State ex rel. Zinna v. Steele

• Decision Date: 12 January 2010
• Docket Number: No. SC 90000.,SC 90000.
• Citation: 301 S.W.3d 510
• Parties: STATE ex rel., Anthony ZINNA, Relator, v. Troy STEELE, Warden, Respondent.
• Court: Missouri Supreme Court

301 S.W.3d 510 STATE ex rel., Anthony ZINNA, Relator,
v.
Troy STEELE, Warden, Respondent. No. SC 90000. Supreme Court of Missouri, En Banc. January 12, 2010.

[301 S.W.3d 511]

John E. Cozean, Shaun D. Hanschen, Blanton, Rice, Nickell, Cozean & Collins, L.L.C., Sikeston, for relator.

Chris Koster, Attorney General, Caroline M. Coulter, Stephen D. Hawke, Assistant Attorneys General, for respondent.

LAURA DENVIR STITH, Judge.

On March 14, 2003, Anthony Zinna pleaded guilty to possession of a controlled substance in a correctional facility and received a five-year sentence. Although the trial court had indicated at the sentencing hearing that it would make that sentence consecutive to the sentences Mr. Zinna then was serving, its oral pronouncement of sentence was silent as to whether the sentence would be concurrent or consecutive. Rule 29.09 provides that when the trial court does not state whether a sentence will be concurrent or consecutive, it is concurrent. Nonetheless, the trial court's written judgment stated that the sentence was consecutive. Mr. Zinna sought habeas corpus relief in this Court. The State argues that relief should not be granted because this Court should look to the oral pronouncement the trial court intended to make rather than the oral pronouncement of sentence it in fact made. The State also argues that Mr. Zinna has not demonstrated an adequate excuse for

301 S.W.3d 512

failing to raise this issue in a motion filed under Rule 24.035.

This Court granted the petition for writ of habeas corpus, and after hearing it now orders Mr. Zinna's release from this sentence. A reviewing court will look to the sentencing transcript to determine the meaning of a trial court's oral pronouncement of sentence only where that oral pronouncement is ambiguous. Here, there was no ambiguity, for the pronouncement was silent as to whether the sentence was concurrent or consecutive, and Rule 29.09 expressly provides that in such a case the sentence is concurrent. The statement in the later written judgment that the sentences were consecutive was inconsistent with this oral pronouncement.

Mr. Zinna is entitled to habeas relief despite having failed to file a Rule 24.035 motion because he has met the standard for habeas relief in that the trial court's sentence was entered in excess of its authority. As Mr. Zinna is entitled to relief, he is discharged from continuing to serve this sentence.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 14, 2003, Anthony Zinna appeared before the St. Francois County Circuit Court in Case No. 02CR615004 for a guilty plea and sentencing hearing. The State charged Mr. Zinna under section 217.360.1(1)² with one count of possession of a controlled substance in a correctional facility, a class C felony. At the time of the plea hearing, Mr. Zinna was serving several other sentences, the last of which was scheduled to expire August 20, 2007.

During the hearing, the court asked whether any plea bargains had been arranged for the case. The prosecuting attorney replied, "For a plea of guilty we recommend five years consecutive to [Mr. Zinna's] present sentence ... and have agreed not to file as a prior and persistent offender." Mr. Zinna's counsel agreed with the prosecutor's description of the agreement. After a few more inquiries, the court asked Mr. Zinna whether he was aware that "no one can promise you want [sic] your sentence will be and any such promises are not binding on this [c]ourt and the [c]ourt can impose any sentence within the range of punishment permitted by law." Mr. Zinna indicated that he understood. The court asked more questions and eventually accepted Mr. Zinna's guilty plea as voluntarily made. Mr. Zinna waived a pre-sentence investigation, and the court proceeded immediately to the sentencing hearing.

