Case Law Update: 2011-2014 Cumulative Edition

Holding: Rule 29.18 and Sec. 559.036 (RSMo. 2005), which was the version in effect when Defendant was sentenced, provide that probation shall extend for the duration of the term in effect and for any further period which is reasonably necessary for adjudication of matters arising before its expiration, provided that (1) some affirmative manifestation of an intent to conduct a revocation hearing occurs before expiration and (2) that every reasonable effort is made to notify probationer and to conduct the hearing before expiration. Here, Judge manifested an intent to conduct a hearing by issuing a capias warrant, but Judge failed to make every reasonable effort to notify Defendant and conduct a hearing before the 5 year term expired. Despite knowing where Defendant was in DOC, there is no evidence that court ever notified Defendant of the violation report at issue. The warrant was not served until October 2012, after the probation expired. Further, the record does not reflect any apparent effort to hold a revocation hearing during the nine months before expiration expired. Neither Judge nor State made any effort to set or conduct a hearing until nearly a year after probation had expired. Thus, Defendant met his burden of showing prejudice from the 19-month delay. Writ granted.
State ex rel. Norwood v. Sheffield, No. SD32261 (Mo. App. S.D. 10/18/12):

Even though Judge issued an order within 120 days of sentencing that it would be an abuse of discretion to release Defendant on probationi under Sec. 559.115.3, where there was no indication that Judge held a hearing on the matter within 120 days of sentencing, Defendant must be released on probation under the statute.

Facts: Defendant (Relator) pleaded guilty to possession of child pornography and was sentenced to 5 years on January 9, 2012, but Judge (Respondent) ordered him committed under Sec. 559.115 to the Sexual Offender Assessment Unit (SOAU). On April 23, 2012, the DOC recommended that Defendant be released on probation. On April 25, 2012, Judge entered an order that it would be an abuse of discretion to release Defendant on probation and ordered his 5 year sentence executed. Defendant sought a writ of mandamus that he was required to be released because Judge did not hold a hearing on the matter within the time required by the statute.

Holding: Under 559.115.3, where the DOC recommends that a person who has been placed in SOAU be released on probation, the court may order the sentence be executed only if it holds a hearing on the matter within 90 to 120 days of the original sentencing date. If the court fails to hold a hearing within that time, the person must be released. Here, the Judge entered an order that it would be an abuse of discretion to release Defendant. But there is no indication that the Judge conducted a hearing within the time required under the statute. Writ of mandamus issues ordering Defendant’s release.
State v. Nephew, No. SD31482 (Mo. App. S.D. 5/21/12):

Sec. 570.040 RSMo. Supp. 2005 requires that a “stealing third” offense be based on prior stealing convictions which occurred on different days.

Facts: Defendant was charged and convicted of a “stealing third” offense, which was enhanced to a felony based on two prior stealing convictions which were both entered on the same day.

Holding: The 2005 version of 570.040 (since repealed) required that a “stealing third” conviction be based on two prior stealing convictions which occurred on different days. Here, the two prior convictions were entered on the same date, so they cannot form the basis to enhance the instant offense. The State argues that the conviction can be withheld because the judicially-noticed prior court files show that Defendant had additional prior stealing convictions. However, these cannot be counted because (1) they weren’t charged in the information as predicate offenses, (2) MACH-CR 24.021.1 Notes on Use states that the offenses used for enhancement have to be charged, and (3) 570.040 requires a trial court to determine the existence of the prior pleas of guilty. Under Collins v. State, 328 S.W.3d 705 (Mo. banc 2011), the State does not get a second chance to prove up prior convictions. Felony conviction reversed and misdemeanor conviction entered.
State ex rel. Stimel v. White, No. SD31664 (Mo. App. S.D. 4/11/12):

Even though the court entered a docket entry that Defendant’s probation was “suspended” and that a violation report had been filed before the probation expired, where no formal revocation procedures were initiated before Defendant’s probation expired, Sec. 559.036.6 prohibited revocation of probation after it had expired.

