State Ex Rel. Taylor v. Steele

can waive a constitutional whether one punishment Nunley did here. so whether Mr. opin- sum, agree principal with the that, can waive a constitutional

ion one if of the facts determination before that Nunley’s then Mr. recognized,

has been brief, post- in his in his

concession hearing Judge before

conviction

O’Malley establish is sufficient so, that, Halbert, under

did but I believe before could occur

such waiver recognized. Anthony ex rel. Michael

STATE

TAYLOR, Petitioner,

Troy STEELE, Warden, Respondent.

No. SC 90925. Missouri,

Supreme Court

En Banc.

May July Denied

Rehearing Office, Angeles, Los

al Public Defender’s LoBue, P. Robert Adam Blumenkrantz Faridi, Patterson, and Muhammad Belk- LLP, York, Tyler & New nap, Webb for Taylor. Hawke, Attorney

Stephen D. General’s Office, for the State. City, Jefferson LLP, Arnold, Mark G. Husch Blackwell Louis, Judges of Retired and Group St. Prosecutors, who as a filed brief friend the Court. RUSSELL, Judge.

MARY R. pleaded guilty Anthony Taylor Michael rape, and kidnapping, to the murder young girl. He twice was sentenced for the After multiple to death murder.1 attempts unsuccessful to have his sentence overturned, he seeks a writ of habeas now corpus, arguing that his death sentence should be He contends that his vacated. by imposed unlawfully death sentence was judge, jury, rather he than and asserts that his sentence violates his con- rights. stitutional relief This Court that habeas is not finds and vacate warranted refuses to sentence.2 death Background I.

Ann Harrison old years was 15 when she died of stab in the trunk of car in wounds 1991, Taylor 1989. In admitted under oath stop, kidnapping rap- Ann from her bus Lundt, her, ing stabbing repeatedly Robert W. Public Defender’s Of- and her with Louis, Larsen, fice, knife.3 pleaded guilty St. Matthew B. Feder- a kitchen He writ, procedural corpus original 2. remedial 1.In addition to histo- Habeas is an tortuous jurisdiction pursuant this Court and has ry opinion, of this case this further detailed in Const, V, art. Mo. sec. grue- Taylor's in the details of involvement killing some can be found in this Court's death accomplice in Ann’s is the previous opinion Taylor’s appeal direct and subject opinion released concurrent to post-conviction appeal, State v. Rule 24.035 opinion, Nunley, 341 S.W.3d 611 State 1996). (Mo. Taylor, 929 S.W.2d banc 2011). (Mo. banc murder, permission ac- first-degree armed criminal be aby sentenced rath- tion, rape. forcible Dur- er than new kidnapping, judge. at 215. His he ing plea proceedings, plea testified that waiver remained in full expect plea bargain (“Al- did not receive or force on remand. See id. at 215-16 the State seek though preferable understood that if the judge to penalty against him for Ann’s whom a is made sentences the defen- dant, murder. sentencing by a if different original judge proves unavailable for sen- sought sentenced tencing injustice does create manifest judge, by jury, than rather ... the sentencing judge [where] has the he judge believed that the trial was less with familiarity prior the proceedings likely him sentence to death. But make an ruling sentencing.”). informed Randall, judge, Judge Taylor sentenced finding statutory after that the fac- Five of days sentencing hearings were tors that been for sentence had held in 1994. Id. at 215. The state pre- established. sented of kidnapping, evidence Ann’s rape, and murder well as showing evidence an

Taylor challenged his sentence in a Rule escape by Taylor. Taylor presented miti- post-conviction 24.035 motion alleging gation through evidence 13 witnesses. See alco- was under influence of id. at 224. Ultimately, Judge Coburn hol A during sentencing proceedings. beyond a found reasonable six doubt statu- Dierker, special judge, Judge assigned was tory aggravating circumstances and three Taylor’s post-conviction decide motion. non-statutory aggravating circumstances Judge Taylor post-convic- Dierker denied of support the death penalty, and he hearing, lengthy tion relief issuing after a only found one mitigating circumstance. findings in 1992 that discussed propri- Judge Id. at 222. imposed Coburn ety Taylor’s of plea sentences. concluding death sentence after Taylor appealed this Court. the mitigating circumstance did not out- summary order this Court vacated weigh the aggravating circumstances.4 Id. his sentences for a and remanded his case at 215. “new penalty hearing, sen- imposition of Taylor sought post-convic- Rule tence, 24.035 of v. entry judgment.” State tion from the (June judgment relief entered after 1993); Taylor, SC74220, Order two-day hearing remand. A was held on see Taylor, also State v. 929 S.W.2d Judge front of (Mo. 1996) I) motion Messina. {Taylor banc (explaining of scope hearing this Rule 24.035 re- case). procedural history Taylor’s Taylor’s] previous plea, lated “not but [to remand, assigned On Taylor’s case was procedure.” rather second sentencing Judge Taylor to a new judge, Coburn. Judge post- Messina overruled 29.07(d) filed Rule motion to withdraw conviction motion. I, guilty plea. Taylor his S.W.2d arguments Taylor again in his appealed Included was to this Court. only appeal sought proportional- to be His mandatory consented sentenced Judge Randall, 565.035.5, judge. ity not the new Id. at under section review RSMo permitted 215-16. He with- and review of the overrul- decisions given draw nor guilty plea, ing plea his was he his motion to withdraw and his his action, years years 1994 sentences included death for for criminal armed Ann’s kidnapping, rape. murder and consecutive terms and life for proceedings. corpus and habeas I ad- conviction Taylor motion. post-conviction (Mo. State, Tay- Taylor See collectively propriety dressed 2008). imposed on remand banc lor’s death post- subsequent and the denial Now, years after admitted motion. conviction Ann, murdering kidnapping, raping, and I established seeking relief before this Court again he is consequences “informed of the sufficiently from his death sentence. that he “under- in 1991 and plea”

of his voluntarily en- consequences stood the Taylor’s Arguments II. at 216. plea.” Id. [his] tered for Habeas Relief there was no error also established he is entitled to habe- Taylor claims that withdraw allow him to later refusal to to life reducing his death sentence as relief was remanded.5 after his case reasons. imprisonment for two that there Taylor I concluded at 215-18. First, relief he maintains that habeas in and errors his case no reversible were because, this af- issue after Court should I be- Taylor his death sentence. affirmed I, Taylor in firmed his death sentence mandate in the case final when the came that a death subsequent case law indicated 17, 1996. At that September issued by judge, imposed could not be time, was set for Janu- Taylor’s execution highlights that by jury. than He rather 3, 1997, date was but that execution ary Ring Supreme States Court the United relief in the federal sought when he stayed 584, 589, Arizona, S.Ct. v. U.S. date scheduled A later execution courts. (2002), 2428, provided 153 L.Ed.2d 556 by was halted on- February 2006 also for any must find facts that are that the going litigation. and that are admitted a defendant unsuccessful Taylor has filed numerous necessary imposition pen- of the death for request in his case. A requests for relief v. alty.6 He also notes that State Whit- from the federal corpus habeas relief for 253, (Mo. 2003), banc field, 107 S.W.3d Bowersox, Taylor v. denied in courts was Ring judge-imposed to vacate a applied (8th Cir.2003) (find- 963, 329 F.3d 968-69 that had been affirmed be- death sentence plea remained valid Taylor’s guilty ing Ring. fore I Taylor remand in be- after this Court’s holdings Ring, Taylor argues legitimate he no substantial and cause Whitfield, progeny apply and their retro- by the expectation being sentenced 1991, actively his case and demonstrate that nor who received his he is entitled to Sixth Amendment be sentenced did he have a remand). that he never sentencing. He contends judge after also same Sixth Amendment to waived his unsuccessfully twice moved case, pleaded guilty when he in his and he withdraw the mandate in 1991. jury sentencing waived post- in other gain failed to relief has Bowersox, penalty; imposition of the death 329 F.3d 968- ranted Cf. (8th Cir.2003). (3) mitigating any evidence was not "suffi- outweigh aggrava- the evidence in cient to that a never has found the (Mo. 443, mons v. 866 S.W.2d Amendment affords a capital murder de- 1993). banc writ of corpus “[A] habeas fendant the find the may person be issued when a is restrained aggravating factors relevant to the imposi- of liberty his her in violation of the tion of penalty. the death Ring, 536 U.S. constitution or laws of the state or federal 609, 122 at Ring S.Ct. 2428. “Cap stated: Amrine, government.” 102 S.W.3d at 545. defendants, ital no less than noncapital defendants, ... are entitled to a jury de Because habeas guards review any termination of fact on which the legis against sentences, unauthorized this Court lature conditions an increase in their maxi considers habeas asserting claims punishment.” 589, mum Id. at 122 S.Ct. that his death sentence exceeds the sen 2428. tence that is legally authorized. See State Steele, ex rel. 510, Zinna v. B. Whitfield (Mo. 2010)

516-17 banc (providing that a claim that the 2003, sentence exceeded what was In in Whitfield, applied this Court permitted by law a cognizable is claim in Ring retroactively7 and set aside defen- proceedings habeas even if argument the dant’s death sentence that had been previ- raised, was raised, or should have been in ously affirmed on appeal Ring before was an earlier proceeding). Taylor, But that, as the decided. held Ring, under Whitfield corpus petitioner, habeas has the the burden defendant was entitled to have a of proof to show that he is entitled to make the “factual determinations on which relief. State ex rel. Jaynes, Nixon v. eligibility his for the death sentence was (Mo. 2002). S.W.3d banc predicated.” Whitfield, 107 S.W.3d at 256. below, defendants, 7. As discussed further ap- retroactivity ed but Whitfield Whitfield's plied retroactivity Missouri’s traditional anal- holding expressly was limited. See 107 ysis finding Ring applied retroactively S.W.3d at 268-69. in that similarly case and in cases with situat- applies jury sentencing even judge the had determined Whitfield, In pleads guilty. where a defendant necessary imposition for issues factual the after the had penalty the death of guilty Blakely, pleaded the defendant first-degree defendant found the facts admitted kidnapping, and “[t]he to reach then was unable but murder alone, supported maxi- plea, standing phase of in the verdict under Wash- mum sentence 53 months” found that at 261. the trial. Id. at ington state law. 542 U.S. Whitfield rights Sixth Amendment defendant’s The sen- S.Ct. 2531. state recommended sentencing Ring were outlined range within the to 53 tence standard when, deadlocked, after the violated Id. at 124 S.Ct. But months. facts under judge found essential when the surprised the defendant was 565.030.4, 1994, that were beyond RSMo section enhanced his sentence impose the death sentence. based state’s recommendation that the judge’s determinations defendant Id. at 261-62. cruelty” had acted with “deliberate toward burden that the observed Whitfield victim.9 See at 124 S.Ct. 2531. id. Ring that the error on the State show judge “imposed The an [on defendant] harmless, and it concluded of 90 months.” Id. ‘exceptional’ sentence error was harm- could not show the State ap- 124 S.Ct. 2531. defendant unknown, based on it was less because that “the pealed, contending deadlock, phase what deprived him his federal procedure con- making the impasse an when re- reached stitutional to have a determine impos- statutory quired determinations all facts beyond legally a reasonable doubt at 262-64.8 sentence. Ac- ing a death to his Id. at essential sentence.” Whitfield, cordingly, defendant S.Ct. ato his death sentence reduced Blakely judge’s impo- that the concluded his death sen- imprisonment of life sentence based on exceptional sition unconstitutionally imposed tence had been finding cruelty” his of “deliberate violated when it was based on determinations rights. the defendant’s Sixth Amendment Id. 271-72. by jury. made a at 303-06, at 2531. Blakely Id. 124 S.Ct. supporting that “[t]he noted facts [the Blakely C. finding cruelty] court’s deliberate were holding to in Subsequent this Court’s by neither admitted nor [the defendant] States Whitfield, by jury.” Blakely United Id. at 303. found Ring by extended reach of de- “every made clear that defendant has the Blakely Washington, 542 claring prosecutor prove in U.S. to insist to nglit that 305-06, facts to legally 159 L.Ed.2d all essential S.Ct. (2004), 313, 124 punishment.” the Sixth Amendment Id. at S.Ct. 2531. State, opined: by been as the 8. has offered record Whitfield regard jury's findings. is silent to the judgment was entered based [B]ecause findings at judge's of fact rather than on the violated, jury, Ring that of law, Washington cruelty” 9. Under "deliberate to the Ring the State to show burden shifted statutorily ground was a enumerated for en- beyond a was harmless reasonable eiror hancing the defendant’s sentence because simply inadequate presumption A is doubt. standard, Blakely, a domestic See high violence case. and no affirma- to meet proof meet U.S. at 124 S.Ct. 2531. tive sufficient to this standard however, outlined, Blakely (approving also S.W.2d 215-18 of the refusal Taylor “nothing a defendant from waiv- to allow prevents plea withdraw his ing Apprendi rights.” undergo jury sentencing his U.S. at after his case was remanded). According Blakely, S.Ct. Accordingly, what guilty, knew, intended, pleads defendant “[w]hen and understood judicial State to seek en- is free sentence when he entered plea para- his ei- long hancements so as the defendant determining mount to whether he waived ther to the relevant or stipulates facts his rights jury sentencing. judicial Id. factfinding.” consents that, record in Taylor’s The case shows

