State of Missouri v. Deon A. Williams ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
STATE OF MISSOURI, ) No. ED103341
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
)
DEON A. WILLIAMS, ) Honorable Timothy J. Wilson
)
Appellant. ) Filed: November 1, 2016
OPINION
Deon A. Williams (“Williams”) appeals the circuit court’s judgment convicting him of
attempted forcible rape, two counts of sodomy in the first degree, two counts of attempted sodomy
in the first degree, and two counts of incest, and sentencing him to eighteen years’ incarceration.
We correct a clerical error in the judgment, which incorrectly classified Williams as a prior and
persistent offender, and we affirm the sentence and judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
The facts established at trial and viewed in the light most favorable to the judgment are as
follows: Williams sexually abused his biological daughter, G.W., multiple times when she was
twelve or thirteen years old. The abuse started after G.W. moved out of her mother’s home and
went to live with Williams at a house on Plover. Williams lived on Plover with his two daughters,
G.W. and D.W., and his mother, the girls’ grandmother.
1
At trial, the evidence established four separate incidents of inappropriate touching by
Williams. The first incident occurred when G.W. was in bed trying to go to sleep because she had
school in the morning. Williams came into the room and told G.W. to turn around. When she
turned around, Williams’ exposed penis was in her face. He then grabbed her head, forced his
penis into her mouth, and made her perform oral sex on him. Williams then climbed on top of
G.W., started taking her nightgown off, and tried to put his penis inside her vagina. Williams’
penis touched her thighs, but he was unable to penetrate her. G.W. tried to stop her father by
kicking him, but he did not stop until he heard the grandmother knock on the door. As Williams
left the room, he told G.W., “Don’t tell nobody.”
The second incident occurred later that year when G.W. was still twelve or thirteen years
old. G.W. was again in bed one night, and Williams put his fingers inside her vagina. In order to
get away, G.W. got up and went to the bathroom. She then went to sleep with her grandmother
instead of returning to her bed. There was evidence that this was not the first time Williams put
his fingers in his daughter’s vagina. G.W. testified this happened about “half the time I was living
with him until I said something about it.”
After these initial incidents of abuse, Williams and his daughters moved in with his
girlfriend. 1 They lived there until Williams and his girlfriend got into a fight, and Williams put his
girlfriend’s head in the toilet. Thereafter, Williams and his daughters moved back to the house on
Plover. About two weeks after that, Williams tried to put his fingers in G.W.’s vagina (“third
incident”). It is unclear whether he was successful. Then, the next day, Williams tried to put his
fingers in her vagina again, but she stopped him (“fourth incident”).
1
Williams also abused G.W. while they were living with his girlfriend. This abuse is not at issue because the house
was located outside City of St. Louis jurisdiction.
2
After the fourth incident, G.W. told her sister, D.W., about the abuse. D.W. encouraged
her to tell their grandmother. The grandmother said she would watch Williams more carefully to
see if anything was happening, but she did not call the police or tell the girls’ mother about the
abuse.
Eventually, D.W. called their mother and told her about the abuse. The mother immediately
intervened, and the police got involved. G.W. was taken to the hospital where she was examined
and interviewed by a social worker. G.W. was also taken to the Children’s Advocacy Center where
she was interviewed by a forensic interview specialist who specialized in childhood sexual abuse.
G.W. did not report the abuse earlier because Williams told her not to tell anyone, and she
was scared of him. Williams also threatened to kill G.W.’s mother if G.W. ever told her about the
abuse. G.W. believed her father’s threats because “[h]e would just be crazy every time he was
drunk, [he would] hit us and stuff [and] take out all his anger on us for no reason.” Williams often
beat his daughters when he drank.
Williams was arrested and indicted on seven felony counts: Count I, attempted forcible
rape, in violation of section 566.030; 2 Counts II and V, statutory sodomy in the first degree for
penis-to-mouth contact, in violation of section 566.062; Counts III and VI, statutory sodomy for
hands-to-genitals contact, in violation of section 566.062; and Counts IV and VII, incest, in
violation of section 558.011. The State filed a Substitute Information in Lieu of Indictment
(“Substitute Information”), adding the phrase “a second time” at the end of Counts V, VI, and VII
to indicate they were based on separate incidents from Counts II, III, and IV. Prior to trial, the
court discussed these changes, noting “the State has slightly adjusted some of the wording” in the
Substitute Information. The court stated, “I don’t believe this changes anything as far as what the
2
All statutory references are to RSMo (2000) unless otherwise indicated.
