State v. Motley
546 S.W.2d 435
Mo. Ct. App.
1976
Check Treatment

*1 Missouri, Plaintiff-Respondent, STATE MOTLEY, Patrick

John

Defendant-Appellant.

No. 37211.

Missouri Court of Appeals, District, Louis

St.

Division One.

Dec. Rehearing

Motion for or Transfer Feb.

Denied *2 II,

violation Article Section and Article V, Constitution; 1 of the Section Missouri (2) year the ten sentence is and excessive disproportionate, constituting cruel and and punishment contrary to the man- unusual Article 21 of the Missouri date of Section Eighth and the Constitution Amendment appli- Constitution made States to the States the Fourteenth cable Amendment. in- first contends court has

Defendant grant deny herent or a convicted Baris, Baris, Irl B. Kenneth Newmark & probation on offender consideration of miti- Graeber, Louis, defendant-appel- H. St. for circumstances, gating citing State v. lant. McCoy, 94 Idaho 486 P.2d 247 Danforth, Atty. Gen., C. Preston John power by and to restrict this statute consti- Dean, Sommers, City, Jefferson Robert M. impermissible usurpa- legislative tutes an Gen., Attys. Ryan, Asst. Brendan Circuit prerogatives. ruling tion of the court’s In Louis, plaintiff-respondent. for Atty., St. point important it we consider the concepts punishment, sentencing RENDLEN, Judge. as broad sense relate judicial function. Motley appeals John Patrick his convic-' illegal sale of mari- tion on two counts Missouri, fixing punishment In for a Substance, juana, a Schedule Controlled province defined crime RSMo.1969, under V.A.M.S.1 not the courts. State v. prior felony substance Having controlled Alexander, 315 Mo. 285 S.W. conviction, the minimum Motley received Wheeler, 195.200, provided sentences cited, see eases count, 1(5),on each the sentences subsection Digest Law, under Missouri Constitutional concurrently. to run 70.1(10), part 1976. The pocket power, Missouri Con is an executive pardon sufficiency of the concedes the Defendant IV, stitution, Article Section challenges the constitutionali- evidence We portions of 195.200.2 Court, ty pertinent discussing Missouri and as here- sentencing, this contention concept have examined has stated: “In discussed, jurisdiction lies conclude legal gener- inafter sense the technical its V, meaning court under Article Section has the same ally in this constitutes Constitution, amended. judgment or or determi- judgment Missouri final allegations (1) the case. against are: in a criminal accused Defendant’s nation provided [sentence], term year Broadly, the ten minimum sentence (5) said to denote the parlance, of subsection subsec- legal subdivision jurisdiction, court of criminal “parole, probation, sus- prohibiting action tion legal con- declaring to accused the any judi- formally or other form of pended sentences guilt which he has confess- judicial usurp sequences clemency” cial indicated, statutory any felony all otherwise cita been convicted of viola- 1. Unless RSMo.1969, relating V.A.M.S. tions are to . . the laws of this state . tion . . .” Subsec- substances controlled (5) subdivision Section subsection probation, parole, provides: sus- “No imprisonment provides for a term of not less any or other form pended sentences imprisonment years life nor more than than clemency may in behalf exercised selling . . con- “for the offense punished under subdivision person in Schedule I or listed II substance trolled (5) 1.” of subsection opi- well as listed include [which ... offender has derivatives] um he ed of which has been . convicted. ed: “. . . jury’s finding not, sentence is strictly speaking, prior conviction, [A] had one [the judgment of the court but the act absolutely had no sen court] pro- law which court is commanded appellant, tencing but was required to im Pruitt, nounce.” State pose imprisonment.” a sentence of life *3 McCulley see also 400[1] States, parte Ex 27, 242 37 U.S. State, 419, (Mo.1972). 423[4] 72, 61 L.Ed. 129 princi S.Ct. these parte Ex Thornberry, The court in 300 Mo. ples analyzed by Supreme have been the 661, 1087, (en 1923), 254 S.W. banc 1091[11] Court in terms of of concepts traditional the examining sentencing court’s role in the separation of powers. There an accused powers in process stated: court’s the “[A] plea a guilty charge entered of to of a administration the criminal law is limit- embezzlement and was sentenced to five ed, accused, upon conviction the the to years imprisonment, the minimum manda of the imposition the sentence authorized to tory punishment under the federal statute imposed.” mistakenly for that crime. The trial court that suspended ordered the sentence be to the dur authority