Blakely states: plea when his entered he If are appropriate procured, waivers consequence understood that a of his may offer judicial States continue to guilt was that he not have all factfinding as a matter course to by sentence The jury.10 determined rec- guilty. who plead defendants Even understanding ord demonstrates his may who defendant stands trial consent guilty plea being would lead to him en- judicial factfinding sentenced a judge, not-guilty whereas a hancements, which well may be in his plea being would lead to him sentenced interest if relevant would prej- evidence Moreover, the record makes clear udice him at trial. do not We under- knew the judge would be Apprendi possibly stand how can work considering the State’s recommendation of free, to the detriment of who are if those penalty. testimo- following benefits, they outweigh think its costs its ny Taylor willingly illuminates that de- it inapplicable. render jury’s clined a involvement his sentenc- ing: the plea hearing transcript From Y. Is Not Entitled To Sixth added): pages 8-9 (emphasis Jury Sentencing Amendment Q. you Do also understand that if you plead guilty up it will be to the Jury Sentencing A. Waived judge to decide the sentence on all Blakely, Tay Pursuant whether charges? rights lor waived his to Sixth Amendment A. Yes. jury sentencing is an important consider Q. can you And the maximum that

ation in determining judge-imposed if his get charges, you all of un- on these do Considering authorized. Judge you give derstand that the can case, the facts of his 1991 decision ? the death sentence to plead guilty and sentenced be precludes than A. Yes. judge, by jury, rather

ability now to claim the Sixth Amendment plea hearing transcript From the at jury sentencing. entitles him to pages 9-10: Q. you guilty, un- plead you If do I established that you go derstand guilty plea and waiver not invali- trial? dated after this Court remanded his case hearing.

for a new sentencing See 929 A. Yes. such, Taylor pleaded guilty, then-ap- guilty plea 10. When the trial. As foreclosed plicable statutory having having him his sen- scheme intertwined from determine guilt punishment phases for the tence. Judge impose could sentence and guilty, there plead you And if Q. death. a trial. be would Yes, I do. A. Yes.

A. Now, you you plead guilty, do Q. if understand you Do Q. would left that all that be understand twelve of a in front would be do would be to sen- people? you? tence Yes, I A. do. A. Yes. have would people the twelve

Q. And in their verdict? be unanimous Michael, understand, Q. you ... [D]o Yes. A. be a there would still words, would all twelve other Q. present- state will be hearing where the agree. have to behalf[,] evidence, we, your ing A. Yes. presenting evidence to will be have to be people would Q. The twelve propose Judge what sentence to as to a reasonable doubt beyond convinced charge murder ? on the you’re guilty. state that A. Yes. A. Yes. Judge actually the can enter- Q. And charge, on each that would be Q. And charges. evidence on all tain counts; that? you do understand all four A. I understand. Yes. I do. A. hearing plea transcript From the transcript at plea hearing From the added): (emphasis page 28 added): (emphasis page 13 Q. you there understand that And do Michael, if you Q. do understand sentencing proceeding yet to will be a trial? there won’t be a plead guilty you Judge? front of the occur in Yes, A. I do. Yes, A. I do. essence, giv- be you, in Q. And hearing transcript From the rights. youDo understand ing up those pages 3 n -36 added): (emphasis that? you ... Q. you understand that Do Yes, I do. A. trials, is, might entitled to two Q. waive. we use the word Sometimes where the would decide one trial you waiving you plead guilty, are If degree then murder in the first by jury. right to a trial they you guilty if found Yes, I understand. A. degree.... you Do murder the first that? understand to a trial. Q. A. Yes. Yes, I understand.

A. hearing transcript at

From the added): (emphasis guaranteed you 19-21 what pages Q. No one has you’re going to receive? sentence anyone any promises to Q. Has made to turn out if going how this is A. No. you about you plead guilty? you Q. have been made to promises No to re- No, you’re going what they haven’t. as to sentence A. ceive. guilty you plead know that if Q. You No, going they A. haven’t. for a death

the state is to ask Q. anyone you Q. Has told what sentence You would to confront you’re witnesses, likely witnesses, receive? to subpoena subpoena witnesses in. you Do under- No, A. they haven’t. stand that? Q. you you’re What sentence do think A. Yes. I,

going to receive as to Count murder in Q. The court would then instruct degree? first jury, attorneys argue, would A. What do I think? sentence then they deliberate, would the jury Q. Yes. would deliberate. Do you understand A. know. don’t that? Q. Judge you Do understand that the A. Yes. might you very well sentence to the Q. deliberations, During their all penalty in this case ? find, twelve jurors must beyond a rea- Yes, A. I do. doubt, sonable at least aggravating one Q. you by pleading Do know that you Do circumstance. that? understand today here instead of A. Yes. people deciding, only twelve there will Q. they And if don’t find at least one person deciding, Judge; be one do circumstance, aggravating they then you that? understand must you parole. life without Yes, A. I do. youDo understand that? Q. counts, Judge As to the other A. Yes. you minimum, could sentence to the Q. Now, state has notice of filed may very you well sentence to the circumstances, aggravating nine statuto- maximum on each of the other counts ry you aggravating circumstances. Do charged; you do understand that? understand that? A. Yes. A. Yes. From the plea hearing transcript at Q. you Have talked about those with added): pages (emphasis your attorney; you have those? seen Q. your Have attorneys gone over with A. I’m seeing not real familiar with you the different occur stages that at a them, but I talked have with them about murder in the first degree trial? them. A. Yes. Q. When I say must find one,

at they least must find least one Now, Q. phase the second would be statutory If aggravating circumstance. separate they don’t, front of the same life it’s without Do parole. jury, if do they you guilty you find of mur- that? understand degree. you der in the first Do under- A. Yes.

stand that? Q. they statutory If do find least one Yes, A. I do. circumstance, they aggravating then can any non-statutory determine if there are Q. It be like a would trial. There you un- aggravating circumstances. Do opening would be statements. state derstand that? evidence, present you could present you evidence. Do understand A. Yes.

that? notice, Q. And the has I state filed A. Yes, I do. believe, ^[25] or [26] non-statutory ag- outweigh aggravating the you Are stances do circumstances.

gravating they still are not circumstances that? aware of death; you obliged you do A. Yes. that? understand jury would determine if Q. the And A. Yes. statutory ayyravating circum- the Q. aggravating nonstatutory cir- The final decision would rest with stances jury. you Do that? in the understand and the evidence cumstances case, they the death whether warrant A. Fes. you

penalty. that ? Do understand Q. again will But in this case it all A. up you Yes. Do understand to one man. unanimously that? Q. they must find And penalty. they do warrant death A. Yes.

youDo understand that? Q. you that what want? Is A. Yes. Yes, A. it is. don’t,

Q. they then it’s life with- And if Taylor’s Jury B. Waiver Was you Do understand that? parole. out Purposeful, Not Collateral Yes, A. I do. Guilty To His Plea find Q. they then if that there are And post- Taylor’s statements at initial circumstances aggravating sufficient hearing Dierker in death, Judge conviction before they consider warrant then must 1992 illuminate what understood mitigating there circum- whether are pleaded guilty when he intended you that? stances. Do understand hearing, 1991. At that defense Yes, A. I do. counsel testified that State’s case Q. attorney supplied has your And me strongest against Taylor was “one statutory with mitigating notice of five cases ever encountered” [that he] had presented circumstances that would be possi- “concentrate on led a decision to jury; you understand that? do penalty phase ble evidence” after A. Yes. record pleaded guilty. The reflects Q. then consider And the attorneys with discussions mitigating those circum- whether prospects having about his case stances, case, in the evidence led to a heard versus outweighs aggravating whether strategy seeking purposeful defense they circumstances. And if found that He his coun- judge-imposed sentence. outweigh the mitigating circumstances hope thought sel that his best to avoid the circumstances, then aggravating was have Randall penalty Judge they to life you must sentence without sentence him. parole. youDo that? understand Taylor’s testimony on cross-examination A. Yes. hearing at the post-conviction included: Q. you that when And do understand Well, Q. you your did think that they mitigating circum- consider the getting chances of not death were all unani- they stances that don’t have to good jury? real front of mously mitigating find the same circum- go stances; A. I knew that I didn’t want to you that? do understand of a front A. Yes. that, Q. why Mr. Taylor? And

Q. you And do understand that even if they admitting my guilt. circum- A. mitigating find Because Taylor’s Jury the Q. talking Sentencing I’m not about issue of Of C. Waiver guilt. talking I’m about issue of Remains Valid to punishment. you go Did want Taylor 1. I Did Not Invalidate a jury front of for them to decide Taylor’s Jury Waiver Of you or die? whether would live Sentencing A. but Not then now I do. Taylor unpersuasively argues that PCR Tr. 622-23. Taylor I declared that his guilty plea together testimony, own with not did include a waiver of sentencing during post- other evidence adduced prevented because section 565.006.2 him hearing, conviction convinces this Court having from trial on punishment Taylor guilty intended to at all plead pleaded guilty.12 Contrary after he to the during underlying times case and had dissent, however, assertions of nothing whatsoever to trial on go any desire to Taylor any I or other case has invalidat jury. Taylor issue before the understood Taylor’s purposeful, strategic ed choice in agreed and that the facts of his case com- have his sentence imposed pelled adoption strategy pleading of the not judge, by jury. guilty, sentencing by with a judge rather Taylor rejected Taylor’s I assertions by jury. than trial that he should have been to with- allowed 565.006.2, section Although RSMo plea.13 his It specifically rejected draw 1986,11 Taylor, was not with discussed arguments insufficiently that he was in- counsel concentrated on strategy the best guilty formed when pleaded because his to avoid a death sentence. A counsel had to inform failed him about the viewed as almost certain to recommend possibility jury sentencing pursuant death in of all light the facts case. section 565.006.2. 929 217. S.W.2d at To Taylor was aware of and coun- understood end, Taylor I held: agreed sel’s thinking trial Taylor argues plea also was not should be avoided at all hope costs—his knowingly made because he was not in- lay with a to a who plea might formed a could him.... mercy. inclined to 565.006.2,]jury [Under section sentenc- ing plea record shows with unmistakable after a guilty [was] clarity purposefully waive, and strate- for the defendant rather a gically sought jury sentencing privilege avoid be- State grant.

cause he the guilt did want either did not waive be- portions the sentencing only of his case to be cause he obtain jury could sentenc- presented ing agreed if the it. State The State statutory guilty plea following All references are RSMo withdraw for the unless otherwise indicated. reasons: “he did not receive the benefit of his plea bargain, personally the court failed to provided: 12. Section 565.006.2 "No defen- 24.02, required by admonish him as Rule guilty pleads dant who to a homicide offense plea knowingly voluntarily was not made or who is found aof homicide offense was not the ele- informed of after trial to the court without a shall be first-degree possibil- ments of murder and the permitted by jury a trial issue of on the ity juiy sentencing, there was insufficient except by agree- imposed, to be support plea, factual basis to ment of the state.” was offered to a defective information.” 929 rejected claims in includ- S.W.2d at 215. permitted ed that he should have been

