State ex rel. Michael Kelly v. Julie Inman ( 2020 )

SUPREME COURT OF MISSOURI
en banc
STATE ex rel. ) Opinion issued January 14, 2020
MICHAEL KELLY, )
)
Petitioner, )
)
v. ) No. SC97744
)
JULIE INMAN, )
)
Respondent. )
ORIGINAL PROCEEDING IN HABEAS CORPUS
Michael Kelly seeks a writ of habeas corpus on the ground his due process rights
were violated as a result of the circuit court exceeding its authority pursuant to section
552.020. 1 The circuit court accepted his not guilty by mental disease or defect (“NGRI”)
plea after finding he lacked competence to continue with the criminal proceedings. Kelly
argues that, pursuant to section 552.020.8, upon finding him incompetent, the circuit
court was required to suspend the proceedings and commit him to the department of
mental health.
1
All statutory references are to RSMo 1986, the law that governed at the time of Kelly’s
criminal proceeding, unless otherwise specified.
By accepting Kelly’s NGRI plea despite finding him incompetent to proceed, the
circuit court exceeded its authority pursuant to section 552.020.8 and violated Kelly’s due
process rights. Accordingly, Kelly’s NGRI plea is vacated, and the criminal proceedings
against him remain pending, although suspended by virtue of the circuit court’s
additional finding that Kelly was incompetent to proceed. Because of the improper
commitment after acceptance of Kelly’s NGRI plea, the department of mental health did
not conduct an examination of Kelly six months after his commitment to ascertain
whether he was fit to proceed, as required by section 552.020.10(1). Within 90 days
from the date the mandate issues in this case, the circuit court should order such an
examination to be conducted pursuant to section 552.020.11(1), RSMo Supp. 2018.
After the completion of the examination, the procedure in section 552.020.11, RSMo
Supp. 2018, should govern.
Background
The State charged Kelly with first-degree robbery and armed criminal action. The
defense moved for a mental evaluation of Kelly to determine his competency to proceed
to trial and whether he had a mental disease or defect excluding responsibility. The
circuit court sustained the motion. A medical evaluation found Kelly suffered from
chronic undifferentiated schizophrenia and polysubstance abuse or dependence. The
evaluation opined Kelly lacked the capacity to understand the proceedings or assist in his
own defense, and it recommended Kelly be held in a hospital facility for treatment
pending determination of his competency to proceed. It further concluded that, at the
2
time of the alleged criminal conduct, Kelly did not fully appreciate the nature, quality, or
wrongfulness of his conduct and was incapable of conforming his conduct to the law.
Kelly filed a notice of intent to rely solely on a defense of mental disease or
defect. The State accepted the defense. The circuit court entered an order titled “Order
Committing Defendant to Department of Mental Health (State Acceptance of Mental
Defense).” The order found Kelly lacked capacity to understand the proceedings against
him or assist in his own defense and, accordingly, lacked mental fitness to proceed with
the charges against him. In the same order, the circuit court found Kelly not guilty by
reason of mental disease or defect excluding responsibility, determining that, at the time
of the alleged crime, Kelly did not appreciate the nature, quality, or wrongfulness of his
conduct and was incapable of conforming his conduct to the requirements of the law.
The circuit court then committed Kelly to the department of mental health, where he has
remained since 1991.
Kelly filed petitions for writs of habeas corpus in the St. Francois County Circuit
Court and then the court of appeals, both of which were denied. Kelly now seeks a writ
of habeas corpus from this Court.
Jurisdiction and Standard of Review
This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec.
4.1. “Any person restrained of liberty within this state may petition for a writ of habeas
corpus to inquire into the cause of such restraint.” Rule 91.01(b); see also section
532.010, RSMo 2016. A court can issue a writ of habeas corpus when an individual is
“restrained of his or her liberty in violation of the constitution or laws of the state or
3
federal government.” State ex rel. Woodworth v. Denney, 396 S.W.3d 330, 337 (Mo.
banc 2013). The petitioner bears the burden to demonstrate he or she is entitled to habeas
relief. State ex rel. Clemons v. Larkins, 475 S.W.3d 60, 76 (Mo. banc 2015). “[H]abeas
corpus is available as a remedy for a person confined pursuant to Chapter 552 procedures
if an application therefor is properly pleaded, filed in a court having jurisdiction, and
facts are proven showing entitlement to relief.” State v. McKee, 39 S.W.3d 565, 569 n.6
(Mo. App. 2001).
