Case Law Update: 2011-2014 Cumulative Edition

Facts: The defense filed a “Motion to Suppress” certain ballistics evidence on grounds that the State did not have a proper chain of custody for the evidence. The trial court sustained the motion. The State appealed.

Holding: Sec. 547.200 authorizes an appeal by the State where a trial court “suppress[es] evidence.” However, the right to appeal under Sec. 547.200 has been limited to cases where the trial court found the evidence to be “illegally obtained.” If evidence is excluded for other evidentiary reasons, there is no right to appeal under the statute. It is irrelevant that the defense styled their motion a “motion to suppress.” The substance is what is relevant. Here, the evidence was excluded on grounds of improper chain of custody, which is an evidentiary rule, not a matter of illegally obtained evidence. Therefore, there is no authority to appeal. However, the State may pursue appellate relief via writ of prohibition. Court expresses no opinion on the merits of such a writ here.
State v. Lilly, 2013 WL 5458940 (Mo. App. W.D. Oct. 1, 2013):

Where trial court excluded certain evidence of State on grounds of corpus delecti rule, the trial court’s ruling was not one “suppressing evidence” or “suppressing a confession or admission” within the meaning of Sec. 547.200.1(3) or (4) because the evidence was not illegally obtained; therefore, State’s appeal was not authorized by Sec. 547.200.1, and appeal must be dismissed. However, State may pursue appellate review via an appropriate writ.

Facts: Prior to trial, the trial court granted Defendant’s “Motion To Suppress Evidence,” and excluded certain statements made by Defendant because the State failed to establish the corpus delecti of the offense, and on grounds of Miranda. The State appealed.

Holding: Sec. 547.200 authorizes the State to appeal a trial court’s “suppressing evidence” or “suppressing a confession or admission.” Even though Defendant styled his motion a “Motion To Suppress,” the title is not significant. Caselaw has given the term “suppressing” a very specific meaning under the statute. “Suppression” of evidence is not the same as “exclusion” of evidence. An exclusion order is not considered to be a “suppression” order unless it has the effect of suppressing evidence on grounds that the evidence was illegally obtained. Here, the trial court excluded evidence based on the corpus delecti rule. The corpus delecti rule is evidentiary in nature; it does not depend on whether the evidence was illegally obtained. Therefore, the “exclusion” of evidence here was no appealable under Sec. 547.200. However, the State may seek appellate review by proper remedial writ.
State v. Paul, No. WD75775 (Mo. App. W.D. 6/25/13):

Where circuit court merely made a docket entry about convicting and sentencing Defendant/Appellant, this was not a “judgment” under Rule 29.07(c) and, thus, the appellate court lacks jurisdiction to hear appeal.

Facts: Movant was convicted at a bench trial and sentenced for a misdemeanor, and appealed. The only documentation of the sentence imposed was a docket entry.

Holding: Under Sec. 547.070, appeals are allowed only after entry of a final judgment. Rule 29.07(c) requires that a judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. Here, the trial court issued a letter finding Defendant guilty after a bench trial, but the letter can’t be a final judgment because it was issued before the time for filing a new trial motion expired and before sentencing. The docket entry made after sentencing is not a final judgment because it doesn’t comply with Rule 29.07(c). Therefore, the appellate court has no jurisdiction to hear the appeal.
State v. O’Neal, 2013 WL 815981 (Mo. App. W.D. March 12, 2013):

Holding: Even though defense counsel stated at a bench trial that they had “no objection” to stipulating to any evidence from a pretrial motion to suppress hearing, the suppression issue was preserved for appeal since the record is clear that it was mutually understood by the State and defense that the suppression hearing record was being admitted into evidence at trial so that the judge would not have to hear it twice and that the defense was not waiving its objections to the evidence at trial.
Harvey v. Director of Revenue, No. WD72606 (Mo. App. W.D. 5/9/12):

Holding: (1) Where trial court reinstated Driver’s license because Driver had alcohol soaked tobacco in his mouth when he gave his breath test and trial court believed Driver’s cross-examination that this would have affected the validity of BAC test, the appellate court defers to the trial court’s assessment of credibility; and (2) where a trial court enters a written judgment (even a generic one), an appellate court is not required to consider the court’s oral comments in reviewing the judgment.
Ewing v. Denney, No. WD74807 (Mo. App. W.D. 3/6/12):

Where trial counsel undertook to file a notice of appeal for Defendant but failed to properly do so and Defendant did not learn of this until after time for late notice of appeal expired, trial counsel was ineffective and habeas relief is granted to allow Defendant to be resentenced so can file a new notice of appeal.

