Introduction
Kevin Collins (Defendant) appeals from the Judgment entered by the Circuit Court of the City of St. Louis, following a jury trial, convicting him of one count of robbery in the first degree, in violation of Section 569.020, RSMo 2000. 1 The trial court sentenced Defendant to thirteen years of incarceration. We affirm the trial court’s Judgment.
Background
On November 6, 2006, Defendant was indicted as a prior felony offender on one count of robbery in the first degree, in violation of Section 569.020, one count of armed criminal action, in violation of Section 571.015, and one count of attempted burglary in the first degree, in violation of Section 564.011, resulting from two incidents on March 15, 2005. 2
Defendant was tried by a jury between April 30 and May 1, 2008. During jury selection, after the prosecutor made his peremptory strikes, Defense Counsel raised a Batson 3 challenge to the strike of venireperson A.C. (A.C.) because of her race and gender. The following exchange took place on the record:
[Defense Counsel]: Judge, I move under Batson versus Kentucky that the prosecutor’s peremptory strike of [A.C.], juror 238, be disallowed on the grounds that it’s an improper attempt to exclude this juror on the basis of her race and gender and violation of [Defendant’s] and [A.C.’s] right to due process and equal protection of the law as guaranteed by the Fourteenth Amendment to the U.S. Constitution, and Article I, II and X of the Missouri Constitution. I ask the Court to take judicial notice that [A.C.], juror number 238, is a black female.
THE COURT: Court takes judicial notice and notes that. [Prosecutor], do you have any response?
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[Prosecutor]: ... [A.C.] is the only person that said she had a close relative, her brother, who was accused of statutory rape. And as such I think it would be a bad choice for the State.
THE COURT: [Defense Counsel], do you have a response?
[Defense Counsel]: Well, Judge, just in terms of a close relative being charged with a crime, juror number 398, [K.G.], said her dad was charged with trespassing and her brother was charged with breaking and entering. And [K.G.] is a white female.
THE COURT: So what are you saying? [Defense Counsel]: She’s similarly situated.
THE COURT: [Prosecutor]?
[Prosecutor]: Well, I would hardly consider rape and trespassing to be of equal weight, as far as crimes go. Or even breaking and entering. So, I don’t think that they are similarly situated.
THE COURT: How long have you been a prosecutor, [Prosecutor]?
[Prosecutor]: Thirty-one years.
THE COURT: Okay. I’m going to allow the strike of [A.C.]. Anybody else?
After jury selection, the trial continued with both the State and Defendant presenting evidence, though Defendant did not testify. During trial the State failed to introduce any evidence that Defendant was a prior offender. Accordingly, the trial court did not make a finding of fact that Defendant was a prior offender.
The jury found Defendant guilty of robbery in the first degree, but not guilty of the other two charges. On June 19, 2008, the trial court held Defendant’s sentencing hearing. During the sentencing hearing, Defense Counsel requested the trial court consider a community based sentence. The trial court responded to this request by stating:
Your attorney hit on an interesting thing, community sentence, meaning she wants me to release you today to go into a series of programs where you would be out of prison and you’d be out into the community working in different programs and things like that.
And, there’s a couple things about that. First, I think for someone to be eligible for a program like that they have to know that they committed the crime that they’ve been convicted of, they have to have remorse. All right? They have to feel some type of pain for the pain that they have inflicted on these two victims here; and, I don’t see that from you. All right.
Now, I understand why you’re doing it. You went to trial and you want to maintain your innocence to the bitter end. You have your family standing behind you; and, the last people that you would want to admit that you robbed or tried to break into one house of a woman and then rob the Bosnian pizza man probably with a toy gun would be the people standing behind you. For a lot of reasons you don’t want to admit to me you did this; and, that’s the decision that you have made. All right. And, that’s fine. Okay. But don’t expect something from me if you’re not willing to give me something, okay, No. 1.
No. 2, the community — I’ve reached the point now in this case — now it is my case; not [the prosecutor’s] case; not [Defense Counsel’s] case; really not your case, because you made certain decisions to get yourself here. You decided to do this robbery and the attempt break-in, you decided to go to trial; all things that you in your free will you’re willing to do. Now it’s up to me to do something, all right? And, what I have to do, I have to balance the needs of you and all that you bring or don’t bring, developmentally disabled, lower IQ, lack of education, lot of time on the streets, all those things, and then I have to look at the community on the other end. And, I have to balance the two and seedo people have a right to feel safe in their homes without fear of them being kicked in by a gang of boys. Does a pizza delivery man have the right to feel safe and secure when he goes out and makes his deliveries and not believe that someone is going to stick a gun in his face to take a warming bag. And, I think people have a right to those things. I do. I think people have a right in the society to be safe. And, that’s what I’m trying to balance. And that’s my thing here, okay?
