State v. Cullen

• Decision Date: 27 March 2001
• Citation: 39 S.W.3d 899
• Parties: (Mo.App. E.D. 2001) State of Missouri, Appellant, v. Patrick Cullen, Respondent. ED77834 0
• Court: Missouri Court of Appeals

39 S.W.3d 899 (Mo.App. E.D. 2001)

State of Missouri, Appellant, v. Patrick Cullen, Respondent.

ED77834

Missouri Court of Appeals Eastern District

03/27/2001

Appeal From: Circuit Court of St. Charles County, Hon. Lucy D. Rauch

Counsel for Appellant: Adriane D. Crouse

Counsel for Respondent: Richard R. Veit

Opinion Summary: Patrick Cullen was found guilty by a jury of driving while intoxicated, and was sentenced to six months' confinement. The State appeals from the trial court's post-trial order denying the State's request that it be allowed to prove Defendant's alleged persistent DWI offender status under section 577.023 RSMo Cum. Supp. 1999 after submission of the case to the jury, and that he be sentenced accordingly. The State argues on appeal that, notwithstanding the fact that the statute expressly requires such status must be proved prior to jury submission, Defendant would not have been prejudiced by allowing untimely proof of his persistent offender status, and the trial court therefore erred in denying the State's request. Defendant disputes the claim of error, and further asserts that the State's appeal would subject him to double jeopardy if successful and thus is statutorily unauthorized.

Division One holds: (1) Double jeopardy is not violated when an appellate court in a noncapital proceeding remands for determination of persistent offender status and resentencing. The State's appeal therefore is authorized under section 547.200.2 RSMo Cum. Supp. 1999. (2) Case law clearly holds that it would have been error, (albeit non-prejudicial error), for the trial court to have allowed the State to prove Defendant's alleged persistent offender status after submission of the case to the jury. Thus, the trial court did not err by refusing to do so.

Richard B. Teitelman, Judge

Patrick Cullen (Defendant) was found guilty by a jury of driving while intoxicated (DWI), in violation of section 577.010 RSMo 1994, and was sentenced by the trial court to six months' confinement.¹ The State of Missouri appeals from the trial court's order denying its request that it be allowed to prove Defendant's alleged persistent DWI offender status, under section 577.023, after submission of the case to the jury but before sentencing. The State argues on appeal that, notwithstanding the fact that the statute expressly requires such status must be proved prior to jury submission, Defendant would not have been prejudiced by allowing untimely proof, and the trial court therefore erred in denying its request. Accordingly, the State argues, this Court should remand with directions that the State be afforded an opportunity to prove Defendant's alleged persistent offender status and for resentencing in the event such status is proved. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by information with driving while intoxicated in violation of section 577.010 for a drunk driving incident that occurred on June 12, 1998, which was alleged to be a class D felony in his case in that he was charged as a persistent DWI offender pursuant to section 577.023.1(2).² With regard to his alleged persistent offender status, the information charged that Defendant had pled guilty to two previous intoxication-related offenses, one occurring in 1990 and the other occurring in 1992. The case proceeded to a jury trial in November, 1999.

Sufficiency of the evidence is not in dispute as to the underlying DWI offense with which Defendant was charged. The State was unable, however, to prove at trial the prior convictions necessary to establish Defendant's alleged persistent DWI offender status.

On the first day of trial, prior to impaneling the jury, the State sought to prove that Defendant had two prior intoxication-related offenses as defined by section 577.023.1(1), and that both of the offenses occurred within ten years of the offense for which he was being tried, as required by section 577.023.1(2). The State submitted its Exhibit 1, which purported to be a record of Defendant's April 1, 1991 guilty plea to driving with excessive blood alcohol content in the municipality of Woodson Terrace, along with State's Exhibit 2, which was a certified copy of Defendant's July 23, 1992 guilty plea for driving while intoxicated in St. Louis County. Defendant objected to the first exhibit on the basis that there was no showing either that the plea was signed by Defendant or that the municipal judge in the case was an attorney.³

The trial court ruled that the State did not have sufficient facts to support the admissibility of State's Exhibit 1, although there was no problem with Exhibit 2 and it was received into evidence.⁴ The State then requested, and was granted, a brief recess to attempt to contact the municipality or obtain other evidence to support Exhibit 1. These attempts were unsuccessful, and the cause then proceeded to trial.

