State v. Collins, No. SD 29516 (Mo. App. 3/29/2010), SD 29516.

• Decision Date: 29 March 2010
• Docket Number: No. SD 29516.,SD 29516.
• Parties: STATE OF MISSOURI, Plaintiff-Respondent, v. FARON ROSS COLLINS, Defendant-Appellant.
• Court: Missouri Court of Appeals

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STATE OF MISSOURI, Plaintiff-Respondent, v. FARON ROSS COLLINS, Defendant-Appellant.

No. SD 29516.

Court of Appeals of Missouri, Southern District, Division Two.

Filed March 29, 2010.

APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY, Honorable Robert C. Carter, Associate Circuit Judge.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.¹

Craig A. Johnston, of Columbia, Missouri, Attorney for Appellant.

Chris Koster, Attorney General, and James B. Farnsworth, Assistant Attorney General, Jefferson City, Missouri, Attorneys for Respondent.

GARY W. LYNCH, Presiding Judge.

Following a court trial on September 25, 2008, Faron Ross Collins ("Defendant") was found guilty of driving while intoxicated on September 3, 2006, pursuant to section 577.010,² and sentenced on December 2, 2008, to five years in prison as an intoxication-related chronic offender in accordance with section 577.023.³ He appeals, contending that the trial court erred in relying upon any of his eight prior driving-while-intoxicated or driving-with-excessive-blood-alcohol-content convictions to enhance the penalty on his current offense from a class B misdemeanor to a class B felony. This is so, Defendant argues, because, among other reasons, there was no evidence before the trial court that he was represented by or waived the right to an attorney in writing on any of his prior convictions, as required for such convictions to each qualify as an "intoxication-related traffic offense," as defined in section 577.023.1(3), and as required by section 577.023.1(2)(a), to enhance his punishment.⁴ The State concedes such error but claims that Defendant failed to preserve his claim for appellate review. While we agree that it was not properly preserved for appellate review, we find that such error constituted plain error under Rule 30.20.⁵ Accordingly, we vacate and set aside Defendant's sentence and remand for re-sentencing.⁶

Factual Background

Defendant does not challenge the sufficiency of the evidence to prove the charge of driving while intoxicated. Rather, Defendant challenges the sufficiency of the evidence presented by the State and considered by the trial court in sentencing Defendant as a chronic offender. In that context, we need only consider the evidence presented on that issue, which consisted solely of a certified copy of the Department of Revenue's Missouri Driver Record for Defendant. This record included court convictions on driving-related offenses, eight of which were prior convictions for driving while intoxicated or for driving with excessive blood alcohol content. This document was offered into evidence during the State's case and was admitted after defense counsel announced, "No objection."

Defendant points out on appeal, and the State agrees, that Defendant's driving record contains no information as to whether Defendant was represented by or waived counsel in writing on any of his prior convictions, as required by section 577.023.1(3).

Preservation of Error

Nevertheless, the State contends that Defendant never brought this deficiency to the attention of the trial court at any time prior to sentencing and thus failed to preserve this error for appellate review. A review of the record confirms that Defendant did not raise this issue to the trial court in any manner before sentencing.

Errors in sentencing should be brought to the sentencing court's attention during the sentencing hearing to preserve them for review. State v. Cowan, 247 S.W.3d 617, 619 (Mo.App. 2008) (citing State v. Olney, 954 S.W.2d 698, 700 (Mo.App. 1997)). Because Defendant did not object to his sentence at any time prior to this appeal, his claim of error was not properly preserved for review on appeal. See State v. Rowan, 165 S.W.3d 552, 554 (Mo.App. 2005); State v. Polson, 145 S.W.3d 881, 897 (Mo.App. 2004). Here, review, if any, is available only for plain error, pursuant to Rule 30.20.

Plain Error Review

Rule 30.20 provides that this court may exercise its discretion to review plain errors affecting substantial rights, "whether briefed or not," upon a finding that manifest injustice or miscarriage of justice has resulted therefrom. "Plain errors are evident, obvious, and clear, and we determine whether such errors exist based on the facts and circumstances of each case." State v. Johnson, 150 S.W.3d 132, 136 (Mo.App. 2004). "Being sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." State v. Severe, No. SC89948, 2010 WL 97997, at *2 (Mo. banc January 12, 2010).