The trial court then sentenced Defendant to thirteen years of incarceration. Defendant filed a timely notice of appeal on June 26, 2008. This appeal follows.
Points on Appeal
Defendant presents three points on appeal. First, Defendant alleges the trial court erred in overruling his Batson challenge because the ruling violated his and A.C.’s constitutional rights. Defendant asserts the prosecutor’s proffered reason for his peremptory strike of A.C. was pretext for discrimination because the explanation had no rational relationship to the case and the prosecutor failed to strike a similarly situated white venireperson.
In his second point, Defendant claims the trial court plainly erred in sentencing Defendant to thirteen years of imprisonment without jury sentencing. Defendant asserts the sentence violated his statutory and constitutional rights because the State failed to present any evidence that he was a prior felony offender and the trial court did not find that he was a prior felony offender. Because the State failed to present evidence of Defendant’s prior conviction before the case was submitted to the jury, Defendant asserts he was entitled to jury sentencing.
Third, Defendant argues that the trial court plainly erred and abused its discretion in sentencing him to thirteen years of imprisonment because the sentence was imposed in violation of his constitutional rights. Defendant claims the thirteen year sentence was imposed expressly in response to him having exercised his right to trial by jury.
Discussion
Point I — Batson Challenge
In his first point, Defendant alleges the trial court erred in overruling his Batson challenge to the prosecutor’s peremptory strike of A.C. because the ruling violated his and A.C.’s constitutional rights. Defendant alleges the prosecutor’s proffered reason for the strike was a pretext for discrimination because the proffered reason had no rational relationship to the case at hand and the prosecutor failed to strike a similarly situated white venireperson. We disagree.
Standard of Review
A trial court’s finding on a
Batson
challenge will be set aside only if it is “clearly erroneous.”
State v. McFadden (McFadden II),
Analysis
The United States Supreme Court held in
Batson v. Kentucky
that the Equal Protection Clause guarantees a defendant that venirepersons will not be excluded from the jury venire on account of race.
Missouri has adopted a three-step process for evaluating a
Batson
challenge.
State v. Barnett,
Here, Defendant’s timely objection to the State’s use of a peremptory strike to remove A.C., a black woman, satisfies the first step of our inquiry into a
Batson
challenge. Defendant specifically objected that “under Batson versus Kentucky that the prosecutor’s peremptory strike of [A.C.], juror 238, be disallowed on the grounds that it’s an improper attempt to exclude this juror on the basis of her race and gender.” Defendant made it clear he was raising a
Batson
challenge and identified the cognizable protected group to which the venireperson in question belonged.
Barnett,
Proceeding to the second step of our inquiry into Defendant’s
Batson
challenge, the prosecutor responded to Defendant’s objection by explaining that he exercised a peremptory strike on A.C. because “[A.C.] is the only person that said she had a close relative, her brother, who was accused of statutory rape. And as such I think it would be a bad choice for the state.” (Tr. 128) A “race-neutral explanation” in the context of a
Batson
challenge simply means “an explanation based on something other than the race of the juror.”
Hernandez v. New York,
Once the State produces a facially valid explanation, the burden then shifts back to the defendant to demonstrate that the State’s proffered reason was mere pretext for purposeful discrimination.
Purkett,
Defendant argues that the State’s race-neutral explanation for striking A.C. is merely a pretext because the stricken black venireperson was similarly situated to a white venireperson, K.G. Defendant notes that, “in terms of a close relative being charged with a crime, juror number 398, [K.G.], said her dad was charged with trespassing and her brother was charged with breaking and entering. And [K.G.] is a white female.” While the venirepersons have close relatives charged with crimes, the State argues that the difference in the severity of the crimes makes the venire-persons not similarly situated. Specifically, at trial the prosecutor stated that he “would hardly consider rape and trespassing to be of equal weight, as far as crimes go. Or even breaking and entering. So, I don’t think that they are similarly situated.” After inquiring into the prosecutor’s length of service and experience, the trial court ruled to allow the prosecutor’s strike of A.C.
The trial court has considerable discretion in determining pretext. The trial court’s main consideration is the plausibility of the prosecutor’s given explanation and whether the prosecutor purposefully discriminated in exercising a peremptory strike in light of the totality of the facts and circumstances surrounding the case.