Analysis
Kelly argues he is entitled to habeas relief on the ground the circuit court exceeded
its authority pursuant to section 552.020 when it accepted his NGRI plea and committed
him to the department of mental health after finding he lacked competence to proceed.
I. Is Kelly’s Claim Procedurally Barred?
The State asserts Kelly’s claim is procedurally barred because he did not raise it in
the circuit court at the time he made his NGRI plea or on direct appeal. Habeas relief is
not a substitute for direct appeal or postconviction proceedings. Denney, 396 S.W.3d at
337. Claims that were cognizable on direct appeal or in postconviction proceedings are
procedurally barred. Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000).
An appeal is proper “[i]n all cases of final judgment rendered upon any indictment
or information.” Section 547.070. “No right of an appeal exists without statutory
authority.” State v. Craig, 287 S.W.3d 676, 679 (Mo. banc 2009). There is no statutory
right to appeal from an acquittal as a result of an NGRI plea. State ex rel. Koster v.
Oxenhandler, 491 S.W.3d 576 (Mo. App. 2016) (“Habeas is thus the only viable means
4
by which the lawfulness of confinement as a result of the NGRI defense can be
challenged.” (emphasis added)). 2 Because the trial court acquitted Kelly as a result of an
NGRI plea, he could not have filed a direct appeal and habeas is the proper remedy in this
case.
Similarly, Kelly’s failure to raise his claim in the circuit court does not bar him
from habeas relief. The State cites State ex rel. Strong v. Griffith, 462 S.W.3d 732 (Mo.
banc 2015), in support of its argument that Kelly’s claim is procedurally barred for
failure to raise the claim in the circuit court, but that case can be distinguished on its
facts. The Court in Strong determined the claim was barred not only because it was not
raised at trial, but also because it was not raised during post-conviction proceedings. 462
S.W.3d at 734. Kelly, on the other hand, could not have raised his claim at post-
conviction proceedings because he was acquitted – not convicted. See Rule 24.035(a). 3
2
Indeed, Missouri courts have addressed habeas claims after NGRI pleas when the petitioner did
not file a direct appeal from the underlying case. See Oxenhandler, 491 S.W.3d 576 (Mo. App.
2016) (addressing habeas claims following acceptance of NGRI plea when petitioner did not file
a direct appeal); see also State ex rel. Hawley v. Heagney, 523 S.W.3d 447 (Mo. banc 2017)
(reviewing circuit court’s grant of habeas relief following acceptance of NGRI plea when
defendant did not file a direct appeal).
3
The dissenting opinion asserts Kelly’s claim is procedurally barred because he had two
remedies he could have pursued in the circuit court. Slip op. at 2. Importantly, and as the
dissenting opinion recognizes, both of these remedies are for individuals committed to the
department of mental health pursuant to section 552.020.8. These remedies were not available to
Kelly, as the circuit court’s order and procedural posture in this case indicate Kelly was
committed pursuant to section 552.030.2 – not section 552.020.8. Indeed, the circuit court’s
order is titled “Order Committing Defendant to Department of Mental Health (State Acceptance
of Mental Defense),” indicating the circuit court committed Kelly as a result of its acceptance of
Kelly’s NGRI plea. Further, a commitment pursuant to section 552.020.8 occurs after a circuit
court suspends criminal proceedings. See section 552.020.8 (“If the court determines that the
accused lacks mental fitness to proceed, the criminal proceedings shall be suspended . . .”
(emphasis added)). The circuit court in this case did not suspend the criminal proceedings but,
instead, committed Kelly pursuant to section 552.030.2 after finding him not guilty by reason of
5
The procedural bar to habeas proceedings exists “[o]ut of concern over duplicative
and unending challenges to the finality of a judgment.” Clay, 37 S.W.3d at 217. Such a
concern is inapplicable here, as Kelly could not have raised his claims on direct appeal or
in a postconviction proceeding. For these reasons, Kelly’s claim is not procedurally
barred, and this Court will proceed to the merits.
