State of Missouri v. Quincy D. Giles

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
)
Respondent, )
WD81860
v. )
)
OPINION FILED:
)
September 24, 2019
QUINCY D. GILES, )
)
Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Jalilah Otto, Judge
Before Division Four: Karen King Mitchell, Chief Judge,
Anthony Rex Gabbert, Judge, and W. Ann Hansbrough, Special Judge
Quincy Giles appeals, following a jury trial, his convictions of two counts of first-degree
robbery, § 570.023,1 and two counts of armed criminal action, § 571.015, for which he was
sentenced, as a persistent offender, to concurrent terms of eighteen years’ imprisonment on each
count. Giles raises two claims on appeal. First, he argues that the trial court erred in failing to
grant him allocution before pronouncing sentence. Second, he argues that the trial court erred in
finding no probable cause to believe that Giles received ineffective assistance from trial counsel,
1
All statutory citations are to the Revised Statutes of Missouri, as updated through the 2016 Supplement.
following the trial court’s inquiry under Rule 29.07(b)(4).2 Because there is merit to Giles’s first
point, we vacate his sentence and remand with directions that the trial court grant Giles his right
to allocution and then resentence him. In light of the disposition of Point I, we need not consider
Point II.
Background
Around 4:27 in the morning of June 14, 2017, the Cenex gas station at 71st Street and
Troost in Jackson County was robbed by a man wearing a dark hoodie and dark pants and
brandishing a handgun. Approximately thirty minutes later, around 5:00 a.m., a 7-11 gas station
on Blue Ridge Road—seven-to-eight miles from the Cenex station—was robbed by the same man
wearing a dark hoodie and dark pants and brandishing a handgun. Both robberies were captured
on surveillance video, and both depicted the assailant carrying a blue bag and getting into the same
vehicle to leave the scene. The man was subsequently identified as Quincy Giles, who happened
to reside between three-and-a-half and four miles from both of the gas stations.
The State charged Giles with two counts of first-degree robbery and two counts of armed
criminal action. Following trial, the jury found Giles guilty as charged. For reasons that are
unclear in the record, Giles did not file a motion for new trial.3 After hearing argument from both
the State and Giles’s counsel, the trial court pronounced sentence of eighteen years’ imprisonment
on each count, with all terms to run concurrently. At no point did the trial court ask Giles if he
had any legal cause to show why judgment should not be pronounced against him.
2
All rule references are to the Missouri Supreme Court Rules (2018).
3
At the sentencing hearing, the trial court noted that Giles’s counsel had orally moved for an extension to
file a motion for new trial, but none was filed. Trial counsel noted, “With regard to a motion for a new trial, same sort
of situation here. The client had to make some decisions about what to move forward with, and decisions were made,
and that is the reason there was no motion filed.”
2
The trial court then questioned Giles regarding the assistance of counsel. Giles voiced
several complaints. Trial counsel questioned Giles directly and elicited facts conflicting with some
of Giles’s complaints. The trial court stated:
Okay. Fair enough. And just so we’re clear, I mean, this is not the
post-conviction hearing today. I just needed to make a determination whether or
not there’s probable cause that exists as to whether or not there was effective
assistance of counsel, and it sounds to me like there are some factual discrepancies
as to the number of visits, what happened in those visits, and the nature of those
conversations are—were at that time.
I will make a finding with regard to ineffective assistance of counsel. There
may or there may not be, that will merit itself out in due time. You will have your
position, Mr. Giles, with regard to that. You will have your position as well, [Trial
Counsel].
In the written sentence and judgment, the trial court found “no probable cause to believe that
Defendant has been ineffectively assisted by counsel.” Nonetheless, the trial court determined
that, “pursuant to Missouri Supreme Court Rule 29.07, counsel is hereby ordered to file (1) a
Notice of Appeal and (2) a Motion for Defendant to Proceed in Forma Pauperis within 5 days
of the date of this judgment.” (Emphasis in original.) Giles appeals.
Analysis
Giles raises two claims on appeal. In his first point, he argues that the trial court erred in
failing to grant him allocution pursuant to § 546.570 and Rule 29.07(b)(1). In his second point, he
argues that the trial court erred, following its Rule 29.07(b)(4) inquiry, in determining that there
was no probable cause to believe Giles received ineffective assistance from counsel.
A. The trial court erred in failing to grant allocution.
“When the defendant appears for judgment, he must be informed by the court of the verdict
of the jury, and asked whether he has any legal cause to show why judgment should not be
pronounced against him . . . .” § 546.570; see also Rule 29.07(b)(1) (“When the defendant appears
3
for judgment and sentence, he must be informed by the court of the verdict or finding and asked
whether he has any legal cause to show why judgment and sentence should not be pronounced
against him.”).4 Allocution is the questioning of the defendant regarding legal cause as to why
judgment should not be pronounced. State v. Pruitt, 169 S.W.2d 399, 400 (Mo. 1943). “Allocution
is granted so that the defendant has an opportunity to raise any infirmities in the sentencing
procedure.” State v. Johnson, 245 S.W.3d 288, 296 (Mo. App. W.D. 2008) (quoting State v.
Athanasiades, 857 S.W.2d 337, 343 (Mo. App. E.D. 1993)). Generally, “where allocution was not
accorded and judgment and sentence were pronounced . . . , the cause should be remanded . . . for
allowance of allocution and repronouncement of judgment and sentence.” State v. Turpin, 61
S.W.2d 945, 949 (Mo. banc 1933). The only exceptions to this rule are: (1) where the defendant
has been heard on a motion for new trial; or (2) where the convictions involve solely
misdemeanors. § 546.580.
Here, Giles’s convictions are all for felonies, and he did not file a motion for new trial.
Thus, neither of the exceptions to remand applies. The State concedes Giles’s claim of error in his
first point, and we agree. Point I is granted. Giles’s sentences are vacated, and this matter is
remanded for allocution and resentencing.5
4
In his brief, Giles debates whether this claim should be deemed preserved in light of the fact that Giles did
not raise it before filing his brief. We need not determine whether the claim is preserved or what steps would be
required to do so, as it is clear that Giles is entitled to relief under any applicable standard of review, and the State
concedes the same.
5
In light of our disposition of Point I, we need not consider Giles’s Point II, as he will be resentenced and
therefore subject to a new Rule 29.07(b)(4) inquiry and determination by the trial court on remand. Giles argues that
we should address his second point, as it is likely to arise again on remand. We disagree. Upon resentencing, Giles
will be subject to a new Rule 29.07(b)(4) inquiry with different counsel. Issuing any kind of decision at this time
would amount to an advisory opinion. “An opinion is advisory if there is no justiciable controversy, such as if . . . the
decision is based on hypothetical facts.” State ex rel. Heart of Am. Council v. McKenzie, 484 S.W.3d 320, 324 n.3
(Mo. banc 2016).
4
Conclusion
Because the trial court failed to give Giles the opportunity for allocution on his felony
convictions and he did not file a motion for new trial, his sentence is vacated and the case is
remanded for allocution and resentencing.
Karen King Mitchell, Chief Judge
Anthony Rex Gabbert, Judge, and W. Ann Hansbrough, Special Judge, concur.
5