State v. Drudge

• Decision Date: 27 October 2009
• Docket Number: No. ED 92145.,ED 92145.
• Citation: 296 S.W.3d 37
• Parties: STATE of Missouri, Respondent, v. Lance DRUDGE, Appellant.
• Court: Missouri Court of Appeals

296 S.W.3d 37

STATE of Missouri, Respondent, v. Lance DRUDGE, Appellant.

No. ED 92145.

Missouri Court of Appeals, Eastern District, Division Two.

October 27, 2009.

Gwenda R. Robinson, St. Louis, MO, for Appellant.

Chris Koster, Attorney General, Terrance M. Messonnier, Asst. Attorney General, Jefferson City, MO, for Respondent.

ROBERT G. DOWD, JR., Judge.

Lance Drudge ("Defendant") appeals from the judgment upon his convictions by a jury for forcible sodomy, Section 566.060, RSMo Cum.Supp.2007, and domestic assault in the third degree, Section 565.074, RSMo 2000, for which the trial court sentenced him, as a prior offender pursuant to Section 558.021, RSMo 2000, to twenty years' imprisonment in the Missouri Department of Corrections on the forcible sodomy count and a consecutive one-year term in the City of St. Louis Medium Security Institution on the third-degree domestic assault count. On appeal, Defendant contends the trial court plainly erred in classifying Defendant as a prior offender where there was no indictment or information setting forth the essential facts warranting a finding that Defendant was a prior offender. Defendant also asserts the trial court plainly erred in failing to dismiss the charges against Defendant in violation of Defendant's rights to a speedy trial. We affirm as modified.

Defendant does not challenge the sufficiency of the evidence. In the early morning hours of November 14, 2006, after patronizing several bars, Defendant and the victim got into an argument and Defendant told the victim to walk home, which was about a mile walk. Thereafter, the victim accepted a ride home from another person. When the victim returned home, Defendant was already there. As the victim entered the house, she saw some cake had been left on the table and went to put it away. As she went to pick up the cake, Defendant shoved the cake in the victim's face and began to punch her. After knocking the victim to the ground, Defendant began to kick her in the face and head. The victim tried to get away from Defendant and told him she just wanted to get her clothes and leave. Defendant then threw the victim down the stairs and told her to go. However, before the victim could do anything, Defendant grabbed her by the hair and pulled her up the stairs. They ended up in the living room with the victim on her stomach and Defendant's knee in her back. At some point in the assault, the victim's pants had been removed. Defendant then placed something in the victim's rectum which felt like his fist. As the victim tried to get away, she had a bowel movement. Defendant grabbed the feces and shoved it in the victim's face, telling her to eat it or he would kill her. Defendant then urinated on the victim.

Defendant then grabbed the victim and threw her into the bathroom and began to run the shower or the tub, telling the victim that he could drown her and nobody would care. Defendant then left the bathroom. The victim went into the bedroom to get some clothes. While she was in there, Defendant threw his cell phone at the victim and told her to call the police, but that they would not believe her. Defendant grabbed the cell phone back and threw it at the victim a second time. The victim then called 911. While the victim was on the cell phone, Defendant took the phone back and began to kick the victim in the head again. The police and emergency personnel arrived soon thereafter, and the victim went to the hospital in an ambulance. When examined at the hospital, the victim had multiple bruises and some cuts. The victim's nose was broken. There was also evidence of "strain" or stretching in the rectal area. The injuries observed were consistent with the assault described by the victim.

The State filed an indictment charging Defendant with forcible sodomy and domestic assault in the third degree. The indictment did not include any allegations regarding prior offender status. However, on the morning of the trial, the trial court found Defendant to be a prior offender without objection. Following the trial, the jury found Defendant guilty of forcible sodomy and domestic assault in the third degree. The trial court sentenced Defendant as a prior offender to twenty years' imprisonment in the Missouri Department of Corrections on the forcible sodomy count and a consecutive one-year term in the City of St. Louis Medium Security Institution on the third-degree domestic assault count. This appeal follows.

In his first point, Defendant contends the trial court plainly erred in classifying him as a prior offender where there was no indictment or information setting forth the essential facts warranting a finding that Defendant was a prior offender. Defendant requests that the prior offender status be removed from the judgment and sentence.