Facts: On January 5, 2009, Defendant pleaded guilty to stealing and was placed on two years probation. On December 10, 2010, the judge entered a docket entry stating that Defendant’s probation was “suspended” and that a violation report had been filed on December 9, 2010, for not reporting, not paying probation fees, and not paying a public defender lien. A “review” was set for January 7, 2011. Defendant’s probation expired on January 5, 2011. On January 18, 2011, the State filed a motion to revoke for failure to report, pay restitution or pay the public defender lien. Defendant sought a writ of prohibition, claiming that he could not be revoked because his probation had expired.

Holding: A probation term begins on the day it is imposed, and after it expires, there is generally no legal authority to revoke. However, Sec. 559.036.6 states that the power to revoke can be extended “for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs prior to the expiration of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period.” Here, Defendant’s probation expired on January 5, 2011. At that time, there were no revocation motions pending, no scheduled revocation hearings, no warrants issued for Defendant, and the only notation of the suspension was set out in a docket entry. The question here is whether under 559.036.6, there was some affirmative manifestation of an intent to conduct a revocation hearing prior to expiration of probation. There is no clear cut, bright line rule as to what an affirmative manifestation of intent to conduct a revocation hearing means. Here, however, the motion to revoke was not filed until two weeks after probation expired. Indeed, the trial court on December 10, 2010, merely set a “probation review” for January 7, 2011, two days after probation was to expire. Appellate court holds that there has to be something in addition to a docket entry such as issuance of a warrant, a motion to revoke probation, the scheduling of a revocation hearing, or something similar to satisfy Sec. 559.036.6. Here, there wasn’t. Writ of prohibition made absolute.
State v. Thieman, No. SD30818 (Mo. App. S.D. 11/10/11):

Holding: Where Defendant’s prior guilty plea had been withdrawn, his statements made in a SAR (sentencing assessment report) could not be used by the State at his trial because Rule 24.02(d)(5) provides that “evidence of a guilty plea, later withdrawn, or an offer to plead guilty …, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers is not admissible in any civil or criminal proceeding against the person who made the plea or offer.”
State v. Lemons, No. SD30959 (Mo. App. S.D. 8/25/11):

(1) Where State submits Defendant’s “Driver’s Record” to prove prior DWI convictions, the Driver’s Record must specifically identify the convicting court; (2) State need no longer prove that Defendant had counsel or waived counsel in prior DWI convictions, but Defendant may prove that the prior convictions were unconstitutional.

Facts: Defendant was charged with DWI as a “chronic offender” for having four prior DWI convictions. To prove the convictions, the State submitted Defendant’s Missouri “Driver’s Record” which showed that Defendant was convicted “on 4-02-1991 in Arkansas by circuit court.” Defendant claimed he never had such a conviction.

Holding: (1) The Driver Record was insufficient to prove the Arkansas conviction because it did not specifically indentify the convicting court. Some minimal information is necessary to use a Driver Record to prove prior convictions to allow Defendant the opportunity to rebut the conviction. The requirement of court identification for violations of foreign law is included in the Driver License Compact, Sec. 302.600, Article III, so that an aggrieved person would have only one county or city to contact in order to rebut the conviction. Here, the Driver’s Record did not identify a specific Arkansas Circuit Court, but only the entire state of Arkansas. This was insufficient, and the Arkansas conviction should not have been counted as a prior DWI. Case remanded for resentencing as an “aggravated offender” (three priors). (2) On a separate issue, Defendant contends that the State didn’t prove that his prior convictions were with counsel or counsel was waived. However, the DWI statute was amended in 2009 to no longer require proof that the defendant was represented by counsel or waived counsel. Sec. 577.023.1(4) RSMo. Cum. Supp. 2009. However, while the State need not prove this, a Defendant may still prove that the prior convictions were unconstitutional because he did not have counsel, but Defendant has not done that here.
Shaw v. State, No. SD30814 (Mo. App. S.D. 8/17/11):

Even though trial judge “thought” he imposed consecutive sentences, where the transcript said “concurrent” and State did not challenge the accuracy of the transcript pursuant the procedures of Rule 30.04(g), the appellate court must accept the accuracy of the transcript and the oral pronouncement of sentence controls.

