Spicer v. State

• Decision Date: 22 December 2009
• Docket Number: No. WD 70255.,WD 70255.
• Citation: 300 S.W.3d 249
• Parties: Albert SPICER, III, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

300 S.W.3d 249 Albert SPICER, III, Appellant,
v.
STATE of Missouri, Respondent. No. WD 70255. Missouri Court of Appeals, Western District. December 22, 2009.

Susan L. Hogan, for Appellant.

Jayne T. Woods, for Respondent.

Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.

JOSEPH M. ELLIS, Judge.

Albert Spicer III appeals the denial of his Rule 24.035 motion after an evidentiary hearing. Spicer pled guilty to five counts of the class B felony and eight counts of the class D felony of recklessly exposing a person to HIV, Section 191.677 (RSMo Cum Supp.2004). Spicer was sentenced to concurrent terms of fifteen years for each count of the class B felony and four years for each count of the class D felony. He claims that the trial court violated his due process rights when it sentenced him to a term in excess of that recommended by the sentencing assessment report ("SAR").

Spicer was diagnosed with HIV in 1992. Between 2002 and 2004, Spicer exposed as many as seven women to the virus through

300 S.W.3d 250

sexual intercourse. He did not inform any of the women of his HIV status. One of the women was subsequently diagnosed with HIV.

Spicer was charged with twenty five counts of recklessly exposing another person to HIV infection: one class A felony, ten class B felonies, and fourteen class D felonies. Pursuant to a plea agreement, the State agreed to dismiss the class A felony, five counts of the class B felony, and six counts of the class D felony and to recommend concurrent sentences in exchange for Spicer's guilty plea to the court on the remaining five class B felonies and eight class D felonies. At the plea hearing on November 14, 2006, Spicer acknowledged that he was aware that his sentence could range from five to fifteen years for the class B felonies and that he could receive between one and four years for the class D felonies. The court informed Spicer that he could not receive a sentence greater than fifteen years because the sentences would run concurrently. Spicer acknowledged that he understood the plea agreement and that he was pleading guilty because he was guilty. After the State established the factual predicates for the pleas, the trial court accepted the plea and ordered an SAR.

The SAR recommended a six year mitigated sentence, an eight year presumptive sentence, and a ten year aggravated sentence. Spicer urged the court to impose the mitigated sentence because he had accepted responsibility for his actions. The State expressed its concern that, because of limitations in the software, the SAR could only take into account one victim, while...