State v. WilliamsState v. Williams
- Reporters:
- , ,
- Before:
- Kennedy
Howard P. Williams was convicted upon jury trial of possession of cocaine under
While Mr. Williams’s conviction was pending on appeal in this court,
Mr. Williams maintains he is entitled to the less onerous sentencing provisions brought into effect by the new statute, specifically that he is entitled to be relieved of the repeat offender status of
No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except (1) that all such proceedings shall be conducted according to *564existing laws; and (2) that if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense, the penalty or punishment shall be assessed according to the amendatory law. (emphasis added)
Mr. Williams’s appellate counsel on the appeal of his conviction did not raise the issue of Mr. Williams’s entitlement to the benefit of the reduced or lessened penalty, although The Comprehensive Drug Control Act had become effective August 28, 1989, and appellant’s brief was not filed until January 31, 1990. If Mr. Williams was entitled to reduction of sentence as a result of the change in the statute, then the failure of his appellate counsel to raise the point on appeal constituted ineffective assistance of counsel, and Mr. Williams is entitled to recall of our mandate, 792 S.W.2d 33, by which his sentence, as well as his conviction, were affirmed. State v. Sumlin, 820 S.W.2d 487 (Mo. banc 1991).
The attorney general, underlining the word “creating” in the phrase “the law creating the offense,” argues that the change effected by the 1989 amendment, which Mr. Williams now seeks to take advantage of, is merely a change in the conditions of Mr. Williams’s parole eligibility, not a lessening or reduction of the penalty or punishment within the meaning of
It was the law creating the offense, however, which changed the classification of the offense from a class A felony to a class C felony. From that reclassification flow various consequences, one of which is the removal of the offense from the class X offender provision of
Appellate counsel’s failure to raise the issue of Mr. Williams’s entitlement to the benefit of the reduced punishment constituted ineffectiveness of counsel. Sumlin, 820 S.W.2d at 490. The mandate by which we affirmed Mr. Williams’s sentence, as opposed to his conviction, is vacated.
Mr. Williams does not ask relief from the underlying 12-year sentence. While the maximum sentence for cocaine possession under the new law is seven years’ imprisonment, section 558.011.1(3) RSMo Supp.1991, the sentence of 12 years’ imprisonment imposed by the court is authorized by Section 558.016, for Mr. Williams was charged with being, and was found by the court to be, a persistent offender under that statute. The latter statute allows the court to assess as punishment for a class C felony imprisonment for a term of years not to exceed 20 years.
Mr. Williams attempts to raise another point by his motion to recall mandate. That point is that his Rule 29.15 motion counsel was ineffective in failing to have Mr. Williams verify his pro se Rule 29.15 motion. Ineffective assistance of trial counsel is not a proper subject for relief by motion to recall mandate. State v. Thompson, 659 S.W.2d 766, 769 (Mo. banc 1983); State v. Teter, 747 S.W.2d 307, 308 (Mo.App.1988).
We remand the case to the trial court solely to re-sentence Mr. Williams, deleting and omitting any finding that Mr. Williams was a repeat offender under Section 558.-019.
All concur.