646 by a therefore, jury had no wish to be sentenced there was agree;

did not guilty plea he that his him. A that understood which to inform nothing of strategic acquiescence to be voluntary plea represented not does knowing and by rather than be told irrele- sentenced details defendant require record leaves no doubt that at Failure the decision hand.... vant to section Taylor’s knowledge 565.006.2 Taylor possibility to inform as his impact plea, his had on his aim was jury did not render sentencing unknowing involuntary. jury sentencing.15 to avoid guilty plea Subsequent 2. Law Did Case I in confined was This discussion Taylor’s Not Invalidate Taylor’s challenge that addressing Jury Waiver involuntary plea because was Taylor’s Jury a. Waiver Remains Val- provisions of sec- fully informed about Though id Even It Preceded The Sixth that would have allowed tion 565.006.2 Jury Sentencing Amendment Cases provide him sentenc- agree State to assertions, Taylor’s ing.14 negate Contrary the numer- did 1991 jury sentencing facts waiver of is not underlying showing ous co-defendant, Taylor’s analysis Nunley, mirror this Taylor's 14. has chal- case must Nunley. from validity lenged the constitutional of section Nunley, this Court concludes 565.006.2. Taylor’s arguments 15. as to his counsel’s fail- post- is 565.006.2 constitutional that section ure inform him about section 565.006.2 Ring, it preceded capacity case law the to think at logically invalidated the time he counsel.” outlining right jury a Sixth Amendment waived Id. at 859. to sentencing. determining whether a When jury When waived sentencing as requisite understanding defendant has the part plea of his did not matter an knowing, to render “affirmative volun- right jury whether his sentencing at waiver,” and not tary intelligent courts do time stemmed from the constitution a defendant to know if the require source or a statute.16 The source of right of the is the being waived constitu- right by to be sentenced a was irrele- Instead, or a statute. the tion relevant strategic vant to his choice avoid the un- assessment is whether defendant sentencing. The record clear that Tay- is consequences right derstood the consequence lor understood that a of his gave when he it up. plea and waiver in 1991 was he would by be sentenced a judge, by a Hunter, In State v. opined: His jury by waiver was not motivated the determining test for if the is The waiver source his right by to be sentenced a by intelligently knowingly strategic made and de- but his choice to avoid jury sentencing potential cir- pends particular facts and because of above, case, consequences. harsh surrounding cumstances in- As discussed simply an waiver was not cluding adverse background, experience, and consequence collateral of his plea. conduct of the accused. Defendant’s Instead, his waiver of jury participation in knowledge relevant of all facts need purposeful strategy a to attempt was in the trial record to a appear support to avoid death penalty. When finding that the waiver ... proper. was pleaded guilty and waived involve- limit inquiry To the focus what ment in his case in he received what just a defendant said before the waiver he at that did wanted time—he not want permitted of counsel was would forbid jury, no matter under what stat- inquiry necessary the broad fair to a face ute or provision constitutional assessment of whether knew defendant jury sentencing existed. appreciated doing and what he was when he waived to counsel. supports finding The record that Tay- knowing, voluntary, lor and made a intelli- (Mo. 1992) (dis- 840 S.W.2d banc gent He the judge’s waiver. understood cussing that a waiver of defendant’s coun- waiver, inquiries plea about his and he (internal knowing intelligent) sel and understood that his case would not be omitted). quotations and citations presented jury, is argu- and there no finding the defendant’s waiver was incapable ment that the time of sufficiently and knowing intelligent choosing thinking logically strategical- and Hunter, ly this Court noted that “the defen- forego participation his case. judge, right being dant understood the acknowledged promises He were waived, made, being guilty, pleaded choices made to him when he plead probably tegic tion to secured a different waiver invalidated resounding retroactively by Ring. Nunley, outcome. ... answer is a See " ("The Ring provided ‘No!’ Dierker Memorandum at 61-62. fact that an additional source of sentenc- [the Comparatively, opinion ing] Nunley pled guilty does this Court’s re- after not make co-defendant, garding Taylor’s sentencing] Nunley, Nunley’s like- waiver [of 'unknow- ”). rejects ing.' wise the notion that a stra- defendant’s It S.Ct. consider- clauses.

he knew that him rejected Michigan’s argument to sentence to death. de- ing whether appointed had waived his fendant ac- strategic purposeful, by entering counsel appellate judge, be sentenced quiescence to contendere, finding: “At the time [the nolo evaporate in jury, did not instead of [he], in com- plea, entered his defendant] that clarified a case law light of future on mon with other defendants convicted capital for right defen- Sixth Amendment recognized right pleas, had no their by jury. be sentenced dants to counsel he could elect appointed appellate Taylor’s the arguments, Contrary to 623,125 Id. S.Ct. 2582. Hal forgo.” in Supreme opinion Court’s United States not noted that the trial court had bert Michigan, 125 545 U.S. Halbert defendant, “simply the and di informed (2005), 2582, 162 L.Ed.2d 552 does S.Ct. access to rectly,” that there would no re- his waiver invalid or not render counsel in his case. Id. appointed the quire he be allowed evade that 2582. 125 S.Ct. his consequences 1991 waiver. the court Halbert did Whereas trial Michigan addressed a state law Halbert “simply directly” and inform expressly, that who provided pleaded that defendants rights, record the defendant of his the appeal only guilty or nolo contendere could the Taylor’s case shows that trial court did 609-10, Id. at 125 by leave of the court. directly” and discuss with “simply law, indigent the defen- S.Ct. 2582. Under jury participation foregoing that he was only provided were counsel in cer- dants case. was not confused about his tain Id. at situations. S.Ct. and he foregoing, what he was received in Halbert in- indigent The defendant was strategically he chose. in which formed of circumstances counsel Halbert, Unlike the defendant in who was appointed, he may have been but was not right have alleged impliedly waived that, informed absent cir- expressly such detriment, clearly unequiv- and his cumstances, not be provid- counsel would have his ocally rejected opportunity his 1,n. ed. at 643 125 S.Ct. 2582. The by a jury case heard to obtain his desired counsel, requested defendant but appellate judge sentencing.17 615-16, request Id. at was denied. S.Ct. 2582. Jury b. The Sixth Amendment Sen- ulti- States United tencing Distinguish- Are Cases mately found the defendant was able From Case counsel,

wrongly finding denied that Mich- clearly igan’s providing violat- Because record shows practice counsel Equal Taylor strategically ed the Process waived sentenc- Due and Protection Similarly, Taylor’s distinguish- right privilege, quished also is a known or when case right privilege Yeager, able Smith v. 393 U.S. was exis- from of doubtful (1968). S.Ct. in- supposed L.Ed.2d 246 Smith at the time waiver. tence volved a case which a defendant's constitu- (emphasis U.S. at S.Ct. 277 add- ed). tional but been waived the defen- however, case, dant’s counsel was whether Taylor's unsure there there was important: such a and did not believe it of his issue about doubtful existence jury sentencing causing his counsel confu- Whatever counsel’s reasons this obscure sion, strategically gesture oblige Taylor purposefully waiving the and [in of noblesse judge sentencing hearing], and declined sen- defendant’s we cannot chose tencing. presume intentionally ... relin- ing after the costs and weighing Similarly, benefits also instruc- Whitfield tive in facing jury, case is case. In distinguishable Whitfield, Ring, Whitfield, Court held Apprendi, Blakely, principles from articulated in Ring applied retroactively to a defen- progeny.18 Taylor, and their Unlike dant who did not waive a other and defendants in these cases did not whose sentence imposed by a judge knowingly strategically plead guilty after during deadlocked penal- jury sentencing waive based be- ty phase. Whitfield, 107 S.W.3d at 256. jury sentencing lief that would offer harsh- however, Taylor, Unlike the defendant in er consequences than would sentenc- made a clear choice have his ing. the defendants in other Unlike Whitfield guilt jury, decided cases, Taylor strategically sought judge yet he then was denied that choice when he sentencing judge because believed that the judge undertook to pun- determine his sentencing likely was more to in result ishment after the deadlock. Id. at leniency mercy. Taylor, contrast, purposefully Nothing in or its Ring progeny extends strategically rejected and jury sentencing Sixth Amendment sentencing protec- altogether. to strategically plead tions defendants who clearly Because record shows that guilty and waive purposefully jury sentenc- Taylor knowingly, purposefully, and stra- ing. Blakely expressly And recognizes tegically jury sentencing, avoided he is not acquiesce having defendants can entitled to habeas relief based the dis- their imposed by judge, sentences a rather tinguishable holdings Apprendi, Ring, by than jury, thereby a and their waive Whitfield, Blakely, progeny. or their rights having jury a find the facts essen- tial for a sentence. See 542 U.S. at Application Ring c. No Retroactive Of S.Ct. Progeny Required Or Its Is finding In addition to that Ring While the in Blakely defendant sur- was progeny and its are distinguishable, this prised sentence, by his enhanced finds that Taylor also is not entitled knew judge that the was considering the application Ring retroactive and the State’s recommendation for the available other Sixth Amendment jury sentencing (the yet enhanced death penalty), cases. case law compels No this Court to he still sought sentencing because retroactively Taylor’s invalidate believed that it would be to his benefit and agreement that he would be sentenced sentencing would be to his disad- a judge by jury. rather than such, vantage. contrary As arguments, Summerlin, it is not instructive Schriro 542 U.S. Blakely 2519, 159 defendant in provided (2004), was Sixth 124 S.Ct. L.Ed.2d 442 jury sentencing Court, Amendment Supreme relief after United States in an opin guilty plea, Blakely his published did not involve a ion immediately Blakely, before clearly, defendant intentionally, who Ring declared that did not retroac apply strategically tively waived be- case in sentencing which a death sentence cause it was collaterally not in interest. was attacked after the sen- (and 18. Until strategically case his co-defendant tion which the defendant case), Nunley’s companion pleaded guilty jury sentencing no other be- case and waived fore this Court has addressed the he believed that a would sen- Sixth Amendment situa- in a tence him to death. procedure rule of The tive rule or a watershed review. final on direct tence fairness and implicating the fundamental brought a habeas in Summerlin defendant accuracy proceeding!), and] of the criminal Ring him to claiming that entitled petition rule ... is funda- procedural ... new [a] death sentence pre-Ring relief because when without it the likelihood only mental than by judge rather imposed 349-51, seriously di- Summerlin, of an accurate conviction 542 U.S. See (internal Court, quo- citations and minished.” Id. how- The 124 S.Ct. 2519. omitted). Stoltz found that “[t]he tations ever, concluded: it Blakely rule is not substantive because trial is fundamental range of conduct or the does not alter the procedure, criminal system of our punishes[, the law persons rather] class of the Sixth to enforce States are bound judge may what facts a only it addresses inter- as we guarantees Amendment’s sentence,” and it is not use to determine follow But it does not them. pret magni- rule “of watershed procedural that, has a criminal defendant when explained Id. at 569. Stoltz tude.” ap- round of a full trial one rule is not so fundamental Blakely “[t]he faithfully peals in which the State fairness that without the likelihood under- applied as we the Constitution is seri- an accurate conviction or sentence time, may at the neverthe- stood it diminished,” and it noted that ously “[e]v- litigate his claims continue to less circuit court to consider the ery [federal] indefinitely hopes one that we will Blakely is not retroac- issue has held that Ring day change of heart. tive.” Id. procedural rule announced a new retroactively apply that does not decisions rest on These federal already final on direct review. cases Supreme deci States Court’s United 358, add- (emphasis Id. at 124 S.Ct. 2519 Lane, 489 U.S. Teague sion in ed). (1989). Teag- 103 L.Ed.2d S.Ct. apply that federal courts will provided ue Stoltz, the

Similarly, in States v. United retroactively only rules new constitutional announced its conclusion Eighth Circuit at or if a if a substantive law is issue apply retroactively Blakely that does (1) law is at issue that either procedural or sen- on collateral review of a conviction primary, private of places “certain kinds Fed.Appx. final. 149 tence that is beyond power of the individual conduct Cir.2005) (8th that the (noting 568-69 also law-making authority pro criminal Eighth previously Circuit held (2) “watershed rules scribe” or establishes retroactively Apprendi apply does not “implicate procedure” of criminal The defendant proceedings). collateral fairness of the trial” and fundamental here, Stoltz, like was before an accu which the likelihood of “without a Blake- petition raising court on a habeas seriously is diminished.” rate conviction “[although a ly issue. Stoltz noted that (1989) 311-13, 109 S.Ct. 1060 489 U.S. procedure criminal announced new rule of omitted). (internal In quotations Whit all crimi- by applies Court however, decided to offer field, this Court appeal, direct pending nal cases then on new con application retroactive greater are al- to convictions that apply does not procedural matters stitutional rules over final, in limited circum- ready except Teague require: than highlighted It stances.” Id. at 568. reasons,

“[wjhere final, a matter of state rule For these is the new a conviction law, adopt not to chooses if a substan- only is retroactive it is either Thus, only analysis but Teague instead chooses those few Missouri death applying penalty longer continue the Linkletter [v. cases are on Walker, 1731, 14 381 U.S. 85 S.Ct. appeal direct and in which the (1965) Denno, L.Ed.2d 601 ]-Stovall [v. was unable to reach a verdict and the U.S. S.Ct. L.Ed.2d required made the factual deter- (1967) approach to the issue of ] imposed pen- minations and the death retroactivity approach of Ring, an alty by will be affected the retroactive comports better -with legal Missouri’s application Ring. result, As a Applying analysis tradition. set out of application Ring effect to cases on here, in Linkletter-Stovall this Court collateral review will not disloca- cause (1) purpose must to be consider judicial tion of the or prosecutorial sys- (2) rule, served the new the extent tem. This preliminary Court’s review of reliance law enforcement on the old only poten- its records has identified five (3) rule, the effect the adminis tial such cases. justice applica tration of of retroactive Whitfield, 107 (listing S.W.3d 268-69 tion new standards. identified, the five cases which did not Whitfield, 107 S.W.3d at 268. include case his co-defendant offering the defendant Whitfield case)19 added). Nunley’s (emphasis Ring, retroactive application of Whitfield terms, By its retroactivity Whitfield’s discussed: holding limited to the similar identified [T]he second and third factors [of review collateral cases in which the clearly Linkletter-Stovall favor retro- ] was convened but was unable to reach a activity. juries always ... Missouri have imposed verdict and then the sentence was made the decision whether to impose the judge.20 Accordingly, is not penalty death in those except few cases to entitled retroactive Sixth Amendment in which the to was unable reach jury sentencing under Whitfield. Ring verdict. Moreover ... must applied penalty Notably, to all future death cases United States yet and to those not final or still Court and other federal courts have not direct appeal. application Ring afforded retroactive 2003; Morrow, SC79112, Nunley rejects retroactive Sixth Amend- State v. No. order 29, 2003). jury sentencing ment for co-defen- entered October dant, noting Ring applied has been retro- actively Whitfield., in nine cases after but none applies 20. The dissent states that Whitfield of these cases involved a defendant who stra- provides case retroactive tegically pleaded guilty and waived sen- jury sentencing rights Sixth Amendment 611, tencing. Nunley, S.W.3d See 341 619 penalty “all in which death cases Lombardi, (referencing Lyons State ex rel. v. agree upon unable to the facts 523, (Mo. 2010); 303 S.W.3d 525 2n. banc imposition penalty.” of the death That char- Purkett, (E.D.Mo. however, Ervin v. 2007 WL 2782332 Whitfield, acterization of takes Whit- *1; 2007) Thompson, State v. 134 S.W.3d holding limited too far. does field's Whitfield 32, (Mo. 2004); 33 banc ex rel. v. State Baker proposition not stand for the that all defen- Kendrick, 491, (Mo. 494 136 S.W.3d findings banc without dants sentenced 2004); Where, Mayes Wiggins, ex v. State rel. 150 now entitled are to retroactive relief. (Mo. 2004); convened, here, S.W.3d v. banc State there never was a Buchanan, (Mo. 115 S.W.3d present banc “unable case does issues of a Smith, 2003); SC77337, Whitfield, v. State No. order to reach verdict.” See 28, 2003; case, entered October State v. at 268. In has Richard S.W.3d such Whitfield son, SC76059, application. No. order entered October that it will ever, has established previously And, in of Whit- light progeny.

