Scharnhorst v. State, WD

• Decision Date: 20 June 1989
• Docket Number: No. WD,WD
• Citation: 775 S.W.2d 241
• Parties: Claude SCHARNHORST, Appellant, v. STATE of Missouri, Respondent. 40827.
• Court: Missouri Court of Appeals

Page 241

775 S.W.2d 241

Claude SCHARNHORST, Appellant, v. STATE of Missouri, Respondent.

No. WD 40827.

Missouri Court of Appeals Western District.

June 20, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Aug. 1, 1989.

Application to Transfer Denied Sept. 12, 1989.

David Harrison Miller, Richmond, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before FENNER, P.J., and SHANGLER and BERREY, JJ.

SHANGLER, Judge.

The movant Scharnhorst appeals from an order which denied his Rule 27.26 motion to vacate judgment and sentence after an evidentiary hearing. Scharnhorst was charged by information with receiving stolen property [§ 570.080, RSMo 1978] and as a persistent offender, punishable by an extended term [§ 558.016.3, RSMo Supp.1984]. The information alleged seven specific prior felony convictions as the basis for the allegation of the persistent offender status. Scharnhorst pleaded guilty to receiving stolen property and, under the terms of a plea bargain agreement, was sentenced to a term of imprisonment for fifteen years as a persistent offender. The execution of the sentence was suspended and Scharnhorst was placed on probation for a term of five years. Subsequently, the probation was revoked and the fifteen year sentence was ordered executed.

Scharnhorst then brought his Rule 27.26 motion [still in effect] to set aside the conviction on the plea of guilty. There was no direct appeal from the conviction. The grounds alleged for post-conviction relief are both jurisdictional and that the ineffective assistance of counsel rendered the plea involuntary.

The movant argues first that the information was insufficient as a charge of the crime of receiving stolen property and so the conviction on the plea of guilty to the information was a nullity and must be set aside. To invest a court with jurisdiction over an accused in a criminal cause there must be an information formally filed which charges the accused with the offense to which he pleads. State v. Robertson, 764 S.W.2d 483, 485 (Mo.App.1989). If a criminal information fails to charge a crime the court acquires no jurisdiction to proceed, and whatever transpires thereafter is a nullity. State v. McKinney, 756 S.W.2d 527, 530 (Mo. banc 1988). Thus, the sufficiency of a criminal information may be collaterally attacked in a Rule 27.26 proceeding. Wilson v. State, 755 S.W.2d 324, 325 (Mo.App.1985).

The statute which defines the offense for which the movant was convicted [§ 570.080.1, RSMo 1978] provides:

A person commits the crime of receiving stolen property if for the purpose of depriving the owner of a lawful interest therein, he receives, retains or disposes of property of another knowing that it has been stolen, or believing that it has been stolen.

The movant complains that the information does not identify the owner of the stolen property which he was charged with receiving. ¹ An information which fails to contain an essential averment in the description of the offense will be held defective even after verdict--or judgment on a plea of guilty. State v. Brooks, 507 S.W.2d 375, 376[1-3] (Mo.1974).

Ownership, however, is not an essential element of the offense of receiving stolen property as defined in § 570.080. It was settled under the predecessor receiving stolen property law ² that ownership was not an essential element of offense. State v. Simone, 416 S.W.2d 96, 99[4, 5] (Mo.1967). The successor statute, § 570.080, broadens the acceptable proof on the element of intent in that the prosecution must plead and prove that the defendant either received, retained, or disposed of "property of another" either "knowing that it has been stolen or believing that it has been stolen." That is to say, the prosecution is neither required to plead and prove the identity of the owner, as the argument goes, but only that the defendant knew or believed the property was stolen. State v. Sweeney, 701 S.W.2d 420, 424 (Mo. banc 1985) ³

The movant argues next that the sentence imposed by the trial court was in excess of that authorized by law and hence the denial of relief under Rule 27.26 was clearly erroneous. The movant pleaded guilty to the Class C felony of receiving stolen property and was sentenced to a term of fifteen years under a plea bargain agreement which suspended the execution of sentence and imposed a five year term of probation. The plea was to an information which charged Scharnhorst as a persistent offender also under § 558.016.3--one who has been convicted of two or more felonies committed at different times--and alleged convictions on seven prior felonies.

