State v. Cain
| Decision Date | 15 May 2009 |
| Docket Number | No. SD 29090.,SD 29090. |
| Citation | 287 S.W.3d 699 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Howard Lee CAIN II, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Matthew Ward, Office of State Public Defender, Columbia, MO, for Appellant.
Thomas W. Cline, Prosecuting Attorney, Gainesville, MO, for Respondent.
Howard Lee Cain II ("Defendant") brings this appeal following his conviction, where he was sentenced as a prior offender under section 577.023.1(5),1 on the charge of driving while intoxicated, in violation of section 577.010.2 Finding that the trial court plainly erred in sentencing Defendant as a prior offender, this Court reverses and remands for resentencing.
On April 6, 2007, off-duty Ozark County reserve deputy Steve Bryant was driving home from Gainesville when he heard radio traffic from the sheriff's office dispatcher advising on-duty Deputy Greg Byerly that dispatch had received a cell phone call from a citizen, identified as Wes Uchtman, reporting a careless and imprudent driver east of Gainesville, driving westbound on Highway 160. The vehicle was described as an older white car with some body damage on it. The caller indicated he was following behind the white car.
When Bryant heard Byerly report that he was four or five miles west of Gainesville, Bryant contacted Byerly to advise him that he was close to Gainesville and would watch for the vehicle. Bryant proceeded to the Lick Creek Bridge and parked on the east side of the bridge, facing eastward. Bryant soon observed a vehicle matching the dispatcher's description followed by another vehicle in which the driver was waving at Bryant and pointing ahead to the white car. Bryant recognized the driver of the second vehicle as Wesley Uchtman. When Bryant contacted Byerly to advise that he had the suspect vehicle in view, Byerly asked Bryant to follow it and detain the driver if he tried to leave the vehicle.
Bryant followed the white car and observed it turn into the Town and Country parking lot and come to a stop. Bryant parked and waited. When the driver exited his vehicle, Bryant observed the driver exhibit what he described as "a staggering gait." Bryant approached the driver, identified himself, and told the driver he was detaining him until another deputy arrived. Bryant detected an odor of intoxicants. A driver's license identified the driver as Defendant. Defendant told Bryant he needed to use the restroom and did not want to wait. Defendant became loud and "a little bit aggressive" before Byerly arrived. Bryant also observed that Defendant's eyes were watery and he was belligerent. Bryant believed that Defendant was intoxicated. Bryant seized the driver's license produced by Defendant and turned it over to Deputy Byerly after he arrived.
When Byerly arrived, he observed Defendant standing outside of his car, "swaying, raising his arms up and using them to balance or putting his fingers on top of the car to keep balance[d]." Defendant's clothing was soiled and "looked like . . . he crawled on his hands and knees." When Byerly came closer, he smelled "the odor of intoxicants and another odor that [he] believed to be some sort of a chemical." Byerly attempted to administer three field sobriety tests, but Defendant refused, saying he had to use the restroom and would not be able to pass the tests. When Byerly asked if he had been drinking, Defendant said he had. Byerly arrested Defendant and transported him to Ozark County Jail.
En route to the jail, Defendant "was verbally abusive and made a lot of threats" to Byerly, the courts, and the jail facility. He threatened to stomp Byerly's head and stated that "sooner or later he would just shoot" him. Defendant told Byerly that he was ex-military, and Byerly "didn't know who [he] was fucking with." When they arrived at the jail, Byerly refused to consent to a breathalyzer test. Officers described Defendant as very angry and uncooperative, ignoring questions and refusing to answer. A video recorder routinely utilized at the jail recorded Defendant's actions during the booking process.
Defendant was charged as a prior offender with the class A misdemeanor of driving while intoxicated, pursuant to section 577.010. He was tried by a jury on February 20, 2008. The jury returned a guilty verdict and recommended a sentence of one year in the county jail and a fine in an amount to be determined by the trial court. Defendant was sentenced by the trial court on April 15, 2008, to a term of one-year imprisonment in the county jail, with credit for time served, and a fine of $1,000.00. On that same date, Defendant filed his notice of appeal.
