State v. Hughes, s. WD
| Decision Date | 25 March 1997 |
| Docket Number | Nos. WD,s. WD |
| Citation | 944 S.W.2d 247 |
| Parties | STATE of Missouri, Respondent, v. Craig HUGHES, Appellant. 50029, WD 52389. |
| Court | Missouri Court of Appeals |
Andrew W. Schroeder, Asst. Appellant Defender, Kansas City, for appellant.
Philip M. Koppe, Asst. Attorney General, Kansas City, for respondent.
Craig Hughes does not challenge the sufficiency of the state's evidence in his conviction of possessing a controlled substance. He complains that the circuit court erred in sentencing him because it did not orally pronounce him to be a prior or persistent offender before enhancing his sentence as a prior or persistent offender, and he complains that the circuit court erroneously overruled his objection to the state's using peremptory challenges to remove women from the jury panel. He further complains that the circuit court erroneously denied his Rule 29.15 motion for post-conviction relief because he established that his trial attorney did not give him effective representation. We affirm his conviction and the denial of his Rule 29.15 motion.
The circuit court sentenced Hughes to a 10-year prison sentence, three years beyond what the General Assembly authorized in § 558.011.1(3), RSMo Supp.1993. Before trial, in response to the state's charges, the circuit court declared Hughes to be "a prior and persistent offender." Hughes complains, however, that at the sentencing hearing the circuit court did not repeat its finding that Hughes was a prior and persistent offender. The circuit court also failed to include the finding in its written sentence until it amended it to correct the omission.
Hughes did not preserve the point for our review. We can review it, if at all, under Rule 30.20(b) as plain error. We decline to review the issue.
"[U]nless a claim of plain error facially establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted,' this Court will decline to exercise its discretion to review for plain error under Rule 30.20." State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, --- U.S. ----, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995). In light of the Supreme Court's recent case, Howard Johnson v. State of Missouri, 938 S.W.2d 264, 265 (Mo. banc 1997), we do not discern error which facially establishes substantial grounds for believing that manifest injustice has resulted.
In Johnson, the Supreme Court instructed that when a circuit court's formal, oral pronouncement of sentence is silent on a particular issue, "nothing prevents an appellate court from examining the entire record to determine [whether] the oral sentence can be unambiguously ascertained." Before trial, the circuit court received evidence on the issue and made its pronouncement that Hughes was a prior and persistent offender. The circuit court was not obligated to repeat at sentencing its previous findings that Hughes was a prior and persistent offender or even to mention those findings during the sentencing hearing. Neither § 558.021, RSMo Supp. 1993, nor § 558.016, RSMo 1986, required any further action by the circuit court after making its finding that Hughes was a prior and persistent offender. We do not discern plain error.
Hughes also complains that the circuit court overruled his objection to the state's using peremptory challenges to remove three women from the jury panel. We find no merit to his point. In response to Hughes' objection, the state explained that it used peremptory challenges to remove the women because none of them had responded to any voir...
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...silence, like Ms. Moore's silence in this case, is a permissible, facially neutral explanation for a peremptory strike. State v. Hughes, 944 S.W.2d 247, 248 (Mo.App.1997); State v. Ashley, 940 S.W.2d 927, 931 (Mo.App.1997); see also State v. Smulls, 935 S.W.2d 9, 15 (Mo. banc 1996). The rea......
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