State Of Mo. v. Carson
| Decision Date | 31 August 2010 |
| Docket Number | No. ED 91955.,ED 91955. |
| Citation | 317 S.W.3d 136 |
| Parties | STATE of Missouri, Respondent,v.Kevin E. CARSON, Appellant. |
| Court | Missouri Court of Appeals |
Frank K. Carlson, Union, MO, for appellant.
Chris Koster, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., John W. Grantham, Asst. Atty. Gen., Jefferson City, MO, for respondent.
The defendant appeals his judgment of conviction for the class-D felony of driving while intoxicated (“DWI”). The trial court used his prior municipal-court conviction for driving with excessive blood-alcohol content (“BAC”) to enhance the penalty he faces for DWI. The defendant challenges the use of this municipal-court BAC conviction, citing Turner v. State, 245 S.W.3d 826 (Mo. banc 2008). The defendant argues that the Missouri Supreme Court's reasoning in Turner compels us to conclude, by logical extension, that the use of his prior municipal-court BAC conviction to enhance the penalty for DWI was in error. We agree with his argument and reverse the judgment as to the defendant's sentence for DWI. We also conclude that he is entitled upon remand to a jury-recommended sentence.
The State charged the defendant with one count of DWI in violation of section 577.010 RSMo. (2000) in the Circuit Court of Franklin County, for events occurring on November 17, 2005. The defendant had two previous intoxication-related traffic offenses. In 1994, the defendant pleaded guilty to BAC in the St. Louis County Municipal Court, and in 1995, he pleaded guilty to BAC in the Circuit Court of Jefferson County. As a result, the State charged the defendant with a class-D felony as a persistent offender pursuant to section 577.023.1(4)(a) RSMo. (Supp.2005).1 The jury found the defendant guilty on July 24, 2008 of DWI, and the trial court sentenced the defendant to three years' imprisonment.
On appeal, the defendant asserts the trial court erred in sentencing him as a persistent offender under the sentence-enhancement provisions of section 577.023. He contends that section 577.023.16 does not identify a municipal-court BAC conviction as a prior conviction for enhancement purposes. He further maintains that, if he is not a persistent offender, he cannot be a prior offender pursuant to section 577.023.1(5) because his remaining alcohol-related offense occurred more than five years before the charged offense.
The issues presented are purely legal. We review matters of statutory interpretation and whether a statute applies to a given set of facts de novo. White v. Tariq, 299 S.W.3d 1, 3 (Mo.App. E.D.2009).
The defendant argues that Turner requires us to reverse the defendant's conviction and remand for jury sentencing as a class-B misdemeanor. In Turner, Judge Stephen Limbaugh, writing for a unanimous Supreme Court, determined that provisions of section 577.023 RSMo. (2000 and Supp.2004) governing the proof of prior offenses conflicted with each other, creating an ambiguity that the Court could not resolve through application of other canons of statutory construction. 245 S.W.3d at 828-29. Therefore, the Court resorted to the rule of lenity, and interpreted the statute in the defendant's favor. Id. at 829. The Court held that prior municipal offenses resulting in a suspended imposition of sentence (“SIS”) could not be used to enhance punishment under then-section 577.023.14 RSMo. (2000 and Supp.2004).2 Id.
At the time of the offense charged in this case, section 577.023 contained these definitional provisions, which clearly include a municipal-court BAC conviction:
(Emphasis added).
But the same statute also contained this subsection, which makes no mention of a municipal-court BAC conviction:
16. Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. After hearing the evidence, the court shall enter its findings thereon. A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.
(Emphasis added).
Thus, section 577.023.1(3), defining “intoxication-related traffic offense,” and section 577.023.1(4)(a), defining “persistent offender,” purport to permit the use of municipal-court BAC convictions to enhance punishment, while section 577.023.16 does not include such a conviction among those that a court can use for that purpose. Sections 577.023.1(3) and (4)(a) expressly address the offense in question-the defendant's 1994 guilty plea to BAC in the St. Louis County Municipal Court. Section 577.023.16 also addresses the municipal BAC offense, “albeit by necessary implication.” See Turner, 245 S.W.3d at 828.
“The last sentence of subsection [16] delineates those offenses that ‘shall be treated as a prior conviction’ in order to enhance punishment.” Id. The list expressly includes “[a] conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated.” Section 577.023.16 (emphasis added). The list does not include a plea of guilty to BAC in municipal court. See id. The necessary implication is that a guilty plea to BAC in municipal court cannot be treated as a prior conviction in order to enhance punishment. See Turner, 245 S.W.3d at 828. The Turner Court reasoned that:
[T]he list does not include a plea of guilty or a finding of guilty followed by a suspended imposition of sentence in municipal court, which is not a conviction. The necessary implication, then, is that a municipal plea of guilty followed by a suspended imposition of sentence cannot be used to enhance punishment.
Id. (Emphasis in original). Therefore, we follow the Supreme Court's decision in Turner, and likewise apply the rule of lenity to conclude that a municipal-court BAC cannot be treated as a prior conviction under section 577.023.16 for punishment-enhancement purposes.
We note that our Western District colleagues reached a congruent conclusion in Denbow v. State, 309 S.W.3d 831 (Mo.App. W.D.2010). In Denbow, the Court concluded that the pre-2008 version of section 577.023 plainly allowed use of a state-court BAC conviction for punishment-enhancement purposes. 309 S.W.3d at 833-35. But the Court also observed that subsection 16 limits prior municipal-court convictions available for sentence enhancement to those for DWI. Id. at 834-36. The Denbow Court concluded that “[A]s in Turner, we assume that the legislature intentionally chose to define the prior convictions which justified sentence enhancement differently, depending on the court in which those prior convictions were entered.” Id. at 836.
The State advances numerous attacks on this extension of Turner 's reasoning. We shall address each in turn.
The State initially contends that Turner does not govern this case because Turner did not deal with municipal-court BAC convictions. While this rather narrow observation may be true, we are bound to follow Turner 's reasoning, which is that a disposition not expressly delineated in section 577.023.16 cannot, by necessary implication, be treated as a prior conviction in order to enhance punishment. Because section 577.023.16 does not include municipal-court BAC offenses among the dispositions a court can use to enhance punishment Turner requires us to conclude that prior municipal-court BAC offenses cannot be used to enhance punishment under section 577.023, as in effect at the time of the offense charged in this case.
Second, the State argues that Turner 's holding should not be expanded to apply to municipal-court BAC convictions because the legislature amended the statute shortly after the Turner decision. The State asserts that the legislature's 2008 amendment, made soon after Turner, “demonstrate[s] that Turner is not a reliable guide to the statutory construction of section 577.023.” The legislature amended the last sentence of section 577.023.16 RSMo. (Supp.2008) to provide that:
A plea of guilty or a finding of guilt followed by incarceration, a suspended imposition of sentence, suspended...
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