3
defendant was on notice of what he was facing [sic].” Defense counsel agreed with the court and
made no objection. Williams never requested a bill of particulars.
Williams waived his right to a jury trial, and the case proceeded to trial before the court.
The State presented the testimony of G.W., D.W., and five other witnesses. The prosecution argued
that G.W. was credible, her testimony was consistent, and it proved that Williams was guilty
beyond a reasonable doubt. Williams argued there was insufficient evidence to convict because
G.W.’s testimony was not corroborated, that G.W. was a liar inventing “incredible stories with a
lot of inconsistencies” that could not possibly be true, and that G.W. was actually abused by
another man she lived with previously, but accusing her father instead to get out of living with
him. Williams did not testify.
During trial, Williams moved for a judgment of acquittal at the close of the State’s
evidence, and renewed this motion at the close of all the evidence. His sole argument in both
motions was that the evidence was insufficient to convict him of the charges.
The court found G.W. credibly testified to four separate incidents of abuse. The first
incident, Williams put his penis in G.W.’s mouth and then attempted to rape her. The second
incident, Williams put his fingers in G.W.’s vagina. The third and fourth incidents, Williams
attempted to put his fingers in G.W.’s vagina after they returned to the house on Plover. The court
convicted Williams of Counts I, II, III, IV, and VII as charged, and convicted Williams on Counts
V and VI of the lesser-included offense of attempted sodomy. Williams filed a motion for new
trial, arguing only that the court erred in denying the earlier motions for acquittal. The court denied
the motion.
The Substitute Information classified Williams as a prior and persistent offender, listing
seven prior felony convictions. The State failed to introduce evidence of these prior convictions
4
during the trial. The trial court did not make findings that Williams was a prior and persistent
offender.
Prior to sentencing, the court ordered a Sentencing Assessment Report (“SAR”), 3 which
detailed Williams’ criminal history, including the seven prior felonies identified by the State in the
Substitute Information. The court made the SAR available to the parties. Defense counsel asked
the court to follow the SAR’s recommendation and impose a sentence of “somewhere around
fifteen years,” arguing that “due to the nature of the charges and [Williams’] background, fifteen
years would be a reasonable sentence.”
The Court sentenced Williams to the following terms of imprisonment: Count I (attempted
forcible rape), fourteen years; Counts II and III (statutory sodomy), fourteen years on each count;
Count IV (incest), four years; Counts V and VI (attempted statutory sodomy), fourteen years on
each count; Count VII (incest), four years. All sentences were concurrent except for Count IV,
which was consecutive, making the aggregate sentence eighteen years. On the judgment form, the
court checked the boxes indicating that Williams was found guilty as a prior and persistent
offender, in violation of section 558.016. This appeal follows.
POINTS ON APPEAL
Williams raises four points on appeal. In point one, Williams argues that the trial court
erred in finding him guilty on Counts V (attempted sodomy), VI (attempted sodomy), and VII
(incest) because the Substitute Information did not contain sufficient detail to put him on notice of
the charges against him, which violated his right to due process. In points two and three, Williams
3
Under Rule 29.07, the probation officer is required to conduct a pre-sentencing investigation in all felony cases and
submit a Sentencing Assessment Report to the court prior to sentencing. See State v. Sanchez, 217 S.W.3d 923, 925
(Mo. App. S.D. 2007).
All rule references are to Missouri Supreme Court Rules (2015) unless otherwise indicated.
5
argues that the trial court erred in admitting evidence of uncharged misconduct involving D.W.
and Williams’ girlfriend. In point four, Williams argues that the trial court plainly erred in
classifying him as a prior and persistent offender in the absence of sufficient evidence or findings
of fact to support this classification. As to points one, two, and three, we affirm. As to point four,
the State concedes this was a clerical error and we agree.
