Opinion
No. 25137
June 27, 2003
Appeal from Circuit Court of Jasper County, Hon. William C. Crawford.
Craig Johnston, for Appellant.
Karen L. Kramer, for Respondent.
Casey N. Pond ("Appellant") appeals from his conviction by a jury, and sentencing by the trial court, of statutory sodomy in the first degree in violation of section 566.062. He was sentenced by the court as a prior offender to fifteen years imprisonment within the Missouri Department of Corrections.
All references to statutes are to RSMo 2000, unless otherwise indicated.
Appellant presents three points on appeal. In Appellant's first point relied on, he contends the trial court plainly erred in finding him to be a prior offender, thereby removing sentencing from the jury, because the State did not prove that his guilty plea to a prior felony was sufficient under section 558.016. Appellant's second point alleges the trial court erred in refusing his tendered instruction on the offense of child molestation in the first degree as a lesser included offense of statutory sodomy in the first degree because the evidence gave the jury a basis to acquit Appellant of the greater offense while still convicting him of the lesser offense. In Appellant's last point relied on, he claims the trial court plainly erred in overruling his objection and allowing a police detective to testify regarding whether there was any indication the allegations against Appellant had been fabricated.
Appellant does not contest the sufficiency of the evidence, therefore, we consider the facts and all reasonable inferences therefrom in the light most favorable to the verdict and reject all contrary evidence and inferences. See State v. Rush , 949 S.W.2d 251, 252 (Mo.App.S.D. 1997). On May 25, 2000, ten-year-old A.S. went to visit her aunt and uncle, who lived in a trailer in Jasper County, Missouri. A.S.'s grandparents, another aunt, and Appellant (A.S.'s uncle) arrived at the home between 8:00 and 9:00 p.m. that night after traveling from their homes in Texas. Appellant had accompanied his parents on the trip because he was scheduled to be sentenced for the offense of unlawful use of a weapon in the Circuit Court of Jasper County, Missouri, which he had pled guilty to on August 20, 1999.
Later that night, A.S. and her cousin made a "pallet" on the living room floor and went to sleep. Appellant and his sister also fell asleep in the living room. Sometime during the night, A.S. woke up to find Appellant lying beside her and "pressing in [her] private area between [her] legs with his fingers." Appellant's hands were under A.S.'s clothes and his fingers were in her vagina. A.S. said nothing, but when Appellant grabbed A.S.'s hand and tried to put it inside his boxer shorts, A.S. made a fist and pulled her hand away. A.S. went into the bathroom to get away from Appellant, but eventually she came back into the living room and lay down so that her cousin was between her and Appellant.
The next morning, on May 26, 2001, A.S. told her cousin what had happened with Appellant the night before. Later that morning, Appellant put his arm around A.S., pulled her close, and said that A.S. had "said that she loved me last night." Appellant went to his court appearance and, after appearing in court, he argued with his parents because he wanted to leave immediately while they wanted to stay an extra day.
A.S. did not immediately tell her parents about the incident. She explained that she did not do so because on July 4, 2000, she told one of her aunts what had happened, but her aunt did nothing. In December 2001, A.S.'s father, who was a patrolman with the Carthage, Missouri Police Department, was going through A.S.'s school backpack when he discovered a note stating that a relative had "hurt" A.S. Upon further questioning, A.S. told her father and her mother that during her last visit to her aunt and uncle's home, which was on May 26, 2000, Appellant had touched her "vagina area" and "hurt" her. A.S.'s father contacted Detective Darren Gallup ("Gallup"), a child abuse investigator with the Joplin, Missouri Police Department. After some investigation, Gallup determined the incident had not occurred within the Joplin Police Department's jurisdiction; therefore, he contacted Investigator Greg Dagnan of the Jasper County, Missouri Prosecutor's Office. Gallup was asked to assist with the investigation.
Appellant was charged by information with statutory sodomy in the first degree. An amended information was subsequently filed, charging Appellant as a prior offender in that on or about August 20, 1999, Appellant pled guilty to the felony of unlawful use of a weapon. Before trial, the State introduced into evidence a certified copy of a docket sheet stating Appellant pled guilty to the felony of unlawful use of a weapon on August 20, 1999. The State also submitted a certified copy of the sentence and judgment for that offense which stated that Appellant was formally sentenced on May 26, 2000. According to the docket sheet, on August 20, 1999 the court accepted Appellant's plea of guilty; however, an additional stamped docket entry states: "Court defers the acceptance or rejection of the plea agreement." The trial court found Appellant to be a prior offender.
The case went to trial before a jury on July 9, 2002; the court reaffirmed its prior ruling that Appellant was a prior offender. The jury found Appellant guilty of statutory sodomy in the first degree and the court sentenced Appellant as a prior offender.
In his first point relied on, Appellant contends the trial court plainly erred in finding him to be a prior offender because the State did not prove he was a prior offender under section 558.016. Appellant contends this deferment of the acceptance or rejection of the plea agreement indicates a conditional acceptance of the guilty plea. Appellant argues that because the court in the prior felony had deferred acceptance of the plea agreement until May 26, 2000, there was no final conviction until after the date of the alleged commission of the offense of statutory sodomy in the first degree. Appellant admits that he failed to include this issue in his motion for new trial; therefore, he requests this court to review for plain error.
"[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. Review for plain error under Rule 30.20 is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review. State v. Roberts , 948 S.W.2d 577, 592 (Mo.banc 1997). "Where [a] defendant has been improperly sentenced as a prior or persistent offender, a manifest injustice has occurred and it is appropriate for plain error." State v. Dixon , 24 S.W.3d 247, 250 (Mo.App.E.D. 2000).
All rule references are to Supreme Court Rules (2003), unless otherwise indicated.
