STATE of Missouri, Respondent, v. Joseph GRUBB, Appellant.
No. SC 85195.
Supreme Court of Missouri, En Banc.
Oct. 28, 2003.
Rehearing Denied Dec. 23, 2003.
120 S.W.3d 737
IV.
The judgment is reversed, and the case is remanded. The circuit court shall remand the case to the PSC to consider and decide the issue of recoupment of the acquisition premium in conjunction with the other issues raised by PSC staff and the intervenors in making its determination of whether the merger is detrimental to the public. Upon remand the Commission will have the opportunity to reconsider the totality of all of the necessary evidence to evaluate the reasonableness of a decision to approve a merger between UtiliCorp and SJLP.
WOLFF, BENTON, STITH, TEITELMAN and LIMBAUGH, JJ., and DRAPER, Sp.J., concur.
PRICE, J., not participating.
I.
Joseph Grubb was convicted of two counts of assault in the second degree in violation of
Raymond Legg, Hannibal, Craig A. Johnston, Office of State Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Nicole E. Gorovsky, Asst. Atty. Gen., Jefferson City, for Respondent.
II.
In October 2001, a jury found Grubb guilty of two counts of assault. At trial, evidence was presented that Grubb assaulted his wife on two separate occasions. On the first, Grubb brоke her ankle by repeatedly striking her with two wooden toilet plungers and a metal broom handle. Grubb hit her with one plunger until it broke, then hit her with the other until it broke, and then resorted to the metal broom handle. A few weeks later, before she had fully recovered from her broken ankle, Grubb assaulted his wife again. This time Grubb pulled her out of a chair by her hair and struck her in the face with his hand. Grubb‘s blow fractured her facial bones, ruptured blood vessels in her eye, and gave her a black eye. Immediately after the assault, his wife could not stand and suffered a temporary loss of vision.
The trial court sentenced Grubb as a prior offender under Missouri‘s recidivism statute,
Grubb appealed his state court conviction, and the Western District affirmed the sentence. Grubb argues the Western District‘s holding conflicts with the Eastern District‘s holding in State v. Mitchell, 659 S.W.2d 4, 6 (Mo.App.1983), which precludes using convictions from military courts to enhance a sentence under the recidivism statute. This court granted transfer to address the confliсt.
Grubb concedes that the applicable standard of review is plain error because he failed to preserve his argument for appeal. “[P]lain errors affecting substantial rights may be considered ... when the court finds that manifest injustice or a miscarriage of justiсe has resulted.” Rule 30.20.
III.
A.
The court may sentence a person who has pleaded guilty to or has been found guilty of an offense to a term of imprisonment authorized by section 558.011 or to a term of imprisonment authorized by a statute governing the offense, if it finds the defendant is a prior offender or a persistent misdemeanor offender, or to an extended tеrm of imprisonment if it finds the defendant is a persistent offender or dangerous offender.
Id. (emphasis added).
We look to the plain language of the statute to determine whether the legislature intended to include convictions by court-martial. “The primary rule of statutory construction is tо ascertain the intent of the legislature from the language used, to give effect to the intent if possible, and to consider the words in their plain and ordinary meaning.” Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 251 (Mo. banc 2003).
Under the plain language of
Grubb argues that even if this reasoning would otherwise be valid, court-martial convictions should not be allowed to enhance a sentence under
B.
Grubb also contends that the reasoning in State v. Mitchell should control. 659 S.W.2d 4 (Mo.App.1983). Mitchell held that military court-martial convictions should not be used for sentence enhancement. Id. at 6. The Court of Appeals, Eastern District, found the military “system of discipline sufficiently foreign from our own system of criminal justice and from that of our sister stаtes and federal government so as to prohibit its use as a threshold predicate of enhanced punishment under section 558.016.” Id. The court stated its finding was “insofar as the right to trial by jury is not afforded by court-martial.” Id.
Grubb‘s reliance on Mitchell is misplaced. Because his court-martial conviction was the result of a guilty plea he entered while he was represented by counsel, none of the potential due process issues raised in Mitchell are present. In fact, by pleading guilty to the offense, Grubb waived his right to contest the process by which he might have been tried.
In a similar argument, Grubb argues the use of court-martial convictions for sentence enhancement in Missouri would be unconstitutional because military courts-martial do not require conviction by a twelve-member jury, as required by
Grubb‘s final Mitchell related argument is that application of court-martial convictions under the recidivism statute would be contrary to legislative intent. Grubb argues that the legislature‘s failure to amend the recidivism statute to address court-martial convictions in light of Mitchell indicates it intended to аdopt that court‘s construction of the statute.3
The rule of statutory construction to which Grubb refers states “where a court of last resort construes a statute, and that statute is afterwards re-enacted, or continued in force, without any change in its terms, it is presumed that thе legislature adopted the construction given to it by the court.” Jacoby v. Mo. Valley Drainage Dist. of Holt County, 349 Mo. 818, 163 S.W.2d 930, 939 (banc 1942). Grubb‘s argument on this theory is unpersuasive for several reasons.
