State v. Craig, SC 89867.

• Decision Date: 30 June 2009
• Docket Number: No. SC 89867.,SC 89867.
• Citation: 287 S.W.3d 676
• Parties: STATE of Missouri, Respondent, v. Michael G. CRAIG, Appellant.
• Court: Missouri Supreme Court

287 S.W.3d 676

STATE of Missouri, Respondent, v. Michael G. CRAIG, Appellant.

No. SC 89867.

Supreme Court of Missouri, En Banc.

June 30, 2009.

Rehearing Denied August 4, 2009.

Bruce B. Brown, Brown & Brown Attorneys, L.L.C., Kearney, MO, for Appellant.

Chris Koster, Atty. Gen., James B. Farnsworth, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

ZEL M. FISCHER, Judge.

Michael G. Craig was charged with the class C felony of driving while intoxicated, § 577.010, RSMo 2000. The court, the State, and Craig agreed to bifurcate the proceeding because Craig desired to plead guilty to driving while intoxicated, but he wanted to litigate whether his sentence was subject to enhancement, under § 577.023, RSMo Supp.2005, because of previous intoxication-related traffic offenses. Craig pleaded guilty and, then, after the hearing regarding the prior intoxication-related traffic offenses, the court found that Craig was an aggravated offender, enhanced his offense to a class C felony and sentenced him to five years imprisonment.

Craig appeals the plea court's determination that he is an aggravated offender. This Court determines: (1) Craig has the right of direct appeal to challenge the plea court's findings whether he is an aggravated offender; and (2) the plea court erred in concluding that Craig was an aggravated offender because there was only sufficient evidence presented to prove beyond a reasonable doubt two prior intoxication-related traffic offenses. The judgment is vacated, and the case is remanded to sentence Craig as a persistent offender, which is a class D felony.

Facts

On February 16, 2007, Craig appeared in Clay County circuit court charged with one count of driving while intoxicated. Craig was willing to plead guilty to driving while intoxicated, but disputed the State's contention that he was an aggravated offender and guilty of a class C felony.

The court, the State, and Craig discussed what procedural course to take. All agreed to a bifurcated proceeding in which the court would accept Craig's guilty plea and then hold a hearing about the issue of whether his sentence was subject to enhancement:

[The Court]: We have a case in which the defendant is charged with Driving While Intoxicated, and, oversimplifying, if he was charged with a Class B Misdemeanor, as I understand it, he'd just be pleading guilty and hoping for the best.

The contest in the case is whether the offense of Driving While Intoxicated can be a Class C Felony in this case ... [w]hether the offenses pleaded by the State in the charging instrument meet the requirements to be able to validly serve as a basis for increasing punishment.

I've never had a case where someone pled guilty to part and had a trial as to the rest, but as I understand how we approach this, the defendant wants to protect his legal issues and does not want to trouble a judge or a jury with a contested hearing [on the underlying offense].

Am I coming pretty close?

[Defense Counsel]: That's correct, Judge, I believe.

* * *

[The Court]: I would like to explore whether I could bring the defendant up to the bench and, through the examination of him, learn that he is willing to plead guilty to operating a motor vehicle while under the influence of alcohol, but he does not plead guilty to that offense at any other level other than Class B misdemeanor, and he knows that the State wants to introduce evidence that, if deemed to be admissible and evidence that meets all the requirements of 577.023 as well as the—do we have constitutional issues?

[Defense Counsel]: I think the constitutional issues, I think are raised within the parameters of the way the rule's set up because when you do take a plea of guilty, you advise them of the constitutional rights, and that's the basis, the main basis of what we have going on here. It wasn't done in the priors.

[The Court]: Why don't we start down the road and see if people stay comfortable, and if we can't get to the end of the road with everybody being comfortable that rights are being protected there will be a three-way veto power. If I'm uncomfortable with it, I can do it; if the defendant's uncomfortable with it, he can do it; if the State is uncomfortable, the State can say, we'd rather have a full bench trial.

Anybody can say, we should have started with a full bench trial, and it's not too late to turn around and go back. No jeopardy will have attached in an attempted guilty plea proceeding. I quit in the middle of guilty plea proceedings with more frequency than—well, I'm not a stranger to having to stop in the middle of a guilty plea proceeding.

[Defense Counsel]: Judge, are you suggesting that we take the plea as a B misdemeanor—

[The Court]: I'm suggesting we take the plea as a plea to operating a motor vehicle while under the influence of alcohol, known to be an offense.

[Defense Counsel]: Right.

