STATE of Missouri, Respondent, v. Michael TEER, Appellant.
No. SC 89501.
Supreme Court of Missouri, En Banc.
Jan. 27, 2009.
Because it is unclear from the record whether
On this record, the Court will vacate the judgment of the circuit court and remand this case for a new hearing. If the trial court determines, after hearing, that there is $10,000 or less in child support arrearage, the statute is no impediment to Father‘s request for relief. If, on the other hand, the arrearage is more than $10,000, the circuit court will be faced with the constitutional question Father attempted to assert here.
Conclusion
The judgment of the circuit court is vacated, and the case is remanded. On remand, the trial court will be able to determine whether the challenged statute applies; and if so, whether it is constitutional; and what relief, if any, should be provided to the parties on their respective requests for judicial relief.
All concur.
Christopher A. Koster, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for Respondent.
RICHARD B. TEITELMAN, Judge.
FACTS
In 1994, Teer was involved in an alcohol-related automobile accident that resulted in the death of four people and injury to a fifth person. A jury found Teer guilty of four counts of involuntary manslaughter,
The convictions were affirmed on direct appeal, State v. Teer, 959 S.W.2d 930 (Mo. App.1998), but reversed and remanded for an evidentiary hearing on his second post conviction motion for ineffective assistance of appellate counsel, Teer v. State, 198 S.W.3d 667 (Mo.App.2006). Following the post conviction proceedings, the circuit court imposed the same sentence of 20 years imprisonment. Teer appeals that sentence.
Teer‘s sole point on appeal is that the trial court violated
ANALYSIS
Procedural errors in prior offender hearings require reversal only if the defendant is shown to have been prejudiced. State v. Wynn, 666 S.W.2d 862, 864 (Mo. App.1984). Consequently, to succeed in this appeal, Teer must demonstrate that
The plain language of
The state asserts that this case is controlled by Rule 23.08, not
The state also argues that even if the statute was violated, Teer cannot establish prejudice because he is, in fact, a prior offender and is not entitled to jury sentencing. The state is correct that a number of cases under
In this case, Teer was prejudiced. The jury determined that a maximum sentence of four years of incarceration in the county jail was an appropriate sentence while the circuit court sentenced Teer to a total of 20 years imprisonment in the Missouri Department of Corrections. The failure to follow
The judgment as to Teer‘s sentence is reversed, and the case is remanded. On remand, the court shall impose sentence consistent with the jury‘s recommendation and free from sentence enhancement that would result if Teer were a prior or persistent offender. See State v. Emery, 95 S.W.3d 98, 103 (Mo. banc 2003). In all other respects, the judgment is affirmed.
STITH, C.J., and WOLFF, J., concur; FISCHER, J., concurs in separate opinion filed; STITH, C.J., and WOLFF, J., concur in opinion of FISCHER, J.;
CONCURRING OPINION
ZEL M. FISCHER, Judge.
I concur in the result of the principal opinion. I write separately to express my views more completely about certain aspects of this case and in particular to encourage courts to restrain from judicial emasculation of legislative direction.
In McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the United States Supreme Court made clear that there is no constitutional right to jury sentencing. Missouri, however, grants the guilty the statutory right to jury sentencing unless that right is waived or subject to removal by another statute. State v. Emery, 95 S.W.3d 98, 102 (Mo. banc 2003). Here, as in many cases, sentencing by the trial court would have been proper if the State had pleaded and proven the defendant was a prior and persistent offender as set out in
The language in
As a practical matter, when should the attorneys and litigants know whether sentencing is being tried to the judge or the jury? Before trial begins would seem to be a sensible time for both sides to know whether the sentencing is being done by the jury or the judge. The first instruction given after the jury is sworn in a criminal case advises the jury if it will be assessing punishment, including sentencing. MAI-CR 300.06. The jury was instructed in this case if it found the defendant guilty, there would be a second stage where it would determine the punishment to be assessed.
The removal of jury sentencing by amendment to pleadings and presentation of proof after submission to the jury is implicitly prejudicial. The prejudice to the defendant in this case is that the rules of the game were changed after the game was over. As the dissenting opinion notes, defense counsel objected to the State‘s late request to amend the information because had he known there would not be jury sentencing, he would have employed a different trial strategy.