DISCUSSION
Williams concedes that he did not raise the issues in points two, three, and four to the trial
court, and requests plain error review. Additionally, we find that Williams failed to raise the issue
in point one to the trial court. Therefore, none of Williams’ points have been preserved for appeal,
and our review is limited to plain error review.
Standard of Review
To preserve a constitutional issue for appellate review, it must be raised at the earliest
opportunity consistent with good pleading and orderly procedure, and must be properly preserved
throughout the proceeding, or this court’s analysis is limited to plain error review. State v.
Wickizer, 583 S.W.2d 519, 523 (Mo. banc 1979); State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc
2006).
Plain error review under Rule 30.20 is discretionary and involves a two-step process. State
v. Stallings, 158 S.W.3d 310, 315–16 (Mo. App. W.D. 2005). First, we determine whether the
claim of error facially establishes substantial grounds for believing that manifest injustice or a
miscarriage of justice has resulted. Id. Unless the error is obvious, evident, and clear from the face
of the claim, the appellate court should exercise its discretion and decline to review the claim. Id.
If plain error is found, then the appellate court may proceed to the second step, whether the error
actually resulted in manifest injustice or a miscarriage of justice. Id. In order to demonstrate that a
6
manifest injustice has affected his or her substantial rights, the appellant “must go beyond a mere
showing of demonstrable prejudice.” State v. Parker, 856 S.W.2d 331, 332 (Mo. banc 1993). The
plain error rule should be used sparingly and will not justify review of every point that has not
been preserved for appellate review. State v. Tokar, 918 S.W.2d 753, 769 (Mo. banc 1996).
I. Point One – Due Process Right to Sufficient Notice of the Charges
In his first point, Williams argues for the first time on appeal that the trial court erred in
convicting him of Counts V, VI, and VII because these counts accused him of the same behavior
as Counts II, III, and IV, only adding the phrase “a second time” to distinguish the charges, which
violated his right to due process. We disagree.
Due process protects a criminal defendant from being convicted of an offense that he was
not expressly charged with in the information or indictment. State v. Collins, 154 S.W.3d 486, 494
(Mo. App. W.D. 2005) (citing State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999)). This right is
guaranteed both by the Sixth Amendment of the U.S. Constitution as applied to the states through
the Due Process Clause of the Fourteenth Amendment, and by Article I, section 18(a) of the
Missouri Constitution. Id. The purpose of an indictment or information is to place the defendant
on notice of the charges against him so that he may prepare an adequate defense, prevent retrial on
the same charges in the event of acquittal, and allow the trial court to determine whether sufficient
facts are alleged to support the conviction. Williams v. State, 205 S.W.3d 300, 306 (Mo. App. W.D.
2006). Pursuant to Rule 23.01(b)(2), “[t]he indictment or information shall . . . state plainly,
concisely, and definitely the essential facts constituting the elements of the offense charged,
including facts necessary for any enhanced punishment.” Accordingly, the charging document is
legally sufficient if it alleges facts establishing all the elements of the charged offense, fairly
7
informs the defendant of the charges, and enables the defendant to plead double jeopardy to prevent
future prosecution for the same offense. State v. Love, 88 S.W.3d 511, 515 (Mo. App. S.D. 2002).
In this case, Williams did not file a pre-trial motion challenging the sufficiency of the
information as required by Rule 24.04(b). 4 Nor did he file a motion for a bill of particulars seeking
more information about the charges against him, as allowed under Rule 23.04. 5 Thus, we are bound
by the Supreme Court of Missouri’s holding in State v. Parkhurst, where the Court held:
When [an objection to the sufficiency of the charges] is raised for the first time after
verdict, the indictment or information will be deemed insufficient only if it is so
defective that (1) it does not by any reasonable construction charge the offense of
which the defendant was convicted or (2) the substantial rights of the defendant to
prepare a defense and plead former jeopardy in the event of acquittal are prejudiced.
In either event, a defendant will not be entitled to relief based on a post-verdict
claim that the information or indictment is insufficient unless the defendant
demonstrates actual prejudice.
State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992) (emphasis added); see also Rule 23.11
(“An indictment or information shall not be invalid, nor shall the trial, judgment, or other
proceedings on the indictment or information be stayed, because of any defect that does not
prejudice the substantial rights of the defendant.”).