II. Does Kelly’s Claim Warrant Habeas Relief?
Section 552.020.8 provides, “If the court determines that the accused lacks mental
fitness to proceed, the criminal proceedings shall be suspended and the court shall
commit him to the director of the department of mental health.” (Emphasis added). The
circuit court determined Kelly lacked mental fitness to proceed, as the court’s order stated
he “lack[ed] capacity to understand the proceedings against him or to assist in his own
defense.” But the circuit court did not follow the procedure in section 552.020.8, as it did
not subsequently suspend the proceedings. Instead, in the same order, the circuit court
accepted Kelly’s NGRI plea, acquitted him, and then committed him to the department of
mental health. 4
mental disease or defect. See section 552.030.2 (“Upon the state’s acceptance of the defense of
mental disease or defect excluding responsibility, the court shall proceed to order the
commitment of the accused.”). For these reasons, and contrary to the dissenting opinion’s
assertions, Kelly did not have the section 552.020 remedies available to him.
4
Had the circuit court adhered to the statutory requirement and committed Kelly to the
department of mental health pursuant to section 552.020.8, six months after his commitment
Kelly would have been entitled to an examination to ascertain whether he was fit to proceed.
Section 552.020.10(1). Indeed, section 552.020.10 provides it is the circuit court’s duty to order
an examination. Section 552.020.10(1). If found fit to proceed, the criminal proceedings would
have resumed. Section 552.020.10(4). If found unfit to proceed with “no substantial
probability” of fitness to proceed in the reasonable future, the charges would have been
dismissed and Kelly would have been discharged. Section 552.020.10(6). In this situation, the
probate division has jurisdiction over the accused to determine whether he should be
6
A circuit court’s adherence to section 552.020 procedure is necessary to protect a
defendant’s due process right to a fair trial. State v. Driskill, 459 S.W.3d 412, 423 (Mo.
banc 2015). Upon a finding of a defendant’s incompetency, “due process considerations
require suspension of the criminal trial until such time, if any, that the defendant regains
the capacity to participate in his defense and understand the proceedings against him.”
Medina v. California, 505 U.S. 437, 448 (1992). 5 “[C]ommitment for any purpose
constitutes a significant deprivation of liberty that requires due process protection.”
Oxenhandler, 491 S.W.3d at 592 (quoting Jones v. United States, 463 U.S. 354, 361
(1983)). Accordingly, by accepting Kelly’s NGRI plea despite finding him incompetent
to proceed, the circuit court violated Kelly’s due process rights.
involuntarily detained or declared incapacitated and placed in a mental health facility. Id. But
because the circuit court committed Kelly to the department of mental health as a result of the
NGRI plea – rather than as a result of his incompetence – Kelly has not received a mental
evaluation following his commitment 28 years ago, and he has remained in the department of
mental health’s custody ever since.
5
Other states’ courts have made similar statements of law. Allen v. State, 956 P.2d 918, 919
(Okla. Crim. App. 1998) (“A criminal defendant must be competent to go to trial or to enter a
plea.”); Thompson v. Crawford, 479 So. 2d 169, 180 (Fla. Dist. Ct. App. 1985) (“We further
conclude that the trial court lacked authority to find [the defendant] not guilty by reason of
insanity because [the defendant] was considered to be, and, in fact, was found to be, incompetent
at the time said finding was made.”); State v. Champagne, 497 A.2d 1242, 1248 (N.H. 1985)
(“[A] defendant cannot be competent for some trial proceeding purposes and incompetent for
others.”); State v. Smith, 564 P.2d 1154, 1155 (Wash. 1977) (“[T]he original not guilty by
insanity plea was invalid. . . . The record indicates, and both parties expressly agree, defendant
was incompetent when the original plea was entered.”), overruled on other grounds by State v.
Jones, 664 P.2d 1216 (Wash. 1983); Commonwealth v. Harris, 243 A.2d 408, 409 (Pa. 1968)
(“Unless a person is mentally competent, he should not be required to either stand trial or plead
to a criminal indictment.”); State v. English, 424 P.2d 601, 607 (Kan. 1967) (“It has long been
recognized in this state that an insane person cannot be required to plead to a criminal charge and
cannot be tried.”).