Facts: Defendant entered into a plea bargain whereby prosecutor would recommend consecutive sentences, but Defendant could argue for something less. However, the plea and sentencing transcript refer to the State’s offer as being for “concurrent” sentences and the transcript of the oral pronouncement of sentence said the sentences were “concurrent.” However, the written sentence and judgment said they were “consecutive.” Defendant filed a 24.035 motion alleging the oral pronouncement controlled. At the evidentiary hearing on the 24.035 motion, the trial judge said he “thought” he had said “consecutive,” and his notes reflected that. Also, the plea attorney and prosecutor testified they thought it was “consecutive.” The motion court denied relief based on this.

Holding: The law is clear that where an oral pronouncement of sentence differs from the written sentence and judgment, the oral pronouncement controls. Here, the State argues that the court implicitly found that the transcript of the plea and sentencing was wrong. However, there is an established procedure for challenging the accuracy of a transcript under Rule 30.04(g), which would have required the State to file a motion to correct the transcript and have a hearing at which the court reporter could testify about the accuracy of the transcript and perhaps a backup tape recording as well. Because the procedure of Rule 30.04(g) was not followed, this Court is bound by the certified transcript of the proceedings which clearly states that the sentences are “concurrent.” Consecutive sentences vacated and remanded for entry of written sentence and judgment with concurrent sentences.
State v. Cannafax, No. SD30327 (Mo. App. S.D. 7/22/11):

Where Defendant’s sexual offenses occurred during a time span from early 2006 to 2008, but it was unclear if they occurred after August 28, 2006, and the trial court’s judgment made no findings about this, it is unclear whether the lifetime supervision requirements of Sec. 217.735 apply to Defendant, but the issue is not ripe until the Board of Probation and Parole attempts to apply them to him; at that time, he may bring a writ of mandamus to challenge their applicability.

Facts: Defendant was convicted of sexual offenses alleged to have occurred between June 7, 2006 and November 2008. The trial court did not expressly find that the offenses occurred after August 28, 2006 and did not state in its judgment that Defendant was subject to lifetime supervision under Sec. 217.735, which provides that offenders are subject to lifetime supervision for certain sexual offenses “based on an act committed on or after August 28, 2006.”

Holding: Defendant’s claim on appeal is that he is improperly subject to lifetime supervision under Sec. 217.735 because there was not sufficient evidence to prove his offenses happened after August 28, 2006. However, since the trial court made no findings about this and made no mention of it in its judgment, it is unclear if Defendant will be subjected to lifetime supervision when he completes his prison sentence. Thus, this issue is not ripe for review. However, if the Board of Probation and Parole seeks to apply Sec. 217.735 to him in the future, he may challenge that via a writ of mandamus.
City of Joplin v. Klein, 2011 WL 2936401 (Mo. App. S.D. 7/21/11):

Even though City introduced ordinances making certain actions a municipal offense, where City failed to introduce the penalty portions of the ordinances, a court cannot judicially notice them and the charging information and proof were insufficient; furthermore, City is precluded from getting another opportunity to prove penalty.

Facts: Defendant was convicted of violation of various city ordinances. At trial, City properly placed the ordinances creating violations before the trial court by filing certified copies of the ordinances with the clerk of the circuit court under Sec. 479.250. However, the penalties for violation of these ordinances were in separate ordinances that were not provided. Defendant appealed.

Holding: A court cannot take judicial notice of a city ordinance that is not properly introduced into evidence. Here, the information (citation) charging the offenses failed to list the ordinance providing a penalty, and the penalty ordinances were not admitted into evidence or otherwise properly before the court. Thus, the charging information does not comply with Rule 37.35(b)(4). State v. Collins, 328 S.W.3d 705 (Mo. banc 2011), held that where the State failed to offer sufficient evidence to prove enhanced DWI status, the State does not get a second opportunity to do so. Applying Collins, City does not get a second opportunity to prove penalty here. Because City failed to allege the penalty ordinances in the charging information or prove them during trial, it is prevented from doing so at a re-sentencing. The only remedy is discharge of Defendant.
Counts v. State, No. SD30658 (Mo. App. S.D. 6/7/11):