Defendant raises two points on appeal. The State's request, in its respondent's brief, to dismiss the appeal, however, will be addressed first. Then, for ease of analysis, Defendant's points will be discussed in reverse order.
The State filed with this Court a Motion to Dismiss Appeal, contending that Defendant's appeal "is rendered moot by the parties' Stipulation and the Trial Court's Order of October 10, 2008, and that said Appeal should be dismissed." The State claimed that Defendant reneged on the agreement contained in the stipulation and would not allow his attorney to dismiss the appeal "as agreed to prior to the [Defendant's] release." On January 8, 2009, this Court denied the State's motion "without prejudice to the State presenting this issue in its respondent's brief for the Court's consideration[,]" and, if so raised, the State was ordered to file a supplemental record on appeal in support of its argument. On February 17, 2009, the State filed a supplemental legal file containing a Stipulation of the Parties and Order of the trial court.
The supplemental legal file discloses that on October 10, 2008, the State and Defendant, "through counsel," filed a Stipulation of the Parties in the Circuit Court of Ozark County, which reads:
The State of Missouri and [Defendant], through counsel, stipulate that the Court may commute [Defendant's] current sentence to time served, waive any pending fine, and close the case with costs due. In exchange for this outcome, [Defendant] has agreed to waive the appeal currently pending in the Missouri Court of Appeals, Southern District (Southern District Case No. SD 29090).
The stipulation was signed by Defendant's appellate counsel and Ozark County's prosecuting attorney. Typed on the last page of the Stipulation is an Order stating The Order was signed by John B. Jacobs, Associate Circuit Judge.
In its respondent's brief, the State again raises this issue by requesting that the appeal be dismissed "pursuant to the Stipulation entered into between the parties." The State does not, however, cite any relevant legal authority supporting this request and makes no citation to any facts in the record supporting a dismissal of the appeal other than the above-mentioned Stipulation signed by Defendant's appellate counsel and the prosecuting attorney and the accompanying trial court Order.
A voluntary waiver of a defendant's right to appeal "precludes this court from reviewing the merits of" an appeal. State v. Green, 189 S.W.3d 655, 657 (Mo. App.2006). "When a defendant agrees to waive his right to file a motion for new trial and appeal in exchange for a reduced sentence and then receives the `benefit of the bargain,' an appellate court will not hesitate in holding the defendant to his part of the bargain." Id. (quoting State v. Valdez, 851 S.W.2d 20, 22 (Mo.App.1993)). While it is well settled that a defendant in a criminal case may voluntarily waive his right to appeal, "[w]e will not deem that right waived `unless the record, the acts of defendant and all the circumstances are inconsistent with any other interpretation.'" Id. (quoting Edwards v. State, 569 S.W.2d 779, 780 (Mo.App.1978)). A defendant's voluntary waiver must appear in the record before this Court. See State v. Reed, 968 S.W.2d 246, 247 (Mo.App.1998); Valdez, 851 S.W.2d at 22.
Defendant was sentenced on April 15, 2008, and filed his notice of appeal on that date. Almost six months later, the parties' Stipulation was filed with the trial court, clearly premised upon the mutual assumption that the trial court had the authority to commute Defendant's jail sentence to time served. This Court concludes that even though the trial court purported to take such action, it had no actual authority to do so. In the absence of such authority, Defendant did not and could not receive the benefit of his bargain to waive his right to appeal. Therefore, Defendant's purported waiver of his right to appeal, based upon a mutual false assumption by the parties as to the trial court's authority to grant Defendant the agreed upon relief, was not and could not have been voluntarily made. This conclusion is based upon the following analysis.
State ex rel. Simmons v. White, 866 S.W.2d 443, 445 (Mo. banc 1993). Any judgments or orders entered after judgment and sentencing in the absence of such statute or rule authority have been held to be void. Id.
Here, the State fails to direct this Court to any statute or rule authorizing the trial court to commute Defendant's previously imposed jail sentence. This Court's own research discloses that the authority to commute a sentence is constitutionally...
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