In Division
STATE OF MISSOURI, ) ) Respondent, ) No. SD37288 ) v. ) Filed: February 27, 2023 ) RAMIE A. HALBROOK, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF CEDAR COUNTY
Honorable David R. Munton, Judge
REVERSE AND REMAND WITH DIRECTIONS
In this case, Appellant Ramie A. Halbrook ("Halbrook") asks us to decide whether the
trial court plainly erred in entering its written judgment ordering his sentences to run
consecutively where it failed to state the sentences shall run consecutively in its oral
pronouncement at sentencing. Both Halbrook and the State agree this was plain error and
remand is proper. But they disagree on what directions should accompany that remand.
Halbrook urges us to remand with a direction to the trial court to correct the written judgment
to conform to its oral pronouncement. The State, on the other hand, urges us to remand for
resentencing, arguing the trial court's imposition of sentence was based on a mistaken belief
that the sentences had to run consecutively. We find Halbrook's argument persuasive. Because an oral pronouncement at sentencing
controls where a written judgment materially differs, we reverse and remand with directions to
the trial court to enter an order conforming to its oral pronouncement at sentencing.
Facts and Procedural Background
Halbrook was found guilty of voluntary manslaughter and armed criminal action
("ACA"), following a bench trial.1 At the sentencing hearing, the State asked for the trial court to
sentence Halbrook to a total of 15 years in prison, with the sentences for each count to run
concurrently. The trial court then inquired, "[y]ou think I have the ability to run an ACA
concurrent with the underlying? Or does it have to be consecutive?" The State responded, "[i]t
doesn't have to be consecutive, but I would have to check on that[.]" The trial court expressed
its uncertainty, noting "I haven't looked at it." The State later argued:
If you are going to give [a consecutive sentence] to him, if it has to be consecutive, I would ask the [c]ourt, I think the manslaughter carries a sentence of five to 15. I would ask the [c]ourt to give him the, probably the ten years on the ACA and five on the manslaughter or vise-versa, whatever the [c]ourt thinks is appropriate. If it runs consecutive, I think 15 years is an appropriate sentence.
(Emphasis added). Halbrook's counsel argued for a five-year sentence on the
manslaughter charge and a three-year sentence on the ACA.
Following arguments, the trial court pronounced Halbrook's sentence:
At this time, Mr. Halbrook, on the voluntary manslaughter conviction, I am going to impose a sentence of seven years in the Missouri Department of Corrections. On the armed criminal action charge, I am going to impose a sentence of four years in the Missouri Department of Corrections.
1 See §§ 565.023 and 571.015. All statutory references are to RSMo Cum. Supp. (2018) unless otherwise
indicated. Under the version of section 571.015 in effect at the time Halbrook committed the offenses, there was no requirement that a sentence for armed criminal action run consecutively to the underlying felony. In 2020, however, this statute was amended to require a sentence for armed criminal action to run "consecutive to" any punishment provided by law for the underlying crime. § 571.015.1 RSMo Cum. Supp. (2020). Halbrook's offenses occurred prior to the 2020 amendment, so the trial court was not required to run the sentences consecutively. 2 The trial court's oral pronouncement did not specify if these sentences were to run concurrently
or consecutively.
That same day the trial court issued its written judgment. The written judgment
reflected its sentences of seven years for the manslaughter conviction and four years for the ACA
conviction but stated the sentences shall run consecutively to each other. Halbrook appeals
from that judgment, arguing in a single point the trial court plainly erred in entering its written
judgment ordering his sentences to run consecutively since the trial court failed to make that
specification in its oral pronouncement of Halbrook's sentences.
