Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant-Juvenile was convicted of first degree murder from a robbery and home invasion. He was sentenced to LWOP. He was also convicted of many other offenses stemming from the home invasion, and given multiple consecutive life sentences. While his appeal was pending, the U.S. Supreme Court decided Miller v. Alabama, 132 S.Ct. 2455 (2012), which forbids sentencing a juvenile to LWOP when there has been no consideration of mitigating circumstances. On appeal, Defendant challenged his LWOP sentence, and also challenged the certification procedure used in his case because he was ultimately allowed to be charged with and convicted of various crimes that were not alleged in the juvenile petition in juvenile court.

Holding: (1) Regarding the certification procedure, Juvenile argues that some of the offenses of which he was convicted had not been “certified” by the juvenile court, and thus, could not be brought or tried in circuit court. The flaw in this argument, however, is that the certification procedure created in Section 211.071 pertains to individuals, not to specific conduct or crimes or charges. The statute speaks in terms of “transfer[ing] a child” to circuit court for prosecution. The focus in a certification proceeding is on the juvenile, not the conduct alleged in the petition. The petition serves only to invoke the juvenile court’s exclusive jurisdiction by identifying the individual as being younger than 17 and alleging the juvenile has engaged in conduct that would be a crime if committed by an adult. Under 211.017, the juvenile court may dismiss the petition and “transfer the child” to circuit court. When that occurs, the jurisdiction of the juvenile court over the child is terminated unless the child is found not guilty in circuit court. Nothing in 211.071 allows a juvenile court to retain jurisdiction over the juvenile for some parts of a petition but not others. If a juvenile court relinquishes its exclusive jurisdiction by transferring a child to circuit court, the state is not bound solely to the factual allegations raised or violations of law asserted in the juvenile petition, but may bring whatever charges it believes are justified, regardless of whether those charges or the underlying facts were included in the petition. (2) For the reasons discussed in State v. Hart, No. SC93153 (Mo. banc 7/30/13), Juvenile must be resentenced pursuant to the procedures there. Juvenile argues that if he is ultimately found guilty of second degree murder, he must be resentenced on his multiple non-homicide offenses, too. However, he has not argued that any of those sentences or the combined effect thereof is unlawful or unconstitutional. Because this claim is not preserved or presented, it will not be addressed here. To the extent that Juvenile is trying to assert a claim that the combined effect of the sentences is unconstitutional, such a claim is premature until after resentencing, and will be moot if Juvenile is sentenced to LWOP.
Doe v. Franklin County Sheriff Toelke, No. SC92380 (Mo. banc 12/18/12):

Holding: Where Doe was convicted of a sex offense in 1983 and “had been” required to register under the federal SORNA at least until 2009, he is required to register under the Missouri registration statute, Sec. 589.400.1(7), which requires a person to register if he “has been … required to register under … federal … law”; “[e]ven if Doe presently is not required to register pursuant to SORNA, he ‘has been’ required to register as a sex offender, and therefore, is required to register pursuant to” Missouri’s sex offender registration law.
State ex rel. Valentine v. Orr, No. SC92434 (Mo. banc 6/12/12):

A sentence to the Sex Offender Assessment Unit program is “120-day program” under Sec. 559.115.3, and where the DOC recommends release of a defendant, the court must hold a hearing on the matter within 90 to 120 days of sentencing in order to deny release.

Facts: Defendant pleaded guilty to a sex offense and, as part of his plea agreement, was sentenced to 120 days in the DOC Sex Offender Assessment Unit (SOAU). The court told Defendant that it would retain jurisdiction over him for 120 days after sentencing, but that successful completion of the program did not guarantee release on probation. The DOC ultimately issued a report that the court should grant Defendant probation. However, more than 120 days after sentencing, the court held a hearing and determined it would be an abuse of discretion to release Defendant. The court ordered that Defendant’s prison sentence be executed. Defendant sought a writ of mandamus.