As to court ing good suspend the behavior the defendant. sentence in the an absence of ex statutory provision, Court mandamus com press it has been de pelled power the trial has vacation of that clared court no to indef order an excess sentence, judicial initely suspend authority, holding the for whatever that such action parte Bugg, Mo.App. usurpation reasons.3 Ex 163 the trial court was a of the parte power 145 S.W. Ex and if “it permitted 832[1] Thornberry, supra, at pass possession by come to that the the 1090[8]. judicial department of power permanent to Trial courts are in authorized cer ly to enforce a law would result refuse suspend tain cases to the imposition of sen powers of the of the conceded destruction tence, parole place or or to defendants on departments, the other and hence leave no probation, RSMo., see 549.061 § as amended at law to enforced.” 242 U.S. RSMo., Laws and 549.071 § as amend S.Ct. at 74. Our Court in Ex 1967, V.A.M.S., ed Laws this stems Thornberry, parte supra 91[11], at fa 1090— statutory from authorization and is not in decision, vorably citing that stated: judicial power. herent Cf. ex The reason the rule is Buder, for found in the Douglas rel. systems (Mo. government, nature of our 1972) banc rev’d on other power grounds grant national and state. The to U.S. 93 S.Ct. pardons reprieves L.Ed.2d and to sen- Mosley, Weber v. Mo.App. being tence for crime distinct and differ- 279[9, 10] nature, example origin An ent in their statutory their exer- proscrip imposed distinct, legislature kept separate the on cise has been the sen tencing process appeared in been the having 556.280 one confided to exec- RSMo.1949, “second depart- offender” act.4 utive and the other to Discussing recognition the statute’s power effect the case of ment. The aof a tried degree defendant for first robbery suspend indefinitely to a sentence criminal, as an habitual the court in stay State v. would be to allow or to its execution Hurtt, (Mo.1974), stat pow- to judicial department usurp say This is to not the court does not have a trial file motion for a new or in arrest bail, judgment, perfect pend- to exercise its the matter of or to secure suspending Thornberry, parte supra sentence. It ing appeal.” is clear that a court at Ex 1090[7j. inherent to exercise its discretion in suspending a time for reasonable proper purpose purpose usually and this con- portions 4. Certain of the statute have since practice, strued under Missouri RSMo., the absence changed. been See subject, granting on “to time amended Laws V.A.M.S. penalties imposed the functions of as harsh those er and exercise department. This is sale of narcotics under executive theory well-grounded process equal pro- court's violation due provisions of the crimi- powers in the administration tection Missouri and Unit- limited, upon the rejected conviction of Constitutions. The court nal law is ed States accused, imposition arguments of the sen- for the that lack of these reason imposed. basis for the not authorized to be rational classification had tence Burrow, supra demonstrated. Thus, statutory enact- legislature by 589-93; Stock, 895[7, supra at prescribes pun- crimes and ment describes “All Further the court stated: Stock 8]. imposition for a court to refuse ishment and subject who sell are to the same penalties by the prescribed device can, punishment, and the if it of sentence or suspension indefinite similar *4 advisable to control deems it the unlawful means, judicial usurpation would constitute marijuana, classify marijuana as traffic in legislative power. It is clear that con- so.” also Golightly, it has done See State v. trary to defendant’s contention there has 746, (Mo.App.1973), S.W.2d 495 753[4-6] usurpation judicial authority been no marijuana holding that sellers here; opposite indeed the would occur severity with the same as sellers punished imposition court on conviction refused cocaine, heroin, etc. suspension indefinite ordered of sentence. Plaintiff’s Point I is without merit. present Defendant’s contention provided here 195.- Defendant next contends the ten punish constitutes cruel 200 and unusual year imposed by concurrent sentences against the ment must be examined estab dispropor 195.200 are so excessive and lished standards constitutional construc charged tionate to the offenses as to consti tion declared our Court. punishment cruel and unusual tute violative punishment is not cruel be and unusual of Article Section Missouri Constitu of its dispro cause duration “unless so Eighth [it tion and the and Fourteenth is] portionate to the offense committed as Amendments to the United States Constitu shock the moral sense all reasonable men discussed, establishing tion. As right to what is and proper under the range punishment is for crimes Brownridge, circumstances.” v. function, State 353 legislative, not a v. Agee, S.W.2d 718 State Alexander, 285 S.W. 984 (Mo.1971). Be imposed 821-2[14] a sentence when within the marijuana cause the classification of with provided by an otherwise limits constitu drugs the narcotics and hard has been de statute, is not to be exces tional considered valid, Stock, v. constitutionally State clared Alexander, supra 985[4]; sive. State v. Burrow, supra, v. supra, and State defend Grimm, (Mo. v. 461 State S.W.2d 754[7] “ logical carried to its end argument ant’s 1971). differently, somewhat ‘The Stated require finding here that the ten gen punishment crime in definition imposed by subsec year sentence which the eral is a 1(5) for sale of all Schedule I may not encroach’ . . . and so courts “so II substances Schedule controlled long limitations are not as constitutional . . as to shock the disproportionate . infringed, the will of the in this men.” This of all reasonable moral sense Stock, respect is absolute.” 463 do; accordingly, are unable we (Mo.1971). 895[8] year imposed sentences here concurrent Stock, Supreme Court The Missouri charge of infir- constitutional withstand Burrow, 514 supra, and in State Vermillion, mity. See (Mo.1974), contentions that considered 585 (Mo.1972). marijuana in statutory inclusion of narcotics, subject- that the case involves thereby Having found schedule same sale of of established constitutional ing application convicted for the principles and not the either in this should be in the Supreme construction of case vested constitution, jurisdic- the state or federal than Court rather this court. appeal