Facts: In 2007, Defendant (Petitioner) was convicted at trial. His trial counsel filed a notice of appeal for him, but failed to timely pay a filing fee. That appeal was dismissed in 2007, but counsel never told Defendant. In 2008, Defendant wrote other attorneys and legal authorities to try to find out what was happening regarding his appeal. The Supreme Court told him to contact the Public Defender. In 2010, Defendant brought a habeas case in DeKalb County seeking to have Defendant re-sentenced so he could appeal. The DeKalb County Circuit Court granted relief and ordered the Jackson County Circuit Court to resentence Defendant, but the Jackson County Circuit Court refused to do so on grounds that the DeKalb court had no authority to order the Jackson court to do so. In 2011, Defendant re-filed his habeas case in the Western District Court of Appeals.

Holding: One of the exceptions to allow review of procedurally defaulted claims is “cause and prejudice.” The question here is whether Defendant can meet this test. A defendant is entitled to effective assistance of counsel on appeal and failure to perfect a notice of appeal is ineffective. “Cause” requires that the procedural default be “external” to the defense, which might at first blush appear to not be met here. But the U.S. Supreme Court has held that where the procedural default is the result of ineffective assistance of counsel, the default is imputed to the State and this renders the “cause” “external” to the defense. Here, counsel was ineffective in failing to perfect the appeal, and Defendant was prejudiced by being denied an appeal. Sentence vacated so Defendant can be resentenced, and then file a timely notice of appeal.
Johnson v. Missouri Board of Probation and Parole, No. WD74090 (1/31/12):

(1) Sec. 217.735.1 RSMo (as amended 2006) requires lifetime supervision of persons convicted under 556.030 (rape), 566.032 (statutory rape in first degree), 566.060 (forcible sodomy) and 566.062 (statutory sodomy in first degree), even if Defendant is not a prior sex offender and the victim is not less than 14 years old; and (2) although the normal remedy for denial of a writ is to file a new writ in a higher court, where trial court disposed of a writ of prohibition on the merits, the remedy is via an appeal.
In the Interest of A.G.R. Juvenile Officer v. A.G.R., No. WD73007 (Mo. App. W.D. 12/27/11):

(1) Where Juvenile is charged with only a “status offense,” Juvenile does not need to be competent for case to proceed; (2) even though Juvenile had been released from court supervision, appeal was not moot where it raised important issues of first impression which might otherwise evade appellate review.

Facts: Juvenile was originally charged with a “delinquency offense” that would have resulted in a felony sex charge if Juvenile were an adult. However, the State filed an amended petition charging only “status offense” acts constituting behavior injurious to the welfare of the child. After a court-ordered competency evaluation, the court found Juvenile to be incompetent. Defense counsel filed a motion to dismiss or to suspend proceedings while Juvenile was incompetent. The court denied the motions. The status offense proceeded to disposition, and Juvenile was ordered placed in care and custody of his mother under supervision of the Children’s Division and court. Juvenile appealed.

Holding: As an initial matter, since the appeal was filed, Juvenile has been released from court supervision, and hence, there is a question whether the appeal is moot. Because the appeal raises important issues of first impression that may otherwise evade appellate review, the appellate court will decide the case. Regarding the merits, this case is not one where Juvenile was charged with a “delinquency offense,” i.e., a criminal-type offense. Instead, he was ultimately charged with a “status offense.” A status offense is unique to juveniles and is an infraction that allows the juvenile court to take jurisdiction of a child alleged to be in need of care due to behavior injurious to welfare. Such status cases are fundamentally different from delinquency cases under Sec. 211.031.1(3), in which the juvenile is alleged to have violated a state law or municipal ordinance. Missouri law treats “status offenses” differently than “delinquency offenses.” How the offense is charged determines what rights will be accorded the juvenile. Here, the court did not err in denying the motion to dismiss or suspend proceedings while Juvenile was incompetent because Juvenile was charged with a “status offense.”
State v. Triplett, No. WD73486 (Mo. App. W.D. 12/20/11):

