DocketNumber： No. SC 95481
Citation Numbers： 524 S.W.3d 505, 2017 Mo. LEXIS 346, 2017 WL 3598201
Judges： Breckenridge, Draper, Fischer, Powell, Russell, Stith, Wilson
Filed Date： 8/22/2017
Status： Precedential
Modified Date： 11/14/2024
A jury convicted Angelo Johnson of five counts of first-degree statutory sodomy, three counts of first-degree statutory rape, three counts of incest, and one count of second-degree statutory rape. At sentencing, the circuit court found Johnson to be a predatory sexual offender pursuant to § 558.018.5(3)
Factual and Procedural History
The State charged Johnson with 13 felony counts stemming from the sexual abuse of his two step-daughters, D.P. and R.J., and his biological daughter, L.J. The specific charges were: six counts of first-degree statutory sodomy and three counts of first-degree statutory rape as to D.P. and R.J.; three counts of incest as to D.P., R.J., and L.J.; and one count of second-degree statutory rape as to L.J. For the first-degree statutory sodomy charges and first-degree statutory rape charges (which involved only D.P. and R.J.
The case was submitted to the jury, which found Johnson guilty on 12 of 13 counts and acquitted him on one count of first-degree statutory sodomy. At sentencing, the State again requested the circuit court find Johnson to be a predatory sexual offender pursuant to § 558.018.5(3). Johnson again argued that section did not apply to him because it applies only to prior acts. Johnson did not, however, argue the circuit court was precluded by § 558.021.2 from finding him to be a predatory sexual offender because the case had already been submitted to the jury. The circuit court reconsidered its prior interpretation of § 558.018.5(3), was persuaded the State’s interpretation of the statute was correct, and, therefore, found Johnson to be a predatory sexual offender.
Analysis
A “predatory sexual offender” is statutorily defined as a person who:
(1) Has previously been found guilty of committing or attempting to commit any of the offenses listed in subsection 1 of this section, or committing child molestation in the first degree when classified as a class B felony or sexual abuse when classified as a class B felony; or
(2) Has previously committed an act which would constitute an offense listed in subsection 4 of this section, whether or not the act resulted in a conviction; or
(3) Has committed an act or acts against more than one victim which would constitute an offense or offenses listed in subsection 4 of this section, whether or not the defendant was charged with an additional offense or offenses as a result of such act or acts.
Section 558.018.5. “In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing....” Section 558.021.2. If the circuit court finds the defendant is a predatory sexual offender and the defendant is found guilty of committing or attempting to commit one of several predicate crimes, then the defendant is subject to a manda
Relevant here, the predicate crimes include first-degree statutory sodomy and first-degree statutory rape. Sections 558.018.1, 558.018.4. Because the jury found Johnson guilty on five counts of first-degree statutory sodomy and three counts of first-degree statutory rape, and because the circuit court found Johnson to be a predatory sexual offender pursuant to § 558.018.5(3), the circuit court sentenced Johnson to life imprisonment with eligibility for parole on each of those eight convictions. Had the circuit court not found Johnson to be a predatory sexual offender, the circuit court could have still sentenced Johnson.to life imprisonment for each of the eight convictions, but Johnson would have been subject to a lesser mandatory minimum; sentence of either 5 years or 10 years, depending on the conviction.
Section 558.018.5(3) Applies to Charged Acts and Is Not Facially Unconstitutional
Johnson argues the circuit court erred in finding him to be a predatory sexual offender pursuant to § 558,018.5(3), alleging that section applies only to prior acts, not acts that are the bases for the current charges. As an extension of this argument, Johnson . argues interpreting § 558.018.5(3) to apply to charged acts violates his right to a jury trial, guaranteed by the Sixth and Fourteenth amendments to the United States Constitution and article I, § 18(a) of the Missouri Constitution.
Generally, to preserve an allegation of error, it must be presented to the circuit court in a motion for new trial. E.g., State v. Winfield, 5 S.W.3d 505, 511 (Mo. banc 1999); Rule 29.11(d). Here, however, the claim of error relates to the circuit court applying § 558.018.5(3) to Johnson, which he raised at the first opportunity and again at sentencing; therefore, this claim 9f error is preserved.