Holding: Sec. 559.115.3 requires that after a sentence has been imposed and the DOC timely reports that a defendant successfully completed an institutional program, the defendant must be released on probation unless a court determines that release is an abuse of discretion. However, the statute requires that a court hold a hearing within 90 to 120 days of sentencing before finding an abuse of discretion and ordering that a sentence be executed. Failure to hold a hearing within the 90 to 120 days mandates that a defendant be released. The SOAU is a 120 day “program” for purposes of Sec. 559.115.3. Here, the court’s failure to hold a hearing within the mandatory time for denying release means that the court had no authority to deny release later. Writ issues to order release.
State v. Bowman, No. SC90618 (Mo. banc 4/12/11):

State cannot present in penalty phase evidence about Defendant’s prior convictions which were later reversed, even though this also constituted prior bad acts and non-statutory aggravating circumstances.

Facts: Defendant was charged with a murder which occurred in 1977. The evidence against Defendant was DNA in the victim’s underwear and an eyewitness who picked Defendant out of a photo line up 30 years after the murder. After 1977, Defendant was convicted of two additional murders in Illinois, but those convictions were later vacated by Illinois courts. In the death penalty phase, the State was permitted to introduce evidence about Defendant’s prior Illinois convictions. The jury imposed death.

Holding: Johnson v. Mississippi, 486 U.S. 578 (1988), held that the reversal of a prior conviction that the jury considered in imposing death undermines the validity of the death sentence. In State v. McFadden, 216 S.W.3d 673 (Mo. banc 2007), this Court used Johnson to reverse a death sentence because two of six aggravating factors found by the jury consisted of McFadden’s conviction and death sentence in another case. This case is similar to McFadden. The State argues that the evidence of Defendant’s vacated convictions is admissible as unadjudicated prior bad acts, also referred to as non-statutory aggravating circumstances. Even if true, however, this Court cannot assume that the jury’s weighing process and sense of responsibility were unaffected by its knowledge that Defendant previously had been convicted of two murders. Death sentence is vacated and remanded for new penalty phase trial.

Concurring and dissenting opinion: Judge Wolff would hold that the evidence, although (barely) sufficient to convict, is not sufficient to sustain a death sentence. He notes problems with the DNA evidence, problems with reliability of an eyewitness identification 30 years after the fact, and evidence that another person may have committed the crime. He would impose a sentence of life without parole under Sec. 565.035.5(2).
State v. Collins, No. SC90839 (Mo. banc 1/11/11):

Where State failed to properly prove up Defendant’s prior DWI convictions at bench trial before sentencing, this was a failure of proof that Defendant was a “chronic offender,” and State could not offer additional evidence upon remand for resentencing to prove the prior offenses.

Facts: Defendant was charged with DWI as a “chronic offender” with having multiple prior DWI convictions. He had a bench trial. As evidence of prior convictions, the State offered a copy of Defendant’s driving record showing prior DWI convictions. The exhibit did not specify whether Defendant was represented by counsel or waived counsel in the prior proceedings.

Holding: Defendant claims the trial court plainly erred in finding he was a “chronic offender” because the State did not properly prove up his prior convictions. Sentencing a defendant to a term greater than the maximum allowable punishment constitutes plain error. At the time of Defendant’s conviction, Sec. 577.023.1(3) required the State to prove that Defendant had counsel or waived counsel in his prior offenses. Under Section 577.023.9, the presentation of evidence and court findings on the prior offenses must be done prior to sentencing. Here, the State concedes there was no evidence about representation by or waiver of counsel. However, the State contends it should be permitted to present such evidence on remand. This Court has rejected this contention in a jury trial context. The question is whether the rule should be different in a bench trial context. It should not. Allowing the State to present new evidence of prior convictions would give the State two bites of the apple. Under the timing requirements of the statute, the State is foreclosed from offering additional evidence at resentencing. The State argues that if the case is remanded for resentencing, then it is still “prior to sentencing” so that the State can present additional evidence. But this does not comport with the plain language of the statute, which makes no mention of vacated sentences. Remanded for resentencing as Class B misdemeanor.
State v. Lucas, 2014 WL 734405 (Mo. App. E.D. Dec. 23, 2014):

