State v. Davis, WD

• Decision Date: 15 November 1983
• Docket Number: No. WD,WD
• Citation: 663 S.W.2d 301
• Parties: STATE of Missouri, Respondent, v. Richard C. DAVIS, Jr., Appellant. 34315.
• Court: Missouri Court of Appeals

Page 301

663 S.W.2d 301

STATE of Missouri, Respondent, v. Richard C. DAVIS, Jr., Appellant.

No. WD 34315.

Missouri Court of Appeals,

Western District.

Nov. 15, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Dec. 28, 1983.

Application to Transfer Denied

Feb. 15, 1984.

James W. Fletcher, Public Defender, Sean D. O'Brien, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and CLARK and MANFORD, JJ.

SHANGLER, Presiding Judge.

The defendant Davis was convicted of rape [§ 566.030, RSMo 1978] and of sodomy [§ 566.060, RSMo 1978] and was sentenced as a persistent sexual offender under § 558.018. The judgment imposed was a term of seventy years imprisonment on each count to be served concurrently and without probation or parole.

The appeal does not question the sufficiency of the evidence, ¹ but only the procedures employed by the court to come to judgment.

The information formally charged rape, sodomy, and that the defendant was a persistent sexual offender in that he had been previously convicted of rape, and so punishable by an extended term under the provisions of § 558.018. The evidence on that issue was presented to the court, and the proof conformed to the allegation of information: that the defendant was convicted of the felony of rape on a plea of guilty in the Circuit Court of Jackson County, Missouri [in case Number C44902], on January 31, 1974. The presentation of the prosecution was subject to the cross-examination of defense counsel, and at the conclusion of the evidence, the court entered a recitation of the facts found--the fact of the prior conviction for rape included--and the judgment that defendant was a persistent sexual offender and so subject to the provisions of § 558.018. The case proceeded to trial and the jury found the defendant guilty of the separate counts of rape and sodomy. The court received the verdicts and, in due course, sentenced the defendant to concurrent terms of seventy years on each count--without probation or parole--as a persistent sexual offender under § 558.018.3.

The defendant argues that the enhanced sentences were unlawful because an extended term may be imposed only under a procedure defined by statute, and none was enacted for a defendant accused as a persistent sexual offender. That argument notices that § 558.016, ² which defines the status of persistent offender and dangerous offender and extends the term in punishment, presupposes an adjudication conformable to the extended term procedures of § 558.021. The defendant contends that since § 558.021, by express terms, refers only to persistent and dangerous offenders, § 558.018 which only defines a persistent sexual offender and prescribes the enhanced sentence merely adjudicates status--but absent a procedure composed by statute cannot result in a valid sentence greater than that already prescribed for the offense [--in this case, § 556.030 [rape] and § 556.060 [sodomy]].

This syllogism means to express the rationale that since the enhanced punishment provisions of the criminal law [inducted into Missouri jurisprudence by the Criminal Code in year 1979 [Laws 1977, Senate Bill 60]] rest for constitutional validity on procedures due process: formal accusation of the persistent or dangerous offender status, proof of the status by separate and sufficient evidence judicial determinations of fact [sustainable beyond a reasonable doubt] that the accused is a persistent or dangerous offender and opportunity for the defendant to confront, to cross-examine and to present evidence. And, indeed, we declared in State v. Thompson, 629 S.W.2d 361 (Mo.App.1981), approved 629 S.W.2d 369 (Mo. banc 1982), l.c. 365[5, 6]:

The extended term section 558.016 of the recently adopted criminal code invests a trial court with the altogether new power to enhance a sentence of imprisonment beyond that determined by the jury or prescribed by statute as punishment for the offense ... The imposition of an extended term by either means ... rests on the proof of a charge beyond the offense for which the jury returned conviction. The due process of law concomitant by which a valid criminal conviction obtains, therefore, also attends the determination of the new matter upon which a valid extension of term rests.