"To be sentenced as a [prior or] persistent offender, the State must charge and prove beyond a reasonable doubt that the defendant was such an offender, as defined by law, and the trial court must adjudge him as such based upon specific findings of fact." State v. Stephens , 88 S.W.3d 876, 886 (Mo.App.W.D. 2002). Section 558.016.2 provides that a prior offender is "one who has pleaded guilty to or has been found guilty of one felony." The defendant must be found or plead guilty prior to the commission of the offense in which he is charged as a prior or persistent offender. State v. Jolley , 45 S.W.3d 549, 552 (Mo.App.E.D. 2001); section 558.016.6.
It is undisputed that the offense for which Appellant was sentenced as a prior offender was committed between the time Appellant tendered his guilty plea to the prior felony of unlawful use of a weapon and the date he was sentenced for that offense. The issue in this case is whether a defendant can be found to be a prior offender pursuant to section 558.016 when the offense for which he is charged as a prior offender occurred after the time of Appellant's guilty plea, but before the court's acceptance of the plea agreement. Appellant argues that his plea of guilty to the prior felony was not final at the time of the commission of the offense for which he was being sentenced because the court could have elected to refuse his guilty plea under Missouri Supreme Court Rule 24.02 (1999) before sentencing.
Missouri Supreme Court Rule 24.02(d) (1999) provides:
2. Disclosure of Plea Agreement — Court's Action Thereon. If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered. Thereupon the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report.
3. Acceptance of a Plea Agreement. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.
4. Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
We recognize that the fact no sentence is imposed after a plea of guilty or a finding of guilt does not change prior or persistent offender status. See State v. Talkington , 25 S.W.3d 657, 658 (Mo.App.S.D. 2000) (holding that a plea or finding of guilt is included in determining prior offender status under section 558.016 even if the sentence is suspended). In this case; however, the court not only deferred sentencing, the court also deferred acceptance or rejection of the plea agreement.
An unconditional acceptance of a guilty plea is required to invoke extended term provisions under section 558.016. Peiffer v. State , 88 S.W.3d 439, 445 (Mo.banc 2002). In Peiffer , holding that "double jeopardy attaches to a guilty plea upon its unconditional acceptance," the court noted that "the mere unconditional acceptance of a guilty plea, in the absence of a conviction, is sufficient to invoke extended term provisions" under section 558.016. Id. at 444-445. The court further noted that upon unconditional acceptance of a guilty plea, a defendant is bound by his plea of guilty and is unable to withdraw that plea except in the exceptional circumstances set out in Rule 29.07(d). Id. at 445.
Rule 29.07(d) provides:
A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
Rule 24.02(d)(4) requires that a defendant be afforded the opportunity to withdraw his plea once the trial court determines it will not sentence the defendant according to the original plea agreement. Benford v. State , 54 S.W.3d 728, 733 (Mo.App.S.D. 2001). Because a defendant may withdraw his guilty plea under Rule 24.02(d)(4) upon the trial court's rejection of the plea agreement, unconditional acceptance of the guilty plea cannot occur until the trial court accepts both the guilty plea and the plea agreement.
According to the docket sheet, Appellant pled guilty to the felony of unlawful use of a weapon on August 20, 1999. The court accepted his guilty plea and deferred acceptance or rejection of the plea agreement. Because the court deferred acceptance or rejection of the plea agreement, Appellant's guilty plea to the prior felony was not unconditionally accepted before the commission of the offense for which Appellant was charged as a prior offender. As such, Appellant's guilty plea to the felony of unlawful use of a weapon was insufficient to invoke section 558.016; therefore, the State failed to prove Appellant was a prior offender.
Improperly sentencing a defendant as a prior or persistent offender results in manifest injustice and is a violation of the defendant's right to due process. Dixon , 24 S.W.3d at 250; State v. Herret , 965 S.W.2d 363, 364 (Mo.App.E.D. 1998). "[W]hen a defendant is found to be a prior offender, and the evidence is insufficient to support that finding, defendant is entitled to a new trial on all issues[.]" State v. McFall , 866 S.W.2d 915, 919 (Mo.App.S.D. 1993). As such, we are constrained to reverse the judgment and the cause is remanded for a new trial on all issues. Point I is granted.
Appellant contends in his second point relied on the trial court erred in refusing Appellant's tendered instruction on the offense of child molestation in the first degree as a lesser included offense of statutory sodomy in the first degree because the evidence gave the jury a basis to acquit Appellant of sodomy and find him guilty of child molestation. Two questions must be answered in determining whether the trial court erred in not giving an instruction on child molestation: (1) is child molestation in the first degree a lesser included offense of statutory sodomy in the first degree, and (2) was the evidence such that it was error not to give the instruction. See State v. Brown , 58 S.W.3d 649, 655 (Mo.App.S.D. 2001). The parties do not dispute that child molestation in the first degree is a lesser included offense of statutory sodomy in the first degree; therefore, we need only resolve the issue of whether there was a basis for submission of an instruction on the lesser included offense.
Because a new trial is being granted, we decline to review Appellant's second point which is directly related to the evidence admitted at the first trial. It is inappropriate for us to render an advisory opinion on evidence that may or may not be admitted at the second trial. Appellate courts do not render advisory opinions. State v. Oakes , 84 S.W.3d 562, 564 (Mo.App.S.D. 2002).
In Appellant's last point relied on, he contends the trial court plainly erred in overruling his objection and allowing Gallup to testify that he was not aware "of any information from any source of any evidence that would indicate [there was] any fabrication in this case." Again, a review of the point would amount to an advisory opinion. We decline to review the point.
The judgment is reversed and the cause remanded for a new trial on all issues.
Prewitt, P.J., and Shrum, J., concur.