Case Law Update: 2011-2014 Cumulative Edition

Holding: Where Defendant was charged and proven to be only a “prior offender,” Sec. 558.016.2, but at sentencing, the parties all believed he was a “persistent offender,” Sec. 558.016.3, trial court plainly erred in imposing a 25-year sentence for Class B felony because this exceeded the range of punishment allowed for “prior offender” (15 years) and required re-sentencing on that count only.
State v. Parson, 2013 WL 3804041 (Mo. App. W.D. July 23, 2013):

Holding: Where the written judgment of the trial court had a box “checked” indicating erroneously that Defendant pleaded guilty when he actually was convicted at trial, the appellate court, sua sponte, corrects this clerical error nunc pro tunc under Rule 29.12(c) and 30.23.
State v. Seay, 2013 WL 1197489 (Mo. App. W.D. March 26, 2013):

Holding: Even though a probation revocation proceeding is a “civil” proceeding, Sec. 544.665.1 as amended in 2009 makes failure to appear at the proceeding a crime; under Sec. 544.665.2(1) failure to appear is a felony if the crime for which the defendant was released was a felony.
State v. Doss, 2013 WL 1197484 (Mo. App. W.D. March 26, 2013):

(1) Where the State submits an instruction in the disjunctive for a single robbery, both alternatives must be supported by sufficient evidence; thus, even though the evidence may be sufficient to prove Defendant stole a cell phone, where it was not sufficient to prove that Defendant stole a wallet and the verdict director stated that Defendant “took a cell phone and/or wallet,” the evidence was insufficient for robbery; and (2) in penalty phase, the State could not introduce Defendant’s juvenile records which would show the equivalent of only misdemeanor conduct because such records are closed under Sec. 211.271.3, and the State could not introduce juvenile records which did not show by a preponderance of evidence that Defendant actually engaged in the conduct alleged.

Facts: Defendant was charged with two counts of first degree murder, first degree robbery, and ACA. Two murder victims were found in a home. There were no cell phones or wallets found in the home. There were some statements made that indicated that a cell phone may have been taken. The jury convicted Defendant of second degree murder, first degree robbery and ACA. At penalty phase, the State, over defense objection, introduced Defendant’s juvenile records which showed offenses that would be felonies and misdemeanor if committed by an adult, and also showed other misconduct.

Holding: (1) Because the State submitted a disjunctive verdict director allowing the jury to convict if they found that he “took a cell phone and/or wallet,” the State had to present sufficient evidence to support each alternative. Here, there was some evidence that a co-defendant may have taken a cell phone. However, there was no evidence that any wallet was taken. The State argues that it is “logical” to assume that the victims must have had wallets, and since none were found in the home, the wallets must have been taken as part of the charged crime. While the State’s argument is logical, that is not the standard for judging sufficiency of evidence. Absent some evidence that wallets were present and available to be stolen that day, there simply was not enough evidence to support a conviction for stealing a wallet. Robbery conviction reversed. (2) The State argues that the juvenile records were admissible in penalty phase under Sec. 211.321.2(2) which allows juvenile records to be open “for an offense which would be a felony if committed by an adult.” Here, however, the records at issue showed conduct that would be a misdemeanor if committed by an adult, and other conduct that would be a felony. Juvenile records regarding misdemeanors are closed under Sec. 211.271.3, while records regarding felonies are open under Sec. 211.321.2(2). Here, it is possible that the juvenile court found Defendant to have engaged in only the misdemeanor-equivalent acts, and thus, the records would not be admissible. Additionally, while the records demonstrate that Defendant engaged in at least some of the acts, the problem is that there are criminal acts alleged in the “motion to modify” the prior juvenile disposition for which there is not evidentiary support that Defendant committed the acts, and the documents do not show which acts Defendant was adjudicated as having committed. Defendant was prejudiced because the jury asked to review the juvenile records, and sentenced Defendant to high sentences despite having found second degree murder. On retrial of the penalty phase, where the records make reference only to “assaults,” the State will have to present additional evidence showing that these were felony-equivalent assaults; otherwise, the “assaults” are not admissible because they may have been misdemeanor-equivalent assaults.
State v. Schnelle, 2013 WL 1110698 (Mo. App. W.D. March 19, 2013):