Holding: Claim that trial judge violated Sec. 559.115 by failing to hold a hearing within 120 days after Movant’s incarceration where DOC recommended release, but judge ultimately denied it, is not cognizable in 24.035 proceeding, because this is an attack on a ruling on probation. However, judge’s action can be challenged by an appropriate writ.
Etenburn v. State, No. SD30503 (Mo. App. S.D. 5/17/11):

Holding: Where oral pronouncement of sentence differed from written judgment, postconviction case is remanded to correct the written sentence and judgment to reflect the oral pronouncement.
State v. Thesing, No. SD30188 (Mo. App. S.D. 2/14/11):

Trial court can impose SIS for offense of pharmacy robbery first degree, Sec. 569.025.

Facts: Defendant was convicted at a bench trial of pharmacy robbery first degree, 569.025. He argued at sentencing that the court should impose an SIS and probation. The trial court believed it was precluded from doing this by statute and imposed a 10 year prison sentence.

Holding: Sec. 569.025.3 provides: “Pharmacy robbery in the first degree is a class A felony, but, notwithstanding any other provision of law, a person convicted pursuant to this section shall not be eligible for suspended execution of sentence, parole or conditional release until having served a minimum of 10 years imprisonment.” Under the plain language of the statute, a suspended imposition of sentence is not prohibited. If the legislature had wanted to preclude that, it could have said so in the statute. Therefore, the court had discretion to give an SIS and probation. Sentence reversed and case remanded for resentencing.
State v. Summers, 2014 WL 7171572 (Mo. App. W.D. Dec. 16, 2014):

Armed criminal action statute, Sec. 571.015.1, does not mandate consecutive sentences.

Facts: Defendant was convicted of second degree murder, first degree robbery and armed criminal action. At sentencing, the trial court said “I think the armed criminal action has to run consecutive” and imposed a consecutive sentence for it.

Holding: Sec. 571.015.1 provides that the punishment imposed for armed criminal action shall be “in addition to any punishment” provided by law for the crime with a deadly weapon. However, this statute does not mandate that the punishment be consecutive to the other crime. The trial court misunderstood the statute, and this resulted in plain error. Remanded for resentencing where court may consider concurrent sentencing.
State v. Chambers, 2014 WL 2933240 (Mo. App. W.D. July 1, 2014):

Even though Defendant’s second drug conviction occurred after the acts in the instant (third) drug case, Defendant was a “persistent” drug offender because Sec. 195.275.1(2) does not have any requirement that the prior conviction be before the date of the commission of the instant offense; court notes, however, that the conduct of the prior offense occurred before the instant offense and so does not decide whether 195.275 permits consideration of convictions which are based on conduct which occurred after the instant charged offense.

Facts: Defendant had a drug conviction in 2004 (Conviction 1). In December 2010, Defendant committed acts that would lead to Conviction 2. In February 2011, Defendant committed acts that would lead to instant drug case (Conviction 3). In June 2011, Defendant was convicted of Conviction 2. In November 2012, he was convicted of instant drug case (Conviction 3) as a “persistent” drug offender, due to the two prior convictions.

Holding: Defendant argues that the June 2011 conviction cannot be used to enhance his instant conviction since the instant conviction related to acts that occurred in February 2011, four months before his June 2011 conviction. The general recidivist statute, Sec. 558.016.6, requires that prior convictions be before the date of commission of the present offense. However, the repeat drug offender statute, Sec. 195.275, contains no such limitation. It merely requires that Defendant have been found guilty of two or more drug felonies. The statute is not ambiguous on this. Therefore, Defendant qualifies as a persistent drug offender.
State v. Olivas, 2014 WL 2190897 (Mo. App. W.D. May 27, 2014):

Holding: (1) Where 16-year-old Juvenile-Defendant was convicted of first degree murder as an adult and given a mandatory sentence of life in prison without parole, Juvenile’s sentence violates Miller v. Alabama, 132 S.Ct. 2455 (2012), because there was no consideration of individualized circumstances in his case, and he must be re-sentenced pursuant to the procedures set forth in State v. Hart, 404 S.W.3d 232 (Mo. banc 2013); and (2) even though Juvenile-Defendant waived jury sentencing, such waiver will not be enforced on remand because Juvenile’s waiver was made prior to Miller, and he is entitled to be able to choose jury sentencing under Hart.
State v. Williams, 2014 WL 705429 (Mo. App. W.D. Feb. 25, 2014):

