State v. Teer ( 2009 )

RICHARD B. TEITELMAN, Judge.

Section 558.021.2, RSMo 1994,¹ provides that the facts establishing prior offender status “shall be pleaded, established and found prior to submission to the jury....” The circuit court determined that Michael Teer was a prior offender after the case was submitted to the jury. Section 558.021.2 provides that prior offender status must be pleaded and proven before the case is submitted to the jury. Consequently, the judgment as to Teer’s sentences is reversed, and the case is remanded. In all other respects, the judgment is affirmed.

FACTS

In 1994, Teer was involved in an alcohol-related automobile accident that resulted in the death of four people and injury to a fifth person. A jury found Teer guilty of four counts of involuntary manslaughter, section 565.024, and one count of second degree assault, section 565.060.1(4). Prior to the end of the trial, the state moved to amend the information to charge Teer as a prior offender due to a previous felony stealing conviction. The circuit court sustained this motion after the case was submitted to the jury but before the verdict. When the jury returned its verdict, it recommended ten months in the county jail for the four counts of involuntary manslaughter and eight months in the county jail for the one count of second-degree assault. The circuit court then found that Teer was a prior offender and sentenced him to consecutive terms of four years imprisonment for each count.²

The convictions were affirmed on direct appeal, State v. Teer, 959 S.W.2d 930 (Mo. App.1998), but reversed and remanded for an evidentiary hearing on his second post conviction motion for ineffective assistance of appellate counsel, Teer v. State, 198 S.W.3d 667 (Mo.App.2006). Following the post conviction proceedings, the circuit court imposed the same sentence of 20 years imprisonment. Teer appeals that sentence.

Teer’s sole point on appeal is that the trial court violated section 558.021.2 by allowing the state to amend its information to charge him as a prior offender after the case was submitted to the jury. The state argues that Rule 23.08 authorized the amended information and that any error was harmless.

ANALYSIS

Procedural errors in prior offender hearings require reversal only if the defendant is shown to have been prejudiced. State v. Wynn, 666 S.W.2d 862, 864 (Mo.App.1984). Consequently, to succeed in this appeal, Teer must demonstrate that section 558.021.2 controls this case, that the statute was violated and that the statutory violation resulted in prejudice.

Section 558.021.1 sets forth the factual prerequisites for establishing prior offender status.³ Section 558.021.2 provides that all facts necessary to establish prior offender status “shall be pleaded, established and found prior to submission to the jury outside of its hearing....” ⁴

Section 558.021.2 unequivocally provides that the prior offender status “shall” be pleaded and proven prior to the case being submitted to the jury. The word “shall” generally prescribes a mandatory duty. Bauer v. Transitional School District of City of St. Louis, 111 S.W.3d 405, 408 (Mo. banc 2003). There are cases that have qualified the interpretation of the word “shall” by holding that “where a statute or rule does not state what results will follow in the event of a failure to comply with its terms, the rule or statute is directory and not mandatory.” Id.; Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 118 (Mo.1974). Although section 558.021.2 does not state that a particular result will follow if the statute is violated, the “presence or absence of a penalty provision is ‘but one method’ for determining whether a statute is directory or mandatory.” Id., quoting Southwestern Bell Tel. Co. v. Mahn, 766 S.W.2d 443, 446 (Mo. banc 1989). As with all matters of statutory interpretation, determining if the word “shall” is mandatory or directory requires courts to review the context of the statute and to ascertain legislative intent. Id., citing Farmers & Merchants Bank and Trust Co. v. Director of Revenue, 896 S.W.2d 30, 32 (Mo. banc 1995).

Section 558.021.2 is one of the statutes that provide a means for enhancing sentences based upon prior offenses. As such, section 558.021.2 implicates a defendant’s liberty and, like other criminal statutes, should not be extended by judicial interpretation so as to embrace persons and acts not specifically and unambiguously brought within its terms. State v. Lloyd, 320 Mo. 236, 7 S.W.2d 344, 346 (1928). This interpretive rule applies to both the procedural and substantive aspects of criminal statutes and requires the statute to be construed strictly against the state and in favor of the defendant. See Goings v. Missouri Dept. of Corrections, 6 S.W.3d 906, 908 (Mo. banc 1999)(the jail time credit provisions of section 558.031, RSMo Supp.1998 should be strictly construed against the state).