(1) Even though proffered impeachment Witness had only spoken to “not more than 10 people” about victim’s reputation for truthfulness, where Witness was familiar with community members who knew victim, had spoken to them about victim’s reputation for truthfulness, and knew from this that victim had bad reputation for truthfulness, it was abuse of discretion for trial court to exclude witness (but not prejudicial in light of other evidence of untruthfulness that was admitted); and (2) where a trial court sentences a person to prison, it cannot also order restitution.

Facts: Defendant was convicted of assault and burglary. The defense was that the alleged victim had fabricated her story. The defense offered an impeachment Witness to testify as to the victim’s reputation for lack of truthfulness, but the trial court excluded Witness. The trial court sentenced Defendant to prison and to pay about $41,000 in medical expenses of victim as restitution.

Holding: (1) The State argues that since proffered Witness had only spoken with at most 10 people about victim’s reputation for truthfulness, this was not sufficient to show victim’s reputation in the community. However, whether the knowledge of a character witness is based on much or little evidence affects the weight of the evidence, not its admissibility. Here, the test for admissibility was met since Witness was familiar with community members who knew victim, had spoken to those people or overheard their conversations regarding victim’s reputation for truthfulness, and that victim had reputation as being untruthful. The trial court abused its discretion in excluding Witness, but error was not prejudicial here since jury heard other evidence that victim was untruthful. (2) Reading Secs. 557.011, 559.021.2 and 559.100.2 together, a trial court cannot simultaneously order imprisonment for a felony and payment of restitution. Restitution can only be ordered if the defendant is placed on probation. Since Defendant was sentenced to prison and it is clear that trial court would not have sentenced to probation here, appellate court strikes order of restitution.
Farish v. Missouri Dept. of Corrections, 2013 WL 791842 (Mo. App. W.D. March 5, 2013):

(1) If Inmate was being held before trial in Kansas for a bailable Kansas offense and a Missouri offense, Inmate was entitled under Sec. 558.031.1(2) to jail time credit against his Missouri sentence for time spend in Kansas up to the time he started to serve his Kansas sentence; and (2) where Inmate’s Missouri sentence was declared to run concurrently with the Kansas one, the concurrent time began to run on the date of the Missouri sentencing even though Inmate was not physically delivered to Missouri until later.

Facts: Plaintiff-Inmate brought a declaratory judgment action to determine how much jail time credit he should receive against his Missouri sentence. On February 21, 2008, Missouri issued an arrest warrant for Inmate. Meanwhile, beginning February 20, 2008, Inmate was being held in Kansas on a Kansas charge. On December 31, 2008, Inmate began serving a sentence in Kansas on the Kansas charge. On April 6, 2009, while still serving the Kansas sentence, Inmate was transferred to a Missouri jail for trial on the Missouri charge. On March 5, 2010, Inmate was sentenced on the Missouri charge, and returned to the Kansas DOC (KDOC). On August 19, 2010, Inmate was returned to a jail in Missouri for a court appearance. About two weeks later, KDOC paroled him to Missouri. Missouri Department of Corrections (MDOC) took custody of him on October 20, 2010. MDOC gave him jail time credit only for dates he was held in Missouri. Holding: (1) Under Sec. 558.031.1(2), an inmate is entitled to credit for time in related custody that was compelled exclusively by Missouri but was not spent in Missouri; the statute does not require that the custody be both in Missouri and compelled by Missouri. “Compelled exclusively by Missouri” means that a person otherwise would not be in custody but for Missouri’s actions. This would be the case here if Inmate’s Kansas offense was bailable; if it was not bailable, then custody was not compelled exclusively by Missouri. Once Inmate began serving his Kansas sentence, however, then his custody was exclusively that of Kansas so he is not entitled to credit after his Kansas sentencing, even though he was still awaiting disposition of Missouri charges. Case remanded to determine if Kansas offense was bailable. (2) The Missouri sentencing court ordered that its sentence run “concurrently” with the Kansas sentence, but this means that the Missouri sentence starts on the day it was entered (March 5, 2010), not before. The sentence does run concurrently from the Missouri sentencing date, even though Inmate was not physically delivered to MDOC until October 20, 2010.