“This Court’s primary, rule of statutory interpretation is-to give effect to legislative intent as reflected in the plain language of the statute at issue.” Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). “It is a basic rule of statutory construction that words should be given their plain and ordinary meaning whenever possible.” State ex
Section 558.018.5(3) is unambiguous. It refers simply to “an act or acts against more than one victim.” Nowhere does it refer to “prior” acts or “previous” acts. To hold, as Johnson argues, that § 558.018.5(3) applies only to prior acts, this' Court would not only have to impermissibly add language to an unambiguous statute,. but also impermissibly find § 558.018.5(3) to be superfluous. Section 558.018.5(2) already encompassés the same general types of acts as § 558.018.5(3)—those which would constitute an offense pursuant to § 558.018.4—but § 558.018.5(2) specifically refers to .acts “previously committed.” Therefore, giving effect to legislative intent reflected in the unambiguous plain language, § 558.018.5(3) applies not only to prior acts, but also applies to acts that are the bases for the current charges. With nothing for this Court to construe,‘this is not a case in which this Court must apply principles of statutory construction to choose between plausible, competing interpretations. See Bateman, 391 S.W.3d at 446; Witte, 414 S.W.3d at 461.
Johnson also argues this “interpretation” is unconstitutional. But because this is not a matter of construction or competing interpretations—merely one of applying § 558.018.5(3)’s unambiguous plain language—Johnson’s argument is necessarily a challenge to the constitutional validity of § 568.018.5(3) on its face. See New Garden Rest., Inc. v. Dir. of Revenue, 471 S.W.3d 314, 318 (Mo. banc 2015). This part of Johnson’s argument was not presented to the circuit court at any point and, therefore, has not been preserved. See State v. Driskill, 459 S.W.3d 412, 426 (Mo. banc 2015) (“To preserve a constitutional claim of error, the claim must be raised at the first opportunity with citation to specific constitutional sections.”). Nevertheless, because this is the first challenge to the constitutional validity of § 558.018.5(3) to reach this Court, this Court will exercise its discretion to review this argument ex gratia.
“Generally, to prevail in a facial challenge, the party challenging the statute must demonstrate that no set of circumstances exists under which the statute may be constitutionally applied.” State v. Jeffrey, 400 S.W.3d 303, 308 (Mo. banc 2013), “Thus, the general rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” Id, (internal quotations omitted). In this case, there is no error, plain or otherwise, because § 558.018.5(3) is not facially unconstitutional.
Johnson’s constitutional challenge is premised on the United States Supreme Court’s decision in Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In Alleyne, the Supreme Court held, pursuant to the Sixth Amendment’s right to a jury trial, “Any
Johnson argues that, in applying to the currently charged acts, § 558.018.5(3), in conjunction with § 558.021, is unconstitutional because it “allow[s] for the trial court to find in a jury trial that the defendant actually committed the crimes with which he has been charged before the case is submitted to the jury” and thus “force[s] the trial court to find facts which increase the mandatory minimum punishment in violation of Alleyne.” Pursuant to § 558.018.5(3), the fact that increases the mandatory minimum sentence is that the defendant committed acts against more than one victim. According to Alleyne, this fact must be submitted to and found by the jury. 133 S.Ct. at 2155. That this fact may be found based on the current charges does not run afoul of Alleyne. If anything, it means that, despite a statutory scheme requiring only the circuit court to find the fact, the fact will necessarily also be submitted to the jury for determination.
Here, for example, the jury found beyond a reasonable doubt Johnson committed acts against more than one victim in that Johnson committed first-degree statutory sodomy and first-degree statutory rape as to both D.P. and R.J. Therefore, no constitutional violation resulted in subjecting Johnson to an increased mandatory minimum sentence. See Alleyne, 133 S.Ct. at 2155. That the circuit court did not follow the timing requirement of § 558.021.2 is immaterial to the constitutional analysis. Even if the circuit court would have applied the plain language of § 558.018.5(3) and, in accordance with § 558.021.2, determined prior to submission of the charges to the jury that Johnson was a predatory sexual offender based on findings he committed the charged acts against D.P. and R.J. that pre-submission determination, by itself, would not have violated Johnson’s constitutional right.
Johnson Has Not Established Manifest Injustice Resulted From the Circuit Court’s Violation of § 558.021.2
Johnson argues the circuit court erred or plainly erred in finding him to be a predatory sexual offender after the case had already been submitted to the jury because this violated § 558.021.2 and his right to due process guaranteed by the Fourteenth Amendment to the United States Constitution and article I, § 10 of the Missouri Constitution. At the sentencing hearing, Johnson did not object to the circuit court finding him to be a predatory sexual offender on the basis that doing so violated § 558.021.2. An objection “must be specific and made contemporaneously with the purported error.” Driskill, 459 S.W.3d at 426. Because Johnson failed to preserve this claim of error, it is entitled only to plain error review. Id.