Johnson,
As he argued at trial, Defendant continues to assert that A.C., a black female, and K.G., a white female, were similarly situated because they both had a close relative who had been accused of a crime.
4
Defen
We agree with the State’s argument that venirepersons A.C. and K.G. were not sufficiently similar to demonstrate pretext for discrimination. It is clear that the crimes with which the venirepersons’ respective relatives were charged with were not of equal severity. A.C.’s brother was previously charged with statutory rape, a crime against person. KG.’s father was charged with trespassing and her brother' was charged with breaking and entering, both crimes against property. The dissimilarities between the crimes charged are real, and not merely perceived. This critical distinction precludes us from considering these two venirepersons to be similarly situated. Statutory rape is a serious crime violating the dignity and person of the victim. Persons convicted of statutory rape are often viewed with scorn, disgust, and vile by society. Having a family member charged with statutory rape can be extremely emotional and distressing to the family. While we do not minimize the seriousness of being charged with trespass or breaking and entering, these categories of crimes are simply in an entirely different realm, and do not evoke the same emotional response. The State reasonably and logically could have believed the differences in the nature of the crimes charged to be significant. A juror’s reaction to evidence presented at trial may very well be affected by his or her personal emotional response to a family member being charged with statutory rape. That reaction might vary significantly from a juror who did not have a family member charged with statutory rape. As such, the explanation offered by the prosecutor for striking A.C. and not K.G. is reasonable, and unrelated to impermissible discrimination. Defendant failed to demonstrate that the State’s proffered reason for striking A.C. was pretextual and that the strike was racially, or gender, motivated. We do not find the trial court clearly erred in allowing the State’s peremptory strike of A.C. Defendant’s first point is denied.
Point II — Prior Felony Offender Status
In his second point, Defendant argues the trial court plainly erred in sentencing Defendant without jury sentencing because the State failed to present any evidence that Defendant was a prior felony offender, and Defendant was not found by the trial court to be a prior felony offender. We agree that the trial court erred when it sentenced Defendant without a jury. However, we also find Defendant waived that right and thus his point is denied.
Standard of Review
Defendant concedes that he failed to raise the issue of jury sentencing at trial. This Court therefore may only conduct review for plain error under Rule 30.20.
5
State v. Weaver,
Two steps are involved in plain error review.
Id.
First, we must determine whether the trial court committed an evident, obvious, and clear error, which affected the substantial rights of the defendant.
Id.
at 762-63. When evident, obvious, and clear error is found in the first step, the second step of plain error review requires this Court to determine whether manifest injustice or a miscarriage of justice resulted therefrom.
Id.
at 763. To be entitled to a reversal on a claim of plain error, a defendant must demonstrate that the trial court’s action was not only erroneous, but also that the error “so substantially impacted upon his rights that manifest injustice or a miscarriage of justice will result if the error is left uncorrected.”
Broom,
An unauthorized sentence affects substantial rights and results in manifest injustice, justifying plain error review.
Drennen v. State,
Analysis
While there is no constitutional right to jury sentencing, Missouri provides a statutory right to jury sentencing unless (1) the defendant requests in writing, prior to voir dire, that the trial court assess punishment, or (2) the State pleads and proves the defendant is a prior or persistent offender. Section 557.036;
see State v. Emery,
A defendant may be sentenced as a pri- or offender under Section 558.021.1 when (1) the indictment pleads all essential facts warranting a finding that the defendant is a prior offender, (2) evidence is introduced establishing sufficient facts proving beyond a reasonable doubt that the defendant is a prior offender, and (3) the trial court makes findings of fact supporting its finding beyond a reasonable doubt that the defendant is a prior offender. 6 A defendant’s prior offender status must be pleaded, established, and found before the case is submitted to the jury. Section 558.021.2.