State v. Hays, 2013 WL 427343 (Mo. App. W.D. Feb. 5, 2013):

Holding: Where the trial court found Defendant to be both a prior and persistent offender, but the written sentence and judgment reflected only a finding of prior offender, this was a clerical error that the trial court should correct nunc pro tunc under Rule 29.12.
Taylor v. State, No. WD74275 (Mo. App. W.D. 8/28/12):

Holding: Claim that judge punished Movant for appealing the conditions of his probation to an appellate court by revoking his probation and sentencing him to the maximum sentence was cognizable in a 24.035 motion.

Facts: Movant pleaded guilty to first degree endangering the welfare of a child. The court imposed various sex offender conditions as part of his probation. Movant appealed some the sex offender conditions to the appellate courts. Later, the judge revoked Movant’s probation and said he had “manipulated the probation system and manipulated this Court.” Movant filed a 24.035 motion alleging that the judge had revoked his probation and imposed the maximum sentence “only because he had exercised his constitutional right to challenge a condition of probation” on appeal.

Holding: Revocation of probation determinations generally are not subject to a challenge in a 24.035 action, but that is not the claim here. Here, Movant is contesting the legality of the sentence imposed upon revocation of probation by contending the judge punished him for exercising his right to appeal the conditions of his probation. It is unconstitutional to use enhanced sentencing to punish or penalize a defendant for exercising his constitutional rights. Movant’s claim of retaliatory sentencing is cognizable. However, relief is denied because Movant did not demonstrate that retaliation was the determinative factor in the judge’s revocation of probation.
State v. Jackson, No. WD73323 (Mo. App. W.D. 6/5/12):

Even though the State originally charged Defendant as a prior offender and he was found by the court to be such, where the State filed a later information that failed to charge prior offender status, the later information controls and Defendant was entitled to jury sentencing.

Facts: In December 2006, Defendant was indicted for various offenses. On the day of trial, the State filed an information in lieu of indictment charging Defendant as a prior offender. The trial court found him to be a prior offender based on a prior felony conviction. However, before final instructions were read to the jury, the State filed an amended information which omitted any reference to being a prior offender. The issue of punishment was not submitted to the jury. After conviction, Defendant appealed and claimed he was entitled to jury sentencing.

Holding: The State’s last-filed amended information superseded all prior informations under Sec. 545.110. Sec. 558.021 requires that prior offender status be pleaded and proven prior to the case being submitted to the jury. Since the last-filed information contained no prior offender allegation, it wasn’t before the court, and the State cannot try to plead this after the jury’s verdict. Thus, the court’s finding of prior offender status based on the prior information was a nullity. Case remanded for jury sentencing.
State v. Harris, No. WD 73910 (Mo. App. W.D. 4/24/12):

Holding: Where Defendant was orally sentenced to “life” in prison but written sentence and judgment stated it was “99 years,” the oral pronouncement controls and appellate court can correct the judgment under Rule 30.23.
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.

Facts: Petitioner was convicted in 2008 of statutory sodomy in the first degree. In 2010, the Board of Probation and Parole notified him that he was subject to lifetime supervision, including GPS monitoring. This notification was the result of a change in the Board’s interpretation of Sec. 217.735.1 as amended in 2006. The Board had previously interpreted 217.735.1 as requiring lifetime supervision for these offenses only if the defendant was a prior sex offender and the victim was under 14 years old. However, the Board reinterpreted the 2006 amendment to eliminate these requirements. Petitioner filed a writ of prohibition in the circuit court, which was denied on the merits.