First, the rule is not one of great strength because the legislature may have many motivations for failing to amend a statute. When determining intent, legislative аction is far more indicative of intent than mere inaction. L & R Dist., Inc. v. Mo. Dep‘t of Revenue, 529 S.W.2d 375, 378 (Mo.1975). For example, the legislature may not have amended
Second, while it is true that the court of appeals is a court of last resort, “the Supreme Court is a still superior court in nowise bound by the decisions of the [c]ourt of [a]ppeals.” Roy F. Stamm Elec. Co. v. Hamilton-Brown Shoe Co., 350 Mo. 1178, 171 S.W.2d 580, 584 (banc 1943). If the legislature is to adopt any judicial interpretation of a statute, it should be this Court‘s interpretation, not the court of appeals’ interpretation. Id. Consequently, the legislature‘s inaction in this instance should not be read as legislative approval or ratification of the court‘s reasoning in Mitchell.
C.
Our decision today is in accord with the majority of states that have addressed this issue. See United States ex rel. Thompson v. Price, 258 F.2d 918 (3rd Cir.1958); People v. Calderon, 205 Cal.App.2d 566, 23 Cal.Rptr. 62 (1962); Scott v. U.S., 392 A.2d 4 (D.C.1978); Frazier v. State, 515 So.2d 1061 (Fla.Dist.Ct.App.1987) (finding military offenses may be used for sentence enhancement where the offense is included in an analogous or parallel Florida statute); State v. Bullock, 329 So.2d 733 (La. 1976); Muir v. State, 308 Md. 208, 517 A.2d 1105 (1986); State v. Hernandez, 259 Neb. 948, 613 N.W.2d 455 (2000); People v. Benjamin, 7 A.D.2d 410, 184 N.Y.S.2d 1 (1959); Millwood v. State, 1986 OK CR 106, 721 P.2d 1322 (1986); State v. Graves, 150 Or.App. 437, 947 P.2d 209 (1997); Com. v. Smith, 528 Pa. 380, 598 A.2d 268 (1991); Turner v. Com., 38 Va.App. 851, 568 S.E.2d 468 (2002); State v. Helton, 151 Vt. 321, 559 A.2d 697 (1989); State v. Morley, 134 Wash.2d 588, 952 P.2d 167 (1998); contra United States v. Stuckey, 220 F.3d 976 (8th Cir.2000); State v. Wimberly, 246 Kan. 200, 787 P.2d 729 (1990); State v. Wheeler, 123 W.Va. 279, 14 S.E.2d 677 (1941); State v. Anaya, 123 N.M. 14, 933 P.2d 223 (1996) (citing
IV.
The judgment is affirmed.
BENTON, STITH and LIMBAUGH, JJ., concur.
TEITELMAN, J., dissents in separate opinion filed; WHITE, C.J. and WOLFF, J., concur in opinion of TEITELMAN, J.
RICHARD B. TEITELMAN, Judge, dissenting.
I respectfully dissеnt. The right of an accused to have a trial by jury is a fundamental procedural safeguard protected by
The purpose of the Military Justice System is to maintain discipline and duty and promote efficiency and effectiveness in the military establishment.
Missouri‘s criminal statutes are to protect the public and its citizens from crime and to punish offenders; however, they also protect the accused by providing due
The Uniform Code of Military Justice is premised on maintaining the effectiveness and efficiency of the military by protecting the order and discipline of the organization. The military accomplishes this is by allowing a general court-martial panel to be comprised of five members.
The Court of Appeals, Eastern District, found the military system of discipline “sufficiently foreign from our own system of criminal justice and from that of our sister states and federal government” with its lack of trial by jury. State v. Mitchell, 659 S.W.2d at 6.2 The court held that a court-martial conviction did not qualify as a prior offense for the purpose of enhanced statutory punishment under
The Mitchell decision was issued in 1983. Since then the legislature has amended
“The rule of lenity gives a criminal defendant the benefit of a lesser penalty where there is an ambiguity in the statute allowing for more than one interpretation.” State v. Rowe, 63 S.W.3d 647, 650 (Mo. banc 2002). In this case, the statute does not unambiguously demonstrate the state‘s position that a сourt-martial conviction qualifies as a prior offense. Therefore, because this case involves construction of a criminal statute, it must be strictly construed and any ambiguity resolved in the defendant‘s favor.
For these reasons, I would reverse.
RICHARD B. TEITELMAN
Judge