“[P]lain errors affecting substantial rights may be considered in the discretion of the court when the error has resulted in manifest injustice or miscarriage of justice.” State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014). “First, the Court must determine whether the claimed error is, in fact, ‘plain error[ ] affecting substantial rights.’ ” Id. “An error is plain if it is ‘evident, obvious, and clear.’” Id. “Substantial rights are involved if, facially, there are significant grounds for believing that the error is of the type from which manifest injustice or miscarriage of justice could result if left uncorrected.” Id. “Second, if plain error affecting substantial rights is found, the Court determines whether the error actually did result in manifest injustice or a miscarriage of justice.” Id. “Manifest injustice is determined by the facts and circumstances of the case, and the defendant bears the burden of establishing manifest injustice.” State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006). “To be entitled to relief under the plain error rule, an appellant must go beyond a mere’ showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights.” Winfield, 5 S.W.3d at 516. “In other words, the appellant must show that the error affected his rights so substantially that a miscarriage of justice or manifest injustice will occur if the error is left uncorrectéd.” Id.
The circuit court here did not find Johnson to be a predatory sexual offender until his sentencing, after the case had been submitted to the jury. Section 558.021.2 requires the circuit court to make the predicate findings prior to submission of the case to the jury. This Court has emphasized the importance of statutory timing requirements when the circuit court finds the defendant to be a status offender (e.g., prior, persistent, or chronic offender). See Collins, 328 S.W.3d at 709-10; State v. Severe, 307 S.W.3d 640, 644-45 (Mo. banc 2010); State v. Teer, 275 S.W.3d 258, 260-62 (Mo. banc 2009); State v. Emery, 95 S.W.3d 98, 101-02 (Mo. banc 2003). The circuit court’s failure to comply with the timing requirement is evident, obvious, and clear. See In re Adoption of C.M.B.R., 332 S.W.3d 793, 809 (Mo. banc 2011) (“Here, the statutory errors are evident, obvious, and clear from the record, so the issue is whether they resulted in manifest injustice or a miscarriage of justice.”). The circuit court’s error facially involves sub
Johnson points to several cases in which this Court or the. court of appeals found either prejudice or manifest injustice resulted when the defendant was sentenced as a status offender after the circuit court violated similar statutory requirements and the defendant was subjected to a punishment greater than the maximum sentence would have been had the defendant not been found to be a status offender. Johnson analogizes his case to these because he was sentenced to a mandatory minimum sentence greater than the mandatory minimum sentence he would have been subjected to had he not been sentenced as a predatory sexual offender. Assuming without deciding Johnson is correct—that there is no basis to distinguish between a higher maximum sentence and a higher minimum sentence—he still fails to recognize that the nature and context of the circuit court’s statutory violation is of the utmost importance in determining whether manifest, injustice has resulted. See Baxter, 204 S.W.3d at 652 (“Manifest injustice is determined by the facts and circumstances of the case.... ”). Manifest injustice does not automatically result simply because the circuit court violated § 558.021.2, and the cases relied upon by Johnson are readily distinguishable.
This Court has held either prejudice or manifest injustice results when the defendant is sentenced as a status offender without the State offering the evidence necessary to establish such status. See Collins, 328 S.W.3d at 708-10; Severe, 307 S.W.3d at 642-645; Emery, 95 S.W.3d at 101-02. The court of appeals also has held manifest injustice results when the circuit court sentences a defendant-as a status offender without finding the necessary facts, see State v. Wilson, 343 S.W.3d 747, 750-51 (Mo. App. 2011), and when the circuit court sentences a defendant as a status offender after' allowing the State to offer evidence after submission of the case to the jury because its pre-submission evidence was insufficient, see State v. Starnes, 318 S.W.3d 208, 210-18 (Mo. App. 2010). There is prejudice or manifest injustice in these cases because the respective defendants were sentenced based on an offender status never proved by the State or never expressly found by the circuit court—i.e., the necessary preconditions to sentencing a defendant as a status offender were altogether absent—or the State was unfairly given “‘two bites at the apple’ when the statute allpws only one bite.” Severe, 307 S.W.3d at 645.
Here, however, Johnson does not argue that any of the necessary preconditions were altogether absent or that the State was unfairly given more than one opportunity to carry its burden of proof.'Rather, Johnson argues he was prejudiced because the circuit court’s findings were' not made prior to submission to the jury and Alleyne required submission to the jury for determination. Johnson is incorrect.