and its proportionali- retrospective not undertake retroactively holding, limited field’s v. sentences. See State review of death ty than further compelled go (order Decem- entered Clay, No. SC78373 pro- Supreme Court States the United 2010) will (reflecting that this Court ber sentencing Amendment vide Sixth proportionality not undertake retroactive Taylor. light of State of death sentences review VI.Taylor’s Death Sentence 2010) (Mo. Deck, banc v. 303 S.W.3d Be Not Vacated

Should (Stith, Dorsey, concurring), and State J. (Mo. 2010)). As banc 318 S.W.3d above, Taylor addressed For the reasons pro- such, entitled to a new Taylor is not strategic decision by his bound remains of his death sentence. review portionality by a imposed have his sentence 1991 to particularly by jury. This is judge, not VIII.Conclusion judge sen- he believed

true because enti- him. He is not benefit tencing would previous bound Taylor remains and waive strategically plead guilty tled to sentencing, even forego jury choice to judge sentencing and then claim in the preceded changes choice though his constitutional violated his hindsight him in might have led law that argument such an approve To rights. As this Court has course. seek different in criminal cases. game-play would solicit before, “[fjinality litigation occu- noted encourage a defendant essentially would It criminal important place pies an his chances jury rights, take waive his [, point ... some justice process and] [a]t then, if he does not with Thompson, State v. must cease.” litigation expected from the leniency receive the 1983). (Mo. Tay- banc having feign confusion about judge, later justly have been proceedings lor’s criminal jury sentencing so he waived point have reached this resolved and again before a take his chances could been re- repeatedly His case has finality. errors, continues and this Court viewed for VII.Taylor Have Is Not Entitled To was made in his case to find that no error Reduced To His Death Sentence him to relief from his that would entitle Imprisonment Life sentences. he is also contends that reasons, Taylor’s peti- foregoing For the death habeas relief because his entitled to corpus a writ of habeas is denied. tion for equal process violates due treated because he has been protection C.J., PRICE, BRECKENRIDGE and 10 other defendants whose differently from FISCHER, JJ., concur. judge-found facts” “based sentences to life without from death were reduced STITH, J., separate opinion dissents other defendants differ parole. But these WOLFF, JJ., filed; TEITELMAN jury they did not waive from him because STITH, J. opinion concur in sentencing. STITH, Judge. DENVER LAURA that habeas argues further 8, February On respectfully dissent. because his death sen relief should issue 1991, Taylor pleaded guilty to Michael A. comparison disproportionate tence is judge, Thereafter first-degree murder. imposed on similar with the life sentences fact-finder in Court, jury, acted as how- rather than This ly situated defendants. punishment phase trial. The judge authorities, Based on these determined that the facts warranted the seeks a writ of corpus habeas arguing that imposition of a death sentence under sec- his death sentence is unconstitutional be- 565.030.4, 1994, tion RSMo 1986. In after cause the necessary facts impose a sen- vacated, that sentence was a different tence of death were found a judge judge, after a punishment-phase second rather than a I agree with Mr. trial, again found that the facts warranted Taylor that the principles set out in Ring, the imposition of a death sentence. In Blakely and apply here. This Whitfield Arizona, Ring 584, 609, v. 536 U.S. Court held on Mr. prior appeal 2428, (2002), S.Ct. 153 L.Ed.2d 556 that he had no right to a determina- Blakely Washington, 296, v. 542 U.S. 124 tion of punishment as the United States 2531, (2004), S.Ct. 159 L.Ed.2d 403 the Constitution as then interpreted did not United States Supreme Court thereafter provide a right to a determination of held that defendants have a Sixth Amend- all facts that are punishment essential to right ment determination of the and Missouri give statutes did not such a facts guilt on which based and all right who, to a defendant Taylor, like Mr. defendants, including those plead who pleaded guilty. Accordingly, Mr. Taylor guilty, separate have a Sixth Amendment did not any right waive sentencing. to have a determine the facts Taylor, State v. 929 S.W.2d 218- necessary impose punishment. (Mo. 1996). banc holding This that Mr. Applying these principles, this Court has Taylor did not which he could recognized that a defendant’s Sixth waive and so waiver principles ap do not rights Amendment are violated when a ply to him is law of the case. State v. judge, rather than the jury, finds the facts Deck, (Mo. 2010). banc necessary imposition aof sentence of death after the agree is unable to Now that the United States upon punishment, Whitfield, State v. 107 Court has held that separate there is a (Mo. 2003), S.W.3d 253 banc and that this Sixth Amendment to have the ruling applies retroactively under Mis- find the facts at sentencing, Blakely v. retroactivity souri’s principles to all death Washington, 542 U.S. 124 S.Ct. penalty cases in which the was unable (2004), 159 L.Ed.2d 403 it would violate to agree upon facts for im- equal protection principles apply position Further, penalty. Sixth Amendment to those denied 605, 623, Halbert Michigan, 545 U.S. determination of due to a (2005), 125 S.Ct. 162 L.Ed.2d 552 jury dead-lock but not those so denied United States Supreme Court held that Further, they pleaded guilty. the defendant could not waive a constitu- United States Supreme Court has clarified right tional yet that was not recognized that one knowingly cannot intelligently and and inherently was not by plea waived a of waive a right yet that has not recog- been guilty. Therefore, by pleading nolo con- nized. Michigan, Halbert v. 545 U.S. tendere, Halbert did not waive his constitu- (2005). 125 S.Ct. 162 L.Ed.2d 552 right tional to appointed counsel on first- review, Finally, Taylor even were Mr. appellate tier able to despite Michigan a had, waive a stating right statute he did not know a defendant he who even pleads guilty or nolo were this holding contendere waives Court’s that he did any right appeal, counsel on as that not waive jury his to a determination yet had not been recognized. case, prior appeal facts on not law of the charged with first-de- Taylor was affirmatively Mr. matter he did

as a factual February he a murder. On gree have had know he could even waive or County cir- the issue of sen- the Jackson appeared trial on before jury a right to guilty to transcript plea shows entered a guilty plea cuit court and tence. by pleading he knew that court and on merely charge open murder jury now, trial time, not be afforded a he would section guilty At that the record. affirmatively 565.006.2, not that he punishment, provided “No defen- on RSMo punishment trial on to avoid of- guilty wanted to a homicide pleads who dant requested have that he could by jury knew permitted or ... fense shall punishment. trial on to be im- issue of the on the of the state.” except by agreement posed, Moreover, reli- principal opinion’s Mr. guilty plea hearing, At the Taylor’s testimony Mr. excerpts of ance on consequence of legal about this questioned hearing is mis- motion post-conviction at a plea: context, because, in it is evident placed stating that he wanted Taylor was that Mr. you that if Q: you Do also understand and realized guilt trial on to avoid up Judge it will be to the plead guilty not be enti- meant that he would that this charges? on all to decide the sentence not that punishment, trial on tled A: Yes. to avoid a affirmatively wished opin- principal as the punishment, trial on by pleading Q: you Do know that counsel’s erroneously infers.1 As his ion of 12 today here instead confirms, simply there testimony only there will be one people deciding, prior plea issue of that discussion sentence], deciding this person [on trial. punishment-phase that? Judge: you do understand thereby testimony demon- Taylor’s Mr. Yes, I do. A: indepen- not make an strated that he did knowledge waiver of reaffirmed his dent affirmative Mr. plead choice to him as a result knowing he made the that a would sentence when reasons, I believe of additional times For all these of his a number guilty. knowing. set pleaded guilty sentence must be so Mr. and that he Indeed, undisputed, for a new point the case sent back as this is aside and punishment-phase jury majority’s trial. decision only purpose length pages pages quoting spend AND I. FACTUAL PROCEDURAL statutory this transcript from the to show BACKGROUND emphasize point waiver must be effect, many for nowhere in those 22, 1989, just for Michael A. On March separate abducted, Mr. told he has raped pages companion and a trial, nor is he Harrison, 15-year-old constitutional Ann murdered he wishes to waive asked whether The details of high school student. permitted if he were or would do so opinion crime out in this Court’s are set trial on guilty and also plead 929 to prior appeal, Taylor, punishment. S.W.2d 209. jury trial of that if he waived a sel all believed testimony, Mr. stated that his

1. In that light they agreed in guilt, all he should do as with him whether it counsel did not discuss confession, automatically lost then he judge jury of his or deter- would be better to have a punishment. jury a trial on to punishment. and his coun- mine Mr. because, surprising This is not without discuss issue this with him. His counsel prohibited Missouri statutes a question, basically testimony. confirmed his Taylor, such a Mr. who said he person Mr. Taylor’s post-conviction testimony plead guilty desired to rather than have a issue, full, on this is as follows: trial jury guilt, having jury on from a trial Q: your your discussions with attor- punishment facts to on or the neys you go did the way jury over a § punishment. impose 565.006.2. As this look would at the evidence against appeal noted on prior Taylor, Court this you? jury he had to a on means trial No, my A. I attorneys and went over punishment once he waived a on trial possibility trial, going guilt. Taylor, S.W.2d at 217-19. I which told them I didn’t want to Thereafter, the circuit court conducted a go to trial. trial punishment phase with the court you Q. go And didn’t want to to trial serving as fact-fínder. The circuit court your opinion because was that sentenced Mr. to death after mak- really evidence this would make a findings the factual re- ing statutorily jury mad? quired impose punishment.

§ 565.030.4. A. I don’t know what would have I made mad. knew it post-conviction Mr. moved re- murder, a confessing was I was pursuant lief 24.035 challenging Rule I did it and I didn’t want to plea guilty and sentence. He asked to be go to trial. We didn’t discuss permitted to withdraw his and that in a debate. guilt sentencing trial on and you Q. Did discuss the likelihood of sentencing judge because con- had receiving a death if you sentence sumed alcohol at imposing lunch before went front of a jury? and because of other errors in his sentencing. allega- Because of these A. Yes. tions, the entire bench Jackson your Q. opinion to the And likeli- County Circuit recused from Court itself receiving hood of a death sentence post-conviction litigation and very high? was would be appointed a special judge. really A. I couldn’t answer that. post-conviction Tay- In his hearing, Mr. Well, Q. you your did think that lor was asked in detail about he whether getting chances of not death were pleaded guilty he trying was good jury? real in front of a to avoid a he go A. I knew that I didn’t want to judge might believed more lenient. of a front case; said He this was not the that he Q. why that, Taylor? And was confessed, pleaded guilty because he had my admitting A. Because trial; there point

so was no guilt. feared a would hold his con- Q. against talking fession him I’m not about issue of if he phase guilt, talking first forced the issue of I’m guilt about the issue you punishment. trial. But he said he not afraid Did want to go did not know whether a in front of for them you give more decide whether would live or likely have been sentence, attorneys him death nor did his die? neys likelihood of re- about now I do. then but

