 67.01, allows him to “bring another

civil action for the same cause.” 7

6 In its broadest sense, “[s]ometimes the term ‘res judicata’ is used as the label for claim preclusion or issue preclusion.” Sexton v. Jenkins & Assocs. Inc., 152 S.W.3d 270, 273 n.3 (Mo. banc 2004). Any cogent argument that the doctrine of res judicata was inapplicable in a Rule 29.07(d) proceeding, therefore, must necessarily account for the inapplicability of both types of preclusion. See Gray v. State, 498 S.W.3d 522, 530 (Mo. App. W.D. 2016) (Issue preclusion applied to foreclose claim of manifest injustice in second Rule 29.07(d) motion where trial court found no manifest injustice existed in first Rule 29.07(d) proceeding). 7 Rule 67.03 provides, A defendant may move for an involuntary dismissal of the civil action for lack of jurisdiction, for prematurity of action, for failure to substitute a party for a decedent and for such other dismissals as are allowed by these Rules 41 through 101. Defendant may also move for an involuntary dismissal of the civil action for failure of the plaintiff to prosecute or to comply with these Rules 41 through 101 or any order of the court. Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify.

7 This contention has no merit because the premise—the judgment overruling and

denying the first Rule 20.07(d) motion is a “dismissal” of the motion—is not valid. That

judgment was and remains an adjudication on the merits of Defendant’s first Rule

29.07(d) motion after an evidentiary hearing. In its judgment, the circuit court made

credibility determinations on the evidence presented in that hearing, entered explicit

detailed findings of fact, determined that “[p]lea counsel did not have an actual conflict

of interest” and held that “Defendant did not prove this claim by a preponderance of the

evidence. As such, this claim is denied.” Based upon these holdings, and similar holdings

on the other claims in Defendant’s first Rule 29.07(d) motion, the circuit court entered

judgment stating “the [c]ourt overrules Defendant’s [first] Motion to Set Aside Plea and

Vacate Judgement [sic] under Rule 29.07(d) following an evidentiary hearing and

Defendant’s claims are DENIED.” Nowhere in this eight-page judgment do the words

“dismiss” or “dismissal” appear.

Nevertheless, under this contention, Defendant labels and refers to the circuit

court’s judgment on his first Rule 29.07(d) motion as a “dismissal.” 8 He proffers no

argument, explanation, or citation to supporting legal authority, however, as to how or

why the circuit court’s judgment was a “dismissal” of his first Rule 29.07(d) motion

rather than an adjudication upon its merits. Defendant also omits any argument,

Rule 67.01 provides, “A dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred. A dismissal with prejudice bars the assertion of the same cause of action or claim against the same party.” 8 Interestingly, elsewhere in his brief, Defendant refers to the circuit court’s judgment as a “denial” of his first Rule 29.07(d) motion. 8 explanation, or citation to supporting legal authority as to how or why the words

“overruled” and “denied,” as actually used by the circuit court in its judgment, may or

should be construed as a “dismissal” of the motion under Rule 67.03 rather than an

adjudication upon its merits. Once again, we cannot serve as an advocate for Defendant

by crafting arguments or searching for supporting legal authority on his behalf. See

Thummel, 570 S.W.2d at 686. In the absence of any legally-supported cogent argument

that the circuit court’s judgment overruling and denying Defendant’s first Rule 29.07(d)

motion was and is anything other than an adjudication on the merits of that motion, Rules

67.03 and 67.01, directed toward dismissals, are not applicable.

Finding no merit in either of Defendant’s contentions under his first point

challenging the circuit court’s judgment dismissing his second Rule 29.07(d) motion on

the basis of res judicata, the point is denied.

Although Defendant’s second point is not a model of clarity as to the identity of

the circuit court ruling or action being challenged, as required by Rule 84.04(d)(1)(A), his

argument under the point is directed solely toward credibility determinations, findings of

fact and conclusions of law made by the circuit court in its judgement denying his first

Rule 29.07(d) motion. Nothing in Defendant’s argument under his second point is

directed toward any alleged circuit court error arising from its judgment dismissing his

second Rule 29.07(d) motion based upon res judicata. The latter judgment is the subject

of this appeal, but the former judgment is not. For that reason, Defendant’s second point

raises nothing for consideration in this appeal and is denied.

9 Conclusion

Because we have denied all allegations of error briefed by Defendant directed

toward the circuit court’s judgment dismissing his second Rule 29.07(d) motion and

“allegations of error not briefed … shall not be considered in any civil appeal,” Rule

84.13(a), we find no clear error or abuse of discretion in the circuit court’s judgment

dismissing Defendant’s second Rule 29.07(d) motion. The circuit court’s judgment

dismissing Defendant’s second Rule 29.07(d) motion, therefore, is affirmed.

GARY W. LYNCH, Senior Judge. – OPINION AUTHOR

DON E. BURRELL, Judge – CONCURS

JACK A. L. GOODMAN, Judge – CONCURS