Holding: (1) Where (a) Defendant filed a motion which appeared to be a hybrid motion to suppress and motion to dismiss, (b) the trial court sustained the motion by dismissing the charge without prejudice, and (c) the State attempted to appeal only the motion to dismiss, the appeal must be dismissed because the State is not appealing the motion to suppress, and the appeal does not meet the requirements for the State to be able to appeal under Sec. 547.200. There is no final judgment because the dismissal was without prejudice. The State can just refile the charge in the trial court. (2) Although civil rule 73.01 gives parties the right to request Findings of Fact and Conclusions of Law before introduction of evidence, there is no similar rule in the criminal rules that requires a trial court to issue Findings in connection with a motion to suppress or other motions. A party (or appellate court) may request them, however, and the trial court may choose to do them, but they aren’t mandatory.
Middleton v. State, No. WD73290 (Mo. App. W.D. 10/18/11):

Holding: Where Movant filed a second motion to reopen postconviction proceedings on grounds of “abandonment,” which the motion court denied via a docket entry, this was not an appealable “judgment” under Rule 74.01(a) but only a non-appealable “order”; however, the motion court does have “jurisdiction” to consider a second motion to reopen.
T.C.T. v. Shafinia, No. WD72336 (Mo. App. W.D. 9/20/11):

Holding: Where order of protection had expired during pendency of appeal, the appeal was moot and Appellant “does not argue that the order’s mere existence subjects him to significant collateral consequences that might justify us in exercising our discretion to consider his claims.”
State v. Burns, No. WD73127 (Mo. App. W.D. 4/12/11):

Trial court’s pretrial ruling excluding certain hospital drug-test results was not appealable by the State because this was a ruling in limine based on violation of an evidentiary rule, not a ruling on a motion to suppress illegally seized evidence; but State may seek writ of prohibition.

Facts: Defendant was charged with DWI for driving under influence of drugs. The State indicated it would introduce hospital records of Defendant showing the presence of drugs in her blood or urine. Defendant filed a “Motion to Suppress or in the Alternative Motion in Limine.” The trial court believed that the evidence could only be admitted if certain state regulation and evidentiary foundations were followed, and so excluded the evidence before trial. The State appealed. Defendant contended the appeal had to be dismissed because the statute allowing a State’s appeal only covers illegally seized evidence, which is not at issue here.

Holding: Sec. 547.200.1(3) permits a State’s appeal of suppression of illegally seized evidence. Sec. 542.296.5 sets forth five grounds on which a motion to suppress can be based, each of which involves illegal searches and seizures. Courts read these two statutes together to allow State’s appeals only about illegally seized evidence. Here, the trial court’s ruling is really a pretrial grant of a motion in limine (despite that the motion was also called “motion to suppress”) and such a ruling is subject to change at trial. The grounds of the motion were not that the blood or urine was illegally seized, but that an evidentiary rule requires exclusion. Thus, the State is not statutorily authorized to appeal, and the appeal must be dismissed. However, the State may be able to seek a writ of prohibition as a remedy, but the appellate court expresses no opinion on the merits.

Editor’s note: The Western District issued an identical ruling in State v. Pfleiderer, No. WD73407 (Mo. App. W.D. 6/14/11), a DWI case where trial judge excluded evidence of blood test results taken by a hospital for treatment purposes without following the requirements of Chapter 577 pertaining to the collection of samples of blood for BAC analysis.
Pittman v. State, No. WD72020 (Mo. App. W.D. 2/22/11):

Sec. 195.291.2 increases the sentence for drug offense but not its felony classification; wrong classification can be corrected under Rule 84.14 allowing appellate court to give necessary relief.