A. Not jury? ceiving death in front of you Q. why then? didn’t want to And A. No. my admitting guilt. I was A. Because you’re tell- recall and Q. You don’t any that under Q. you Do understand ing in front of this us under oath hap- matter what no circumstances any you Judge don’t recall that nothing can take in this case pens the death discussions about real videotaped confession away that at all? penalty likelihood to? you’ve that admitted the issues concern- A. We discussed A. Yes. Degree Murder ing the First you happens matter what Q. So no parole and charge life without already your guilt, do have admitted penalty. death possibility of the that? you understand discussing what I But as far as A. Yes. get going probably would why you it that you, me ask is Q. So let really jury, that. we didn’t discuss your decision avoided Q. Why you plead decide to did you when decided you made Why you did Judge? front of a Judge Randall? in front plead Judge in front of plead want you it that were afraid of What was Meyers? jury? in front of my videotaped state- A. Because just afraid, I was A. It wasn’t that ment. preferred go not to didn’t —I Judge that the Q. you Did think jury trial. likely give more or less Q. you any your have Did doubt jury? penalty than a that a would sentence mind know. really A. I don’t you death? any- Q. you just really didn’t know So any didn’t A. Did I have doubt? I thing about this? know. Yes, that I ad- A. I did. I knew Q. opinion, have an You didn’t mitting my guilt. oath, you’re telling what us under Well, Q. accepted I think we’ve —ev- as to what a would do? accepted you’re erybody’s I’m A. I can’t answer that because Degree, Murder First guilty of mean, I would Action, Kidnapping Armed Criminal they hope would understand punishment. Rape. The issue is willingness accepting my me discussions, opin- — had no You admit that I committed this crime to the relative benefits be- ion as mercy. and have Judge punish- tween a ment, you’re telling what Q. way you Is the were raised that is that you us? you get if commit a crime and it,” caught you say, “I did A. Yes.' punishment? that erases added). complete (emphasis As above No, A. not. it’s Taylor’s testimony dem- quotation of context, onstrates, Okay. your testimony considered in Q. And before when purposely you imply that he Judge is that don’t recall comments did any your trial of but attor- avoided a discussions with guilt She, too, it was a trial of Co-counsel was Leslie fact showed that Delk. avoid; not even wanted to he was confirmed that because “the he evidence clearly of a option good,” that there was an was not she Taylor aware told Mr. plead punishment. guilty Meyers of before Judge trial and But, Judge later Randall. while she was they that Mr. counsel confirmed of aware section 565.006 due to the post- with possibility had not discussed him the litigation, conviction she did discuss punish- he of that could seek trial Taylor with Mr. gave section 565.006 pleaded guilty. even if he Counsel ment plead guilty defendant and Martin McLain testified that he was un- ask prosecutor then the agree the gave aware section 565.006 State sentencing. say She could not what she option punish- of agree an trial would have done she known of this pleaded guilty, even if ment defendant and of possibility. Some the same factors that he Mr. Taylor so never told there was a led her to recommend Mr. Taylor option third complete either plead guilty would have led her to recom- a complete judge pleading guilty trial — But, judge sentencing. mend there were then seeking jury sentencing. and Mr. other factors that favored sentencing, “memory McClain’s was the choice was particularly Mr. remorse and his pleading guilty between the and and family support, which both would having the Judge sentence.” Mr. McClain strong mitigators. Ms. Delk failed to dis- going said that he recommended to trial any of with cuss him and testified that Judge Meyers or Randall Judge before as obligation she failed in her to advise him of Taylor thought he Mr. had a better chance options. of his all judge particu- with a than with a jury. lar, Mr. Mr. Tay- McClain “discussed with may These failures counsel be ex- lor that believed that videotaped [he] the plained by the fact that Delk Ms. was be very damaging confession would at a required public the sys- leave defender phase guilt proceeding.” They concentrat- after guilty plea tem short time and on how a jury ed would react if he contest- only before and rep- continued trial, guilt in light ed and went to and resenting appoint- Mr. court facts, publicity, ment, and his confession prior plea, and that to the Mr. they thought “jury him” would convict if quit McClain to take another job went consequence to trial and that as a Florida, working on case from while likely “a death sentence was than more extremely they ill. Both admitted did not not.” on the spend they time case only other person assigned wished. The Mr. “was with McClain concerned how a paralegal case was who had been bad the a jury confession would look to employed by public system, defender twelve and how bad it look only her job, first for six months. None [they] were contesting guilt when he them with Mr. an op- discussed had made that confession.” Mr. McClain of pleading guilty trying punish- tion “not of a familiar case where someone ment to a nonetheless they guilty went and said were post-conviction denied relief. leniency any asked kind of a sentencing proceeding.” brought Mr. did then to this Court a learn from him that there was a appeal challenging chance consolidated plead guilty that he could plea, imposition penalty and then ask for of the death jury sentencing. overruling and the of the Rule 24.035 mo- 24.035, challenging guilty plea 29, Rule relief. On June post-conviction

tion for sentencing pro- challenging his second briefed had been 1993, appeal after the The circuit of death. ceeding and sentence not issue an did this Court argued, motion in an order overruled the any of court merits of considering the opinion fact and con- findings of accompanied with its order rather issued rulings but these below, clusions of law. stating: judgment the vacating for remanded vacated. Cause “Judgment a consolidated Taylor brought then Mr. sen- imposition of hearing, penalty new mandatory to this Court’s appeal limited tence, judgment.” new entry of 565.035.5, review, § RSMo proportionality of the overruling and review remand, judge was as- new trial On and the denial of to withdraw punish- the motion retrial of hear the signed relief. This affirmed Thereafter, January post-conviction on phase. ment 209. This Court Taylor, in in filed a motion Taylor again Mr. that Taylor’s argument Mr. rejected there guilty plea. to withdraw trial court the to but was denied right Mr. he had a overruled. again was This motion on re- punishment the issue of trial on that a be the requested Taylor also trial, doing, this Court stated mand. In so phase punishment in the fact-finder previously right had “where a defendant Mr. was denied. request but the sentence, impose section May to have a began trial phase punishment second 565.035.5(3) jury’ to be trial, does allow ‘a new the trial the Following imposing of sen- findings purposes selected for written oral and court made But, Id. at 219. “section statutory aggra- tence.” six proved the state 565.035.5(3) a defendant a provide does not beyond a reasonable vating circumstances imposition on the trial non-statutory ag- as three doubt as well did not exist where such judge The sentence circumstances. gravating remand.”3 mitigating prior cir-. of one the existence found others of- cumstance, several rejecting propriety therefore made and found that the Taylor, Mr. fered judge rather than a deter- allowing outweigh did not circumstance mitigating punishment the facts for mine The circumstances. aggravating dependent Mr. second cir- aggravating then concluded to have a Mr. had a whether sentence.2 a death cumstances warranted sentencing fact-finding at the jury conduct his initial trial. stated filed a time of In September States Court’s pursuant relief under United post-conviction motion for terms Taylor also received consecutive 2. Mr. action, (3) years for armed criminal aside and remand of 50 Set imprisonment years kidnapping and life punishment hearing. for retrial of the case for rape. may be selected or a A new shall by agreement parties and waived of both 565.035.5(3), (emphasis RSMo 2000 3. Section proceed in then the trial shall added), states: chapter, with the ex- with this accordance include in its supreme court shall ception the evidence of the ver- cases a reference to those similar decision new trial be admissible dict shall into consideration. In addi- which it took any together transcript with official regarding authority correction of tion to its properly admitted testimony and evidence court, errors, regard supreme with original stage trial where in each sentences, author- shall be review of punishment. determine relevant to ized to: Florida, Spaziano decision in U.S. II. MR. TAYLOR IS ENTITLED TO 447, 460, 104 S.Ct. 82 L.Ed.2d 340 HABEAS RELIEF “ (1984),a has no constitutional ‘defendant A. Guilty Who Plead Have ” Defendants punishment.’ to have a assess a Sixth Right Jury Amendment to Factr- 219, Taylor, 929 at quoting, S.W.2d State Finding Necessary to Impose Death (Mo. Hunter, v. 840 S.W.2d 863 banc added). 1992) Therefore, (emphasis if Mr. Mr. Taylor contends that he is entitled Taylor right jury pun- had a to a trial on to habeas relief under the United States ishment, it would have to be on based Supreme Apprendi Court’s decisions in v. But, held, Missouri statutes. it is New Jersey, 530 U.S. 120 S.Ct. language “obvious from the of’ section (2000), 147 L.Ed.2d 435 Ring Blakely. 565.006.2 that a defendant pleads who These decisions were down by handed the guilty statutory right has no sen- jury to United States only Court after tencing. Therefore: Taylor’s Mr. death sentence was affirmed jury sentencing guilty plea after by in Taylor, this Court State v. 929 waive, not a the to defendant for (1996). cases, S.W.2d 209 These he ar- rather a for privilege the State to grant. gues, rejected this premise Court’s stated Taylor did waive sentencing by not in Taylor that a “defendant has no consti- jury only because he could obtain tutional to have a jury punish- assess sentencing agreed if the State it. ment,” agree. at 929 S.W.2d 219. I Therefore, agree. The State did nothing

there was of which Apprendi to inform held that under the Sixth him. Amendment, applied states the under Amendment, any fact, the Fourteenth ex- Taylor, at 929 S.W.2d 217 add (emphasis conviction, cept prior the fact of that in- ed). concluded that “section penalty beyond creases the for a crime 565.035.5(3) does not entitle to ‘a by maximum allowed by the facts found jury1 new imposition punishment for of also must be to the jury submitted possessed because never obtained nor beyond and proven a reasonable doubt. imposition for punish of 120 2348. prior Ring ment U.S. S.Ct. to this Court’s remand order.” made in capital Id. at 219. clear case this This Court affirmed means, “Capital death sentence. entitled defendants are determination of on any fact which Mr. Taylor petitions now for re- habeas legislature conditions an increase that, lief arguing under cases decided since their punishment.” maximum U.S. this Court his appeal denied and motion 589, 122 S.Ct. 2428. “If a State makes an relief, post-conviction for he is entitled pun- increase in a defendant’s authorized have his death sentence set aside and to fact, contingent finding ishment of a life imprisonment sentence of im- that fact—no matter how the State labels or, posed alternatively, is entitled to a beyond found it—must be punishment. rejects trial on The majority reasonable doubt.” Id. at 122 S.Ct. claim, Mr. concluding, habeas in- alia, only is when exception ter that Mr. purposefully increase is conditioned on the existence of waived his retroactive deter- convictions; prior findings mination those need necessary impose of the facts 4, 600, below, n. death. For the reasons be made Id. at discussed disagree. S.Ct. at 256. fence holding Ring, predicated.” the Su was reaching its is- overruled Walton The determined the factual

preme expressly judge 639, 649, Arizona, imposition 110 S.Ct. the death 497 U.S. sues (1990), finding which had after penalty L.Edüd Whitfield no Sixth Amendment first-degree held that there is mur- Whitfield aggrava finds an der, violation where a unable reach a verdict aggravating are ting factor because factors phase. punish- In the considerations, not “ele mere im- required ment phase, capital murder.” the offense ment[s] three pose a life sentence unless it made beyond specific findings a reasonable reaf The United States Court (1) statutory aggrava- at least one doubt: v. Ring Blakely Washington, in firmed ting present was in the defendant’s factor 2531, 296, 159 L.Ed.2d 403 124 S.Ct. U.S. case; (2) “war- the evidence aggravating (2004). the It clarified that Sixth Amend sentence”; imposing the death rant[ed] fact-finding pun to jury ment (3) any mitigating and evidence was the right ishment is from to a separate in outweigh ag- the evidence “sufficient and, although jury particu trial on guilt, tri- gravation punishment found the lar free to choose not take defendant is 565.030.4, § er.”4 RSMo 1994. As the advantage right, as that de of that when jury agree was unable to knowing, Whitfield intelligent fendant makes a punishment, judge the trial conducted the voluntary waiver of that constitutional step-by-step analysis section 565.030.4 right, jury otherwise the deter imposed way, In this penalty. the death applies mination of if a punishment even the rather than found the judge the guilty, the pleaded defendant has facts under section 565.030.4 to essential jury fact-finding pro “is no mere impose death. formality, but a res cedural fundamental ervation of in our constitutional power for, as specifi- This was error this Court 305-06, Blakely, structure.” 542 U.S. at cally affirming in ini- held Mr. Whitfield’s 124 S.Ct. 2531. Whitfield, tial in appeal State v. (Mo. 1992), year this Ring, steps