At the plea proceeding, the court read to the accused the substantive charge of receiving stolen property as rendered by the information, the allegation of persistent offender, the detail of each of the seven prior felony convictions on which that allegation rested, the normal penalty for conviction of receiving stolen property, and the enhanced penalty for conviction as persistent offender. The court explained, and Scharnhorst acknowledged understanding of the constitutional rights which attend an accused in a criminal trial, waived them, confessed the crime and tendered his plea of guilty to the information. Counsel for the defendant then examined his client. Scharnhorst acknowledged to him the answers to the document, To Defendants Who Plan to Enter a Plea of Guilty, and his subscription. The entries on the form acknowledge that the range of punishment for the offense charged is up to 15 years and that the plea bargain is for a fifteen year sentence with a five year probation. An entry also confessed that he received stolen guns. The court accepted the plea of guilty as voluntary and imposed the sentence and probation as delineated by the plea bargain agreement.

The guilty plea court made no determination or entry that Scharnhorst was a persistent offender, nor findings of fact upon which the adjudgment rests. The movant complains in the Rule 27.26 motion that the absence of a finding of persistent offender and of the facts upon which that determination rests not only violates § 558.021, but also nullifies the extended term of 15 years because only the 7 year term imposable for receiving stolen property was proven. Neither the findings nor the judgment of the postconviction court addresses this allegation of the motion. On this appeal Scharnhorst contends that the denial of that ground for relief was clearly erroneous and seeks the vacation of the sentence and remand of the cause for the findings § 558.021 requires and for resentencing.

The extended term procedures statute, § 558.021, under which Scharnhorst was sentenced to the fifteen year term provides:

1. The court shall find the defendant to be a prior offender, persistent offender, or dangerous offender, if

(1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential

facts warranting a finding that the defendant is a prior offender, persistent offender, or dangerous offender; and

(2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a prior offender, persistent offender, or dangerous offender; and

(3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender, persistent offender, or dangerous offender.

2. In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of their hearing, except the facts required by subdivision (1) of subsection 4 of section 558.016 may be established and found at a later time, but prior to sentencing, and may be established by judicial notice of prior testimony before the jury.

3. In a trial without a jury or upon a plea of guilty, the court may defer the proof and findings of such facts to a later time, but prior to sentencing. The facts required by subdivision (1) of subsection 4 of section 558.016 may be established by judicial notice of prior testimony or the plea of guilty.

4. The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings.

5. The defendant may waive proof of the facts alleged.

6. Nothing in this section shall prevent the use of presentence investigations or commitments under sections 557.026 and 557.031, RSMo.

7. At the sentencing hearing both the state and the defendant shall be permitted to present additional information bearing on the issue of sentence. [emphasis added].

We declared in State v. Thompson, 629 S.W.2d 361 (Mo.App.1981), approved 629 S.W.2d 369 (Mo. banc 1982), at 365[5, 6]:

The extended term section 558.016 of the recently adopted criminal code invests a trial court with the altogether new power to enhance a sentence of imprisonment beyond that determined by the jury or prescribed by statute as punishment for the offense ... The imposition of an extended term ... rests on the proof of a charge beyond the offense for which the jury returned conviction. The due process of law concomitant by which a valid criminal conviction obtains, therefore, also attends the determination of the new matter upon which a valid extension of term rests. [emphasis added].

The procedures of § 558.021 were enacted to conform with the mandate of Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), that where the extended term punishment rests on evidence of guilt of an offense other than the felony charged and involves new determinations of fact, "due process requires those safeguards essential in a criminal prosecution." State v. Berry, 609 S.W.2d 948, 956 (Mo. banc 1980); State v. Thompson, 629 S.W.2d at 365.

The constitutional necessity for notice is met by the § 558.021.1(1) & (2) provisions that the information formally plead the intention to invoke the...