[The Court]: But with everybody knowing that the defendant claims that he is guilty of nothing more than a Class B Misdemeanor.

[Defense Counsel]: Okay.

[The Court]: And the State making him well aware that they think he's guilty of a Class C. They're going to be introducing evidence to prove it and, depending on how I rule, he's going to be found guilty of no less than a Class B Misdemeanor—

[Defense Counsel]: Correct.

[The Court]:—and if that's the result, he's not going to have any appellate rights if he gets a sentence within the range of punishment allowed by law for a Class B Misdemeanor.

[Defense Counsel]: Right.

[The Court]: But if he is found guilty of a Class A Misdemeanor, a Class D Felony, or a Class C Felony, he has appellate rights because of whatever the record is that we make on the evidence. You all will have given me the benefit of a motion and briefing.

I haven't heard oral argument on anything yet, haven't received any evidence yet, but I understand it is the defendant's position that the evidence that you expect to be presented, evidence that you have seen through discovery, is not going to meet the requirements of 577.023.

I think that states your position, but I'd sure listen to you expanding on that. I'm not reading from a script.

[Defense Counsel]: Right.

[The Court]: Do you at least want to try it and see how we do?

[The State]: That's fine with me.

[Defense Counsel]: That's fine.

The court then elicited admissions from Craig to establish a factual basis for the class B misdemeanor of driving while intoxicated and heard evidence from the State and Craig about the issue of whether Craig's offense could be enhanced due to three alleged prior intoxication-related driving offenses.

On March 29, 2007, the court found that Craig was an aggravated offender and guilty of a class C felony. This was based on the trial court's determination that Craig had pleaded guilty to or been found guilty of three prior intoxication-related traffic offenses. The court sentenced Craig to five years imprisonment.

I. Craig has the right of direct appeal to challenge the court's findings of fact regarding his prior alcohol related offenses

The State challenges Craig's right to appeal. No right of an appeal exists without statutory authority. State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994). In criminal cases, § 547.070, RSMo 2000, allows appeals from final judgments, which occur when the court enters a judgment of guilt and sentence. State v. Larson, 79 S.W.3d 891, 893 (Mo. banc 2002). The plain language of the statute supports Craig's right to appeal.

Nevertheless, the State argues that Rule 24.035 precludes Craig's appeal. A motion for postconviction relief is generally the exclusive procedural vehicle to challenge a conviction after a guilty plea. Rule 24.035(a). The generally recognized exceptions to Rule 24.035, as the exclusive procedure to challenge a conviction after guilty plea, are: (1) claims disputing the subject-matter jurisdiction of the lower court; and (2) claims regarding the sufficiency of the charging document. State ex rel. Simmons v. White, 866 S.W.2d 443, 446 n. 4 (Mo. banc 1993) (citing State v. Mitchell, 563 S.W.2d 18, 23 (Mo. banc 1978), and State v. Douglas, 835 S.W.2d 383, 384 (Mo.App.1992)).

Rule 24.035 does not preclude Craig's appeal. Rule 24.035 is based on the principle of waiver; a guilty plea serves as a waiver of any challenge to the merits of the underlying conviction. Robinson v. State, 491 S.W.2d 314, 315 (Mo. 1973) (citing Geren v. State, 473 S.W.2d 704, 707 (Mo.1971)). This principle of waiver is especially true and binding against a defendant whose plea is accepted because of the colloquy of questions plea courts undertake to ensure that the defendant is guilty of the crime and is knowingly and voluntarily waiving his right to trial. Rule 24.02.¹

In this case, however, Craig did not plead guilty to the charged offense. He admitted to facts establishing certain elements of the offense, but specially requested a hearing to contest those facts establishing the applicability of the prior intoxication-related traffic offenses. Under § 577.023, Craig permissibly bifurcated the proceedings and litigated whether his sentence was subject to enhancement. This procedure in no way constituted a waiver of Craig's statutory right to appeal under § 547.070 that part of the judgment that was subject to a contested hearing. He has preserved this issue for appeal.

II. The court erred in finding that Craig was an aggravated offender

a. To enhance a penalty under § 577.023, the State is not obligated to affirmatively prove strict compliance with Rules 24.02 (state prosecutions) and 37.58 (municipal prosecutions)

The State offered three exhibits into evidence to support the State's position that Craig's sentence should be enhanced. The circuit court found these exhibits established three prior intoxication-related traffic offenses beyond a reasonable doubt and enhanced Craig's sentence from a class B misdemeanor to a class C felony.

To start, Craig alleges...