We cited the authority of State v. Berry, 609 S.W.2d 948 (Mo. banc 1980) that the procedures of § 558.021 ³ were enacted to conform with the mandate of Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), that where the extended term punishment rests on evidence of guilt for an offense other than the felony charged and involves new determinations of fact, [l.c. 956] "due process requires those safeguards essential in a criminal prosecution."

It is the sense of the argument the defendant asserts--not that any enhancement of sentence imposed without the due process procedures mandated by Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), is not valid--but that any statute which composes a status of offender for enhanced punishment but which does not also enact a procedure comparable to § 558.021 to adjudicate that status as precondition to the imposition of the extended sentence can have no validity for that purpose--even though [we assume] the court nevertheless conformed to every constitutional due process concern. Thus [so the trend of argument goes], an extended sentence for a persistent or dangerous offender under § 558.016 has validity because the enhanced punishment cannot be imposed unless the procedures of § 558.021 are met, and an extended sentence for persistent sexual offender under § 558.018 has no validity [albeit the due process concerns are met in practice] because no statute enacts a procedure for that adjudication.

It is so that the procedures of § 558.021--enacted to ensure the due process predicate for an enhanced punishment Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), requires--refers to extended term punishments for persistent and dangerous offenders [and not to persistent sexual offenders] only. It is so also that § 558.018, the persistent sexual offender component of the Criminal Code defines no procedure for the adjudication of that status as precondition to the imposition of the enhanced punishment. ⁴ It is so also that § 558.021 was reenacted as amended (1981) after the persistent sexual offender § 558.018 (1980) was added to the Criminal Code and that the reenacted procedures refer by the statutory test, only to the persistent or dangerous offender status under § 558.016. That cannot mean as the defendant would have it, however, that a determination of persistent sexual offender under § 558.018 adjudicated conformably with every due process exigency defined by the United States Supreme Court authority in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), lacks validity simply because no statute delineates a mechanism for a persistent sexual offender adjudication. The requirements of procedural due process govern the validity of an enhanced punishment adjudication--and transcend any statutory adjudicative mechanism for that purpose. That is the very quiddity of the Specht v. Patterson rationale:

[l.c. 608[3, 4]]:

The Sex Offenders Act does not make the commission of a specified crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill. That is a new finding of fact [citation] that was not an ingredient of the offense charged.

* * *

[l.c. 610]:

Under Colorado's criminal procedure, here challenged, the invocation of the Sex Offenders Act means the making of a new charge leading to criminal punishment ... Due process ... requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed.

Section 558.021, which appertains to the persistent and dangerous offender adjudication, does no more than codify the constitutional due process exigency which informs a valid enhancement of punishment procedure. State v. Berry, 609 S.W.2d 948 (Mo. banc 1980); State v. Thompson, 629 S.W.2d 361, 365[5, 6] (Mo.App.1981), approved 629 S.W.2d 369 (Mo. banc 1982). Thus, the efficacy of § 558.021 [or any other statute] as a procedure to adjudicate a valid enhancement punishment does not rest in its attributes as a formal enactment but in the due process standard it promulgates--a standard required by constitutional principle and independent of any embodiment in a statute. State v. Burgin, 654 S.W.2d 627, 629-630[2-6] (Mo.App.1983); United States v. Mancusi, 446 F.2d 943, 947[1, 2] (2d Cir.1971); Byers v. Crouse, 339 F.2d 550, 552[1, 2] (10th Cir.1964).

We do not doubt that had the defendant here been adjudicated a persistent sexual offender and sentenced to extended terms without the full ceremony of procedure due process demands, judgments would have failed. The court, counsel, and parties, however, observed every festoon of due process as well as § 558.021 prescribe for such an adjudication: the persistent sexual offender status was charged in the information [§ 558.021.1(1) ], the evidence was sufficient to find the fact beyond a reasonable doubt [§ 558.021.1(2) ], the court entered a finding of fact beyond a reasonable doubt that the defendant was previously convicted of rape [§ 558.021.1(3) ], the defendant was represented by counsel and accorded full right of confrontation and cross-examination with opportunity to present evidence [§ 558.021.4]. These procedures coincide precisely with the due...