Holding: Where the oral pronouncement of sentence for Rule 24.035 Movant was “life” but the written sentence and judgment stated “99 years,” Movant was prejudiced because the 99-year sentence carries a later parole-eligibility date, and in any event, an oral pronouncement of sentence controls over a written one; sentence modified to reflect “life” sentence.
State v. Dailey, 2014 WL 6914001 (Mo. App. E.D. Dec. 9, 2014):

Holding: Where Defendant was charged as a prior offender with first-degree assault, the offense was a Class B felony for which the maximum authorized punishment was 15 years, Sec. 558.011.1(2), and trial court plainly erred in sentencing him to 20 years; remanded for resentencing.
Sandknop v. Goldman, 2014 WL 6914952 (Mo. App. E.D. Dec. 9, 2014):

A person sentenced to long-term treatment under Sec. 217.362 must either be released upon successful completion of the program, or have their sentenced executed; court has no authority to execute any other sentencing outcome.

Facts: In 2013, Relator (Defendant) pleaded guilty as a chronic offender to DWI. He was sentenced to 10-years with long-term treatment under Sec. 217.362. On May 1, 2014, Relator successfully completed long-term treatment. Thereafter, the trial court issued an “Amended Order” which ordered that Relator remain incarcerated until Dec. 20, 2014, at which time he was to be released on five years probation. Relator sought a writ of mandamus ordering his immediate release or execution of his sentence. The State contended that Relator was required to serve a minimum two year sentence under Sec. 577.023 because he was a chronic offender.

Holding: Sec. 217.362 requires a judge at the end of successful completion of a long-term treatment program to either (1) release the defendant on probation immediately or (2) execute the defendant’s sentence. There is no authority to craft any other remedy. Appellate court declines to decide question of whether Sec. 217.362 conflicts with Sec. 577.023 because under the terms of the “Amended Order,” the trial court did not act under either statute. Writ of mandamus granted. On remand, trial court must comply with Sec. 217.362.
State v. Spears, 2014 WL 6679372 (Mo. App. E.D. Nov. 25, 2014):

Holding: Even though State charged Defendant as “persistent” offender and presented proof of two prior felony convictions, where the crimes were committed on the same day, the State failed to prove that the offenses were committed at “different times” to support persistent offender status and court plainly erred in finding persistent offender status.

Discussion: Sec. 558.016.3 defines a persistent offender as one who has pleaded guilty to or been found guilty of two or more felonies committed at different times. Here, the State showed that Defendant previously pleaded guilty to two felonies, but the crimes were committed on the same day. The State failed to show the offenses were committed at “different times.” Court remands case with directions to enter a nunc pro tunc judgment correcting the judgment form to remove all references to “persistent offender.”
State v. Norman, 2014 WL 2109076 (Mo. App. E.D. May 20, 2014):

Holding: Where the State did not charge Defendant as a “dangerous offender” under Sec. 558.021.1, and the State did not present any evidence that Defendant qualified as a “dangerous offender,” the trial court plainly erred in “checking the box” on the sentence and judgment form that Defendant was a “dangerous offender;” appellate court corrects judgment and sentence to strike “dangerous offender” finding.
Johnson v. State, 2014 WL 5358322 (Mo. App. E.D. Oct. 21, 2014):

Holding: Where Movant pleaded guilty to felony stealing and court orally stated that for “the misdemeanor theft, [Movant] is sentenced to six months” but later entered a written sentence of 12 years, Rule 24.035 relief must be granted because the controlling oral pronouncement is different than the written sentence; however, because the sentence is ambiguous (since Defendant was being sentenced for a felony but the court said misdemeanor) the proper remedy is re-sentencing, not entry of a nunc pro tunc judgment. Nunc pro tunc can only be used where the oral pronouncement is unambiguous and the court’s intention was clear.
Warren v. State, 429 S.W.3d 480 (Mo. App. E.D. 2014):

Holding: Even though Rule 24.035 does not allow for “plain error review,” where the written sentence and judgment mistakenly designated Movant to be a prior and persistent offender when the State had not proven this, this is a “clerical error” that the appellate court can correct under Rule 84.14; it does not require “plain error” review.
McArthur v. State, 428 S.W.3d 774 (Mo. App. E.D. 2014)

