State v. Severe

307 S.W.3d 640, 2010 Mo. LEXIS 1, 2010 WL 97997

• Court: Supreme Court of Missouri
• Decided: January 12, 2010
• Docket: SC 89948
• Status: Published

Opinions

MICHAEL A. WOLFF, Judge.

Vanessa Severe was charged with driving while intoxicated (DWI) and, because of two prior offenses, she was charged as a persistent offender. The persistent offender statute — which raises the offense from a misdemeanor to a class D felony— requires the state to present evidence to the trial court of her prior convictions and findings of guilt before the case is tried to a jury. The state submitted two prior alcohol-related offenses — a class B misdemeanor DWI conviction and a municipal DWI guilty plea that resulted in a suspended imposition of sentence. Upon the jury’s verdict of guilt in this case, the trial court sentenced Severe as a persistent offender to three years in prison.

While the appeal of her conviction was pending, this Court decided Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), which held that a municipal DWI plea that resulted in a suspended imposition of sentence could not be used to enhance the offense to a class D felony.

Severe is guilty of DWI, and there is no cause for a new trial. But Turner requires that Severe’s felony conviction be reversed and that, as in Turner, the case be remanded for re-sentencing. The question presented here is whether, on remand of Severe’s conviction to the trial court, the state may offer evidence of other alcohol-related offenses that were not presented before the original trial.¹

Because of the timing requirement of the statute — which requires the trial court to determine persistent offender status before the case is submitted to the jury— there is no opportunity for the state to have a twice-bitten apple.

The judgment is reversed, and the case is remanded.

Facts and Procedural History

Vanessa Severe and Steve Gabriel were driving in Gentry County when their car flipped into a ditch in January 2007. Passersby who helped get Severe and Gabriel out of the car reported that they smelled beer and saw beer cans in the car. Severe admitted that she was driving. At the hospital, Trooper Jason Cross noticed that Severe had a strong odor of alcohol, that her eyes were bloodshot and that her speech was slurred. He performed several field sobriety tests on which she performed poorly. Severe agreed to take a breath test but gave a sample too small to make a measurement.

Severe was charged by amended information as a persistent DWI offender with one count of DWI. Before submitting the case to the jury, the trial court found Severe to be a prior and persistent DWI offender based on the state’s submission of two prior alcohol related-convictions.

The first prior conviction was a Missouri municipal violation from 1999 in which Severe pleaded guilty to DWI and received a suspended imposition of sentence. The second was a Gentry County charge of the class B misdemeanor of driving while intoxicated to which Severe pleaded guilty and received a $350 fine plus the payment of all court costs. Severe presented no evidence, and the jury returned a verdict finding her guilty of DWI. She was sentenced as a persistent DWI offender to three years imprisonment. Severe appeals.

While her appeal was pending, this Court decided Turner v. State, 245 S.W.3d 826, in which this Court held that a prior municipal DWI conviction that resulted in a suspended imposition of sentence could not be used to enhance a conviction for driving while intoxicated.

After opinion in the court of appeals, this Court granted transfer and has jurisdiction. Mo. Const, art. V. sec. 10.

Standard of Review

Any issue that was not preserved can only be reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted from the trial court error. State v. McLaughlin, 265 S.W.3d 257, 262 (Mo. banc 2008). Rule 80.20 provides that the appellate courts can conduct plain error review of sentences. Being sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice. State v. Kimes, 234 S.W.3d 584, 590 (Mo.App.2007).

Analysis

Severe was charged as a persistent offender pursuant to section 577.023² to a class D felony.³ A persistent offender is “a person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses.” Section 577.023.1(4)(a). With a finding that Severe has only one prior offense, she cannot be found guilty of being a persistent offender, but she could be found guilty and sentenced for being a prior offender, a class A misdemeanor pursuant to section 577.023.2.⁴

The state argues that under controlling law at the time of Severe’s trial, it presented sufficient evidence to support the finding that Severe was a persistent offender. While Severe’s case was pending on appeal, this Court decided Turner v. State, which the state argues changed the law. In Turner the defendant was found in the trial court to be a persistent offender where one of the two prior intoxication-related offenses used to prove his status as a persistent offender was a prior municipal offense that resulted in a suspended imposition of sentence (SIS). Turner, 245 S.W.3d at 826-27. Turner argued there were two conflicting provisions within section 577.023 that addressed the use of prior municipal SIS dispositions for enhancement purposes. Id. at 827. Turner argued section 577.023.1 and 2(a) permitted the use while section 577.023.14⁵ disallowed the use. Id. This Court determined that the sections were ambiguous and, therefore, applied the rule of lenity to interpret the statute in Turner’s favor. Id. at 828. The Court held that prior municipal offenses resulting in a suspended imposition of sentence could not be used to enhance punishment as a prior or persistent offender under section 577.023. Id. at 829.