It is undisputed in this case that the defendant‘s status as a prior offender was not pled or established until after the case
The result in this case is controlled by this Court‘s unanimous opinion in Emery. In Emery, the trial court sentenced the defendant as a prior and persistent offender despite the State‘s failure to offer any evidence of the defendant‘s prior or persistent offender status prior to submission to the jury. 95 S.W.3d at 99. On appeal, the State requested remand to present evidence of the defendant‘s status, contending that the failure to present the evidence was harmless error because if the defendant was proven to be a prior and persistent offender, he would suffer no prejudice. Id. at 100-01. This argument was unanimously rejected by this Court, but is the sole basis for the dissenting opinion in this case. This Court in Emery recognized that general remand would violate the timing requirement of
Moreover, the State‘s argument that the general language of Rule 23.08 regarding amendment of an information should be controlling over the specific language of
The only question remaining would be why the decisions in State v. Golatt, 81 S.W.3d 640 (Mo.App.2002); State v. Hinkle, 987 S.W.2d 11 (Mo.App.1999); State v. Tincher, 797 S.W.2d 794 (Mo.App.1990); State v. Street, 735 S.W.2d 371 (Mo.App. 1987); State v. McGowan, 774 S.W.2d 855 (Mo.App.1989); State v. Jennings, 815 S.W.2d 434 (Mo.App.1991); and State v. Wynn, 666 S.W.2d 862 (Mo.App.1984), which failed to follow the clear legislative
The legislature‘s decision in a single statutory scheme to remove jury sentencing from prior and persistent offenders only in cases where the prior or persistent offender status has been pleaded and proven prior to submitting the case to the jury is no more nor no less important than the legislature‘s decision to extend the length of sentences of prior and persistent offenders. The courts of this state should declare the law accordingly; therefore, I would give proper deference to the legislature and specifically overturn Jennings, McGowan, Tincher, Hinkle, Wynn, and Golatt.
DISSENTING OPINION
MARY R. RUSSELL, Judge.
I respectfully dissent. I find nothing in the record of this case or the case law of this State mandating reversal of the sentence imposed on drunk driver Michael Teer (“Defendant“) for cutting short the lives of four innocent persons and injuring a fifth.
The majority and concurring opinions correctly highlight that Defendant‘s sentences require reversal if he can show that he was prejudiced by the trial court‘s decision to permit the State to untimely amend its information to charge him as a prior offender. But I disagree with the majority and concurring opinions’ findings that Defendant was prejudiced because the State failed to expressly follow the provisions of
Everyone agrees that the trial court should have followed section 558.021.2‘s directive that Defendant be found a prior offender before his case was submitted to the jury. But contrary to the majority‘s view, I do not believe that the provisions of
The test for reversible prejudice is not simply a test of whether the challenged error produced an unfavorable result for the defendant. Reversal of trial court error is required only if an error “more-likely-than-not prejudice[d] the entire proceeding against the defendant.”4 State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997) (emphasis added). Reversible prejudice must cause “[d]amage or detriment to one‘s legal rights or claims.” See BLACK‘S LAW DICTIONARY 545 (2d. Pocket Ed.2001) (defining “prejudice“). An error in the process of Defendant‘s case does not require reversal unless it prejudiced his substantive rights.5 See Tate v. State, 752 S.W.2d 393, 394 (Mo.App.1988) (finding that a defendant‘s “substantive rights were not violated by the tardy adjudication of his prior offender status” under
Testing for substantively prejudicial errors is consistent with Missouri‘s “no harm, no foul” statute,
Further, I see no reason to use Defendant‘s case to overturn the numerous Missouri cases that have determined that it is harmless error to permit the State to prove belatedly prior or persistent offender status under
In Wynn, the court of appeals addressed a similar case in which the court belatedly determined that a defendant was a persistent offender. 666 S.W.2d at 864-65. Wynn concluded that the trial court‘s error in following
Wynn wisely noted:
It is difficult to see how defendant suffered any actual prejudice by reason of the fact that the persistent offender hearing was conducted after instead of prior to submission to the jury. The central fact of importance and substance is that defendant is a persistent offender, as was amply demonstrated, in which case the Court, not the jury, determines punishment upon a finding of guilt.... The State, by failing to introduce the persistent offender evidence at the prescribed time did not thereby waive its right to make proof thereof before sentencing. Nor was the State estopped to do so by reason of the manner in which the matter was handled. Defendant acquired no vested right to have the jury assess the punishment by reason of the failure to conduct the hearing at the prescribed time. It is true that if the proof had never been made the conviction would have to be set aside; in that event the failure to submit the question of punishment to the jury would have been fatal to the verdict; but it was made, even if tardily.
Like the defendant in Wynn, Defendant does not contest that he is a prior offender but in effect asserts that he cannot be sentenced as a prior offender if errors are made pursuant to
Defendant cannot assert persuasively that he was sentenced unfairly because his sentence ultimately was imposed by the court instead of the jury. He had no right to be sentenced by the jury.7 Considering that Defendant is a prior offender, he was sentenced in conformance with what the legislature intended when he was sentenced by the trial court after findings were made as to his prior offender status.8
Because I do not believe that Defendant has suffered substantive prejudice requiring reversal, I would affirm his sentences.
GATEWAY HOTEL HOLDINGS, INC., et al., Plaintiffs/Appellants, v. LEXINGTON INSURANCE CO., Defendant/Respondent.
No. ED 90345.
Missouri Court of Appeals, Eastern District, Division Two.
Sept. 16, 2008.
Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 3, 2008.
Application for Transfer Denied Feb. 24, 2009.