Notably, Williams does not argue that the information was insufficient because it failed to
reasonably charge the offenses of which he was convicted. We find that the information
sufficiently identifies the offenses and states specific factual allegations constituting the elements
of each offense, as required by Rule 23.01(b)(2). Thus, Williams is only entitled to relief under
Parkhurst if he can prove that the failure to provide more details concerning the charges actually
4
Under Rule 24.04(b), any objection based on a defect in the indictment or information, except for a claim that it
fails to establish the court’s jurisdiction, “must be raised” by motion before trial, or it is waived. Rule 24.04(b)(2)
(emphasis added); see also State v. Parkhurst, 845 S.W.2d 31, 33 (Mo. banc 1992).
5
Under Rule 23.04, when an indictment or information is legally sufficient but fails to contain sufficient detail to
allow the defendant to prepare his defense, the defendant may file a motion requesting a bill of particulars to set
forth the details of the offense, which generally must be filed within ten days of the arraignment. Rule 23.04; see
also State v. Celis-Garcia, 420 S.W.3d 723, 727 (Mo. App. W.D. 2014).
8
prejudiced his ability to prepare a defense or plead former jeopardy in the event of acquittal. See
id.
First, it is clear from the record that Williams was aware of the charges against him and
that the Substitute Information was not so defective that it prejudiced his ability to prepare a
defense. Williams’ defense at trial was a general denial of all culpability. He attacked the victim’s
credibility by arguing that she was lying about everything and merely making up these allegations
to get out of living with him. This defense was not undermined by Williams’ contention that the
information charged multiple offenses within the same period of time without alleging any specific
fact to distinguish one offense from the other. Williams’ argument that G.W. invented the
allegations would have been equally effective whether or not the State alleged more details to
distinguish the separate offenses. See State v. Price, 940 S.W.2d 534, 537 (Mo. App. E.D. 1997)
(where the defendant argued that he was not involved in the offense at all, there was no prejudice
from the fact that the indictment charged attempted rape while his conviction was for the
completed crime because his defense was equally effective against either offense) (distinguished
on unrelated grounds by State v. Paro, 952 S.W.2d 339, 343 (Mo. App. E.D. 1997)).
Second, the Substitute Information does not prevent Williams from pleading double
jeopardy in the event the State attempts to prosecute him again for these same offenses. The
information states specific offenses, a particular victim, a precise address, and a definite period of
time, merely alleging that three of the offenses occurred “a second time” within the specified
period of time. The fact that an information charges multiple counts using identical language does
not invalidate the charges so long as the record as a whole is sufficient to clarify what conduct is
the basis of each charge. See, e.g., State v. Martin, 852 S.W.2d 844, 856 (Mo. App. W.D. 1992)
(identical language used in multiple counts of the same information does not invalidate either
9
count); State v. Riggs, 770 S.W.2d 361, 362 (Mo. App. E.D. 1989) (affirming a conviction where
the indictment used identical language in multiple counts because “[t]his record protects defendant
[sic] from prejudice because it adequately clarified the charges to prevent any possible ‘double
jeopardy’ issue which could arise in the future”).
In addition, the trial court’s findings and judgment provide substantial additional details
that allow Williams to establish which specific incidents of sodomy and incest are the basis of his
convictions. The court clearly identified four very specific incidents where Williams sexually
abused G.W. The first and second incidents occurred after G.W. initially moved into the house on
Plover and before relocating to the girlfriend’s house. The third and fourth incidents occurred
within two weeks after G.W. moved back into the house on Plover. These details are sufficient to
clarify what the charges were referring to by the statement “a second time.” Therefore, we find the
Substitute Information was sufficient, and Williams suffered no actual prejudice concerning his
ability to plead double jeopardy.