tion of the and not opinion majority Because the considers parties the Missouri Court as the appellant’s the merits attack on the stat- suggested. City have See of Florissant v. ute, my dissent on the substantive issues Rouillard, (Mo.1973). necessary. involved judgment affirmed. constitutionality sen- excluding possibility probation tences

WEIER, J.,P. concurs. has not decided in Missouri. The deci- States, Ex sions in Parte U.S. McMILLIAN, J., separate dissents in a (1916) and Ex S.Ct. L.Ed. 129 opinion. Thornberry, Parte Mo. S.W. McMILLIAN, Judge, dissenting. 1923), (banc upon by majori- relied majority dissent from the opinion be- with ty, dealt of a court statutorily cause I believe that mandated indefinitely suspend the execution of sen- deny sentences to the extent States, tence. In Ex Parte United the sen- right court the to exercise its discretion to suspended during good tence was be- suspend imposition either the or execution havior of the defendant. In Ex Parte of a sentence constitutes an intolerable Thornberry, the trial court advised defend- usurpation of an inherent that he could punishment ant avoid if he *5 grant probation. to immediately. left area The the asserted powers in those cases to indefinitely sus- My disagreement majori initial with the pend execution of quite the sentence seems ty opinion jurisdiction. was on the issue of different from the of a trial action court in The case should within the exclusive utilizing on definite terms for a appellate jurisdiction of the Missouri Su period part definite of the sentence im- preme Court involving as one the “construc posed appropriate circumstances. To in- tion of the Constitution of the United definitely suspend repudia- a sentence is a state,” V, States or of this Mo.Const. Art. legislature the authority tion of of the to by 3. As reflected the majority opinion, grant probation define crimes. To is to the precise question constitutional involved legislature’s choice apply policy pun- the has not been resolved in Missou type particular ish a of conduct but to do so addition, below, ri. as discussed feel justice most the manner conducive that the issue involved here is not one to be the circumstances. The majority’s by application resolved of the well-estab analogy mandatory sentence statute principle lished that the fixes Act Second Offender is also not punishment. the limits of Appellant’s at persuasive judicial parole since is pre- not is tack on the statute that it is unconstitu statute, State, that cluded Crow interpretation tional under rather than 40, 46-7 (Mo.App.1973). Finally, particular interpretation that a stat majority’s general the the statement of rule might ute it render unconstitutional. An legislative that it is define the attack this framed in fashion requires a parameters punishment for a crime does Court, decision by the State Rose clearly not foreclose the issue court’s Registration Healing State Board of responsibility to punish- individualize that Arts, parameters. those ment within Brookshire, (Mo. 1959); Iowa Liability Cotton v. Mut. Ins. guarantees The Missouri Constitution Co., specifically of both the division enumerated Hatton, 240 Mo.App. powers government inherent into (1950). therefore, agree II, branches, three distinct Art. 1. Com- with the statements in the briefs of both pliance provision with constitutional re- respondent jurisdiction that quires judiciary that not encroach on provide punish- executive fenders and to a sureness