The plain language of section 558.021.2 imposes a mandate requiring that prior offender status be pleaded and proven pri- or to the case being submitted to the jury. When the plain language of section 558.021.2 is construed in favor of the defendant, the absence of a penalty provision does not necessarily mean that compliance with the statute is merely directory. There is no dispute that Teer’s status as a prior offender was not plead and proven until after the case was submitted to the jury. This procedure violated the plain language of section 558.021.2.

The state asserts that this case is controlled by Rule 23.08, not section 558.021.2. Rule 23.08 provides that an “information may be amended ... at any time before verdict or finding if: (a) no additional or different offense is charged, and (b) a defendant’s substantial rights are not thereby prejudiced.” Rule 23.08 simply provides a procedural mechanism for filing an amended information. The rule does not authorize the circuit court to make factual findings in violation of the specific directive of section 558.021.2. Rule 23.08 may allow the state to plead prior offender status after the case is submitted to the jury, but section 558.021.2 specifically requires that that proof of pri- or offender status must be proven prior to the case being submitted to the jury. This case is governed by section 558.021.2, not Rule 23.08.

The state also argues that even if the statute was violated, Teer cannot establish prejudice because he is, in fact, a prior offender and is not entitled to jury sentencing. The state is correct that a number of cases under section 558.021 have held that when a defendant is found to be a prior or persistent offender after the case is submitted to the jury, the failure to timely prove and find the defendant’s prior or persistent offender status is not reversible error. See e.g., State v. Golatt, 81 S.W.3d 640, 649 (Mo.App.2002); State v. Hinkle, 987 S.W.2d 11, 15 (Mo.App.1999); State v. Tincher, 797 S.W.2d 794, 797 (Mo.App.1990). However, as a number of courts have recognized, “[i]f the courts continue to indulge the laxity which has characterized so many cases of extended term sentencing, a judicial emasculation of the legislative direction will be the accepted procedural norm.” State v. Street, 735 S.W.2d 371, 372 (Mo.App.1987); see also State v. McGowan, 774 S.W.2d 855, 858 (Mo.App.1989)(future violations of section 558.021.2 will be “dealt with harshly”); State v. Jennings, 815 S.W.2d 434, 446 (Mo.App.1991)(“we echo the sentiment and admonition of McGowan ”). Although these cases ultimately found no reversible error, each leaves open the possibility that reversible error would exist if the defendant established actual prejudice.

In this case, Teer was prejudiced. The jury determined that a maximum sentence of four years of incarceration in the county jail was an appropriate sentence while the circuit court sentenced Teer to a total of 20 years imprisonment in the Missouri Department of Corrections. The failure to follow section 558.021.2 resulted in Teer being subjected to a much longer sentence than that recommended by a jury of his peers. Consequently, the error was prejudicial and requires reversal of Teer’s sentence and a remand for sentencing in accordance with the jury’s initial recommendation.

The judgment as to Teer’s sentence is reversed, and the case is remanded. On remand, the court shall impose sentence consistent with the jury’s recommendation and free from sentence enhancement that would result if Teer were a prior or persistent offender. See State v. Emery, 95 S.W.3d 98, 103 (Mo. banc 2003). In all other respects, the judgment is affirmed.

STITH, C.J., and WOLFF, J., concur; FISCHER, J., concurs in separate opinion filed; STITH, C.J., and WOLFF, J., concur in opinion of FISCHER, J.; RUSSELL, J., dissents in separate opinion filed; PRICE and BRECKENRIDGE, JJ., concur in opinion of RUSSELL, J.

1 . All statutory references are to RSMo 1994.

2 . When the state pleads and proves that a defendant is a prior offender, the court, not the jury, imposes the sentence. Section 557.036.2(2).

3 . Section 558.021.1 provides:

The court shall find the defendant to be a prior offender, persistent offender, or dangerous offender, if:

(1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender, persistent offender, or dangerous offender; and (2) evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a prior offender, persistent offender, or dangerous offender and (3) the court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender, persistent offender, or dangerous offender.

4 . Section 558.021.2 provides:

In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing, except the facts required by subdivision (1) of subsection 4 of section 558.016 may be established and found at a later time, but prior to sentencing, and may be established by judicial notice of prior testimony before the jury.