Williams cites Rule 23.01(b)(3) for the proposition that when “multiple counts [of an
indictment or information] charge the same offense on the same date or during the same time
period, additional facts or details to distinguish the counts shall be stated.” Williams argues that
merely adding the phrase “a second time” to Counts V, VI, and VII was insufficient to satisfy the
requirements of Rule 23.01(b)(3). This argument fails, however, because it is a statutory challenge
to the sufficiency of the information, which was waived when Williams failed to file a motion
either challenging the sufficiency of the charges under Rule 24.04(b) or requesting a bill of
particulars under Rule 23.04. See Parkhurst, 845 S.W.2d at 35; see also State v. Cunningham, 863
S.W.2d 914, 919 (Mo. App. E.D. 1993). Williams’ failure to file either motion constituted a waiver
of all arguments attacking the sufficiency of the charges unless he establishes that the charges were
10
so defective that they actually prejudiced his ability to prepare a defense or plead former jeopardy,
and prevent subsequent prosecution for the same offense. Id. As explained above, Williams failed
to show he suffered any actual prejudice. Therefore, under Parkhurst, Williams would not be
entitled to relief even if the charges lacked sufficient detail to comply with the requirements of
Rule 23.01(b)(3). Id.
Moreover, Williams expressly agreed that he was on notice of the charges against him. On
the morning of trial, the trial court addressed the sufficiency of the Substitute Information by
calling Williams’ attention to the fact that “the State has slightly adjusted some of the wording”
by adding the phrase “a second time” to the end of Counts V, VI, and VII to distinguish them from
Counts II, III, and IV. The court then stated, “I don’t believe this changes anything as far as what
the defendant was on notice of what he was facing [sic].” Williams’ defense counsel stated he had
received a copy of the Substitute Information, and he agreed with the judge that this wording did
not deprive Williams of notice of the charges against him. Williams then proceeded to trial without
requesting a bill of particulars or objecting to the sufficiency of the charges.
We find that the trial court did not plainly err because Counts V, VI, and VII in the
Substitute Information provide sufficient notice of the charges to comport with the requirements
of due process because all the essential elements of each offense charged were clearly set out in
the Substitute Information. We find that the charges contained sufficient detail to allow Williams
to prepare his defense and plead double jeopardy to prevent retrial on the same offense. Therefore,
Williams has failed to meet his burden of showing that he suffered a manifest injustice or
miscarriage of justice. Point one is denied.
11
II. Points Two and Three – Admissibility of Evidence of Williams’ Uncharged
Misconduct
In his second and third points on appeal, Williams argues that the trial court plainly erred
by admitting evidence of uncharged misconduct involving D.W. and Williams’ girlfriend because
it was inadmissible. We disagree.
The standard of review for the admission of evidence is abuse of discretion. State v. Primm,
347 S.W.3d 66, 70 (Mo. banc 2011). However, Williams concedes that points two and three were
not preserved, thus we review only for plain error.
To be admissible, evidence must be both logically and legally relevant. State v. Sanders,
481 S.W.3d 907, 914 (Mo. App. E.D. 2016). Evidence is logically relevant if it tends to make the
existence of a material fact more or less probable than it would be without that evidence. Id.
Evidence is legally relevant if its probative value outweighs the risk of unfair prejudice, confusing
of the issues, misleading the jury, undue delay, waste of time, or cumulativeness. Id.
It is a well-established general rule that evidence concerning a defendant’s commission of
crimes separate and distinct from the charged offenses is not admissible “unless such proof has
some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is
on trial.” State v. Primm, 347 S.W.3d 66, 70 (Mo. banc 2011) (quoting State v. Vorhees, 248
S.W.3d 585, 587 (Mo. banc 2008)). Evidence of uncharged misconduct is absolutely inadmissible
if offered solely for the purpose of showing that the defendant has a propensity to commit the
crime charged because this would violate the defendant’s right to be tried only for the crimes
charged under Article I, sections 17 and 18(a) of the Missouri Constitution. State v. Ellison, 239
S.W.3d 603, 606, 608 (Mo. banc 2007).
However, such evidence may be admissible if offered for another purpose, including but
not limited several established exceptions.
12
Such evidence may be admissible if it tends to establish (1) motive; (2) intent; (3)
the absence of mistake or accident; (4) a common scheme or plan embracing the
commission of two or more crimes so related to each other that proof of one tends
to establish the other; or (5) the identity of the person charged with commission of
the crime on trial. In addition, evidence of uncharged crimes that are part of the
circumstances or the sequence of events surrounding the offense charged may be
admissible to present a complete and coherent picture of the events that transpired.