Holding: Sec. 217.735.1 (2005) provided that lifetime supervision was required “when the offender has pleaded guilty to or been found guilty of an offense under sections 556.030 (rape), 566.032 (statutory rape in the first degree), 566.060 (forcible sodomy), 566.062 (statutory sodomy in the first degree), 566.067 (child molestation in the first degree), 566.083 (sexual misconduct involving a child), 566.100 (sexual abuse), 566.151 (enticement of a child), 566.212 (sexual trafficking of a child), 566.020 (incest), 568.080 (child used in a sexual performance), or 568.090 (promoting sexual performance by a child) … against a victim who was less than 14 years old and the offender is a prior sex offender.” However, 217.735.1 was amended in 2006 to state that lifetime supervision is required “when the offender has pleaded guilty to or has been found guilty of an offense under section 566.030 (rape), 566.032 (statutory rape in the first degree), 566.060 (forcible sodomy), or 566.062 (statutory sodomy in the first degree) … OR the offender has pleaded guilty to or has been found guilty of [other listed sex offenses] … against a victim who was less than 14 years old and the offender is a prior sex offender.” The revised statute contains two distinct clauses separated by the word “or.” Petitioner argues that the prior sex offender requirement of the second clause also applies to the first clause. But such an interpretation is contrary to the last antecedent rule which provides that relative and qualifying words are to be applied to the words immediately preceding and are not to be construed as extending or including more remote words. Hence, the requirements that a victim be less than 14 or that the defendant be a prior sex offender apply only to the second clause, not the first clause. Additionally, when the Legislature amends a statute, the court must assume the Legislature intended to effect some change in the law, so Petitioner’s argument is rejected for this reason, too.

State v. Woods, No. WD72561 (Mo. App. W.D. 1/24/12):

Holding: Where written sentence differed from oral pronouncement of sentence by misstating the offense of conviction, the oral pronouncement controls, and this is a clerical error that can be corrected nunc pro nunc.
Howard v. Missouri Department of Corrections, No. WD72520 (Mo. App. W.D. 5/31/11):

Where Defendant (Petitioner) had been held in Canada on a Missouri detainer seeking his extradition to Missouri, he was entitled to this time as jail-time credit against his Missouri sentence.

Facts: In 1991, Defendant committed various offenses in Missouri and then went to Canada. There, he committed a Canadian offense, and served a brief period of incarceration for that offense. While he was in Canada, Missouri filed a detainer against him, and he was held in Canada on the detainer while he apparently opposed extradition for approximately four years. He was returned to Missouri and convicted of offenses in 1997. He filed a declaratory judgment action, claiming he was entitled to jail time credit for time served in Canada.

Holding: The 1991 version of Sec. 558.031 is applicable because Defendant committed his crimes then. Sec. 558.031.1(1)(1991 version) stated that time spent in jail awaiting trial because of a detainer for such offense shall be credited toward service of sentence of imprisonment for that offense. The circuit court denied Defendant relief by finding that his time in Canada was not spent awaiting trial, but was spent fighting extradition. However, Jones v. Cooksey, 830 S.W.2d 421, 424 (Mo. banc 1992), held that time served in a foreign jurisdiction is creditable to a sentence if the confinement is “because of” the Missouri detainer. The very purpose of the detainer here was to hold Defendant pending trial in Missouri on the offense for which he is now incarcerated here. Defendant is not entitled to credit for time served by him prior to filing the detainer because that time in Canada was not “because of” a detainer. And he is not entitled to credit for time spent serving his Canadian sentence, since he was not awaiting trial for some unrelated bailable offense then. But he is entitled for the time spent awaiting extradition because of the Missouri detainer.
Doe v. Keathley, No. WD72121 (Mo. App. W.D. 4/26/11):

An SIS is a “conviction” under federal law and, thus, sex registration under SORNA is required.

Facts: Doe pleaded guilty in 1992 to first degree sexual abuse, and received an SIS. He successfully completed his probation. He was not required to register as a sex offender under Missouri statute because his offense occurred before the effective date of the Missouri registration statute. He claimed he wasn’t required to register under the federal SORNA in Missouri.