In Teer, this Court held the defendant was prejudiced by the circuit court’s failure to follow § 558.021.2 by finding the defendant to be a status offender after the jury had already recommended a sentence. 275 S.W.3d at 260. Although the circuit court also erred in allowing the State to untimely charge, the defendant as a status offender and untimely offer its evidence, the principal opinion focused on the timing
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.
Id. at 262 (emphasis added).
Unlike Teer, the circuit court’s untimely findings in this case did not remove Johnson’s right to jury sentencing and did not deprive Johnson of the benefit of a more lenient jury-recommended sentence. Further, Johnson waived jury sentencing prior to trial and did not reacquire his right to jury sentencing simply because the circuit court failed to find he was a predatory sexual offender prior to submission of the case. Finally in its. written findings, the circuit court independently found the predicate facts, without reference to or reliance on the jury’s verdicts..
Ultimately, Johnson received the same sentence he would have received if the circuit court had not initially believed, mistakenly, that § 558,018.5(3) did not apply to charged acts. Johnson has established only that his sentence did not reflect the circuit court’s initial mistake in law because the circuit court realized its mistaken reading of the statute and corrected its mistake prior to sentencing Johnson. Though the circuit court’s correction was untimely, and thus error, it did not deprive Johnson of any possible benefits of jury sentencing, did not allow the State an unfair advantage, and did not lack foundational support in the State’s charging or evidence. The appellate decisions relied upon by Johnson are inapposite, and Johnson has shown no specific reason that, considering the facts and circumstances unique to his case, the circuit court’s error resulted in manifest injustice. Accordingly, Johnson has failed to carry his burden on plain error review. See Baxter, 204 S.W.3d at 652; Winfield, 5 S.W.3d at 516.
Conclusion
The circuit court’s judgment is affirmed.
. Statutory citations are to RSMo Supp. 2013.
. The offenses involving L.J. were not predicate offenses for purposes of finding Johnson to be a predatory sexual offender.
. In its written findings of fact, the circuit court found Johnson committed the acts in Count I (first-degree statutory rape) and Count II (first-degree statutory sodomy) as to D.P. and the acts in Count VI (first-degree statutory rape) and Count VIII (first-degree statutory sodomy) as to R J.
. To run concurrent to Johnson’s life sentences, the circuit court also sentenced Johnson to four years’ imprisonment for each of his three incest convictions and seven years' imprisonment for his second-degree statutory rape conviction. Johnson does not challenge these four other sentences.
. Johnson was convicted of two counts of first-degree statutory rape as to a victim less than 12 years old, which carries a possible sentence of 10 years'to life imprisonment, and one count of first-degree statutory rape .as to ,a victim less than 14 years old, which carries a possible sentence of 5 years to life imprisonment. Section 566.032. Johnson was convicted of three counts of first-degree statutory sodomy as to a victim less than 12 years old, which carries a possible sentence of 10 years to life imprisonment, and two counts of statutory sodomy as to a victim less than 14 years old,, which carries a possible sentence of 5 years to life imprisonment. Section 566.062.
. The Sixth Amendment is applicable to the states through the Fourteenth Amendment. E.g., State v. Alexander, 620 S.W.2d 380, 384 (Mo. banc 1981). "[Article] I, § 18(a) of the Missouri Constitution protects the same rights as the Sixth Amendment of the United States Constitution.” State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991). Johnson also references article I, § 10 of the Missouri Constitution and the due process provision, but makes no separate and distinct due process argument.
. Johnson argues the circuit court’s pre-sub-mission findings in this context would "inappropriately force the trial court to abandon neutrality and determine the defendant’s guilt before the case has even been submitted to the jury.” "The United States and Missouri Constitutions guarantee a criminal defendant an impartial tribunal.” State v. Taylor, 929 S.W.2d 209, 220 (Mo. banc 1996). Pre-submission findings do not mean the circuit court is not impartial any more than a guilty verdict returned by the jury means the jury is not impartial. Furthermore, the circuit court’s pre-submission findings of fact do not remove the defendant’s right to have the jury determine the same facts occur outside of the jury's hearing so as to not influence its verdict. § 558.021.2.
. Requiring a trial court to also find the necessary facts is a layer of protection above and beyond that required by Alleyne.
. In contrast, the separate opinion concurring in the result in Teer focused on the fact that, after the case had already been submitted to the jury, the circuit court allowed the State to amend its information to charge the defendant as a status offender and then offer evidence to establish such. Id. at 263 (Fischer, J., concurring in result) (“The prejudice to the defendant in this case is that the rules of the game were changed after the game was over.... [H]ad he known there would not be jury sentencing, he would have employed a different trial strategy.”).