7
When a petitioner asserts a due process violation as a result of the circuit court
exceeding its authority pursuant to section 552.020, a writ of habeas corpus is the proper
remedy. See Rule 91.01; McKee, 39 S.W.3d at 570 (holding habeas was the proper
avenue of relief for the petitioner’s claim that a finding of incompetency precluded the
circuit court’s acceptance of his NGRI plea). For these reasons, habeas relief is proper in
this case, and Kelly’s NGRI plea is vacated.
Conclusion
By accepting Kelly’s NGRI plea despite finding him incompetent to proceed, the
circuit court exceeded its authority pursuant to section 552.020.8 and violated Kelly’s due
process rights. Accordingly, Kelly’s NGRI plea is vacated, and the criminal proceedings
against him remain pending, although suspended by virtue of the circuit court’s
additional finding that Kelly was incompetent to proceed.
8
Because of the improper commitment after acceptance of Kelly’s NGRI plea, the
department of mental health did not conduct an examination of Kelly six months after his
commitment to ascertain whether he was fit to proceed, as required by section
552.020.10(1). Within 90 days from the date the mandate issues in this case, the circuit
court should order such an examination to be conducted pursuant to section
552.020.11(1), RSMo Supp. 2018. After the completion of the examination, the
procedure in section 552.020.11, RSMo Supp. 2018, should govern. 6
______________________________
Mary R. Russell, Judge
Draper, C.J., Breckenridge and Stith, JJ., concur;
Powell, J., dissents in separate opinion filed; Wilson
and Fischer, JJ., concur in opinion of Powell, J.
6
The intention of this remedy is to return Kelly to the position he was in prior to the circuit
court’s erroneous 1991 order. See Oxenhandler, 491 S.W.3d at 606. Because Kelly should not
be held in the department of mental health pursuant to a 28-year-old competency evaluation, the
90-day period allows time for the department of mental health to conduct a competency
evaluation pursuant to section 552.020, RSMo Supp. 2018, as to be ordered by the circuit court.
Creation of a time period to allow the State or circuit court to act is a common remedy in this
Court’s habeas proceedings. See State ex rel. Fleming v. Mo. Bd. of Prob. & Parole, 515 S.W.3d
224, 234 (Mo. banc 2017) (allowing 60 days from the date the mandate issues for the State or
sentencing court to reinitiate revocation proceedings against the petitioner); Clemons, 475
S.W.3d at 88-89 (allowing the State 60 days from the date the mandate issues to file an election
to retry the petitioner).
9
SUPREME COURT OF MISSOURI
en banc
STATE ex rel. MICHAEL KELLY, )
)
Petitioner, )
)
v. ) No. SC97744
)
JULIE INMAN, )
)
Respondent. )
DISSENTING OPINION
I respectfully dissent. This Court should refrain from issuing any original remedial
writ when an alternative remedy is available from a lower court. See Rule 84.22(a); see
also Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000) (“The relief available under a
writ of habeas corpus has traditionally been very limited, and courts are not required to
issue this extraordinary writ where other remedies are adequate and available.”). This
Court instead should adhere to the well-established principle that habeas relief should be
denied “if the petitioner raises procedurally barred claims that could have been raised at an
earlier stage or if other adequate remedies are available.” State ex rel. Amrine v. Roper,
102 S.W.3d 541, 546 (Mo. banc 2003) (emphasis added). Because Kelly has at least two
alternative means of redressing the alleged violation of his due process right before
petitioning this Court for a writ of habeas corpus, his instant claim is procedurally barred.
Alternative means to redress Kelly’s alleged due process violation
I agree with the principal opinion’s conclusion that Kelly could not have raised his
due process claim on direct appeal or in postconviction proceedings. See slip op. at 5. I
disagree, however, with the principal opinion’s conclusion that Kelly exhausted all
alternative remedies before seeking a writ of habeas corpus in this Court, as section
552.020 1 provides Kelly with at least two alternative remedies, which he has not pursued.
Kelly first could have sought to enforce the procedural hearings required by section
552.020.11, RSMo Supp. 2018. 2 That subsection entitles a person committed pursuant to
section 552.020 for lack of mental capacity to a hearing six months after being committed
“to ascertain whether the accused is mentally fit to proceed” or “whether there is a
substantial probability that the accused will attain the mental fitness to proceed to trial in
the foreseeable future.” § 552.020.11(1), RSMo Supp. 2018. Kelly has not sought such a
hearing and is, therefore, procedurally barred from bringing this habeas action. Amrine,
102 S.W.3d at 546.
The principal opinion contends Kelly is not procedurally barred for failing to first
seek this alternative remedy because it was not available to him in that he was not
1
When Kelly was committed to the department of mental health in 1991, sections 552.020
and 552.030, RSMo 1986, were in effect. Statutory references, therefore, are to RSMo
1986 unless noted otherwise.