Standard of Review
Halbrook acknowledges he has not preserved his claim and seeks plain-error review
under Rule 30.20.2 When a defendant has not preserved a claim of error, we may exercise our
discretion to review the claim for plain error. Rule 30.20. We will not review a claim for plain
error "unless the claimed error facially establishes substantial grounds for believing that
manifest injustice or miscarriage of justice has resulted." State v. Yount, 642 S.W.3d 298,
300 (Mo. banc 2022) (quoting State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017)). A
sentence not authorized by law affects substantial rights and results in manifest injustice. State
v. Sprofera, 427 S.W.3d 828, 838 (Mo. App. W.D. 2014) (finding plain error where a trial
court's written judgment memorialized the defendant's sentence as consecutive when it failed to
state the sentence was consecutive at the time of the oral pronouncement and remanding with
an instruction to correct the written judgment to reflect concurrent sentences).
We will look to the sentencing transcript to determine the meaning of a trial court's oral
pronouncement of sentence only where the oral pronouncement is ambiguous. State ex rel.
Zinna v. Steele, 301 S.W.3d 510, 512 (Mo. banc 2010). Silence as to whether a sentence shall
2 All rule references are to Missouri Court Rules (2022), except for references to Rule 29.09, which are to
Missouri Court Rules (2021). 3 run consecutively or concurrently during the oral pronouncement of sentence does not create an
ambiguity. See id.
Analysis
Section 558.026.1 states that multiple sentences shall run concurrently unless the court
specifies they shall run consecutively.3 This policy is also reflected in Rule 29.09. Under that
rule, the trial court, when pronouncing sentence, must "state whether the sentence shall run
consecutively to or concurrently with sentences on one or more offenses for which [the]
defendant has been previously sentenced. If the court fails to do so at the time of pronouncing
the sentences, the respective sentences shall run concurrently." Rule 29.09. The Supreme Court
of Missouri has interpreted this rule to create a "bright-line principle that when a sentencing
court fails at the time of oral pronouncement to state whether a sentence is concurrent or
consecutive, the mandatory language of the rule fills the gap and renders the sentence
concurrent." Zinna, 301 S.W.3d at 514. Moreover, the written judgment of the trial court
should reflect the oral pronouncement of the sentence, and if a material difference exists
between the oral pronouncement and written judgment, the oral pronouncement controls. Id.
This means that if a trial court fails to specify whether a sentence is to run consecutively or
concurrently, Rule 29.09 fills that silence with a concurrent sentence. And, since the oral
pronouncement is then a pronouncement that the sentences shall run concurrently, the written
judgment must reflect the same. See id. at 517 (granting habeas relief to the defendant where
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In Division
STATE OF MISSOURI, ) ) Respondent, ) No. SD37288 ) v. ) Filed: February 27, 2023 ) RAMIE A. HALBROOK, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF CEDAR COUNTY
Honorable David R. Munton, Judge
REVERSE AND REMAND WITH DIRECTIONS
In this case, Appellant Ramie A. Halbrook ("Halbrook") asks us to decide whether the
trial court plainly erred in entering its written judgment ordering his sentences to run
consecutively where it failed to state the sentences shall run consecutively in its oral
pronouncement at sentencing. Both Halbrook and the State agree this was plain error and
remand is proper. But they disagree on what directions should accompany that remand.
Halbrook urges us to remand with a direction to the trial court to correct the written judgment
to conform to its oral pronouncement. The State, on the other hand, urges us to remand for
resentencing, arguing the trial court's imposition of sentence was based on a mistaken belief
that the sentences had to run consecutively. We find Halbrook's argument persuasive. Because an oral pronouncement at sentencing
controls where a written judgment materially differs, we reverse and remand with directions to
the trial court to enter an order conforming to its oral pronouncement at sentencing.
Facts and Procedural Background
Halbrook was found guilty of voluntary manslaughter and armed criminal action
("ACA"), following a bench trial.1 At the sentencing hearing, the State asked for the trial court to
sentence Halbrook to a total of 15 years in prison, with the sentences for each count to run
concurrently. The trial court then inquired, "[y]ou think I have the ability to run an ACA
concurrent with the underlying? Or does it have to be consecutive?" The State responded, "[i]t
doesn't have to be consecutive, but I would have to check on that[.]" The trial court expressed
its uncertainty, noting "I haven't looked at it." The State later argued:
If you are going to give [a consecutive sentence] to him, if it has to be consecutive, I would ask the [c]ourt, I think the manslaughter carries a sentence of five to 15. I would ask the [c]ourt to give him the, probably the ten years on the ACA and five on the manslaughter or vise-versa, whatever the [c]ourt thinks is appropriate. If it runs consecutive, I think 15 years is an appropriate sentence.