Although Defendant was charged in the indictment as a prior offender under Section 558.016, both the State and Defendant admit that the State failed to present any
The record is clear that no evidence of Defendant’s prior felony conviction was presented to the trial court. Missouri statutes require the State to present evidence of Defendant’s prior offenses pri- or to submitting the case to the jury in order to have Defendant sentenced as a prior offender. When the State failed to present evidence of Defendant’s prior offense before the case is submitted to the jury, there was no basis upon which Defendant could be sentenced by the trial court as a prior offender. Section 558.021.2;
Emery,
However, while the trial court clearly erred by not allowing jury sentencing, we find that Defendant waived his rights to be sentenced by a jury. Our Supreme Court found in Emery that a defendant “waive[s] his statutory right to a jury-recommended sentence where he allow[s] the judge to determine his sentence without raising his right to have the jury recommend a sentence.” Id. at 102. The Supreme Court in Emery analyzed a situation very similar to the facts in this case. In Emery, the State failed to offer evidence that the defendant was a prior and persistent offender prior to the submission of the case to the jury. Id. at 102-03. The defendant did not object to the judge-sentencing at trial or at his sentencing. Id. The Emery Court found that had the defendant’s counsel timely raised the issue, the State could have realized the error and offered evidence of the defendant’s prior and persistent offender status. Id. at 103. However, because the defendant “chose to sit on his statutory right,” the Emery Court held that the Defendant “cannot now be deemed entitled to a jury-recommended sentence” because “[h]e has waived that right.” Id. Consistent with the Supreme Court’s finding in Emery, we find Defendant waived his statutory right to jury sentencing when he failed to avail himself of that right at trial, and did not object to the trial court’s sentencing.
We are mindful of the strict requirements imposed by Section 558.021, and the recent pronouncement our Supreme Court has made on these requirements. 7 However, even though the trial court erred in taking Defendant’s sentencing away from the jury, the record supports our finding that Defendant waived his right to jury sentencing. Point denied.
Point III — Sentencing Violation
In his third point, Defendant argues the trial court’s sentence of thirteen years of
Standard of Review
While typically a court’s sentencing decision is reviewed for abuse of discretion, Defendant failed to preserve this issue for appeal when he did not object to the sentence imposed.
State v. Palmer,
Analysis
Section 557.036.1 provides that a trial court shall decide the extent or duration of a defendant’s sentence under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant. The trial court has a duty to impose a sentence on a ease-by-case basis, and to fashion the punishment to both the crime and the criminal.
Palmer,
Although the trial court has substantial discretion when imposing sentences, the discretion is not without limits. It is “fundamental that one convicted of a crime must not be subjected to a more severe punishment simply because he or she exercised a constitutional right.”
Palmer,
Defendant argues that the trial court based its sentence, in large part, on Defendant’s decision to proceed to trial rather than plead guilty. In support of this argument, Defendant cites to the trial judge’s language during the sentencing hearing where the judge stated:
... I think for someone to be eligible for a program like that they have to know that they committed the crime that they’ve been convicted of, they have to have remorse. All right? They have to feel some type of pain for the pain that they have inflicted on these two victims here; and, I don’t see that from you. All right.
Now, I understand why you’re doing it. You went to trial and you want to maintain your innocence to the bitter end.... For a lot of reasons you don’t want to admit to me you did this; and, that’s the decision that you have made. All right. And, that’s fine. Okay. But don’t expect something from me if you’re not willing to give me something, okay, No. 1.
While the trial court mentioned that Defendant “went to trial” and “maintain[ed][his] innocence to the bitter end,” we do not read these comments alone, but consider these remarks in the context of the entire sentencing proceedings. Nor do we find these comments alone support a finding that the trial court improperly punished Defendant for exercising his right to a trial. Instead, we read the trial court’s comments as statements regarding Defendant’s apparent lack of remorse and failure to take appropriate responsibility for his actions, both appropriate considerations when considering sentencing.
See Lindsey,
We are not convinced the trial court impermissibly subjected Defendant to a more severe punishment because he exercised his constitutional right to a jury trial. Considering all of the factors, we find the trial court did not plainly err in sentencing Defendant to thirteen years of imprisonment. Defendant’s third point is denied.
Conclusion
The judgment of the trial court is affirmed.
Notes
. All further statutory references are to RSMo 2000, unless otherwise indicated.
. Defendant does not contest the sufficiency of the evidence on appeal, thus an extensive recitation of the facts surrounding the crimes are not necessary.
.Batson v. Kentucky, 476
U.S. 79,
. Defendant also makes the argument that the State's proffered reason for striking A.C. has no logical relevance to the case at hand; how
. All rule references are to Mo. R.Crim. P.2008, unless otherwise indicated.
. Under Section 558.016, a “prior offender” is one who has pled guilty to, or has been found guilty of, one felony.
. In
State v. Teer,
the Supreme Court expressly held that "[tjhe plain language of section 558.021.2 imposes a mandate requiring that prior offender status be pleaded and proven prior to the case being submitted to the jury.”