At the close of the State's evidence, Defendant moved for an acquittal on the charge of driving while intoxicated as a class D felony, on the ground that the State had failed to prove the requisite prior convictions. The State opposed the motion as premature, stating in part: "As for the priors, statutorily we don't have to prove them up until the case is submitted to the jury, and that would be after closing argument when they actually leave this room. That has not happened. As you know, we have some problems with our priors, but I believe this is a premature motion at this point." The trial court then overruled Defendant's motion for acquittal.

At the close of the Defendant's case, the State requested leave to file an amended information to charge that Defendant was a prior felony offender under section 558.016.⁵ Over Defendant's objection, the court ruled that Defendant would not be prejudiced thereby, allowed the State to file the amended information, heard evidence, and found that Defendant was a prior felony offender. Because Defendant was found to be a prior felony offender, sentencing was taken away from the jury---i.e., the jury was instructed only to find whether Defendant was guilty of driving while intoxicated and not to assess punishment.

The jury found Defendant guilty. Immediately following the verdict, defense counsel asked the trial court to make a ruling as to whether the State had proved Defendant's alleged persistent DWI offender status. The court made a finding that although the State had proved the elements of class B misdemeanor driving while intoxicated under section 577.010, it had not proved the necessary prior convictions to support a finding of persistent DWI offender status under section 577.023. The court indicated it would hold a subsequent separate hearing on the issue of whether the State could prove up Defendant's alleged persistent DWI offender status after the jury verdict but before sentencing.

The first such hearing occurred on December 16, 1999. At that time, the State offered State's Exhibit 11, an updated version of State's Exhibit 1. It purported to show that Defendant had pled guilty to driving with excessive blood alcohol content and contained a note by the city clerk of Woodson Terrace stating: "Please be advised that Mr. John B. Gray was the Municipal Judge in April of 1991 for the City of Woodson Terrace and he is an attorney." The State also submitted State's Exhibit 12, a certified copy of Department of Revenue records showing that Defendant had been convicted on March 6, 1991 of driving with excess blood alcohol content. Although questioning whether Exhibit 11 proved that the Municipal Judge in Woodson Terrace was an attorney, the trial court "provisionally" received State's Exhibits 11 and 12 into evidence and ordered a further hearing for January 7, 2000, on the issue of whether the State was entitled to prove Defendant's alleged persistent DWI offender status post-trial. At the January 7, 2000 hearing the court heard extensive argument from both parties, and stated that it would take under submission both the issues of admissibility of the State's exhibits and their timeliness under sections 577.023.6 and .14.

On March 15, 2000, the court entered its order and judgment finding Defendant guilty of "Driving While Intoxicated, a class B misdemeanor, prior offender status per section 558.016 RSMo." The judgment stated, in pertinent part:

[T]he Court takes up for consideration and ruling Defendant's objection to the State's request and evidence in support thereof, that the Court find Defendant to be a persistent Driving While Intoxicated Offender per section 577.023 RSMo. Having fully considered the arguments of counsel and memoranda and case law in support of their respective positions, the Court hereby finds that, while the State has pleaded and proven sufficient facts to warrant a finding beyond a reasonable doubt that the Defendant is a prior [felony] offender, as the Court found beyond a reasonable doubt at trial in the above styled cause held November 8 and 9, 1999, the State has failed to timely prove before the submission of the case to the jury that Defendant is a persistent DWI offender per section 577.023.6 and section 577.023.14 RSMo. The Court finds that the State, in submitting its Exhibits 11 and 12 after conclusion of the trial by jury, has failed to meet the requirements of section 577.023.6 and .14 RSMo. The Court made no finding of prior or persistent DWI offender status during trial due to the State's request to submit further exhibits. The Court finds that State v. Cobb, 875 S.W.2d 533, is distinguishable in that Defendant had been proven and found to be a persistent DWI offender at trial in that cause, a fact which the Court specifically noted.

Thereafter, the trial court sentenced Defendant, as a prior felony offender, to six months' confinement for the class B misdemeanor of driving while intoxicated. This appeal now follows.

DISCUSSION

In its sole point on appeal, the State contends the trial court erred in refusing to...