Holding: Even though there is no “plain error review” under Rule 29.15, where Movant appealed a denial of Rule 29.15 relief and claimed on appeal for the first time that the oral pronouncement of sentence differed from the written sentence and judgment, this is a “clerical error” that can be corrected nunc pro tunc under Rule 29.12(c); it does not require “plain error” review under Rule 29.15.
State ex rel. Salm v. Mennemeyer, 2014 WL 839403 (Mo. App. E.D. March 4, 2014):

Where (1) trial court sentenced Defendant to long-term treatment under Sec. 217.362, and (2) Defendant was placed in a 12-month program, following which DOC recommended his release, trial court had no authority to extend Defendant’s custody for another year, because the statute requires that a court either (a) release Defendant on probation or (b) execute his suspended sentence, but if the court executes the sentence, it cannot do so based solely on pre-sentence conduct.

Facts: Defendant pleaded guilty to stealing, was sentenced to 7 years SES, and was ordered into long-term treatment under Sec. 217.362. The DOC placed Defendant in a 12-month program, following which DOC recommended release on probation. The trial court ordered that Defendant remain in DOC custody for another year, and ordered another DOC report in a year. Defendant sought a writ of mandamus to compel his release.

Holding: Sec. 217.362.2 authorizes a long-term treatment program to last from 12 to 24 months, but the DOC determines the length of the program. Here, the DOC set the program length at 12 months, and reported that Defendant successfully completed the program. Therefore, under Sec. 217.362, the court was required to either (1) allow Defendant to be released on probation, or (2) issue an order executing his 7-year sentence. The court did not have authority to order that Defendant remain in custody for another year. Furthermore, if the court determines that release is not appropriate, that determination must be supported by evidence. Evidence of pre-sentence conduct, without more, will not be sufficient to support a determination that probation is not appropriate. Mandamus granted, and case remanded for court to either release Defendant or make determination that release is not appropriate.
State v. Meeks, 427 S.W.3d 876 (Mo. App. E.D. 2014):

(1) “Resisting arrest” instruction which instructed jury that Defendant could be convicted if he resisted his own arrest by “physical interference” was plainly erroneous because Sec. 575.150.1(1) does not include resisting one’s own arrest by “physical interference,” and thus, the State was relieved of its burden of proof; and (2) trial court plainly erred in sentencing Defendant to an extended term of imprisonment as a “persistent offender,” where State only alleged and proved that Defendant was a “prior offender” with one prior felony conviction.

Facts: Defendant was charged with resisting his own arrest. When police sought to arrest him, he used “passive” resistance by locking up his body. The jury instruction stated that the jury should convict if “the defendant resisted by using physical force or physical interference.”

Holding: (1) The jury instruction deviated from the charging statute, Sec. 575.150.1. That statute creates two distinct crimes – resisting one’s own arrest and interfering with another’s arrest. Sec. 575.150.1(1) provides that resisting one’s own arrest is accomplished by “using or threatening the use of violence or physical force or by fleeing.” Sec. 575.150.1(2) provides that resisting arrest of another can be accomplished by “physical force or physical interference.” By omitting “physical interference” from 575.150.1(1), the legislature intended to exclude that as an element of resisting one’s own arrest. Thus, the jury instruction allowed the jury to convict based on an element that was not in the statute, thereby misdirecting the jury as to the applicable law and excusing the State from its burden of proof. New trial ordered on resisting arrest. (2) The court found that Defendant was a “persistent offender” under Sec. 558.016.3, and sentenced him to an extended term. However, this was plainly erroneous since there was only evidence of one prior conviction, making Defendant only a prior offender under Sec. 558.016.2.
State ex rel. Lovelace v. Mennemeyer, 2014 WL 706695 (Mo. App. E.D. Feb. 25, 2014) & State ex rel. Kizer v. Mennemeyer, 2014 WL 707150 (Mo. App. E.D. Feb. 25, 2014):

Where (1) trial court sentences a defendant to the 120-day drug and alcohol treatment program under Sec. 559.115.3 and (2) the DOC reports that defendant successfully completed the program, defendant must be released unless the trial court holds a hearing before expiration of the 120 days and finds that release would be an abuse of discretion (not be appropriate).