(Emphasis added). Halbrook's counsel argued for a five-year sentence on the
manslaughter charge and a three-year sentence on the ACA.
Following arguments, the trial court pronounced Halbrook's sentence:
At this time, Mr. Halbrook, on the voluntary manslaughter conviction, I am going to impose a sentence of seven years in the Missouri Department of Corrections. On the armed criminal action charge, I am going to impose a sentence of four years in the Missouri Department of Corrections.
1 See §§ 565.023 and 571.015. All statutory references are to RSMo Cum. Supp. (2018) unless otherwise
indicated. Under the version of section 571.015 in effect at the time Halbrook committed the offenses, there was no requirement that a sentence for armed criminal action run consecutively to the underlying felony. In 2020, however, this statute was amended to require a sentence for armed criminal action to run "consecutive to" any punishment provided by law for the underlying crime. § 571.015.1 RSMo Cum. Supp. (2020). Halbrook's offenses occurred prior to the 2020 amendment, so the trial court was not required to run the sentences consecutively. 2 The trial court's oral pronouncement did not specify if these sentences were to run concurrently
or consecutively.
That same day the trial court issued its written judgment. The written judgment
reflected its sentences of seven years for the manslaughter conviction and four years for the ACA
conviction but stated the sentences shall run consecutively to each other. Halbrook appeals
from that judgment, arguing in a single point the trial court plainly erred in entering its written
judgment ordering his sentences to run consecutively since the trial court failed to make that
specification in its oral pronouncement of Halbrook's sentences.
Standard of Review
Halbrook acknowledges he has not preserved his claim and seeks plain-error review
under Rule 30.20.2 When a defendant has not preserved a claim of error, we may exercise our
discretion to review the claim for plain error. Rule 30.20. We will not review a claim for plain
error "unless the claimed error facially establishes substantial grounds for believing that
manifest injustice or miscarriage of justice has resulted." State v. Yount, 642 S.W.3d 298,
300 (Mo. banc 2022) (quoting State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017)). A
sentence not authorized by law affects substantial rights and results in manifest injustice. State
v. Sprofera, 427 S.W.3d 828, 838 (Mo. App. W.D. 2014) (finding plain error where a trial
court's written judgment memorialized the defendant's sentence as consecutive when it failed to
state the sentence was consecutive at the time of the oral pronouncement and remanding with
an instruction to correct the written judgment to reflect concurrent sentences).
We will look to the sentencing transcript to determine the meaning of a trial court's oral
pronouncement of sentence only where the oral pronouncement is ambiguous. State ex rel.
Zinna v. Steele, 301 S.W.3d 510, 512 (Mo. banc 2010). Silence as to whether a sentence shall
2 All rule references are to Missouri Court Rules (2022), except for references to Rule 29.09, which are to
Missouri Court Rules (2021). 3 run consecutively or concurrently during the oral pronouncement of sentence does not create an
ambiguity. See id.
Analysis
Section 558.026.1 states that multiple sentences shall run concurrently unless the court
specifies they shall run consecutively.3 This policy is also reflected in Rule 29.09. Under that
rule, the trial court, when pronouncing sentence, must "state whether the sentence shall run
consecutively to or concurrently with sentences on one or more offenses for which [the]
defendant has been previously sentenced. If the court fails to do so at the time of pronouncing
the sentences, the respective sentences shall run concurrently." Rule 29.09. The Supreme Court
of Missouri has interpreted this rule to create a "bright-line principle that when a sentencing
court fails at the time of oral pronouncement to state whether a sentence is concurrent or
consecutive, the mandatory language of the rule fills the gap and renders the sentence
concurrent." Zinna, 301 S.W.3d at 514. Moreover, the written judgment of the trial court
should reflect the oral pronouncement of the sentence, and if a material difference exists
between the oral pronouncement and written judgment, the oral pronouncement controls. Id.
