State of Missouri v. Victor L. Kates

• Court: Missouri Court of Appeals
• Decided: April 30, 2024
• Docket: ED111457
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FOUR

STATE OF MISSOURI, ) No. ED111457 ) Respondent, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) 2222-CR01581-01 ) VICTOR L. KATES, ) Honorable Scott A. Millikan ) Appellant. ) Filed: April 30, 2024

Before John P. Torbitzky, P.J., James M. Dowd, J., and Michael S. Wright, J.

Opinion

On October 19, 2021, appellant Victor Kates was arrested in the City of St. Louis and

charged with unlawful possession of a firearm by a felon in violation of section 571.070, 1

unlawful use of a firearm while in possession of methamphetamine in violation of section

571.030, possession of methamphetamine in violation of section 579.015, tampering with a

motor vehicle without the owner’s consent in violation of section 569.080.1(2), and resisting

arrest by fleeing in violation of section 575.150.

On February 10, 2023, Kates pleaded guilty to these charges pursuant to a negotiated plea

agreement with the State. Finding that sufficient factual bases supported the pleas, the court

1 All statutory references are to RSMo 2016. accepted them and sentenced Kates in accordance with the plea agreement to a total of three

years in prison. 2

After the court accepted his pleas but before sentencing, Kates objected to being

sentenced on the possession of a controlled substance charge because that conduct is the same

conduct underlying the unlawful use of a weapon charge under section 571.030 and thus is

merely a lesser included offense to that weapon charge and should not have been charged or

sentenced separately.

While in point one of his brief and later at oral argument, Kates sought to avoid

characterizing his argument as raising a double jeopardy violation - instead couching it in terms

of a due process violation – his argument nonetheless seeks to raise a constitutional challenge to

what the court did. In his remaining points, Kates relies on the recent Supreme Court decision in

N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022) for his argument that

the statutes upon which the unlawful possession of a firearm and the unlawful use of a weapon

charges are based are unconstitutional under the U.S. and Missouri constitutions because neither

is a “regulation consistent or analogous with the Nation’s historical tradition of firearm

regulation.”

Because Kates entered into unconditional guilty pleas to the charges without raising any

of these arguments and obtained the benefit of concurrent sentencing pursuant to a plea

agreement that reduced his jail time from fifteen years to three years, we hold that Kates waived

his right to raise any of these issues on appeal.

2 The court sentenced Kates to three years on each charge and ordered the sentences to run concurrently to one another.

2 Waiver of Point I

We turn first to our holding with respect to point one that by pleading guilty

unconditionally to the two crimes that included drug possession as an element, Kates waived the

right to raise his lesser-included-offense due process argument on appeal.

“[A] guilty plea serves as a waiver of most non-jurisdictional errors that occurred prior to

its entry, including constitutional challenges.” State v. Russell, 598 S.W.3d 133, 138 (Mo. banc

2020). “When a criminal defendant has solemnly admitted in open court that he is in fact guilty

of the offense with which he is charged, he may not thereafter raise independent claims relating

to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”

Hampton v. State, 495 S.W.2d 638, 642 (Mo. 1973).

But Russell taught us that guilty pleas waive a lot, but not everything, and since both

parties rely on Russell, we take a closer look. The Russell Court found “that whether an

excessive sentence can be raised on appeal is not determined by the general principles of waiver

inherent in a guilty plea.” Russell, 598 S.W.3d at 138. The State claims Russell’s holding was

limited and only stands for the proposition that challenging an excessive sentence after a guilty

plea is permitted. For his part, Kates seeks to extend Russell beyond this limited holding and

argues instead that Russell held that a guilty plea does not waive a defendant’s right to appeal

constitutional issues such as Kates attempts to do here. But we do not read Russell that broadly

or as altering the longstanding principle in Missouri law that a guilty plea waives most non-

jurisdictional errors especially when that principle was reiterated in Russell itself. Id. at 138.

And we agree that Russell’s holding concerned excessive sentences only which is not at issue

here.

3 It is apparent from this record that the constitutional claims Kates alleges here, to the

extent they occurred at all, occurred prior to the entry of his guilty plea. Kates knew he was

charged with violating both statutes. He knew that possession of a controlled substance was the

predicate conduct with respect to each crime. Yet, he admitted to the court that he was guilty of

each crime under each statute. And he acknowledged during the plea colloquy that by pleading

guilty he was waiving his right to appeal. Thus, Kates cannot now raise these claims on appeal.

Hampton, 495 S.W.2d at 642.

Further, we reject Kates’ assertion that we are required to transfer this case to the

Missouri Supreme Court because he has presented a “real and substantial” constitutional claim.

In light of State v. Onyejiaka, 671 S.W.3d 796 (Mo. banc 2023), Kates’ argument at most

presents a colorable constitutional claim that this Court may properly retain and decide. See In

re Arnold, 292 S.W.3d 393, 396 (Mo. App. E.D. 2009).

The defendant in Onyejiaka was tried and found guilty by a jury of both possessing a

controlled substance and unlawfully using a weapon while in possession of a controlled

substance. Id. at 797. On appeal, Onyejiaka claimed this violated his constitutional right against

double jeopardy. Id. The Supreme Court disagreed finding that “[b]ased upon the plain

language of section 571.030.1(11) and this Court’s rules of statutory interpretation, therefore, the

only outcome the legislature could have intended by enacting section 571.030.1(11) is to

authorize multiple punishments for violations of sections 579.015 and 571.030.1(11).” Id. at

800. Inasmuch as our Supreme Court in Onyejiaka rejected the same premise upon which Kates’

argument is based here, we conclude that he presents at most a colorable constitutional claim.

4 Waiver of Points II-V

In Points II-V, Kates challenges pursuant to N.Y. State Rifle & Pistol Association, Inc. v.

Bruen, 142 S.Ct. 2111 (2022) the constitutionality of sections 571.070(1) and 571.030.1(11), the

statutes upon which his two gun-related charges were premised.

“In order to preserve a constitutional issue for appellate review, a party must (1) raise the

issue at the first available opportunity, (2) note the constitutional provision claimed to be

violated by specifically referencing the article and section of the constitution or by quoting the

constitutional provision itself, (3) state the facts that constitute the constitutional violation, and

(4) preserve the constitutional issue throughout the proceeding.” State v. Blair, 175 S.W.3d 197,

199 (Mo. App. E.D. 2005). “[T]he earliest opportunity at which [Kates] could have raised the

challenge was before trial in a motion to quash the indictment.” State v. Newlon, 216 S.W.3d

180, 184 (Mo. App. E.D. 2007).

Here, Kates entered into an unconditional guilty plea; his plea was not “made conditional

upon the preservation of his constitutional challenges.” Garris v. State, 389 S.W.3d 648, 652

(Mo. banc 2013). Thus, since Kates’ constitutional challenges were raised for the first time on

appeal, they are not preserved for review and we decline to consider the merits of constitutional

issues when they appear for the first time on appeal after a guilty plea. Newlon, 216 S.W.3d at

184.

Conclusion

Kates’ guilty pleas and sentences are affirmed.

______________________________ James M. Dowd, Judge John P. Torbitzky, P.J., and Michael S. Wright, J., concur.