Where (1) Juvenile-Defendant was convicted of first degree murder and sentenced to LWOP, and (2) while direct appeal was pending, the U.S. Supreme Court held in Miller that a mandatory sentence of LWOP for juveniles without considering mitigating circumstances and the possibility of a lesser sentence violated the 8^th Amendment, case must be remanded for further proceedings to determine sentence pursuant to Missouri Supreme Court’s direction in State v. Hart, 404 S.W.3d 232 (Mo. banc 2013).

Facts: Defendant, who was a juvenile at time of offense, was convicted of first degree murder and sentenced to LWOP. While his direct appeal was pending, the U.S. Supreme Court decided Miller v. Alabama, 132 S.Ct. 2544 (2012), which held that automatic sentences of LWOP for juveniles violate the 8^th Amendment.

Holding: Because Defendant’s conviction was pending on direct appeal when Miller was decided, his conviction was not “final” and Miller applies. The Missouri Supreme Court in Hart established a procedure to apply Miller . Defendant’s case is remanded to apply that procedure. A new sentencing proceeding must be held at which the jury will be instructed that if it is not persuaded that LWOP is the just and appropriate sentence under all the circumstances, additional instruction regarding punishment will be given. If the jury does not then impose LWOP, the court must declare Sec. 565.020 void as applied to Defendant on grounds that it does not provide a constitutionally valid punishment. The court must then vacate the jury’s verdict of first degree murder, and enter a verdict of second degree murder under Sec. 565.020.1(1) as a lesser-included offense. The court must then instruct the jury as to the range of punishment for second degree murder.
State v. Sprofera, 2014 WL 836576 (Mo. App. W.D. March 4, 2014):

(1) Where trial court’s oral pronouncement of sentence failed to state whether sentence was concurrent or consecutive to a prior sentence, but written judgment stated it was consecutive, this was plainly erroneous because the failure to orally pronounce the sentence to be consecutive made it concurrent by operation of Rule 29.09; and (2) even though Defendant had been convicted of a felony in 2010, where he was tried in 2012 for a sex offense that occurred in 2002, trial court plainly erred in finding him to be a “prior offender” because Sec. 558.016.2 requires that the prior conviction occur before the commission of the charged offense, but (3) the failure to object means that Defendant is not entitled to a new sentencing hearing with jury sentencing, but only to have the prior offender allegation stricken from the judgment and sentence.

Facts: In the instant case, Defendant was charged in 2012 with a sex offense that occurred in 2002. He had previously been convicted in 2010 of another felony sex offense. Defendant was charged as a prior offender, based on the 2010 conviction. At sentencing, the trial court sentenced him to life in prison, but did not say whether this sentence was concurrent or consecutive to the 2010 sentence. The trial court’s written sentence and judgment, however, stated that the life sentence was consecutive to the 2010 sentence.

Holding: (1) Rule 29.09 states that a court, when pronouncing sentence, shall state whether the sentence is concurrent or consecutive to prior sentences, but if it fails to do so at time of pronouncing sentence, the sentences shall be concurrent. This sets a bright-line rule that the oral pronouncement controls. Thus, the trial court plainly erred in entering a written sentence and judgment that made the sentence consecutive. Case must be remanded to correct the written sentence to reflect concurrent sentencing. (2) Sec. 558.016.2 provides that to be a “prior offender,” the prior finding of guilt “shall be prior to the date of commission of the present offense.” Here, the present offense occurred in 2002. This was not before the 2010 felony conviction. Thus, Defendant did not qualify as a “prior offender.” However, Defendant failed to object to this at trial. The effect of the prior offender allegation meant that he would not have jury sentencing. However, Defendant waived his right to jury sentencing by failure to object. Thus, he does not get a new sentencing hearing with jury sentencing. The only remedy is to order that the prior offender finding be stricken from the judgment and sentence.
State v. Taborn, 2013 WL 5787416 (Mo. App. W.D. Oct. 29, 2013):