This means that if a trial court fails to specify whether a sentence is to run consecutively or
concurrently, Rule 29.09 fills that silence with a concurrent sentence. And, since the oral
pronouncement is then a pronouncement that the sentences shall run concurrently, the written
judgment must reflect the same. See id. at 517 (granting habeas relief to the defendant where
the trial court's oral pronouncement of sentence was silent as to whether the sentences were to
run concurrently or consecutively but the written judgment ordered the sentences to run
consecutively).
Both the State and Halbrook agree the trial court plainly erred in entering the written
judgment stating the sentences were to run consecutively. We agree. But the State urges us to
3 The statute provides exceptions to this requirement but those exceptions are inapplicable in this case.
4 remand for resentencing, arguing the trial court's imposition of sentence was based on a
mistaken belief the sentences had to be consecutive.
Instead of applying Rule 29.09's bright-line principle, the State blurs the line by
conflating an alleged error in the imposition of sentence with an alleged error in the entry of a
written judgment. In support of its argument, the State cites to State v. Elam, 493 S.W.3d 38
(Mo. App. S.D. 2016), State v. Freeman, 212 S.W.3d 173 (Mo. App. S.D. 2007), and State v.
Pierce, 548 S.W.3d 900 (Mo. banc 2018). In each of these cases, the issue concerned an
alleged error made by the trial court in its imposition of sentence (i.e., an error when it orally
pronounced sentence) and there were no claims the oral pronouncement of sentence conflicted
with the written judgment. Elam, 493 S.W.3d at 41; Freeman, 212 S.W.3d at 176-77; Pierce,
548 S.W.3d at 904. In our case, Halbrook is not claiming the trial court erred in its imposition
of sentence. The imposition of sentence was clear and unambiguous. The alleged error is that
the written judgment did not conform to the sentence it imposed during the oral
pronouncement. Because Elam, Freeman, and Pierce did not involve a written judgment
that differed from the oral pronouncement of sentence—the issue we confront in this case—
these cases have no bearing on our analysis.
Nor are we convinced by the State's argument the trial court's imposition of sentence was
based on a mistaken belief that consecutive sentences were required. While the trial court asked
the State whether it was required to run the sentences consecutively or concurrently before it
made its oral pronouncement of its sentences, that question does not render its actual oral
pronouncement of the sentence ambiguous in any way. The trial court, when it imposed its
sentence was simply silent as to whether the sentences were to run consecutively or
concurrently. And, by operation of Rule 29.09's gap-filling mechanism, that silence was filled.
Zinna, 301 S.W.3d at 512. By failing to state whether the sentences were to run concurrently or
consecutively, Rule 29.09 dictated the sentences run concurrently. Because there was no
mistake as to the imposition of sentence—only an error in the written judgment—there is no 5 need to remand for resentencing, as the State suggests. Rather, the written judgment must be
corrected to conform to the oral pronouncement of sentence.
Conclusion
The trial court plainly erred in entering a written judgment that materially differed from
its oral pronouncement at sentencing. See State v. Clark, 494 S.W.3d 8, 14-15 (Mo. App. E.D.
2016) (finding plain error where the written judgment failed to conform with the trial court's
oral pronouncement of the defendant's sentences and remanding with directions to correct the
written judgment to conform to the trial court's oral pronouncement). We reverse and remand
with directions for the trial court to enter a written judgment that conforms to its oral
pronouncement by ordering Halbrook's sentences to run concurrently.
MARY W. SHEFFIELD, J. – OPINION AUTHOR
JACK A. L. GOODMAN, C.J. – CONCURS
JENNIFER R. GROWCOCK, J. – CONCURS