the functions corollary principle, The of that great branches. that ment will act deterrent. guard en- judiciary against that must judge fact is But the remains—whether however, has, power, on its own croachment right wrong he or whether —that because of the all too often been overlooked judge discretionary means has numerous judiciary. The conservatism of the state’s can, do, judges he which which represents opinion further majority legislation. of such defeat the intent example of this attitude. hamstring judges thus intention to “soft” boomerang may to result in more lenient though mandatory sentences are in- Even acquittal even perhaps emphasize harshly deterrent tended to —than treatment — judges themselves would desire. even the aspects punishment rather than the reha- for an alternative to the offense The search bilitative, flexibility it seems that some carries the harsh minimum not A which system. legal in the must be retained produce always provides an offense which system that cannot react at all to the wide surrounding disposition. range par- appropriate of circumstances effect on drugs event, ticular defendant’s involvement with it system, becomes engender disrespect. Widespread must dis- unmistakably truncated and artificial. drug laws respect for noted Standards, Sentencing Alternatives ABA problem the principal enforcement of Procedures, Comments, 3.2(b), pp. laws, Eisberg, “Missouri Needs Mari- such (1968). Juries, course, might 149-50 Reform,” juana 32 Jrnl.Mo.Bar 173 adopt a similar attitude of nullification as a sentencing system precluding ju- response to the harsh nature of the sentenc- discretion can also become self-de- dicial ing system. The end result feating. eliminating rather than discretion- ary simply shifts the exercise of elements why There are several additional reasons points judicial system minimum is naive and prosecutor, judge the activities noted, where provision. As the defini- destructive *6 effectively cannot be monitored. jury necessity general tion of offenses of terms, varying and the circumstances this mandato- Another curious feature of can occur will to a certain- which offense only that it ry sentence statute the fact agree all ty lead to cases where would judicial clemency. A defendant precludes period is unwarrant- long of confinement pardon receive an executive or be can still judges prosecuting officials ed. Both by the Board of Probation and Pa- paroled arise, recognize they such cases when very day first of his sentence. role on immediately put are in a most awkward only thus be read as a The statute can They may either enforce the let- position. competency insult to the of trial direct injus- perpetrate ter of the law and clear judges. tice, ignore the law and defeat may recognition It of such difficulties is the legislature. apparent intent prompted that has re- and inconsistencies very destructive of the results are Both rejection mandatory criticism and peated system which public confidence Standards, ABA provisions, see sentence mandatory minimum term. sought by Procedures, Sentencing Alternatives and which comes process or nullification Code, (1968), 2.3(a) Penal 6.02 Model of man- by judicial nonenforcement about Code, Proposed (1962), Missouri Criminal provisions also illustrates another datory (1973). ignored the heat point which often recent- Supreme Court The United States produces legisla- such the moment which mandatory disapproval its ly expressed propo- stated frequently tion. It is v. Car- statutes in Woodson North mandatory that such de- minima nents 280, 303, olina, 96 S.Ct. 428 U.S. judges “soft” prevent are needed to vices (1976). dangerous of- 49 L.Ed.2d 944 being lenient toward from flexibility recognized as essential People 194 N.W.2d 878 sentencing system rational seems best McCabe, 49 Ill.2d 275 N.E.2d judiciary because it is administered (1971). knowledge that branch that has first-hand jurisdic- our court lacks Because I believe particular circumstances matter, certify tion in this powers judiciary The inherent case. to the Missouri cause court. a functionally-oriented

have been defined in cases, past g., Missouri see e. manner Becker, 351 Mo. Austin, Clark v. Such

pragmatic approach of gov- division powers

ernmental should continue

should lead to the characterization of the

granting as an inherent judiciary. Once it is determined that

the facts of the case dictate incarceration sentence statute be- Missouri, Respondent, STATE applicable but an come initial determination appropriateness incarceration LOVE, Appellant. conclusion, required.

must be I share A. James the view of the Court of Idaho as No. KCD 28331. expressed McCoy, 94 Idaho holding 486 P.2d 247 a case manda- Appeals, Missouri Court of tory usurpa- sentences unconstitutional as a City Kansas District. judicial power: tion of Dec. laws, indeed, system hopefully “Our civilization, undergone perse- our Rehearing Denied Jan. vering evolution enlightenment. toward judge just is more than a finder of fact or an executioner of the inexorable rule Ideally,

of law. he is also keeper (Id. 251)

the conscience of law.” express

I must also my disagree fervent majori

ment with the result reached

ty on the issue of cruel punish and unusual

ment. A sentence of years imprison the second sale quantity

ment for small is incredibly disproportionate being conduct for which pun it is

ished. As noted in his

brief, example, many violent crimes are

punished severely Missouri, much less see Eisberg, Marijuana

also H. “Missouri Needs

Reform,” supra. My disagreement on this

issue, however, only extends to the result majority’s reasoning

and not to the as to legally logical, philosophically uncon

scionable, consequence of the decision in Burrow, S.W.2d 585

cf., Rao, 19961, Superior No. Ct. Sinclair, (1976); People v.

Conn. 387 Mich.