A after Court set aside S.WÜd 514-15 banc (which 1, 2 Joseph required Whitfield’s death sentence it out and 3 statute set findings before the must make to appeal Ring had affirmed on factual decided) judge impose any “because the rather than death. In the absence of one of findings, impose the factual these the life. made determinations must such, gives on which for the As eligibility death sen- the statute no discretion 4. Even if specific presently made these three version of the statute that in ef- is 565.030.4, findings, pen- it Supp.2010. could decide to recommend a life RSMo The fect. alty procedure if under ver- phase sentence all the circum- under the current "decide[d] punish- stances not and declare to assess sion of section 565.030.4 still calls for 565.030.4(4), statutory ag- § ment of death.” RSMo 1994. fact-finder to find least one jury’s gravator mitigating mercy pursu- discretion to exercise and to decide whether the 565.030.4(4) outweighs aggravating ant to is section not considered evidence evidence (it 565.030.4(4) Ring. mercy find a "fact” that a must the section under also retains 565.030.4, originally provision) requirement Section contained in but it added a to de- amended, mentally mostly RSMo cosmeti- termine whether the defendant cally, jury’s obligation H.B. 562. 1993. 1993 This is the retarded and abolished the aggravating version of the statute at issue whether the factor or decide imposing case. Section 565.030.4 was amended once warrant the death sentence. factors more in 2001 S.B. this is the must a life impose also determined that the Sixth Whitfield —it it makes each of these factual Amendment right unless find- to have a determine the facts ings impose in favor of the state. Id. For all punish- this decision, recognized ment reason, Apprendi, Ring its 2003 Whitfield Blakely would apply retroactively held it to cases “clearly require- violated on collateral review under the three-part Ring that rather ment of than retroactivity Linkletter-Stovall analysis determine facts on which long used in Whitfield, Missouri. penalty Whitfield, the death is based.” 266, 268, State, S.W.3d at citing, Spidle v. 262; accord, People v. (Mo.1969); 446 S.W.2d 793 State Ussery, v. Montour, (Colo.2007) 157 P.3d (Mo.1970); 452 S.W.2d 146 McCulley (“in context, penalty the death the facts State, (Mo.1972).5 486 S.W.2d 419 fall essential under the Apprendi-Ring-Blakely rule consist of Missouri’s Linkletter-Stovall retroactivi- penal- those facts needed to a death make ty analysis requires court to determine determination,” ty including finding aggra- “(1) retroactivity by considering: the pur- circumstances, finding vating mitigating (2) pose rule, to be by served the new circumstances, and all of weighing these extent of reliance lawby enforcement on circumstances). rule, (3) old the effect on the justice administration of of retroactive ap- then that the observed burden Whitfield of plication the new standards.” Whit to shifted the State to that the Ring show 107 field, S.W.3d 268. held Whitfield error was harmless and the State that consideration of the three Linkletter- carry could not its burden because there required Stovall factors retroactive appli know, way to was no on the jury based of cation the Sixth Amendment to deadlock, whether jury’s impasse came judge rather than a determine 3, 2 step requires or which Ring necessary imposition the facts find, to or if it came at the where the point penalty. death doing, In so not Whitfield give mercy considers whether to un- ed “the to be purpose served 565.030.4(4) der section determination —a set out in Ring rule is to ensure a of judge may Whitfield, that a make. peers each defendant’s finds of the factual at 262-64. S.W.3d necessary elements to his conviction and Ring B. Applies Retroactively sentence of death.” Id. Minnesota, 552 U.S. range constitutional standards in a broader of Danforth (2008), S.Ct. required L.Ed.2d cases than is this Court’s decision Supreme apply the United States Court cited retroactively." with not to the standards Id. approval (internal statement Missouri at 277 n. quota- 128 S.Ct. 1029 Whitfield's Linkletter-Stovall, omitted), Stith, holding could adhere to tions and citing A alterations Teague that "the Authority decision limits kinds of Contrast State and Federal Court of Relief, will constitutional violations that entitle an to Grant Habeas 38 Val. U.L.Rev. habeas, (2004). concluded, individual to relief on federal but does any way authority not in limit the of a "It abundantly state is thus clear Teague that the court, reviewing when nonretroactivity its own state rule criminal of ... was intended to convictions, provide remedy to for a authority viola- limit the federal courts to over- tion that is deemed 'nonretroactive' under turn state convictions—not to limit a state Teague." 552 U.S. at authority grant S.Ct. 1029. court's relief for violations noted that both before and after of new rules of law constitutional when re- Danforth Teague viewing commentators had advanced "the its own State's convictions.” 552 280-81, proposition may apply that state courts new U.S. at 128 S.Ct. Ring applied must be plés set out the extent of noted that also Whitfield Whitfield, on the old this means enforcement it. As stated by law

reliance here, the admin- that, where, the effect on unable rule was small the new rule applying justice istration and the record agree minimal, of affect- as the number jury found all facts to show that the fails small, “in because Mis- would be ed cases death, a sentence of necessary impose the decision always made juries have souri authority was to only trial court’s ex- penalty the death impose whether imprisonment a sentence of life enter in which in those few cases cept pa- possibility probation without a verdict.” Whit- unable to reach role. cases five such itself identified field Id. at 491.6 recognized that a but addition Whitfield pres- that he Taylor correctly Apprendi-Ring- impose punishment. pick and choose to tively, the state cannot applied to each Blakely analysis has been or in which fact situa- which defendants them, As this required as Whitfield. retroactively ap- be right tions that will applying in principle described the Court violating equal protection plied without Baker v. Ken in State ex rel. Whitfield principles. (Mo. 2004), drick, banc 136 S.W.Sd 491 Indeed, in agree. the state concedes at the time that Whit pending which was “[tjhere dispute that its brief that is was decided: field retroactively ... to Missouri Ring applies was tried after the Because this case v. ...”. The cases under State decided States Court United Whitfield evident. Arizona, 584, reason for this concession is 122 Ring v. 536 U.S. S.Ct. (2002), jury in deadlock was not 2428, his case a princi- 153 L.Ed.2d 556 While Accord, pun- in the maximum Mayes Wiggins, v. 150 conditioned an increase State ex rel. Lombardi, 290, (Mo. 2004) (again ishment”), Lyons 291-92 banc v. 303 S.W.3d State ex rel. jury 523, (Mo. 2010) ordering judge pending in case in which (noting 2 S.W.3d 525 n. banc imposition required deadlocked that Lyons had been set that death sentence for Whitfield sentence); Thompson, 134 of life State v. August jury failed in 2007 because "the aside 32, 2004) (mandate (Mo. banc re- S.W.3d 33 findings necessary impose to set out impose called and court ordered Purkett, death”), well in Ervin v. 2007 as deadlocked, jury imprisonment in of life after 21, 2782332, (E.D.Mo. 2007); Sept. *7 WL light Whitfield). Ring and In addition to State, 76059, No. Order Recall Richardson v. cases, applied has been these Whitfield ing Setting Death Sentence Mandate and Aside judge impose order a a life sentence State, (Oct. 29, 2003); v. No. Morrow longer pending on review in State cases no Recalling Setting Aside Mandate and Order Buchanan, (Mo. 842 banc v. (Oct. 2003); Sentence Smith Death 2003) “correctly (stating claims defendant State, Recalling Order Mandate No. judge required than a rather (Oct. 2003). Vacating Death Sentence legislature which the determine each fact on imposed judge punish- agree punish- reason that a was unable to ment, Ring progeny and its were not ment pleaded guilty but instead without fact, Ring In based on deadlock. knowing had a to a jury trial on itself did not involve a deadlock. necessary the facts to impose death. Rather, it verdict of guilt, involved While this factual present, distinction is then judge but found additional facts does not affect the retroactivity analysis, justified punishment an increase legally for in all respects, relevant have been over which would author- Taylor is in the position, same in that he charge ized submitted to the a jury denied trial of the facts under- fact-finding It was this additional lying punishment Apprendi- in violation of 592-93, Ring U.S. at improper. found Ring-Blakely, just inas and the Whitfield Likewise, neither Appren- S.Ct. 2428. other cases cited. Blakely nor di involved deadlocked Having chosen in to retroac- Whitfield in both of defendants those —the tively apply deter- pleaded guilty cases first and thereafter necessary mine the facts punishment, imposed sentences were based on judge- uniformly must so do to all 470-71, facts. U.S. at Apprendi, found similarly persons: situated 300-01, 2348; Blakely, 120 S.Ct. 542 U.S. at law, general It is the doctrine S.Ct. 2531. may relative to who charged those Therefore, it is settled that the Sixth crime, and convicted of as well as the Amendment is to have deter- therefore, to be inflicted impose punish- mine facts operate equally upon every shall citizen ment, whatever context which that or inhabitant of this state.” was denied. and the Whitfield 641, 117 Mo. O'Malley, State v. S.W.2d other Missouri cases that the courts have (1938). O’Malley held it unconsti date, that considered to context was a tutional to allow be pre ballot records to resulting deadlock sentencing.7 against committing served and used those that held it would not deviate Whitfield 100,000 fraud in cities of than .more inhab from Missouri’s traditional Linkletter-Sto- period retroactivity longer against test for itants for than vall and that under committing test those commu the Sixth Amendment fraud smaller nities, determine the facts stating: impose punishment applied retroactively one Every has a demand that he those been imposed whose sentence had rules, governed by general be and a judge. based on found aby facts Whit- which, special statute without his con- 107 field, S.W.3d sent, singles his case out as one to be by a law from majority argues regulated

The different above ret- cases, roactivity is in all analysis applied is irrelevant because the which similar different, not be but legitimate legislation, facts this case are that Mr. would arbitrary did not to death be such an mandate as get sentenced after unclear; parties agree thington 7. The seem to that there is district are federal only two other cases in which a death sen- holding Worthington’s that Mr. court’s imposed judge tence was based on facts set sentence should be aside on ineffective guilty plea, v. found after a State grounds, Worthington v. assistance counsel (Mo. 1996), Nunley, banc 923 S.W.2d 911 (E.D.Mo.2009), Roper, F.Supp.2d 619 661 is (Mo. Worthington, v. 8 83 State S.W.3d banc Eighth review now on in the Circuit. 1999). this an issue in Whether remains Wor- 664 prohibits protection clause equal The govern- of free province

is not within (other one affording person from state ments. vehi- whose case is the litigant than rule) of a new promulgation cle for Baker, S.W.2d v. 524 Similarly, in State ruling on a benefit of a the retroactive 1975), (Mo. held that a this Court banc impartial to an constitution’s state sen- consecutive mandated statute it another. denying while two convicted of defendants tences for (9th Ylst, 417, 421 yet v. 897 F.2d Cir. only they Myers if had not crimes, so but did 1990). crime, violated for either sentenced been chronological equal protection McCarthy, v. Similarly in LaRue they were sentenced in which order (9th Cir.1987), the Ninth Circuit F.2d 140 why reasons a consecu- to the immaterial pick could held that California For appropriate. be might tive sentence retroactively it would those to whom chose reason, purposes, equal protection for felony prohibited basing rule that apply a similarly situated and must they were Rather, charges on child abuse. murder treated, “Equal protection for similarly retroactively rule apply must its the state persons all be dealt require does “once a in none because in all cases or require that a identically, but does

with rule it must be established a state has relevance to made have some distinction evenhandedly.” citing, Id. at applied which the classification purpose Arizona, 1352, 1354 v. 462 F.2d Johnson made.” Id. at 129. (9th Cir.1972). Ari- had held that Johnson State, S.W.2d v. As noted Smith apply striking a decision zona could not v. citing State (Mo.App.1984), retroactively sentences down determinant Brown, (Mo.App.1977), violating all without in some cases but not applied Baker retroac- “[sjubsequent cases Id. at 1354. equal protection principles. sen- that all defendants tively required Hill v. Rob courts ai'e accord. Other must be resen- guidelines under its tenced (D.Ks.1992), erts, stated F.Supp. 1044 Davis, also State tenced.” See whether to that a is free to choose state (Mo. 1989) (equal 605-06 banc S.W.2d many rules retroac apply constitutional equal treatment of protection requires But, it tively. said: similarly situated and discrimination those clearly equal protection clause wholly irrelevant to ground “upon based affording per- from one prohibits a state legislative objec- the achievement ruling benefit of a son the retroactive principles). equal protection tive” violates it another who is similar- denying to plead guilty, who To allow defendants ly situated. Taylor, singled to be out and such Mr. as contrary, “once a state 1046. To jury right to determination deprived of rule, applied it must be establishes a new is based of on which the facts evenhandedly.” Id. Hill found equal principle this basic runs afoul of only new rule to applied state had its has stat- treatment. As the Ninth Circuit therefore, and, had not vio- pending cases holding ed the in that the California point equal protection clause. lated the equal would violate Court Hill, ap- Here, in this Court has unlike protection gave if it one class clause retroactively to cases its new rule plied the benefit of persons but not another at the time of the pending that were not providing of its rule application retroactive to now choose not new rule. It cannot impartial jury: to an right defendants a retroactively to some not other to apply impose punishment. it but It its instead bases which in that Sixth Amendment cases position Taylor’s that Mr. death sentence right particular was violated. While the should not set aside on the assertion Taylor that Mr. reasons and Mr. Whitfield any that Mr. waived statutory right jury sentencing plea were guilty denied —a jury sentencing by to pleading guilty in hung to a be differ- opposed jury may— in doing 1991 and that so he should be held ent, they are similarly situated insofar as also to waived any have constitutional jury Amendment de- right the Sixth to a right reason, jury sentencing. to For this punish- termination of the facts on which quotes the majority length from the based is ment is concerned. guilty hearing plea transcript to show Mr. Ring, Apprendi, Blakely and Whitfield Taylor knew that pleading guilty situations, very all involved different fact jury a would not receive trial on the facts because, reached the same but all result necessary impose punishment. to That is- relevant only respect, all were identi- doubt; however, sue is not in simply each cal—in the defendant denied a question. not the relevant jury necessary determination of the facts punishment. Ring allowing states that agree the. State with that a defendant a rather than a jury to find facts may make a knowing, voluntary choose to necessary to a impose death defen- violates waiver of intelligent his constitutional right dant’s Sixth Amendment to trial. right to a determination of the facts says that Blakely principle this extends to necessary impose sentence, just to aas plead- situations which a defendant has may knowing, defendant choose to make a Even in guilty. plea ed the case of voluntary intelligent waiver of his therefore, agreement, vio- state cannot right trial guilt. on legal This late the defendant’s Sixth Amendment by any issue is not controverted nor party, right necessary trial on all facts Further, could it be. nothing has been impose a sentence. cited a trial requires court to accept Here, Mr. did not receive therefore, guilty plea; nothing there is punishment, trial although on he had a appears prohibit a court from re- determination of facts fusing plea such a accept from a defen- impose the death As penalty. dant jury sentencing. who has demanded this noted on the prior appeal But, case, Mr. discussing statutory right case trial, where “a previously punishment defendant an denied based on sentence, jury impose had a to have a knowing, voluntary affirmative and intelli- 565.035.5(3) jury’ section does allow ‘a new gent Mr. waiver of Sixth Amend- to be for purposes imposing selected ment fact-finding. Neither Taylor, sentence.” at 219. S.W.2d court accept did the trial refuse to Mr. was denied this here. Taylor’s because Mr. Taylor Right Mr. Did Not A trial on

