State v. Graham
| Decision Date | 27 July 1999 |
| Docket Number | WD56309 |
| Parties | State of Missouri, Respondent, v. Mark E. Graham, Appellant. WD56309 Missouri Court of Appeals Western District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Clay County, Hon. A. Rex Gabbert
Counsel for Appellant: John r. Shank, Jr.
Opinion Summary: Mark E. Graham appeals the judgment of his jury convictions and sentences in the Circuit Court of Clay County, Missouri, for three counts of sodomy, section 566.060, RSMo Supp. 1990, following this court's recalling of its mandate in State v. Graham, 969 S.W.2d 759 (Mo. App. 1998) and remanding the case for resentencing only, without jury assessment. On remand, the circuit court sentenced the appellant to three consecutive terms of four years imprisonment.
The appellant raises four points on appeal. In Point I, he claims that the trial court erred in resentencing him without a jury assessing his punishment because, thereby depriving him of his statutory right to jury assessment of punishment under section 557.036, RSMo Supp. 1990. In Point II, he assigns the same error as in Point I, except to claim that the action of the trial court deprived him of his right to due process. In Point III, the appellant claims that the trial court erred in resentencing him to consecutive terms of imprisonment because, in doing so, it believed, contrary to the law, that it was required to sentence him to consecutive terms. In Point IV, he claims that the trial court erred in resentencing him for child molestation in the first degree, section 566.067, because, in doing so, it was required to, but did not, allow the prosecuting attorney to exercise his discretion in determining whether he should be resentenced for child molestation or for sexual misconduct in the first degree, section 566.090.
REVERSED AND REMANDED.
Division Two holds:
As to the appellant's Points I and II, pursuant to section 1.160, RSMo 1986, if a statutory amendment reducing punishment becomes effective such that the jury was required to be instructed as to punishment under the new law, not the old law, and was not so instructed, then the defendant is entitled to a complete new trial, including jury assessment of punishment under section 557.036, RSMo Supp. 1990, provided that one of the statutory exceptions does not apply to deny the defendant jury assessment of punishment. However, if the statutory amendment becomes effective such that, at the time the jury would have been properly instructed as to punishment under the old law then, applying section 1.160, RSMo 1986, the defendant would not be entitled to a complete new trial, but would be entitled only to be resentenced. On resentencing, the defendant is entitled to have a jury assess his or her punishment, provided that he or she is not a prior and persistent offender.
In light of the disposition of Points I and II, the Court need not address the appellant's claim in Point III. However, note that a trial court has the discretion to run the sentences for multiple convictions of sex crimes concurrent to each other. Where a court is under the misconception that it must run the sentences consecutively, it erroneously declares and applies the law, requiring remand to allow the court to exercise its sentence options with full discretion. As to the appellant's Point IV, the prosecutor has no discretion in determining the offense for which a defendant will be resentenced on remand pursuant to section 1.160. In deciding under which amendatory law a defendant will be resentenced, the trial court must determine under which statute his or her charged conduct would fall. In this case, the appellant's charged conduct constitutes child molestation in the first degree, section 566.067. Accordingly, on remand the appellant is to be resentenced for child molestation in the first degree under section 566.067.
Mark E. Graham appeals the judgment of his jury convictions and sentences in the Circuit Court of Clay County, Missouri, for three counts of sodomy, section 566.060, RSMo Supp. 1990,1 following this court's recalling of its mandate in State v. Graham, 969 S.W.2d 759 (Mo. App. 1998) and remanding the case for resentencing only, without jury assessment. On remand, the circuit court, the Honorable A. Rex Gabbert, sentenced the appellant to three consecutive terms of four years imprisonment.
