328 S.W.3d 705 (Mo. 2011), SC 90839, State v. Collins

Docket Nº:SC 90839.
Citation:328 S.W.3d 705
Opinion Judge:PER CURIAM.
Party Name:STATE of Missouri, Respondent, v. Faron Ross COLLINS, Appellant.
Attorney:Craig A. Johnston, Public Defender's Office, Columbia, for Collins. James B. Farnsworth, Attorney General's Office, Jefferson City, for the State.
Case Date:January 11, 2011
Court:Supreme Court of Missouri
 
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Page 705

328 S.W.3d 705 (Mo. 2011)

STATE of Missouri, Respondent,

v.

Faron Ross COLLINS, Appellant.

No. SC 90839.

Supreme Court of Missouri, En Banc.

January 11, 2011

Page 706

Craig A. Johnston, Public Defender's Office, Columbia, for Collins.

James B. Farnsworth, Attorney General's Office, Jefferson City, for the State.

PER CURIAM.

Faron Ross Collins appeals his conviction for driving while intoxicated (DWI), section 577.010,1 following a bench trial in the Circuit Court of Douglas County. Mr. Collins was sentenced as a chronic DWI offender under section 577.023.1(2) to a five-year prison sentence, concurrent with a one-year sentence for driving while suspended (DWS). The state concedes that the trial court erred in finding that Mr. Collins was a chronic DWI offender because the state's evidence was silent about whether Mr. Collins had been represented by counsel or waived counsel in the cases in which he previously was convicted. The sole issue on appeal is the appropriate remedy for this error. Under section 577.023.9, because the state did not prove any prior convictions or pleas of guilty, the appropriate remedy is vacation of Mr. Collins's sentence and remand for re-sentencing on the class B misdemeanor of DWI.

Factual and Procedural Background

Mr. Collins does not challenge the sufficiency of the evidence to prove that he was guilty of DWI. Rather, he challenges the

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sufficiency of the evidence offered to prove that he is a chronic DWI offender, as defined in section 577.023.1(2). Therefore, only the facts dispositive to the issue on appeal will be discussed.

In the light most favorable to the judgment, the evidence shows that on September 3, 2006, Mr. Collins was arrested for DWI. He was charged subsequently with one count of DWI as a chronic offender, under sections 577.010 and 577.023, and one count of DWS, under section 302.321. Mr. Collins pleaded guilty to DWS and, after a September 25, 2008 bench trial, he was found guilty of DWI.

During the state's presentation of evidence at trial, it offered a certified copy of Mr. Collins's driving record as evidence of his prior convictions to prove that Mr. Collins was a chronic DWI offender under section 577.023.1(2)(a). The exhibit reflected eight prior convictions for DWI or driving with excessive blood-alcohol content. The exhibit did not specify if Mr. Collins was represented by counsel or waived counsel during any of the proceedings in which he was convicted. Mr. Collins did not object to the exhibit or argue to the trial court that the evidence was insufficient to prove that he was a chronic offender.

After hearing the evidence and Mr. Collins's argument that the state failed to prove beyond a reasonable doubt that he was driving in an intoxicated condition, the trial court found that Mr. Collins was guilty of DWI and that he was a chronic offender. On December 2, 2008, the trial court sentenced him to five years in prison, which was the minimum sentence for a class B felony. 2 The trial court also sentenced Mr. Collins to one year in the county jail for the DWS, to run concurrently with the five-year sentence for DWI.

Mr. Collins appealed. After opinion by the court of appeals, this Court granted transfer.3Mo. Const. art. V, sec. 10.

Standard of Review

Because Mr. Collins failed to object to the trial court's finding that he was a chronic driving-while-intoxicated offender, his claim of error was not preserved. A claim that a defendant failed to preserve can be reviewed only for plain error. State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010). Rule 30.20 allows an appellate court to conduct plain error review " when the court finds that manifest injustice or miscarriage of justice has resulted" from the trial court error. When a defendant is sentenced to a term of punishment greater than the maximum sentence for the offense, the sentencing error constitutes a manifest injustice warranting plain error review. Severe, 307 S.W.3d at 642.

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