Facts: In two separate cases, Defendants were sentenced to drug and alcohol treatment under the 120-day program of Sec. 559.115.3 (RSMo. Cum. Supp. 2012). The DOC reported that Defendants had successfully completed the program. The trial court then entered orders denying release without holding a hearing, and executing Defendants’ prison sentences. Defendants sought writs of mandamus to compel their release.

Holding: Sec. 559.115.3 (2012) states that a defendant in a 120-day program shall be released on probation if the DOC determines he has successfully completed the program unless the court determines that release would be an abuse of discretion. However, the statute further requires that the court can order execution of the defendant’s sentence “only after conducting a hearing on the matter within 90 to 120 days” of sentencing. Here, the court ordered the sentences executed without ever holding the mandatory hearing within 90 to 120 days of sentencing. The trial court cannot hold such hearings after 120 days has expired. Because the trial court never had hearings, mandamus is granted and Defendants must be released on probation. This result would be the same under the amended version of 559.115.3 that took effect in 2013, as well. The 2013 version of the statute states that the trial court can deny release if it determines probation is not appropriate, but the statute requires a hearing on the matter within 90 to 120 days from the date the defendant was delivered to the DOC.
State v. Davis, 2014 WL 116358 (Mo. App. E.D. Jan. 14, 2014):

Holding: Where trial court’s written sentence and judgment did not conform to the oral pronouncement of sentence, the oral pronouncement controls and this is a clerical error that can be corrected nunc pro tunc.
State v. Famous, 2013 WL 6498989 (Mo. App. E.D. Dec. 10, 2013):

Holding: Order denying post-sentence petition for credit for time spent on probation is not appealable because it is not a “final judgment” under Sec. 547.070.
Greer v. State, 2013 WL 4419338 (Mo. App. E.D. August 20, 2013):

Movant was entitled to an evidentiary hearing on his claim that counsel was ineffective in failing to object when the sentencing judge, after trial, said he was sentencing Movant to a higher sentence than that recommended as a plea agreement in order to deter others from seeking trials in their cases, since this unconstitutionally punished the exercise of the right to trial.

Facts: At Movant’s sentencing after having been found guilty at a trial, the judge said the “problem” the judge had was that if he sentenced Movant to a sentence lower than that recommended in the plea agreement before trial that Movant would go back to jail and say he went to trial and beat the recommendation, and this would cause “chaos” because “everyone’s going to go to trial, because they’re going to think they’re going to get less than the recommended sentence or the same sentence. That’s my problem.” After the judge sentenced him to a high sentence, Movant filed a Rule 29.15 motion alleging his counsel was ineffective in failing to object to the judge’s remarks. The motion court denied the claim without a hearing.

Holding: To be entitled to a hearing, Movant must alleges facts, not conclusions, warranting relief; the facts alleged must not be refuted by the record; and the matters complained of must have resulted in prejudice. If a defendant’s exercise of a constitutional right was an actual factor considered by the sentencing court in imposing sentence, then the exercise of that right is considered to be a determinative factor in sentencing, and retaliation has been demonstrated, even if other factors could have been relied on by the sentencing court to support the same sentence. The State argues that the sentence here is designed to deter others. But the proper purpose of deterrence is to prevent others from committing a crime, not to deter those who have already committed a crime from exercising their right to a trial. Here, the record does not refute that counsel was not ineffective in failing to object, so Movant is entitled to an evidentiary hearing.
Solomon v. St. Charles County Prosecuting Attorney’s Office, 2013 WL 3943012 (Mo. App. E.D. July 23, 2013):
Holding: Even though Petitioner/Defendant was no longer required to register as sex offender under the federal SORNA because 15 years had elapsed since his conviction, he was still required to register under Sec. 589.400.1(7) because he “has been … required to register” under SORNA in the past.
State v. Johnson, No. ED98655 (Mo. App. E.D. 6/28/13):

Where the State’s evidence that Defendant was a “persistent offender” was that he was convicted in Tennessee of four separate charges of burglary of a motor vehicle arising from his actions on one day, this evidence was insufficient to prove that the felonies were committed “at different times” so was not sufficient to prove “persistent offender” status.