Facts: Defendant was charged with delivery of drugs as a class B felony with sentence enhanced to a class A range of punishment because of persistent drug offender status. The sentence and judgment stated that Defendant was guilty of a class A felony.

Holding: Sec. 195.291.2 provides that any person convicted of violating Sec. 195.211 “when punishable as a class B felony, shall be sentenced to the authorized term of imprisonment for a class A felony….” However, an enhanced sentence does not reclassify the underlying conviction. It remains a B felony. Therefore, the sentence and judgment classifying this as an A felony is wrong. While Defendant raised this in a 24.035 motion, his counsel withdrew this claim, apparently believing it should be fixed in another way. It could be fixed by a nunc pro tunc motion. Here, however, appellate court corrects the sentence and judgment under Rule 84.14, which allows appellate court to give appropriate relief.
* Ryan v. Schad, 93 Crim. L. Rep. 451, ___ U.S. ___ (U.S. 6/24/13):

Holding: U.S. Supreme Court vacates a stay issued in a death penalty case by the 9^th Circuit where the 9^th Circuit, instead of immediately issuing a mandate after denial of cert. as required by Rule 41, granted reconsideration, remanded the case and stayed the execution; Supreme Court holds that 9^th Circuit must follow the procedures of Rule 41(d)(2)(D).
* Henderson v. U.S., 92 Crim. L. Rep. 610, ___ U.S. ___ (U.S. 2/20/13):

Holding: Defendants who did not raise objections at trial on the basis of particular points of unsettled law can still raise subsequent rulings that clarify the law on appeal under the plain error rule; Court approves a time-of-appeal standard for determining when an error is “plain.”
* U.S. v. Juvenile Male, ___ U.S. ___, 89 Crim. L. Rep. 574 (U.S. 6/27/11):

Holding: Where Juvenile challenged certain provisions of SORNA as violating ex post facto, but the court order of juvenile supervision which required Juvenile to register as sex offender has expired, the case is moot.
* Bond v. U.S., ___ U.S. ___, 89 Crim. L. Rep. 466 (U.S. 6/16/11):

Holding: Criminal defendant charged with possession of certain chemicals for other than peaceful purposes, 18 USC 229, has standing to challenge the constitutionality of the law under the 10^th Amendment on grounds that Congress exceeded its powers in enacting the federal law.
* Camereta v. Greene, ___ U.S. ___, 89 Crim. L. Rep. 309 (U.S. 5/26/11):

Holding: Even though appellate court found that Defendant-child-protective-investigators had qualified immunity, the Supreme Court could review Defendants’ challenge to the appellate court’s finding that their warrantless interview of an elementary school student violated the 4^th Amendment; even though under Article III of the Constitution prevailing parties usually cannot appeal because there is no “case” or “controversy”, the immunized Defendants were entitled to review of the constitutional ruling because they will be subject to prospective application of the holding. (However, the Supreme Court did not reach the 4^th amendment issue on the merits because it was moot for other reasons.)
U.S. v. Mahoney, 2013 WL 2382596 (1^st Cir. 2013):

Holding: Defendant’s challenge to an initial order of incompetency was not rendered moot by a later finding that there was not substantial likelihood he would regain competency, since Defendant continued to have an interest in the initial order since this triggered Defendant’s continuing confinement.
Vu v. U.S., 89 Crim. L. Rep. 416 (2d Cir. 6/7/11):

Holding: Petitioner’s unsuccessful 2255 motion seeking reinstatement of his right to direct appeal does not render a subsequent 2255 motion challenging his conviction and sentence “second or successive” under AEDPA.
Vu v. U.S., 89 Crim. L. Rep. 416 (2d Cir. 6/7/11):

Holding: Petitioner’s unsuccessful 2255 motion seeking reinstatement of his right to direct appeal does not render a subsequent 2255 motion challenging his conviction and sentence “second or successive” under AEDPA.
Gov’t of Virgin Islands v. Mills, 2011 WL 420672 (3d Cir. 2011):