In Turner, this Court made no new law; it merely clarified the language of an exist-

ing statute. At the time of Severe’s trial, section 577.023.1(4)(a) defined a “persistent offender” as someone who “pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses.” “Intoxication-related traffic offenses” were defined in section 577.028.1(B) as follows:

An “intoxication-related traffic offense” is driving while intoxicated ... or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the defendant was represented by or waived the right to an attorney in writing.

Yet, section 577.023.16 stated:

A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.

(Emphasis added).

Under section 577.023.16, a plea of guilty followed by a suspended imposition of sentence in state court could be treated as a prior conviction, but the statute did not say that a plea of guilty followed by a suspended imposition of sentence in a municipal court could be treated as a prior conviction.⁶ Though sections 577.023.1(3) and 577.023.16 may have been contradictory, the state was on notice that, under section 577.023.16, Severe’s guilty plea and suspended imposition of sentence in municipal court was not to be treated as a prior conviction. Therefore, if the state had evidence of an additional conviction that would have been treated as a prior conviction under the statute, the state should have offered it to the court before the case was submitted to the jury.

According to the state, at the time of Severe’s trial, the state was following the law as interpreted in State v. Meggs, 950 S.W.2d 608 (Mo.App.1997). Although in Meggs, the court of appeals interpreted section 577.023 differently than this Court did in Turner,’7 the “clear words of the statute govern interpretation.” State of Missouri v. Stewart, 832 S.W.2d 911, 913 (Mo. banc 1992). In Stewart, the defendant was charged as a persistent offender based on evidence of his two prior pleas to DWI felonies. The defendant argued that the state had not presented sufficient evidence under the plain language of the statute, while the state argued that it tracked the law as stated in MACH-CR 31.02 and the Notes on Use 4.d.ii (1985 Rev.). Id. at 913-914. This Court concluded that the language of the statute established that evidence must be produced that showed a total of three offenses for a charge of persistent offender and that the state only proved that the defendant was a prior offender.⁸ Id. at 914. This Court further stated: “To the extent that the recommended charge and accompanying Notes are contrary to this opinion, they shall no longer be followed.” Id. It is also important to note that this Court affirmed the defendant’s conviction as a prior offender and did not give the state an opportunity to present additional evidence on remand.

When presenting evidence against a defendant charged with a crime, the language of the statute is of paramount importance. Here, Tuner created no new law. The state was on notice by the plain language of section 577.023.16 that a guilty plea followed by a suspended imposition of sentence in “municipal court” was not to be treated as a prior conviction. The state had the opportunity to prove that Severe was a persistent offender under the statute but did not.

The state relies on State v. Cobb, 875 S.W.2d 533 (Mo. banc 1994), for the proposition that it is permissible to present additional evidence on remand for resentenc-ing. In Cobb, the defendant was convicted of DWI and sentenced as a persistent offender based on evidence of two prior intoxication-related offenses. While Cobb’s case was pending on appeal, this Court decided Stewart, which held that persistent offender status must be proven by proof of three prior convictions. As a result, Cobb argued that the state failed to establish his status as a persistent offender and that allowing the state to introduce additional evidence on remand of additional DWI offenses would violate his Fifth Amendment right against double jeopardy. Id. at 534. This Court held, however, that double jeopardy did not bar the state from presenting new evidence at re-sentencing to establish that Cobb was a persistent offender. Id. at 537.

Though Cobb may seem factually similar to the case at hand, Cobb did not involve the statutory timing issues that are dispos-itive in this case, and there was no discussion of them in the opinion. Section 558.021.2 says that “[i]n a jury trial, the facts shall be pleaded, established and found prior to submission to the jury .... ” (Emphasis added). As a result, “[t]he plain language of section 558.021.2 imposes a mandate requiring that prior offender status be pleaded and proven pri- or to the case being submitted to the jury.” State v. Teer, 275 S.W.3d 258, 262 (Mo. banc 2009).