Holding: The federal Sex Offender Registration and Notification Act, 42 USC 16901 (SORNA), does require Doe to register. SORNA, enacted in 2006, mandates sex registration for sex offenses committed prior to SORNA’s effective date, and this federal law is not subject to the Missouri Constitution’s prohibition on retrospective laws. Doe v. Keathley, 290 S.W.3d 719 (Mo. banc 2009). Even though an SIS is not a “conviction” under Missouri law, whether it is a “conviction” under SORNA is determined by federal law. Federal law makes an SIS a “conviction.” Also, even though Doe did not travel in interstate commerce, he still must register. Finally, Doe argues he shouldn’t have to register under the US Attorney General’s guidelines which state that “it will be deemed sufficient for substantial implementation if jurisdictions register sex offenders with pre-SORNA or pre-SORNA-implementation sex offense convictions who remain in the system as prisoners, supervisees, or registrants, or who reenter the system through a subsequent conviction.” However, the Attorney General’s guidelines are addressed to the adequacy of States’ efforts to implement SORNA, which efforts are required to receive certain federal funds. Also, Doe’s petition alleged only that his SIS was not a “conviction.” He did not allege he shouldn’t have to register because he had completed his involvement in the criminal justice system, so this issue is not before the court.
State v. Liberty, No. WD71724 (Mo. App. W.D. 4/12/11):

Sec. 573.037 RSMo. Cum. Supp. 2007 does not authorize multiple convictions for possession of multiple photos of child pornography in a single event; this constitutes a single offense only.

Facts: Defendant was charged with eight counts of possession of child pornography under Sec. 573.037 RSMo. Cum. Supp. 2007 for possession eight photos of child pornography on his computer on May 2, 2008, as a second offense. He was convicted and sentenced to eight consecutive prison sentences. He appealed, claiming violation of double jeopardy.

Holding: The Double Jeopardy Clause protects a defendant from successive prosecutions of the same offense after acquittal or conviction, and multiple punishments for the same offense. This latter protection ensures that the sentencing discretion of courts is confined to the limits established by the legislature. The issue here is whether multiple punishments were intended by the legislature. Sec. 573.037 as it existed at the time of the offense prohibited the possession of “any obscene material that has as a child one of its participants or portrays what appears to be a child as an observer or participant of sexual conduct.” Had the legislature wished to permit separate convictions, it could have criminalized the possession of “an item” of child pornography rather than “any material.” Here, we also find compelling that the actus reus the statute required the State to prove – the Defendant’s possession – was a single event in the instant case, at a single time and place. Had the State alleged that Defendant “possessed” each photo at a different time when they were each placed on the computer, our analysis might be different, however. We also find the legislature’s subsequent amendment informative; in 2008 the legislature added an enhanced penalty to the section on possession for possessing “more than 20 still images of child pornography.” If the legislature intended separate convictions for each still image in the prior statute, amending it to add an enhanced penalty for multiple images becomes illogical. Defendant’s eight possession counts are reversed and remanded for sentencing on a single count only.
Burlew v. Missouri Dept. of Corrections, No. WD72135 (Mo. App. W.D. 4/5/11):

Where (1) Defendant was originally sentenced to 4 years for DWI and a consecutive 4 year sentence for another crime and (2) the DWI sentence was later vacated and a 6 month sentence imposed, Defendant’s other sentence began to run at the time the DWI sentence was completed (6 months from his arrest).

Facts: On November 8, 2006, Defendant was arrested for DWI and another offense and held in jail. On July 27, 2007, Defendant was sentenced to 4 years for DWI and another 4 years for the other crime to run consecutively to the DWI. On October 20, 2008, Defendant won a postconviction case regarding his DWI offense on grounds that the offense should have been only a misdemeanor, and Defendant was resentenced to 6 months on the DWI. With jail time counted, Defendant completed the 6 months on the DWI on May 7, 2007. The DOC refused to give Defendant any credit on the consecutive sentence for time served between May 7, 2007 and October 20, 2008 because the DOC claimed that Defendant was not serving his consecutive 4 year sentence during that time. Defendant filed a declaratory judgment action seeking 532 days of credit against the consecutive sentence for this time.