State v. Cowan

• Decision Date: 18 March 2008
• Docket Number: No. WD 67254.,WD 67254.
• Citation: 247 S.W.3d 617
• Parties: STATE of Missouri, Respondent, v. Steven Shane COWAN, Appellant.
• Court: Missouri Court of Appeals

247 S.W.3d 617

STATE of Missouri, Respondent, v. Steven Shane COWAN, Appellant.

No. WD 67254.

Missouri Court of Appeals, Western District.

March 18, 2008.

Craig A. Johnston, Columbia, MO, for Appellant.

Shaun J. Mackelprang, Jefferson City, MO, for Respondent.

Before HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS, and THOMAS H. NEWTON, JJ.

THOMAS H. NEWTON, Judge.

Mr. Steven Cowan was charged with the class B felony of burglary in the first-degree, section 569.160;¹ the class A misdemeanor of stealing, section 570.030; the class A misdemeanor of leaving the scene of an accident involving an all terrain vehicle, section 577.065; and the class B misdemeanor of property damage in the second-degree, section 569.120. Mr. Cowan entered a plea of guilty to all four counts. Subsequently, Mr. Cowan filed a motion to set aside the guilty plea. The trial court held a hearing on the motion and explained that setting aside the guilty plea and trying the case would result in charging Mr. Cowan as a prior and persistent offender, which would increase the range of punishment for the B felony to an A felony, subjecting him to a sentence of ten to thirty years or life imprisonment. Mr. Cowan indicated that he understood. The trial court set aside the guilty plea because Mr. Cowan admitted to lying when he pled guilty and the court could not accept a guilty plea under those circumstances.

Before trial, the prosecutor dismissed the charges of leaving the scene of an accident and property damage. A jury tried Mr. Cowan for the remaining charges. At the close of evidence, Mr. Cowan's motion for judgment of acquittal was denied. The jury returned a verdict of guilty for burglary and stealing.

During the sentencing hearing, Mr. Cowan argued that the trial court has the authority to impose a minimum sentence of five years because the wording of the statute does not limit the court to a ten-year sentence. The State objected but had no authority to support its objection. The trial court responded: "Okay, thank you. Is there anything else by the parties in this matter? Well, the Court, having considered the alternatives and having granted allocution in this matter, now asks is there any just cause or legal reason why the Court should not impose sentence at this time?" The trial court stated it had considered the pre-sentence report, the arguments, and the defendant's allocution. Mr. Cowan was sentenced to ten years imprisonment for burglary and one year in county jail for stealing to run concurrently. Mr. Cowan appeals his sentence.

The State argues that the standard of review should be for plain error because Mr. Cowan did not object when he was sentenced to ten years imprisonment and because he did not mention sentencing error in his motion for new trial. We note that Mr. Cowan could not have raised the issue of sentencing error because his motion for new trial was filed on July 13 and the sentencing hearing was not held until July 31.

Mr. Cowan states that he brought this issue to the court's attention at the correct time, during the sentencing hearing. Errors in sentencing should be brought to the court's attention during the sentencing hearing to preserve them for review. State v. Olney, 954 S.W.2d 698, 700 (Mo.App. W.D.1997). Mr. Cowan brought this to the sentencing court's attention during the sentencing hearing, so the issue was preserved for review. Essentially, this is a construction by the court of the prior and persistent offender statute, section 558.016. A trial court's construction of a statute is a question of law which we review de novo. Delta Air Lines, Inc. v. Dir. of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995).

During the hearing on the motion to set aside the guilty...