Prior to pronouncing sentence, the court stated, "Again, the recommendation to this [c]ourt is five years consecutive to the time [Mr. Zinna] is currently serving and [the State] will not pursue the defendant as a prior and persistent offender." Thereafter, the court announced, "It will be the sentence, order and judgment of this [c]ourt that this defendant be committed to the state Department of Corrections for a term of five years for the class C Felony of possession of a controlled substance in a correctional facility." The court did not state during its oral pronouncement of sentence that Mr. Zinna was to serve the five-year term consecutively to his prior sentences.

At the conclusion of the March 14, 2003, sentencing hearing, while in the course of determining whether Mr. Zinna's counsel had rendered ineffective assistance, the

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court again mentioned Mr. Zinna's five-year sentence. As before, the court did not state that the five-year term was consecutive. Mr. Zinna did not appear before the court again before it entered its written judgment later that day. Nonetheless, the March 14, 2003, entry of judgment states "It is the Sentence, Order and Judgment of the [c]ourt that the Defendant be confined for a term of 5 years for the offense of Possession of a Controlled Substance in a Correctional Facility, said sentence to run consecutive to sentence now being served."

On August 6, 2007, Mr. Zinna filed a motion in the sentencing court to correct his sentence nunc pro tunc on the basis that the judgment should have described the sentence as concurrent rather than consecutive. On November 7, 2007, the circuit court overruled Mr. Zinna's motion. On May 5, 2009, this Court issued a writ of habeas corpus and ordered a return be filed showing cause for Mr. Zinna's detention.

II. STANDARD FOR OBTAINING HABEAS RELIEF FROM THIS COURT

Article V, section 4 of the Missouri Constitution vests this Court with the authority "to issue and determine original remedial writs," including writs of habeas corpus. The writ of habeas corpus is a common law remedy used to free persons who have been confined unlawfully. See Rule 91.01(b). When this Court grants a writ of habeas corpus, those proceedings are original proceedings and not an exercise of appellate jurisdiction. Rule 91.01(c) ("A habeas corpus proceeding shall be a civil action in which the person seeking relief is petitioner and the person against whom such relief is sought is respondent").

Habeas corpus is governed by chapter 532 and by Rule 91. Once a court issues a writ of habeas corpus, the petitioner is permitted to brief and argue his or her grounds for relief so that the court may "inquire into the cause of [petitioner's] restraint," Rule 91.01(b), and determine whether a release from custody is warranted. The decision whether to grant relief is "limited to determining the facial validity of confinement, which is based on the record of the proceeding that resulted in the confinement." State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001). The habeas court may grant relief by ordering the petitioner discharged from unlawful restraint or deny relief by permitting the petitioner to remain in custody. Rule 91.18; Rule 91.20.

III. SILENCE IN THE FORMAL ORAL PRONOUNCEMENT OF SENTENCE MEANS THE SENTENCE IS CONCURRENT

Mr. Zinna contends that he is entitled to be released from incarceration because his five-year sentence in Case No. 02CR615004 ran concurrently with his other sentences and was completed no later than March 2008, by which point all his other sentences also had been completed. Mr. Zinna argues that, pursuant to Rule 29.09, when the circuit court orally pronounced his sentence without stating that it was consecutive, the sentence became concurrent by operation of Rule 29.09. Although the circuit court's written judgment reflects that the sentence was to run consecutively, Mr. Zinna maintains that this written sentence is inconsistent with the court's oral pronouncement and that in such cases, the oral pronouncement controls.

Section 558.026.1 directs that "[m]ultiple sentences of imprisonment shall run concurrently unless the court specifies that they shall run consecutively." This principle

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is reflected in Rule 29.09, which specifically provides:

The court, when pronouncing sentence, shall state whether the sentence shall run consecutively to or concurrently with sentences on one or more offenses for which defendant has been previously sentenced. If the court fails to do so at the time of pronouncing the sentences, the respective sentences shall run concurrently. (emphasis added).

Rule 29.09 establishes a bright-line...