C. wanted a the facts on which Waive a Jury to Have Determine the Nec- Facts punishment would based. To the con- essary Pleading Guilty to Punishment By trary, Taylor Mr. was denied a trial solely on the fact that based section disagree Ring

The State does not him a being 565.006.2barred from allowed apply retroactively and would Whitfield punishment trial on because he plead- Taylor here if Mr. had asked but been for necessary a trial on the guilty. denied facts ed

666 relinquishment “an intentional acknowledged Waiver agrees that Taylor

Mr. right privi- of a knoum effect of or abandonment this was the his awareness Zerbst, 458, v. 304 U.S. and, so, lege.” Johnson by pleading 565.006.2 section (1938) 1019, 464, 1461 82 L.Ed. 58 S.Ct. try punish- he knew he added). a A waiver of constitu- (emphasis not a judge, phase before ment “knowingly and must be made right effect tional knew this was the also His counsel California, intelligently.” Faretta plea. his 835, 2525, 806, 45 L.Ed.2d S.Ct. U.S. But, agree not Taylor says, Mr. he did (1975). “indulge in ev Courts are to there any right, for waive such legally against waiv ery presumption reasonable section statutory right under Zerbst, at 58 S.Ct. 1019. er.” 304 U.S. And, even him to waive. for 565.006.2 a waiver ordinarily considers “The law and right, he did not there such a were intelligent sufficiently aware knowing, have waived his constitutional could not nature of understands the if the defendant of the facts determination right to apply gener how it would right This is impose the sentence. necessary to ... ”. Iowa v. To al in the circumstances because, contrary unsupport- to the state’s 77, 91, var, 124 S.Ct. 541 U.S. and as itself argument, opposing ed (2004). L.Ed.2d no such Sixth recognized, expressly says by acknowledging The State recognized had been right Amendment on punish- not receive a at 219. he would plea. the time of he waived the as statutory pleaded guilty, ment if he regard to the As noted right to have a trial, yet not unknown constitutional could right pun- the facts not have. Id. More- determine waive a he did well, though he was not over, ishment as even post-conviction transcript But, cites its existence. the State it clear that his aware of hearing makes motion knowingly, can saying no law that one him that he could counsel did not inform voluntarily relinquish plead- intelligently if he trial of yet been established. that has they did not believe guilty, ed legally was allowed. Supreme cases Two United States Court however, and directly point, on state Taylor, are ruling

After this Court’s permissible. that such a waiver is held that Supreme United States 122, 89 S.Ct. Yeager, Smith v. 393 U.S. independent, have an Sixth defendants do (1968), involving 21 L.Ed.2d jury fact-finding Amendment evidentiary an prisoner’s right penalty for a state any fact that increases for federal habeas may hearing petition the maximum a beyond crime rejects very argument. similar corpus, admitted solely based on the facts impose sought first petitioner At the time the guilty plea. Blake- by the defendant But, corpus in Brown v. federal habeas ly, 542 124 S.Ct. 2531. U.S. Allen, 443, 73 97 L.Ed. that one 344 U.S. S.Ct. concept out in set (1953), law. controlling was the Under not exist or cannot waive a does it, peti- court that the with the district believed recognized is consistent has not been evidentiary entitlement to an ap- tioner had no Court’s United States petition. on the federal habeas hearing waiver in other proach concept to the stating that agreed, counsel alleged that a Petitioner’s cases in which it has been After the anyway. not need one they did waived a constitutional defendant had Sain, v. 372 U.S. in Townsend decision right by guilty. pleading

667 745, 293, (1963), 83 9 L.Ed.2d 770 S.Ct. and was denied appointment of counsel to assist him in expanded right petitioners applying of habeas for appeal leave to to the evidentiary hearing, Michigan an petitioner Appeals. Court Id. at 614, 125 again sought habeas relief: The S.Ct. 2582. rejected federal Halbert Michigan’s argument appeals court of that it was attorney held not re- quired to petitioner’s right provide waived counsel for evidentiary indigents to an who seeking were leave hearing appeal, in the proceeding. holding 1961 The Su- process that the due reversed, equal protection preme stating require clauses the appointment of fact that counsel counsel said he was not sure defendants, convicted on their pleas; whether there a right was to such a hear- who seek access to first-tier discretionary ing relinquished but that he it did not appellate review. waiver, constitute a for: Whatever counsel’s reasons for ob- The state of Michigan alternatively con- gesture scure of noblesse oblige, we tended that even if there were a constitu- presume cannot now ... that he right inten- tional to have appointed counsel tionally relinquished right represent a known or defendant when he sought leave privilege, Zerbst, appeal, Johnson v. the petitioner 304 U.S. in Halbert neces- (58 1461), sarily 464 waived that right S.Ct. 82 L.Ed. because he knew right that a privilege Michigan provided when the statute that a pleads defendant who doubtful at or nolo existence the time of the con- supposed tendere will not waiver. receive the assistance of in applying counsel for discretionary ap- (em- Yeager, 393 U.S. S.Ct. 277 peal. Michigan Comp. Laws Ann. added). phasis majority’s The attempt to (West 2000). § Therefore, 770.3a distinguish Yeager on the basis that here contendere, pleading nolo he had to know definitely known that there was no that the statute deny him a right to statutory right very point confuses the Halbert, court-appointed counsel. issue everyone here —that believed there 623, 125 U.S. at S.Ct. 2582. parallel was no right, constitutional indeed Arizona, 639, 649, The majority rejected Walton Halbert U.S. Michi- (1990), gan’s specifi- argument. S.Ct. L.Ed.2d 511 The court held held, cally had Halbert so and therefore that could not have waived his right consti- because, could not have tutional to .appeal been waived even if “[a]t statutory Halbert, time plea, was waived. he entered his in com- mon with other defendants convicted on very concept This is the underlying the their pleas, recognized had no Supreme Court’s recent reaffirmation of appointed appellate counsel he could elect principle that one cannot waive a fu- forgo.” (six-person majority, includ- ture right yet recognized in Halbert v. ing Kennedy). Justice Michigan, 545 U.S. 125 S.Ct. (2005). 162 L.Ed.2d 552 Halbert noted holding, rejected argu- so Halbert that the governing Michigan provided law ment Justice Thomas in dissent that that an pleaded accused who guilty or nolo assuming statutory Mr. Halbert did have a appeal by contendere could leave appeal, counsel on he waived it that, only circumstances, court in most when he to plead guilty decided with counsel provided would not be knowledge to assist the consequence likely indigents in applying appeal. for leave to get would be that he would not counsel on petitioner pleaded 637-43, appeal. nolo contendere Id. at S.Ct.

668 Supreme the Moreover, basis of J., paramount as dissenting).

(Thomas, decision, whether which turned on “Whether Court’s recognized, Thomas even Justice have, right a one does one can waive such counsel provides for Michigan law consequences, knowledge of the not lack of a defendant whether says nothing about waive) makes clear. Id. (and the Halbert dissent a federal hence can possesses 612-14, 623,125 2582. effect. That S.Ct. to that right constitutional law, prohib- of state as a matter Michigan, very similar issue faced Colorado ap- receiving appointed from ited Halbert (Colo. Montour, 157 P.3d 489 v. People guilty or no pleaded if he counsel pellate 2007). There, guilty to pleaded defendant Halbert contest, to whether is irrelevant Colorado, as in murder. first-degree waive) (and independent fed- an could Missouri, pleads who capital defendant to such counsel.” right eral constitutional trial on right jury to a guilty is denied the 640,125 S.Ct. Id. at 18-1.3-1201(l)(a) C.R.S.2006. punishment. phase trial Accordingly, punishment Taylor’s case is re to Mr. parallel The imposed who judge, entered his was held before Mr. markable. When The penalty. the death Colorado recognized Sixth there was plea, reversed, stating, “While a defen- jury make the Court right to Amendment on may dant waive which a death sentence findings on factual facts, waiver must be was not question was based. Indeed 157 voluntary intelligent.” 1991; knowing, penal in the death even unsettled found that to the at 492. The court context, of Walton v. Ari P.3d holding ty prohibited 639, 649, 110 extent that the Colorado statute zona, S.Ct. 497 U.S. (1990) solely based on punishment trial on the Sixth a L.Ed.2d —that plead guilty, decision to to find a defendant’s require Amendment did violated the Sixth Amendment therefore circumstances aggravating the statute “fails to effect know- that no because established impose death —had waiver, as voluntary intelligent ing, existed. such when a defendant the waiver is automatic Halbert, Tay- Yeager Just as words, the guilty.” Id. In other pleads have waived his lor could not constitutionally link the could not statute from the lan- (borrowing fact-finding to the waiver of a trial on Halbert) the time he “at used guage guilt trial on because that waiver of in common with plea, [Taylor], entered waiver automatic. would make such a pleas, their convicted on other defendants waive fact- may a defendant While determi- recognized [a had no during punishment phase, finding relating punishment] facts nation of the to be know- requires that Blakely waiver Halbert, 545 forego.” he could elect separately waived. ingly, intelligently and 2582. While as U.S. at S.Ct. notes, Mr. Halbert also majority opinion by the only relevant case cited definitely informed that he was not contrary Piper, is State v. to the appeal, review of state be denied counsel (S.D.2006).8 In that N.W.2d 806-809 that this was not Halbert leaves no doubt But, notes, pleaded guilty. in their cases supreme defendants the State other state As neglects three of these to note that distinguish principle that under. the State did courts State, P.3d 118 Nev. cases — Colwell v. Ring a Sixth Amendment violation to it is Indiana, (2002); 797 N.E.2d 743 noting Leone v. deny punishment, trial of Alton, (Ind.2003); Ill.App.3d Illinois Ring trial while the the defendant in went to

669 case, Supreme right place. the South Dakota Court the in the language first The interpreted penalty procedure its death of the statute expressly limits the fact- providing as for a hear- statute role to in finding judge the non-jury cases ing at a pres- which determines the ... judges the ... had no authority to alleged aggravating ence or absence of offer sentencing.” 709 N.W.2d at 821. pleads a guilty. factors when defendant dissenting The judge in concluded Piper, Piper 709 N.W.2d at 804. noted light of the Supreme holding Court’s finding aggravating before the fac- right there is constitutional to fact- death, necessary impose tors “the [tri- finding, required because the factual find- properly presented Piper court al] with ings not by were admitted the defendant option exercising right the of to sen- by or found jury, the death sentence tencing by by provided as South imposed by judge the was in violation of punishment statutory Dakota’s capital defendant’s Sixth Amendment rights. Id. at in majority scheme.” Id. 806. The at 822. Piper although Ring right held that the The in principles Yeager, set out Halbert aggravating of finding factors had directly and Montour are applicable here. yet been established at the time of the Mr. right could waive a sentencing hearing, defendant’s the defen- punishment-phase jury fact-finding that he “specifically dant had to be asked sen- court, have. argument did not The waiver by thereby circuit made tenced waiv- by accepted the State ing majority right his constitutional is without merit. alleged aggrava- determine whether ting in circumstances his case existed be- D. Law the Is an Case Alternative yond a Id. Piper, reasonable doubt.” Bar to Argument the State’s Waiver then, distinguishable is from this case be- cause Mr. specifically never re- Even were not a holding Halbert bar to that a at quested be the fact-finder yet Mr. could waive an as indeed, trial; when his unrecognized constitutional to a sentencing phase was after held remand determination of the facts 1994, Mr. specifically asked for punishment, the law case doctrine Moreover, jury, judge. not a no at making bars state an argu- from such trial point present Tay- did the court Taylor. ment as to Mr. al- This Court option lor with to have a In- ready has Mr. Taylor held that did not stead, 565.006.2, by operation of section any right, waive such for he the fact-finders at both Mr. waive, based on either a statute or the penalty phase judges. trials were 217, Taylor, constitution. at S.W.2d This also persuasive