The indictment charging Defendant did not contain any assertions regarding Defendant's prior offender status.¹ On the morning of the trial, the trial court noted its understanding that Defendant had a prior offense. Defendant's counsel stated he discussed the prior offense with Defendant and how it affected the current proceedings. The trial court discussed the prior offense with Defendant, and Defendant admitted pleading guilty to a felony. Having been presented with the records of the prior conviction and having discussed it with Defendant, the trial court then made a finding that Defendant was a prior offender. Therefore, the sentencing would be done by the trial court and not the jury. There was no objection.

Defendant now asserts the trial court erred in sentencing him as a prior offender where there was not a proper charging document asserting his prior offender status as required by Section 558.021, RSMo 2000. Defendant concedes his claim was not properly preserved because he did not object and his claim was not included in his motion for new trial. See State v. Johnson, 220 S.W.3d 377, 383 (Mo.App. E.D. 2007). Thus, Defendant requests plain error review under Rule 30.20.

Plain error review involves two steps. State v. Darden, 263 S.W.3d 760, 762 (Mo.App. W.D.2008). First, the court must determine whether the trial court committed an evident, obvious and clear error, which affected the substantial rights of the appellant. Id. at 762-63. If obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Id. at 763.

For a trial court to find a defendant to be a prior offender,² (1) the indictment or information, original or amended, or the information in lieu of an indictment must plead all essential facts warranting a finding that the defendant is a prior offender, (2) evidence must be introduced to establish sufficient facts were pleaded to warrant a finding beyond a reasonable doubt that the defendant is a prior offender, and (3) the trial court must make findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender. Section 558.021.1, RSMo 2000. All the facts necessary to establish prior offender status must be pleaded, established, and found prior to submission of the case, outside the hearing of the jury. Section 558.021.2, RSMo 2000.

Here, although the prior offender status was presented and found prior to the submission to the jury, there was no indictment or information or information in lieu of an indictment in the record pleading all the essential facts warranting a finding that Defendant was a prior offender.³ Although this constitutes error, there is no manifest injustice in this case.

The only legal consequence of finding prior offender status is the loss of the right to jury sentencing. Sections 557.036, RSMo Cum.Supp.2007, 558.016, RSMo Cum.Supp.2007, and 558.021, RSMo 2000. Defendant did not object to the trial court sentencing. A defendant waives his statutory right to a jury-recommended sentence where he allows the trial court to determine his sentence without raising his right to have the jury recommend a sentence. State v. Emery, 95 S.W.3d 98, 102 (Mo. banc 2003).⁴ Defendant therefore waived his right to jury sentencing. Defendant cannot show he suffered a manifest injustice from any error in classification. Darden, 263 S.W.3d at 769-770 ("This court cannot see how [the defendant] has established manifest injustice where the prejudice demonstrated is that he was denied a statutory right he waived.") Where there is no manifest injustice, there is no plain error.

However, although Defendant does not request re-sentencing, Defendant requests that the classification of "prior offender" be removed from the judgment and sentence. We recognize there are other possible ramifications from being improperly classified as a prior offender, such as the possibility of it affecting future parole eligibility. State v. Jolley, 45 S.W.3d 549, 552 (Mo.App. E.D.2001) citing State v. Halk, 955 S.W.2d 216, 217 (Mo. App. E.D.1997); 14 C.S.R. 80-2.010; State v. McGee, 284 S.W.3d 690, 713 (Mo.App. E.D.2009). Therefore, under the facts of this case, we can finally dispose of this matter and correct the judgment and sentence to remove the prior offender classification. Rule 30.23. Defendant's point is denied in part and granted in part.

In his second point, Defendant asserts the trial court plainly erred in failing to sua sponte dismiss the charges against Defendant in violation of Defendant's rights to a speedy trial.

Defendant was arrested on November 16, 2006. Defendant was charged by complaint the day after he was arrested. The case was continued by the trial court until November 20, 2006. The case was continued until December 20, 2006 at the request of the State. On December 19, 2006, the indictment was filed. The following day the State requested the case be continued and the case was continued until January 25, 2007. On January 25, 2007, Defendant's arraignment was held...