State of Missouri v. Jason L. Berry
506 S.W.3d 357
| Mo. Ct. App. | 2016Background
- On May 23, 2014 E.W. reported an intruder (identified in a photo lineup as Jason L. Berry) forcibly entered her home, assaulted her, kissed her breasts, choked her, and raped her; physical and DNA evidence linked Berry to the assault.
- Berry was indicted and convicted by a jury of first‑degree burglary (Class B), first‑degree rape (unclassified), and first‑degree sexual abuse (Class B/C depending on offender status); acquitted of sodomy.
- The trial court found Berry a prior and persistent offender and orally pronounced sentences: 30 years (burglary), 70 years (rape), and 30 years (sexual abuse), to run consecutively; the written judgment showed 30, 70, and 15 years respectively.
- The State moved nunc pro tunc to correct Count IV (sexual abuse) from the orally pronounced 30 years to 15 years (claiming statutory maximum for a persistent offender applied), and the court entered the nunc pro tunc order resentencing Berry to 15 years without Berry being personally present.
- Berry appealed, raising (1) instructional error for the sexual‑abuse verdict director (failure to require jury find the victim was female) and (2) multiple sentencing errors, including denial of the right to be present at resentencing and alleged misunderstanding of sentencing ranges.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Berry) | Held |
|---|---|---|---|
| Instructional omission: verdict director for sexual abuse omitted explicit finding that victim was female | Instruction complied with MAI‑CR pattern; victim’s sex was established by testimony and evidence so no plain error | Instruction failed to include essential element (that E.W. was a woman), warranting relief under plain‑error review | No plain error; instruction followed MAI‑CR pattern and victim’s sex was not seriously disputed, so no manifest injustice |
| Resentencing by nunc pro tunc on Count IV without defendant present | State conceded the written sentence was legally required to be corrected to reflect proper statutory range for a persistent offender and moved to correct clerical/sentencing error | Berry argued due process and statutory rights required his personal presence at resentencing (§§546.550, 546.560; Rule 29.07), so the nunc pro tunc resentencing was invalid | Court found plain error: defendant’s due‑process right to be present at sentencing was violated; vacated Count IV sentence and remanded for resentencing on that count |
| Lawful maximum for burglary as prior and persistent offender | State argued persistent‑offender finding increases maximum to that of next felony grade (A felony max) | Berry argued trial court misapprehended range and raised plain‑error challenge to 30‑year burglary sentence | Denied: 30‑year sentence is within statutorily authorized maximum for a persistent offender convicted of a B felony; no plain error shown |
| Plain‑error standard and preservation | State noted trial counsel made no objections and requested appellate plain‑error review only where manifest injustice would result | Berry urged plain‑error review of instructional and sentencing errors | Court applied Rule 30.20 plain‑error framework and granted relief only where due‑process violation at resentencing was shown; other claims denied |
Key Cases Cited
- State v. Zetina‑Torres, 482 S.W.3d 801 (Mo. banc) (plain‑error instructional omissions reviewed for manifest injustice)
- State v. Wurtzberger, 40 S.W.3d 893 (Mo. banc) (plain‑error review for unpreserved jury‑instruction claims)
- State v. Holmes, 491 S.W.3d 214 (Mo. App. W.D.) (two‑step plain‑error analysis)
- State v. Washington, 249 S.W.3d 255 (Mo. App. W.D.) (defendant’s right to be personally present at sentencing)
- State v. Cowan, 247 S.W.3d 617 (Mo. App. W.D.) (statutory construction of persistent‑offender sentencing ranges)
- State v. Irvin, 944 S.W.2d 592 (Mo. App. W.D.) (oral sentence controls written judgment; defendant must be present to permit correction of discrepancy)