King v. Swenson, 52828

Decision Date08 January 1968
Docket NumberNo. 52828,52828
Citation423 S.W.2d 699
PartiesLester KING, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Respondent.
CourtMissouri Supreme Court

T. E. Lauer, Columbia, for petitioner.

Norman Anderson, Atty. Gen., for respondent.


This is an original proceedings for a writ of habeas corpus filed in this court by Lester King, an inmate of the Missouri State Penitentiary, against Warden Harold R. Swenson to test the legality of the prisoner's incarceration. The validity and application of §§ 222.020 and 546.480, RSMo 1959, V.A.M.S., are the principal issues involved. Insofar as material to this case, § 222.020 provides that if a convict commits a crime in an institution of the department of corrections and is convicted, his sentence for such crime shall not commence to run until the expiration of the sentence under which he is held. Section 546.480 provides that when 'any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior conviction.' The facts upon which a determination of the questions presented depends are not in dispute.

On November 17, 1955, Lester King was convicted of robbery in the first degree and was sentenced to fifteen years in the Missouri State Penitentiary where he has since remained. On October 15, 1965, this sentence was commuted by the governor of Missouri to a term ending October 28, 1965. However, on December 24, 1961, while confined in the penitentiary, King committed acts which resulted in his being charged with the criminal offenses of attempting to escape in violation of § 557.351 and of offering violence to a prison guard in violation of § 216.460.

Thereafter, on October 9, 1962, the petitioner King was convicted in the Circuit Court of Montgomery County, Missouri, of the felony of attempting to escape from the penitentiary. Upon the return of the jury's verdict of guilty, the Circuit Court of Montgomery County, acting pursuant to § 556.280, determined 'that the Defendant's punishment for the offense of Attempted Escape from the Missouri State Penitentiary for which he has now been convicted in this trial by the verdict of the jury shall be assessed at imprisonment in the penitentiary for a term of four years.' On February 20, 1963, the petitioner was formally sentenced by the Circuit Court of Montgomery County to a term of four years in the custody of the department of corrections. This conviction was affirmed by the Missouri Supreme Court on November 11, 1963. State v. King, Mo., 372 S.W.2d 857.

On January 16, 1963, the petitioner was convicted in the Circuit Court of Saline County, Missouri, of the felony of offering violence to a guard of the department of corrections, and on February 7, 1963, he was sentenced by the court pursuant to § 556.280 to a term of five years in the custody of the department of corrections. This conviction was affirmed by the Missouri Supreme Court on January 13, 1964. State v. King, Mo., 375 S.W.2d 34. Since the dates on which he was sentenced on each of the convictions for attempted escape and offering violence to a guard, the petitioner has been confined in the Missouri State Penitentiary, and has served in an orderly and peaceable manner, without having any infraction of the rules or laws of the institution recorded against him within the purview of § 216.355, which permits the discharge of a prisoner who has served in such a manner three-fourths of the time for which he was sentenced.

It will be helpful to determine first the petitioner's contention that § 546.480 does not apply in this situation 'because he was not convicted of two offenses before being sentenced on either of them, but was sentenced on the first offense prior to the second conviction.' In other words, King contends that in legal effect he was sentenced to four years in the penitentiary on October 9, 1962, the date of his conviction, in that after the verdict of guilty was returned and the jury discharged the court determined that the defendant's punishment 'shall be assessed at imprisonment in the penitentiary for a term of four years.' It should be noted that the entry immediately following is that on the defendant's motion thirty days additional time was allowed for filing his motion for new trial. The respondent contends that sentence was not lawfully imposed until February 20, 1963, which was after his conviction on January 16, 1963, of offering violence to a guard and after his sentencing on that conviction on February 7, 1963. The circuit court record of February 20, 1963, recites that the court 'did assess his (the defendant's) punishment at four years' on October 9, 1962, but then proceeds to grant allocution, formally pronounces sentence and directs the sheriff to deliver the defendant to the department of corrections.