This Court first addressed the issue of whether allowing the state to present evidence of prior offenses on remand violates the timing requirements of section 558.021.2 in State v. Emery, 95 S.W.3d 98 (Mo. banc 2003). In Emery, the defendant was convicted of a DWI offense and sentenced as a prior and persistent offender, but the state presented no evidence at trial to prove the prior offenses as required by statute. This Court followed the old adage that two wrongs do not make a right and did not allow the state to present evidence of Emery’s prior offenses on remand for re-sentencing. “To remand and allow the state now to present evidence of Emery’s alleged prior and persistent offender status would violate the timing requirement of section 558.021.2.” Id. at 101.

More recently, this Court re-emphasized this principle in Teer, 275 S.W.3d at 262. Teer was involved in an alcohol-related automobile accident and was found guilty by a jury of four courts of involuntary manslaughter and one count of second-degree assault. Id. at 260. The court allowed the state to amend the information to charge Teer as a prior offender after the case was submitted to the jury but before the verdict. Id. Because Teer’s status as a prior offender was not pleaded and proven prior to the case’s submission to the jury, this Court held that the procedure “violated the plain language of section 558.021.2.” Id. at 262.

The state asks us to create an exception to Emery’s rule prohibiting further evidence of prior offenses on remand in cases where the prosecutor presented evidence that was sufficient to prove the prior offenses at the time of trial but that subsequently are declared to be insufficient by a supposedly new interpretation of the law. The statutory language provides no such exception. Such an exception would give the state “two bites at the apple” when the statute allows only one bite. If there were other potential convictions to be used at trial, the state should have presented that evidence before the cause was submitted to the jury.

Conclusion

Allowing the state to present new evidence on remand would contravene the language of section 558.021.2, which requires that evidence of prior convictions be offered before the case is submitted to the jury.⁹ The Court cannot make an exception to the statutory requirement, especially because the state was on notice of the language in section 577.023.16 that a guilty plea and suspended imposition of sentence in “municipal court” was not to be treated as a prior conviction.

The judgment of the circuit court is reversed, and the case is remanded.

RICHARD B. TEITELMAN, RUSSELL, FISCHER and LAURA DENVIR STITH, JJ., concur. BRECKENRIDGE, J., dissents in separate opinion filed. PRICE, C.J., concurs in opinion of BRECKENRIDGE, J.

1 . No question is presented here as to whether the determination of prior offenses involves a factual determination that might require a jury finding. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In most cases the decision as to prior offenses presents only legal questions that can be decided by the court.

2 . All statutory references are to RSMo Supp. 2007 unless otherwise indicated.

3 . "Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a persistent offender shall be guilty of a class D felony." Section 577.023.3.

4 . The first finding of DWI offense was and still is a class B misdemeanor pursuant to section 577.010. Because the state did show that Severe had a conviction for DWI in Gentry County, she could have been sentenced to a Class A misdemeanor under section 577.023.2: "Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a prior offender shall be guilty of a class A misdemeanor."

A "prior offender” was defined in section 577.023.1(5) as "a person who has pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication-related offense for which the person is charged.” The same definition for a "prior offender" is now in section 577.023.1(6).

5 .The language of section 577.023.14 was contained in section 577.023.16 at the time Severe was charged.

6 .This Court's decision in Turner reflects the common understanding that reference to "state court” does not include “municipal court.” In actuality "municipal courts”— though they are funded by municipal governments and can be served by judges appointed locally — are divisions of the circuit court. Mo. Const, art. V., secs. 23 and 27. The words in criminal statutes, because they affect the general public and are written by lay legislatures, are interpreted in accordance with common understanding.

7 . In Meggs, the court of appeals held that municipal offenses resulting in a suspended imposition of sentence did constitute "intoxication-related traffic offenses” as defined in section 577.023.

8 . At the time of the Stewart opinion, the statute required that the offender pleaded guilty to or had been found guilty of two or more intoxication-related offenses committed within 10 years of a previous intoxication-related offense conviction, thus requiring three previous convictions.

9 . In State v. Bizzell, 265 S.W.3d 892 (Mo.App.2008), a case factually identical to this case, the court remanded the case to the trial court for sentencing with instructions to allow the state to present additional evidence to establish the defendant's persistent offender status in light of Turner. Id. at 895. To the extent that Bizzell allowed the state to present new evidence on remand, the case is overruled.