"Prior convictions are the basis for enhanced punishment or procedural differences, and the State is required not only to prove the fact of prior convictions, but to do so in conformity with applicable statutory requirements." State v. Cullen, 39 S.W.3d 899, 906 (Mo.App. 2001). "Representation by counsel or waiver thereof cannot be presumed from a silent record." Mayfield v. State, 136 S.W.3d 130, 132 (Mo.App. 2004). Furthermore, "[w]hen the State relies on a previous conviction of an accused to impose a more severe punishment, that conviction must be proved beyond a reasonable doubt." State v. Johnson, 160 S.W.3d 839, 841 (Mo.App. 2005). A trial court cannot sentence a defendant as a repeat offender without sufficient evidence of his prior convictions. Johnson, 150 S.W.3d at 136-37; Dudley v. State, 903 S.W.2d 263, 267 (Mo.App. 1995).

Here, the State concedes the complete failure of proof that Defendant was represented by counsel or waived such representation in writing for each prior conviction used to enhance Defendant's punishment. The State also concedes that it was error for the trial court to sentence Defendant as a chronic offender.

Section 577.010.2 provides that "[d]riving while intoxicated is for the first offense a class B misdemeanor." (Emphasis added). Pursuant to section 558.011.1,⁷ the authorized term of imprisonment for a class B misdemeanor is "a term not to exceed six months." In addition, section 560.016.1(2), RSMo 2000, provides that upon a conviction of a class B misdemeanor, a person "may be sentenced to pay a fine which does not exceed . . . five hundred dollars."

Any person found guilty of a violation of section 577.010, however, "who is alleged and proved to be a chronic offender shall be guilty of a class B felony." Section 577.023.5. The authorized term of imprisonment for a class B felony is "a term not less than five years and not to exceed fifteen years[.]" Section 558.011.1(2). Thus, a finding that Defendant was a chronic offender served to enhance a term of imprisonment on a DWI conviction to "a term not less than five years and not to exceed fifteen years."

The trial court sentenced Defendant to five years' imprisonment on the DWI conviction, which exceeded the maximum term allowed for a class B misdemeanor. It did so in the absence of any evidence that Defendant had any intoxication-related traffic convictions, as defined in section 577.023.1(3), and as required by section 577.023.1(2)(a). In this respect, the trial court plainly erred.

Correction of Plain Error

Citing State v. Craig, 287 S.W.3d 676 (Mo. banc 2009), Defendant argues that this court must order vacation of the judgment and remand for conviction and sentencing of Defendant for the class B misdemeanor of driving while intoxicated, pursuant to section 577.010. Defendant now contends that further support for this procedure is found in Severe, 2010 WL 97997; Turner v. State, 245 S.W.3d 826 (Mo. banc 2008); State v. Rose, 169 S.W.3d 132 (Mo.App. 2005); and State v. Gibson, 122 S.W.3d 121 (Mo.App. 2003).

The State, however, contends that this court should vacate Defendant's sentence and remand with directions that the State be permitted to present additional evidence prior to re-sentencing to support its allegation that Defendant is a chronic offender. In addition to the clear directive found in section 577.023.9, that proof of prior offenses may be taken by the trial court at any time prior to sentencing, the State cites to State v. Girdley, 957 S.W.2d 520 (Mo.App. 1997) and State v. Russ, 945 S.W.2d 633 (Mo.App. 1997), where the courts of appeal ordered remand for re-sentencing with instructions to permit the state to present additional evidence of the defendant's status as a persistent offender.⁸

When a court vacates a sentence, the sentence is to be treated as though it never existed. See Calvin v. Mo. Dept. of Corrections, 277 S.W.3d 282, 288 (Mo.App. 2009) (when the plaintiff's conviction was vacated, "it was a declaration that the sentence was to be regarded as though it had never existed."); Hubbs v. Hubbs, 870 S.W.2d 901, 905-06 (Mo.App. 1994) ("When an order is set aside or vacated the result is the destruction of the order in its entirety, its effectiveness is ended, the previously existing status is restored, and the effect is the same as though such order had never existed.") (citation omitted).

Here, Defendant waived his right to a jury trial and was tried by the court. Section 577.023.9 provides: "In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing." (Emphasis added). "[T]he `clear words of the statute govern interpretation.'" Severe, 2010 WL 97997, at *3 (quoting State v. Stewart, 832 S.W.2d 911, 913 (Mo. banc 1992)). When we vacate Defendant's sentence and remand the case to the trial court, its posture at that time before the trial court is "prior to sentencing." Therefore, pursuant to the clear words in section 577.023.9, we find it appropriate to instruct the trial court to allow the State to present additional evidence on the issue of Defendant's repeat offender status. See also State v. Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994); State v. Monroe, 18 S.W.3d 455, 459 (Mo.App. 2000); State v. Anders, 975 S.W.2d 462, 467 (Mo.App. 1998).

Craig, relied upon by Defendant, is distinguishable in two...