2
The remedy currently provided by section 552.020.11, RSMo Supp. 2018, was also
available to Kelly after his commitment to the department in 1991 pursuant to section
552.020.10(1).
2
committed to the department of mental health pursuant to section 552.020. But the most
legally sound interpretation of the circuit court’s order committing Kelly to the department
is that he was committed pursuant to section 552.020 because he was not competent to
proceed in the criminal case. While it is clear the circuit court committed Kelly to the
department of mental health, it is entirely unclear from the court’s 1991 order whether he
was committed pursuant to section 552.030.2 as a person not guilty by reason of mental
disease or defect 3 or pursuant to section 552.020.8 as a person found incompetent to
proceed. In the first full sentence of the circuit court’s 1991 order, the court finds Kelly
“lacks mental fitness to proceed with the charges against him.” With this finding, the court
adjudged Kelly incompetent to proceed pursuant to section 552.020. This finding
suspended the criminal proceedings by operation of law. 4 In the next two sentences,
3
Section 552.030.1 provides, in pertinent part, “A person is not responsible for criminal
conduct if, at the time of such conduct, as a result of mental disease or defect he did not
know or appreciate the nature, quality, or wrongfulness of his conduct or was incapable of
conforming his conduct to the requirements of law.” “This is commonly known as the
defense of ‘not guilty by reason of insanity’ or NGRI.” State v. Walkup, 220 S.W.3d 748,
754 (Mo. banc 2007). “Upon the state’s acceptance of the defense of mental disease or
defect excluding responsibility, the court shall proceed to order the commitment of the
accused[.]” § 552.030.2.
4
In support of its position that Kelly was not committed pursuant to section 552.020, the
principal opinion contends, “the circuit court in this case did not suspend the criminal
proceedings.” Slip op. at 5 n.3; see also slip op. at 6 (“[T]he circuit court did not follow
the procedure in section 552.020.8, as it did not subsequently suspend the proceedings.”).
But, as the principal opinion acknowledges, section 552.020.8 provides, “If the court
determines that the accused lacks mental fitness to proceed, the criminal proceedings shall
be suspended, and the court shall commit him to the director of the department of mental
health.” (Emphasis added). Under the plain language of section 552.020.8, therefore, no
court action is required to suspend the criminal proceedings after finding a defendant is
incompetent to proceed. Rather, criminal proceedings are suspended by operation of law
upon a determination by the court that the defendant lacks the mental fitness to proceed.
3
however, the court proceeds to find Kelly “is not guilty of the crimes charged . . . by reason
of a mental disease or defect excluding responsibility,” thereby accepting Kelly’s NGRI
plea pursuant to section 552.030. Both sections 552.020 and 552.030 provide for
commitment to the department of mental health upon a finding of incapacity pursuant to
that section. See § 552.020.8; § 552.030.2. In the final sentences of the order, the circuit
court commits Kelly to the department of mental health but does not designate whether
Kelly’s commitment is pursuant to section 552.020 (competency) or section 552.030
(NGRI).
The principal opinion contends “the circuit court’s order and procedural posture in
this case indicate Kelly was committed pursuant to section 552.030.2 – not section
552.020.8.” Slip op. at 5 n.3. The principal opinion’s basis for this argument, however,
appears to be only that “the circuit court’s order is titled ‘Order Committing Defendant to
Department of Mental Health (State Acceptance of Mental Defense).’” Id. This, according
to the principal opinion, indicates “the circuit court committed Kelly as a result of its
acceptance of Kelly’s NGRI plea.” Id. But if the criminal proceedings were indeed
suspended upon a finding that Kelly was incompetent to proceed pursuant to section
552.020.8, then the circuit court lacked authority to accept his NGRI plea in the first place.
Because Kelly’s criminal case was suspended upon the finding that he was incompetent to
proceed, there was no active criminal proceeding into which he could enter a plea of NGRI.
Because the court found Kelly incompetent to proceed, the criminal proceedings were
suspended by operation of law.
