STATE OF MISSOURI, Plaintiff-Respondent v. GARY D. MORTON

STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
v. ) No. SD36439
) Filed: January 25, 2021
GARY D. MORTON, )
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY
Honorable Kenneth M. Hayden, Circuit Judge
AFFIRMED
Gary Morton (Defendant) appeals from an amended judgment entered after
resentencing by the trial court pursuant to the mandate issued by this Court in Defendant’s
first appeal. Defendant presents a single point raising alleged trial court error that preceded
the entry of the original judgment. For the reasons set forth below, the law of the case
doctrine precludes us from addressing the merits of Defendant’s point.
In July 2015, Defendant was charged by information with committing the following
offenses: Count 1 – the unclassified felony of statutory sodomy in the first degree, in
violation of § 566.062; Count 2 – the class A felony of child molestation in the first degree,
in violation of § 566.067; and Count 3 – the class B felony of child molestation in the first
degree, in violation of § 566.067.1 After a bench trial, Defendant was found guilty on all
counts. The trial court imposed concurrent 15-year sentences for Counts 1 and 3, and a
concurrent 20-year sentence for Count 2.
In Defendant’s direct appeal, he challenged only the sufficiency of the evidence to
support his conviction on Count 2 for the class A felony of child molestation in the first
degree. See State v. Morton, 574 S.W.3d 788, 790 (Mo. App. 2019). This Court found
merit in Defendant’s point. Id. Therefore, we reversed the trial court’s judgment only as
to the Count 2 conviction and sentence. Id. at 793. Our mandate issued on May 30, 2019.
In the mandate, we remanded the case with directions for the trial court “to enter a
conviction for the lesser-included offense of class B felony child molestation in the first
degree and to proceed with sentencing accordingly, all consistent with the opinion of the
Court herein delivered.”
The trial court complied with the mandate via an amended judgment entered on
November 7, 2019. On Count 2, Defendant was convicted of the lesser-included offense
of the class B felony of first-degree child molestation, in violation of § 566.067, and given
a concurrent 15-year sentence.
Defendant has appealed from the amended judgment. His single point relied on
contends the trial court erred:
by trying the case to verdict because it abandoned its role as arbiter of due
process in a fair trial, in that it witnessed the complete breakdown of the
adversarial process and thereby violated [D]efendant’s fundamental rights
to due process, a fair trial, and right to counsel as guaranteed by [the] United
States Constitution and the Constitution of the State of Missouri.
1
All references to statutes are to RSMo Cum. Supp. (2013).
2
The State argues that this Court’s prior decision in Defendant’s first appeal is the law of
the case and precludes relitigation of issues that could have been raised in that appeal. We
agree.
Our prior opinion disposed of all issues of trial court error raised in the first appeal.
We remanded the case so that the trial court could enter the proper lesser-included offense
conviction on Count 2 and resentence Defendant. The trial court followed the directions
in our mandate. Defendant does not contend otherwise in this appeal. His attempt to
relitigate alleged trial court error that preceded his resentencing is barred by the law of the
case doctrine.
State v. Bohlen, 698 S.W.2d 577 (Mo. App. 1985) (Bohlen II), is directly on point.
There, the case was remanded by the eastern district of this Court “for the sole and limited
purpose of resentencing based upon evidence of prior convictions.” Id. at 578. After
resentencing, the defendant appealed again and raised issues of alleged trial court error that
preceded resentencing. The eastern district declined to address the merits of the
defendant’s argument:
We do not reach this issue because all that remained in the case after remand
in Bohlen I was the matter of resentencing if there was evidence from which
the court could find defendant was a persistent offender. Defendant cites
no authority supporting his claim to a “reappeal” on matters already decided
in the first appeal after a limited remand. We have found none. We apply
the rule decided in civil cases that all points presented and decided in an
appellate decision remain the law of the case in subsequent proceedings
both in trial and appellate courts. To do otherwise would have the effect of
granting successive direct appeals in a criminal case and that procedure has
not been authorized by § 547.070 RSMo 1978. The right to appeal in a
criminal case is purely statutory. It follows that any issue not presented in
the first appeal and not related to the resentencing may not be considered in
an attempted second appeal providing the first appeal followed a final
judgment at the time of the appeal. The decision in Bohlen I followed a
judgment and sentencing in a criminal case and was a final judgment for
purposes of appeal. Accordingly, any issues not raised on direct appeal
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were waived; the issues presented were decided and are binding upon
defendant.
Id. at 579 (case citations and footnote omitted). Our Supreme Court cited Bohlen II with
approval in State v. Graham, 13 S.W.3d 290 (Mo. banc 2000):
“[T]he decision of a court is the law of the case for all points presented and
decided, as well as for matters that arose prior to the first adjudication and
might have been raised but were not.” Shahan v. Shahan, 988 S.W.2d 529,
533 (Mo. banc 1999). The law of the case doctrine prevents successive
direct appeals not authorized by statute. State v. Bohlen, 698 S.W.2d 577,
579 (Mo. App. 1985).
Graham, 13 S.W.3d at 293. The holdings in Graham and Bohlen II are consistent with
the well-recognized principle that, when “a case on direct appeal is remanded for
resentencing, a defendant is entitled to have the new judgment reviewed to determine
whether the judgment entered by the trial court is in conformity with our mandate.” State
v. Olney, 987 S.W.2d 466, 468 (Mo. App. 1999); see also State v. Galvan, 744 S.W.2d
510, 511 (Mo. App. 1988) (after resentencing, an appellate court “may review only those
contentions related to matters decided and proceedings conducted on remand”).
In this second appeal, Defendant does not contend that the trial court failed to
follow this Court’s mandate in resentencing Defendant on Count 2. Instead, Defendant
asks this Court to review alleged trial court error that occurred prior to the first appeal, but
was not raised in that proceeding. The law of the case doctrine precludes us from doing
so. Accordingly, Defendant’s point is denied, and the amended judgment is affirmed.
JEFFREY W. BATES, C.J./P.J. – OPINION AUTHOR
GARY W. LYNCH, J. – CONCUR
MARY W. SHEFFIELD, J. – CONCUR
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