Much more is 218-219. Court has held that relevant where, here, shown defen- dissenting opinion Piper, which that the have adopted approach prior dant did taken Court Taylor, stating, re-sentencing, “the waiver a sub- to reversal and remand for 565.035.5(3) right presupposes stantive then allow existence “section does ‘a pleads guilty. Ill.Dec. 788 N.E.2d fourth case cited defendant by (2003) to, State, Downs, prior decided and are South Carolina v. —were with, (2004), Blakely, simply odds which United States S.C. 604 S.E.2d that, and, explicitly held on the to the relied other cases cited even contrary, though is a there constitutional handed a few after down months fact-finding Ring applies Blakely, distinguish even when a does not cite to or it. State, benefit); with of defendant’s Smulls purposes jur/

new selected (Mo. 2002); banc State imposing sentence.” (Mo. Deck, 527, banc S.W.3d 545 v. 303 argues that law implicitly majority The 2010) (both princi- law of the case applying apply not here of the case does benefit). to state’s ples appeal in Mr. first holding the rejecting of Mr. in the context was made course, the exceptions Of there are to rights his were Taylor’s argument that Appellate courts law of the case doctrine. told he he was not that could violated when the the doctrine apply will not law of case agreed sentencing if the state to have based a mis- if “the first decision was on of But, point, is course. To it. that injustice in taken fact or resulted manifest this Court reject Taylor’s argument, Mr. change in the law intervened or where a Taylor right to that Mr. never had held Deck, appeals.” between the 303 S.W.3d Missouri sentencing under statutes 545, City Berkeley, v. citing Walton of and, therefore, he had no place the first (Mo. 2007); 126, banc ac 223 S.W.3d 130 Tay- waive. Now that Mr. right he could cord, State, 259 Cross v. holding, majority this lor embraces of (refusing apply to law (Mo.App.2000) opposite takes the would have this Court raising case to defendant from preclude view, that could and did waive stating he law between first and changed issue where But, legal point right to trial. Similarly, a will appeals). second court no so right, is the was there same—there if it law of the case doctrine apply not courts alter- was waiver. The cannot no ret that a new rule with recog- “determine^] recognizing nate and not between nizing right depending on the issue roactive effect contradicts law of such consequences State, of such before it and the 122 Bejarano case.” v. Nev. right be recognition. There cannot “no to (2006); accord, Tippins 271 P.3d addressing waive” whether counsel when State, (Fl.App.2001) So.2d his rights failed inform him of but then (court not law the case apply question when “a to waive” changed because law had and sentence changes unrecog- he chose to waive to did by law, making of that allowed excess majority certainly nized cites rights. The exception injustice applicable). for manifest its conclusion authority support case, however, noted, In Mr. as inconsistency in holding there is no its The exceptions these work in his favor. response made in simply because was only has change the law been to question, a different factual when basis benefit —the States United factually was a of decision—whether there has a Sixth Amendment recognized waiver—is the same. on jury fact-finding the issue authority, holding Missouri Under just punishment, guilt, not and Whit- Taylor waive deter- Mr. did not recognized right applies has field is law of the case. mination For rea- retroactively in these Missouri. doctrine is a neutral law of case sons, precluded claiming the State is from that can inure the benefit of principle sen- waived the or the either the defendant State. Com tencing guilty plea hearing. at his Under Graham, pare State v. S.W.3d case, the the doctrine of the law of the (Mo. 2000); Calvin, Ex Parte banc decided; already there was issue has been (Tex.Crim.App.1985) 462-63 S.W.2d (both the case no waiver. applying principles law of E. Mr. Did not context, Affirmatively the State waiver. as to Mr. Sentencing Jury Determination Waive clearly states that he wanted to a Factual Matter. already plead guilty because he had con- fessed and believed that a on guilt trial reasons, For all of the above made little in light sense of his confession. legally could held to have waived asked, the prosecutor When “So let me ask constitutional you, why you is it that avoided a yet recognized, and even could he do your you you decision that when made so, prior this that there holding Court’s plead Judge to decided front of Randall? was no such waiver is law of case. you was it What that were afraid of in Tay- Even were it to Mr. correct review front of a jury,” exchange proceeded as prior lor’s statements to see whether he follows: he affirmatively knowingly stated waived a afraid, A. It wasn’t that I it just necessary to trial facts preferred go didn’t—I not to a punishment, guilty he not do so. The did jury trial. hearing transcript without shows that question plead Q. he wanted to you any Did have in your doubt by doing and that he knew that so he a jury you mind that would sentence not have a to a trial on would to death? uses the “waiver” punishment. It word any A. Did I I have doubt? didn’t once, only only in and the context of ac- know. knowledging that because he wanted to Q. You opinion, didn’t have an is what guilty, knew he plead he therefore would oath, you’re telling us under as to course, getting be trial. Of what a would do? time, discussed, that as he had no constitu- A. I can’t answer that because I’m not tional to a trial on mean, I hope I would guilty, he pleaded just once so this was they me accept- would understand of fact. He never that he statement said willingness ing my to admit that I —

independently desired that a not be this crime have mer- committed permitted to determine the facts cy- punishment. to fill majority try state and the this Q. your testimony And Okay. before by gap citing testimony made Mr. Judge you is that don’t recall post-conviction hearing, his first any attorneys with your discussions course, in detail above. discussed Of about receiving the likelihood of question is relevant not what Mr. jury? death front retroactively have might previously said he A. No. thought or would have thought he

been offered a trial on Q. you’re You don’t recall telling punishment, but whether he in fact was us oath in front this Judge under offered one and waived it at the time of his you recall real any don’t discus- guilty plea. He was not not. and did sions about the death likeli- penalty hood at all? basically,

Even more Mr. assuming Tay- A. concerning We discussed the issues post-conviction pro- lor’s statements in his ceeding Degree charge statutory right about his First Murder issue, were transcript parole the relevant life possibility without penalty. does contain the admissions claimed the death But as far as because, testified, Mr. McClain I would it was

discussing probably what videotaped he “believed confession really we didn’t going jury, get phase very damaging guilt be at a would that. discuss and, thus, guilt a trial of proceeding” plead in you did decide to Q. Why rs? like jury might before a look Mr. issues you Why did Judge? front of trying out of his admis- Taylor was to back Judge plead in front of want sions, likely inflame the fact- which would Meye that he finder. McClain testified “was videotaped state my A. Becauseof with bad the confession concerned how ment. how would look to a of twelve and bad Judge you think that the Did O’ [they] contesting look were it would give likely more or less guilt when had made confes- penalty jury? than a Mr. McClain was not aware wheth- sion.” <¡ really don’t know. to trial before a go er a defendant could discussions, opin- ... no You had no O he had jury guilt, but then confess never benefits be- ion as the relative and did possibility heard of such not punish- Judge jury tween a or for Taylor. it or it with Mr. consider discuss ment, telling you’re is that what us? “memory Mr. McClain testified that his Yes. jury was the choice was between the pleading guilty having Judge sen- say pleaded Mr. does not tence.” a jury to waive determination of as the contends was the punishment, thought state a choice Had she there was of Rather, he he did that not try punishment judge case. said to a whether or go want to trial before a initially Delk was jury, Ms. testified that she not recommended, so there was because he confessed no what she have sure would trial and that point guilt of his detriments for she saw benefits and not with him whether a counsel did discuss better un- approach. judge might each A him with a judge provide history, or would Mr. criminal but derstand penal- avoiding chance for the death better to Ms. that according may Delk factors have been ty a discussion would have made a were “the re- favorable —such course, opportu- pointless, of as he had well Taylor] [Mr. morse that felt” as punishment situation, trial of nity family family support, “the guilty. He plead mitigation once he decided to did of I think would type also not know which trier of fact have jury.” well to a Because Missouri law go avoiding him a chance at given better permit punishment did not trial sentence; however, did not question death pleaded guilty, where defendant issue his counsel up come and was not an Mr. counsel’s advice once took with him guilty, discussed Ms. Delk testified that she plead option an once he not discuss him these did not with factors plead guilty. decided to toward after a tending Ms. Delk this re- plea. admitted they did Counsel confirmed dis- duty failed in inform him gard she her Mr. it would be cuss with whether options. all his better to have a decide the waiver, pleaded providing he should once he Far from evidence of receive testimony Certainly they original believed and from the PCR hear- guilty. ad- guilty, ing him that he but confirms Mr. did waive plead vised should to have determination imposition the facts penalty.

Ill CONCLUSION above, Tay-

For set the reasons out

lor’s death sentence is in excess of that law in imposed

authorized that it

violation of Sixth Amendment as it was upon judge,

based facts found not a majority with agree that this knowingly can and intelligently

waived, but because there was no valid case,

waiver I believe that Mr.

Taylor is entitled to habeas relief and that imposed

the death sentence va- should be

cated. COMPANY,

ARBOR INVESTMENT

LLC, al., Appellants, et HERMANN, Respondent.

CITY OF

No. SC 91109. Missouri,

Supreme Court of

En Banc.

May

Rehearing July Denied notes 565.030.4, (the sec. RSMo 1994 tion.” See findings imposing for factual applicable when death sen- statute (1) sentence, included: at least which remand). imposed tence was after present statutory aggravating one factor case; (2) aggravating evidence war- in the Second, argues that he is entitled to Subsequent IY. Case Law To habeas relief because his death sentence Apprendi Ring A. & equal protection violates process and due In Apprendi v. New Jersey, similarly situated defendants have United States Court held that been sentenced to life imprisonment rather the Sixth Amendment permit does not than sentenced to death. defendant to “expose[d] ... to a penal ty exceeding the maximum he would re III. Standards Review ceive if punished according to the facts “Habeas corpus judi is the last reflected verdict alone.” 530 cial inquiry validity into the of a criminal 466, 483, U.S. 120 S.Ct. 147 L.Ed.2d conviction and serves as ‘a bulwark against (2000). Under Apprendi, “[o]ther convictions that violate fundamental fair conviction, than the fact of a prior any fact ” ness.’ Roper, Amrine v. that increases the penalty for a crime be (Mo. 2003) banc (quoting Engle v. yond prescribed statutory maximum Isaac, 107, 126, 456 U.S. 102 S.Ct. 71 must be jury, submitted to a proved (1982)). L.Ed.2d 783 proceedings, Habeas beyond a reasonable doubt.” Id. at authorized under Rule are limited to 120 S.Ct. 2348. determining the facial validity of a peti In Ring, the court extended its holding tioner’s confinement. State ex rel. Sim in Apprendi provide the Sixth White,

Notes

notes other courts have This Court post-convic- first were examined in his initial pleas guilty and waivers remain held that Judge proceedings tion before Dierker. sentencing underlying if the valid even Judge findings included: Dierker’s “The dead they “explicitly are scheme on which based large letter of 565.006.2 looms [section] precludes unequivocally the defendant that, case, for the sole reason in hind- receiving Nunley, 341 sentence.” from sight, thing apparently the one is (quoting Piper, 709 S.W.3d State v. [Taylor] completely counsel for overlooked.” (S.D.2006)); citing Col N.W.2d also Judge Dierker at 59. Memorandum Dierker State, 118 Nev. 59 P.3d well v. had noted that section 565.006.2 not been (2003) statutory (upholding Nevada law and never construed case before unequivocally eliminated the scheme that County. been in Jackson And he invoked sentencing the de- to a because noted that the statute conferred no on guilty validly pleaded waived his fendant empanel jury, gave but rather trial); State, Moore v. authority sentencing. State the to choose (Ind.2002) (upholding Indiana N.E.2d Dierker at 59-60. Memorandum He found unequivocally statutes that foreclosed counsel were not ineffective for guilty plea; after a 565.006.2, overlooking particularly section guilty plea defendant’s waived finding that the [Taylor’s] because the “facts of case were argue statutory that the his entitlement entirely such that it was reasonable for coun- unconstitutional it de scheme was because juiy altogether.” sel to eschew involvement prived of a determination the defendant rejected- Dierker He Memorandum circumstances). aggravating Taylor's contention that his involun- Nunley declares that tary knowledge also section 565.006.2 of lack of about sec- because applied 565.006.2, Nunley is constitutional concluding knowledge tion [pursu- claim that the bearing [now] he "cannot State the statute had no desire deprived sentencing. 565.006.2] him of a ant to section to avoid See Dierker Memo- strategically pled jury, Judge when he order randum at 60-62. Dierker wrote: whether, sentencing.” Nunley, question to avoid "The at the time of the Any pleas, whether awareness of [section] S.W.3d assessment of an 565.006.2 changed applied constitutionally counsel's recommenda- section 565.006.2 was have

notes might cases of other similar number small cases in which a yet ents another of these that the retroactivi- be identified and later than a determined judge rather necessarily ap- also would be analysis ty necessary impose facts death Id. at 269. plied to them. Appren- entitled under and that he too is years, a number of addi- ensuing In the to have his di-Ring-Blakely-Whitfield cases, and some no pending some tional that, argues He sentence set aside. review, or on collateral longer pending having determined Whitfield rath- in which a have been identified the facts to have a determine necessary to found the facts er than punishment applies retroac-

Case Details

Case Name: State Ex Rel. Taylor v. Steele

Court Name: Supreme Court of Missouri

Date Published: May 31, 2011

Citation: 341 S.W.3d 634

Docket Number: SC 90925

Court Abbreviation: Mo.