The appellant raises four points on appeal. In Point I, he claims that the trial court erred in resentencing him without a jury's assessing his punishment because, in doing so, the court deprived him of his statutory right to jury assessment of punishment under section 557.036, RSMo Supp. 1990. In Point II, he assigns the same error as in Point I, except to claim that the action of the trial court deprived him of his right to due process. In Point III, the appellant claims that the trial court erred in resentencing him to consecutive terms of imprisonment because, in doing so, it believed, contrary to the law, that it was required to resentence him to consecutive terms. In Point IV, he claims that the trial court erred in resentencing him for child molestation in the first degree, section 566.067, because, in doing so, it was required to, but did not, allow the prosecuting attorney to exercise his discretion in determining whether he should be resentenced for child molestation or for sexual misconduct in the first degree, section 566.090.
We reverse and remand.
The appellant was a volunteer leader with a church youth group. From time to time in this capacity, he invited students to spend the night at his apartment. On several such occasions in August 1991, when church students were spending the night at his apartment, he placed his hand inside a ten-year-old child's pajamas and underwear and held his penis between ten and twenty minutes.
On January 22, 1992, the appellant was indicted, and subsequently charged by information, for four counts of sodomy, section 566.060, RSMo Supp. 1990. The case proceeded to jury trial on July 13, 1992. On July 14, 1992, the jury found him guilty of three counts of sodomy, section 566.060, RSMo Supp. 1990.2 On each count, the jury assessed punishment for a term of twenty years imprisonment. On September 11, 1992, the trial court sentenced the appellant to three consecutive terms of twenty years imprisonment. On appeal, this court affirmed the appellant's convictions in State v. Graham, 906 S.W.2d 771 (Mo. App. 1995).
While the appellant's appeal was still pending, several amendments to chapter 566 went into effect. State v. Pritchard, 982 S.W.2d 273, 275 (Mo. banc 1999). Section 566.060, RSMo 1990, the statute under which the appellant was charged, was amended, deleting subsection 3 thereof dealing with statutory sodomy and enacting in lieu thereof sections 566.062 and 566.064, the first creating the offense of statutory sodomy in the first degree, and the second creating the offense of statutory sodomy in the second degree. Id.; State v. Paro, 952 S.W.2d 339, 341 (Mo. App. 1997). As part of the 1994 amendments, section 566.010, RSMo Supp. 1990, dealing with chapter 566 and 568 definitions was also amended. One amendment was to section 566.010(2), RSMo Supp. 1990, defining "deviate sexual intercourse," which both section 566.060.3, RSMo Supp. 1990, and section 566.062 reference in establishing the necessary conduct for the offense of statutory sodomy. The prior definition of "deviate sexual intercourse" defined it as "any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person." Section 566.010(2), RSMo Supp. 1990 (emphasis added). The amended definition defines it as
any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.
The appellant filed a pro se motion to recall this court's mandate. He claimed that he was denied effective assistance of appellate counsel because his counsel failed to raise on direct appeal his claim that, pursuant to section 1.160, he was entitled to a reduction in his sentences in that the criminal statute under which he was convicted had been amended and went into effect while his case was on appeal.3 Finding merit in the appellant's claim, this court recalled its mandate and remanded the case for resentencing only without jury assessment of punishment. Graham, 969 S.W.2d at 761. In ordering the appellant resentenced, this court found that the appellant's appellate counsel was ineffective for failing to claim that his sentences on each count of sodomy should have been reduced to a maximum of seven years imprisonment because the conduct for which he had been convicted, hand to genital contact with another person who was less than fourteen years of age, had been reclassified while his direct appeal was pending from the offense of sodomy, section 566.060, RSMo 1990, to the offense of child molestation in the first degree, section 566.067. Id. at 760-61. On August 20, 1998, the trial court, on remand, resentenced the appellant to three consecutive terms of four years imprisonment.
This appeal follows.
In Point I, the appellant claims that the trial court erred in resentencing him without a jury's assessing his punishment because, in doing so, the court deprived him of his right to jury assessment of punishment under section 557.036, RSMo Supp. 1990. In Point II, he assigns the same error as in Point I, except to claim that the action of the trial court deprived him of his right to due process. Because both Points I and II raise the same issue, we will discuss them together.
We initially note that in Points I and II of his points relied on, the appellant does not raise the issue of his entitlement to a complete new...
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