Primm, 347 S.W.3d at 70 (citations and internal quotations omitted); see also State v. Miller, 372
S.W.3d 455, 474 (Mo. banc 2012). In addition to these established exceptions, evidence of
uncharged misconduct may also be admissible if otherwise “logically and legally relevant.” State
v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). Courts have found evidence of a defendant’s
other crimes to be admissible when offered to corroborate the testimony of a minor victim in
prosecutions involving crimes of a sexual nature to explain why the victim did not report the crime
earlier. Miller, 372 S.W.3d at 474.
In this case, Williams challenges the admission of evidence that he beat D.W. and put his
girlfriend’s head in a toilet during a fight. This is classic evidence of uncharged misconduct, which
would be inadmissible if offered solely for the purpose of proving that Williams has a criminal
propensity. Primm, 347 S.W.3d at 70.
However, Williams waived his right to a jury trial, and instead chose to have a bench trial.
Therefore, we start our analysis with the presumption that the trial judge was not confused or
misled by any allegedly irrelevant or inadmissible evidence unless the record clearly demonstrates
that the trial court considered and relied upon the inadmissible evidence. State v. Girardier, 484
S.W.3d 356, 364–65 (Mo. App. E.D. 2015); State v. Ernst, 164 S.W.3d 70, 74–75 (Mo. App. S.D.
2005).
At trial, there was substantial evidence that Williams was violent and abusive towards
D.W. During the State’s case-in-chief, the prosecutor asked G.W., “Did you have any problems
with your dad?” She responded, “Well, every time when he was getting drunk, he used to hit my
13
sister.” The prosecutor then explored this topic at some length. In response to Williams’ questions,
G.W. testified to further details, including the fact that Williams sometimes beat D.W. so hard it
caused “bleeding bruises.” Later D.W. herself testified about her father’s drinking, how it caused
him to become violent and abusive towards her, and how he sometimes used a belt when he beat
her. There was also evidence that Williams acted violently towards his girlfriend by putting her
head in a toilet during an argument.
We need not address the admissibility of this evidence because we find there is no evidence
that the court relied on the evidence in reaching its judgment. See Girardier, 484 S.W.3d at 365
(holding that “regardless of the admissibility of [the evidence],” appellant could not show any
prejudice because he failed to show the trial court relied on the allegedly inadmissible evidence in
finding him guilty). Even if this evidence was inadmissible, Williams has the burden of
establishing that the trial court improperly used the evidence and relied on it when reaching its
judgment, which he has failed to do. See id. Williams has not identified any instance in the record
where the court relied on or even mentioned any of Williams’ uncharged misconduct in reaching
its decision, and we have found none.
Therefore, we find the trial court did not plainly err because there is no evidence that the
trial court improperly relied upon Williams’ uncharged misconduct in reaching its judgment.
Points two and three are denied.
III. Point Four – Insufficient Evidence of Prior and Persistent Offender Classification
In his fourth point, Williams concedes his argument was not preserved for appeal and
requests plain error review. Wickizer, 583 S.W.2d at 523; Baxter, 204 S.W.3d at 652. Williams
argues that the trial court plainly erred by classifying him as a prior and persistent offender because
the State failed to introduce evidence of these prior convictions at trial. Williams asks that the
14
judgment be corrected and that the case be remanded for resentencing. The State concedes it failed
to introduce any evidence of these conviction as required by section 558.021, but argues that
resentencing is not necessary because this error did not affect the sentencing.
The parties concede, and we agree, that the trial court plainly erred in classifying Williams
as a prior and persistent offender. Improperly sentencing a defendant as a prior or persistent
offender is a manifest injustice that warrants reversal on plain error review. See State v. Morris,
285 S.W.3d 407, 414 (Mo. App. E.D. 2009) (“An unauthorized sentence affects substantial rights
and results in manifest injustice.”); State v. Dixon, 24 S.W.3d 247, 250 (Mo. App. E.D. 2000).
Under Rule 30.23, the appellate court may correct clerical errors in a judgment and finally
dispose of a case without remanding the case “[u]nless justice otherwise requires.” Rule 30.23.