4
Moreover, the principal opinion acknowledges the circuit court exceeded its
authority by not following the procedural requirements of section 552.020 and accepting
Kelly’s NGRI plea when he was incompetent to proceed. Slip op. at 8. Therefore, even
under the principal opinion’s analysis, the only legal basis for Kelly’s commitment to the
department of mental health would have been pursuant to section 552.020.8 as a person
incompetent to proceed. Indeed, Kelly could not have been committed pursuant to section
552.030 as a person found not guilty by reason of mental disease or defect both because he
was not competent to enter a plea of NGRI, as the principal opinion recognizes, and
because the criminal proceedings were suspended by operation of law upon the circuit
court’s finding that he lacked the mental fitness to proceed.
The interpretation of the circuit court’s 1991 order is a question of law. Lodahl v.
Papenberg, 277 S.W.2d 548, 551 (Mo. 1955). This Court should interpret the ambiguous
order in a manner that renders the order valid. See Jeans v. Jeans, 314 S.W.2d 922, 925
(Mo. App. 1958) (“It may be presumed that the court intended to render a valid, not a void,
judgment; and, where it is reasonably possible to do so, such construction should be
adopted as will give force and effect to the judgment . . . and will support rather than destroy
it.”). Interpreting the circuit court’s 1991 order in the only way that renders it valid, Kelly
was committed to the department of mental health pursuant to section 552.020.8, and he
was, therefore, entitled to a hearing pursuant to section 552.020.10(1), now provided by
section 552.020.11, RSMo Supp. 2018, 5 to determine whether he had since become
5
Because section 552.020 was amended August 28, 2018, Kelly’s case would proceed
on remand to the circuit court pursuant to the current version of the statute.
5
competent or was likely to become competent in the foreseeable future. His failure to seek
this alternative remedy procedurally bars his instant habeas petition. Amrine, 102 S.W.3d
at 546.
Section 552.020.9 provided Kelly’s second alternative remedy. At the time of
Kelly’s commitment, that subsection provided in pertinent part, “Any person committed
pursuant to subsection 8 of this section shall be entitled to the writ of habeas corpus upon
proper petition to the court that committed him.” § 552.020.9 (emphasis added). 6
Pursuant to that subsection, Kelly could have first filed a petition for writ of habeas corpus
with the Jackson County circuit court, not the St. Francois County circuit court. Although
Rule 91.02(a) provides a petition for writ of habeas corpus shall first be filed with the court
“for the county in which the person is held in custody,” the right to habeas corpus provided
by section 552.020.9 is nevertheless an alternative remedy that was available to Kelly
before he filed his habeas petition in this Court. Because Rule 84.22(a) prohibits this Court
from issuing any remedial writ when an alternative remedy is available in a lower court,
Kelly’s failure to seek habeas corpus pursuant to section 552.020.9 bars his instant petition.
See Amrine, 102 S.W.3d at 546. What is more, the Jackson County circuit court continues
to have authority over Kelly because the criminal case against him was merely suspended
upon the finding that he was incompetent to proceed. § 552.0208. Filing his habeas
6
This remedy is now provided by section 552.020.10, RSMo Supp. 2018.
6
petition in the circuit court that committed him would have allowed that court to correct its
alleged error in accepting Kelly’s NGRI plea before this Court considers any such error. 7
Kelly was committed pursuant to section 552.020.8; therefore, he was entitled to a
hearing pursuant to the provisions of 552.020 to determine whether he had since become
competent or was likely to become competent in the foreseeable future. He could have
sought such a hearing but did not. He was also authorized to petition the circuit court of
Jackson County for a writ of habeas corpus pursuant to section 552.020.9. Kelly’s failure
to pursue either of these alternative remedies before seeking habeas corpus in this Court
procedurally bars his instant habeas petition.
Conclusion
Because Kelly had at least two alternative means of remedying the alleged violation
of his due process right, which he did not pursue before seeking habeas relief in this Court,
his instant habeas petition is procedurally barred. For these reasons, I respectfully dissent.
__________________
W. Brent Powell, Judge
7
This option would also serve the well-established principle that this Court should not
pass upon issues that the circuit court did not first decide. Cf. State v. Fassero, 256 S.W.3d
109, 117 (Mo. banc 2008).
7