Holding: Even though Defendant’s notice of appeal listed the wrong case number and date from an older case, the notice was still effective because it was reasonably clear that Defendant intended to appeal his conviction and State was not prejudiced.
U.S. v. Wilson, 92 Crim. L. Rep. 577 (3d Cir. 2/14/13):

Holding: An appeal waiver does not preclude appeal of order modifying terms of supervised release.
U.S. v. Saferstein, 90 Crim. L. Rep. 788 (3d Cir. 1/26/12):

Holding: A district judge’s botched summary of the terms of a plea bargain during a plea colloquy had the effect of expanding the defendant’s right to appeal, notwithstanding specific limitations to the contrary laid out in the written agreement.
Gov’t of Virgin Islands v. Mills, 2011 WL 420672 (3d Cir. 2011):

Holding: Even though Defendant’s notice of appeal listed the wrong case number and date from an older case, the notice was still effective because it was reasonably clear that Defendant intended to appeal his conviction and State was not prejudiced.
U.S. v. Pileggi, 2013 WL 14305 (4^th Cir. 2013):

Holding: Even though appellate reversed and remanded case based on a sentencing issue, the “mandate rule” barred the trial court from reconsidering the amount of restitution owed since the Gov’t waived any challenge to this by not raising it on appeal.
U.S. v. Murray, 92 Crim. L. Rep. 153 (5^th Cir. 10/30/12):

Holding: (1) Even though Defendant waived his right to appeal, this did not apply to a later order on restitution because this wasn’t part of the original sentencing process; and (2) Even though restitution amounts in large or complex fraud cases may be difficult to calculate, a judge cannot later reopen sentencing to add restitution when the Gov’t comes up with more information.
U.S. v. Slovacek, 2012 WL 4801637 (5^th Cir. 2012):

Holding: A “nonparty victim” of a bribery scheme lacks any right to direct appeal from denial of his request for restitution for himself and his company under the Crime Victims’ Rights Act or Mandatory Victims Restitution Act.
U.S. v. Bowman, 88 Crim. L. Rep. 590 (6^th Cir. 2/7/11):

Holding: Plea agreement waiving right to appeal sentence under sentencing guidelines did not preclude appeal of federal judge’s making federal sentence consecutive to state sentence; ambiguities in an appeal waiver must be resolved against the government.
U.S. v. Freeman, 89 Crim. L. Rep. 69, 2011 WL 1226091 (6^th Cir. 4/4/11):
Holding: Even though Defendant bargained for an appeal waiver, this did not preclude him from appealing that the restitution order was greater than the losses caused by his crime.
Ajan v. U.S., 94 Crim. L. Rep. 118, 2013 WL 5477192 (6^th Cir. 10/3/13):

Holding: Where habeas Petitioner was granted some sentencing relief in the form of a new sentencing judgment under 28 USC 2255 (though Petitioner sought a new sentencing hearing), Petitioner need not obtain a certificate of appealability to appeal the relief granted, because it was not a “final order” in the 2255 proceeding but a new judgment that did not exist at the time the motion was brought.
U.S. v. Freeman, 89 Crim. L. Rep. 69, 2011 WL 1226091 (6^th Cir. 4/4/11):
Holding: Even though Defendant bargained for an appeal waiver, this did not preclude him from appealing that the restitution order was greater than the losses caused by his crime.
U.S. v. Bowman, 88 Crim. L. Rep. 590 (6^th Cir. 2/7/11):

Holding: Plea agreement waiving right to appeal sentence under sentencing guidelines did not preclude appeal of federal judge’s making federal sentence consecutive to state sentence; ambiguities in an appeal waiver must be resolved against the government.
U.S. v. Adkins, 94 Crim. L. Rep. 535, 2014 WL 325254 (7^th Cir. 1/30/14):

Holding: Even though Defendant waived his right to appeal, this did not prohibit appealing a condition of supervised release prohibiting him from patronizing any place where pornography or sexually oriented material was available; the condition was so vague that no reasonable person would know what is prohibited, and Defendant should be allowed to obtain appellate review of it; the condition would arguably ban going to a grocery store or library.
Grandberry v. Keever, 94 Crim. L. Rep. 244, 2013 WL 5912520 (7^th Cir. 11/5/13):