“We need not remand the case when we can appropriately correct the sentence.” State v. Morris,
285 S.W.3d 407, 414 (Mo. App. E.D. 2009) (citing Rule 30.23 for the authority to correct a
judgment to remove persistent offender classification without remanding the case; finding that the
error did not prejudice defendant because he was sentenced within the unenhanced range, and
affirming the judgment as modified).
There is no basis in the record for finding that the erroneous prior and persistent offender
classification was anything other than a clerical error. “Generally, a mistake on the written
judgment and sentence form ‘involving the marking of boxes designated for memorializing a
finding of a defendant’s prior and persistent offender status is considered a clerical mistake.’”
Warren v. State, 429 S.W.3d 480, 481 (Mo. App. E.D. 2014) (citing State v. Gibbs, 306 S.W.3d
178, 183 (Mo. App. E.D. 2010)).
When the trial court made its oral pronouncement that Williams was guilty, the court did
not classify Williams as a prior and persistent offender. Although the written sentencing form
15
includes this classification, the oral pronouncement governs. State v. Johnson, 864 S.W.2d 449,
451 (Mo. App. W.D. 1993) (when an oral pronouncement conflicts with a written judgment, the
oral pronouncement controls and the written judgment is erroneous). While the record indicates
that the trial court was influenced by Williams’ criminal record, there is no indication that the court
gave Williams a more severe sentence due to the erroneous prior and persistent offender
classification. Williams received a sentence within the unenhanced sentencing range for his
convictions. See Morris, 285 S.W.3d at 414; see also State v. Clark, 197 S.W.3d 598, 601–02 (Mo.
banc 2006), cert. denied, 549 U.S. 1167 (2007) (proof of prior crimes need only be proven beyond
a reasonable doubt when they are used as a basis to enhance a sentence beyond the ordinary
sentencing range).
We reject Williams’ argument that resentencing is required due to the trial court
referencing his criminal history at the sentencing hearing. The court was permitted to consider
Williams’ criminal history when sentencing him whether or not Williams was classified as a prior
and persistent offender. See State v. Sanchez, 217 S.W.3d 923, 925 (Mo. App. S.D. 2007). Prior to
sentencing, the court ordered a SAR, which detailed Williams’ criminal history. The SAR was
made available to the parties. Williams requested the court follow the SAR, arguing its
recommended sentence was reasonable “due to the nature of the charges and [Williams’]
background.” Rule 29.07 clearly provides “authority for the court to make use of the presentence
investigation [SAR] as discretion indicates.” Sanchez, 217 S.W.3d at 925 (quoting State v.
Maloney, 434 S.W.2d 487, 496 (Mo. 1968) (per curiam)). In fact, the court must consider the
defendant’s criminal history upon sentencing. See section 557.036.1 (“Upon a finding of guilt upon
verdict or plea, the court shall decide the extent or duration of sentence or other disposition to be
imposed under all the circumstances, having regard to the nature and circumstances of the offense
16
and the history and character of the defendant and render judgment accordingly.”) (emphasis
added).
Therefore, we find reversal for resentencing is not required because Williams’ sentence
was not affected by this clerical error. Accordingly, we correct the judgment and sentence to
remove Williams’ classification as a prior and persistent offender. Point four is granted in part and
denied in part.
CONCLUSION
We hold that: (1) the trial court did not plainly err in convicting Williams of Counts V, VI,
and VII because the Substitute Information provided sufficient notice of the charges against
Williams, and Williams suffered no actual prejudice that prevented him from preparing a defense
or pleading former jeopardy in the event of acquittal; (2) the trial court did not plainly err because
there is no evidence the trial court relied upon Williams’ prior uncharged misconduct in reaching
its judgment; and (3) the trial court plainly erred by classifying Williams as a prior and persistent
offender; however, we correct the clerical error without remanding the case, finding no prejudice
because it did not affect Williams’ sentence.
Accordingly, we order the July 9, 2015 Judgment and Sentence form corrected to reflect
that Williams was not found to be a prior and persistent offender. Williams’ sentence of eighteen
years’ incarceration is not otherwise amended or modified by this Opinion. We affirm the trial
court’s judgment of conviction and sentence as modified.
_______________________________
Angela T. Quigless, P.J.
Robert G. Dowd, Jr., J., and
Lisa S. Van Amburg, J., Concur.
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