The proceedings which the petitioner now attacks are entirely consistent with § 556.280, the Habitual Criminal Act, which provides that defendant 'shall receive such punishment provided by law for the subsequent offense as the trial judge determines after the person has been convicted' if the judge determines before the case is submitted to the jury that there is a prior conviction. The petitioner cites S.Ct. Rules 28.08, 27.09, 27.10 and 29.04, V.A.M.R., which relates to the requirements at formal sentencing and contends all such elements were present and entered into the action taken immediately after the conviction on October 9, 1962, when the trial judge determined or assessed the punishment pursuant to § 556.280. The contention ignores the fact that an extension of time was granted defendant immediately thereafter to file his motion for a new trial, that such motion was filed and was overruled on February 20, 1963, at which time the defendant was formally sentenced in the manner provided by law and the rules of court, including allocution which was missing from the proceedings on October 9, 1962.

The determination of punishment made by the trial judge, after conviction and before the filing and ruling on a motion for new trial, is not a formal sentencing or a final judgment and does not preclude the trial judge from reaching a different conclusion and imposing a different sentence on final judgment. State v. Jaeger, Mo., 394 S.W.2d 347, 354(14); State v. Grant, Mo., 380 S.W.2d 799, 802--803(3). A preliminary indication of the punishment the court intends to impose is helpful in that it enables the defendant to incorporate his objections in his motion for new trial and to urge the results of a pre-sentence investigation prior to actual imposition of the sentence, but a failure to do so does not prevent appellate review of the judgment and sentence for lack of an allegation of error in the motion for new trial. S.Ct. Rule 28.02, V.A.M.R., State v. Watson, Mo., 400 S.W.2d 129, 132(3). We rule, therefore, that the four-year sentence for attempted escape was pronounced on February 20, 1963, not on October 9, 1962, as contended by the petitioner, and § 546.480 is not inapplicable for the reasons urged in item six of the petitioner's brief.

The essential chronology of King's criminal history then is that he was sentenced to a term of fifteen years imprisonment on November 17, 1955, and since then has been confined in the penitentiary. On October 9, 1962, he was found guilty by a jury's verdict of attempted escape and on January 16, 1963, of offering violence to a guard. On February 7, 1963, he was sentenced to a term of five years for offering violence and on February 20, 1963, to a term of four years for attempted escape. His fifteen-year term for first degree robbery was terminated October 28, 1965, by the governor's commutation. If, as the petitioner contends, the four and five year sentences ran concurrently with each other and concurrently with the fifteen-year term as commuted, he is entitled to be discharged; if the terms run consecutively as respondent contends, he cannot be released until a future date which will depend somewhat on his behavior in prison.

The attacks on the constitutionality of §§ 222.020 and 546.480 will be considered next. First the petitioner contends that § 222.020 is unconstitutional because it constitutes a bill of attainder in violation of Art. 1, § 10, of the Constitution of the United States, and Art. 1, § 30, of the 1945 Constitution of Missouri, V.A.M.S. The federal constitution provides that no state shall 'pass any Bill of Attainder' and the state provision is 'that no person can be attained of treason or felony by the general assembly'. Bills of attainder are defined in United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 1079(2), 90 L.Ed. 1252, as 'legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.' The noted Missouri loyalty oath case states that: 'A bill of attainder is a legislative act which inflicts punishment without a judicial trial.' Cummings v. State of Missouri, 4 Wall. 277, 71 U.S. 277, 323, 18 L.Ed. 356. The petitioner relies chiefly upon United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 1710(2), 14 L.Ed.2d 484, holding that a federal statute, which makes it a crime for a member of the Communist Party to serve as an officer or, with certain exceptions, as an employee of a labor union, was invalid as a bill of attainder.

Only the clearest proof will suffice to establish the unconstitutionality of a statute on the ground that it constitutes a bill of attainder. Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 1403(26), 6 L.Ed.2d 625; 16...

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