State v. Mitchell

• Citation: 563 S.W.2d 18
• Decision Date: 13 March 1978
• Docket Number: No. 59668,59668
• Parties: STATE of Missouri, Respondent, v. Jerry MITCHELL, Appellant.
• Court: United States State Supreme Court of Missouri

Page 18

563 S.W.2d 18

STATE of Missouri, Respondent, v. Jerry MITCHELL, Appellant.

No. 59668.

Supreme Court of Missouri, En Banc.

March 13, 1978.

As Amended March 14, 1978.

Dissenting Opinions March 24, 1978.

Rehearing Denied April 10, 1978.

Howard L. Eisberg, Kansas City, Steven G. Gladstone, Columbia, and R. Keith Stroup, Washington, D. C., for appellant.

John D. Ashcroft, Atty. Gen., Preston Dean, William F. Arnet, Asst. Attys. Gen., Jefferson City, for respondent.

BARDGETT, Judge.

Appellant Jerry Mitchell appeals from the conviction and sentence of seven years entered on his plea of guilty to a charge of selling marihuana in violation of secs. 195.017 and 195.200, RSMo Supp.1975. The two points made on this appeal are: 1) The classification of marihuana in schedule I of sec. 195.017 and the consequent punishment of marihuana offenses are set forth in sec. 195.200 deny appellant equal protection of the law in violation of the United States Constitution, Amendment 14, on the grounds that the classification of marihuana is arbitrary, erroneous, and irrational, and 2) the punishments provided for offenses involving the sale of marihuana under sec. 195.200 have no rational relationship to the gravity of the offense and are, therefore, facially unconstitutional as cruel and unusual punishment as applied to appellant. This court has jurisdiction under art. V, sec. 3, Mo.Const., as amended.

Appellant was charged with the sale of marihuana. It appears that the offense consisted of the sale of approximately 11 grams of marihuana for $5.00 in August of 1975. Very shortly after being charged, counsel was appointed for him. Appellant subsequently retained counsel and has had the benefit of an attorney throughout the proceedings.

On April 13, 1976, appellant with counsel appeared in the circuit court of Howell county and pled guilty to the charge. The circuit judge questioned appellant extensively about his understanding of the charge, the range of punishment being from five years to life in the penitentiary, and various other matters pertaining to the proceedings, including a clear understanding on appellant's part as well as the court's that the only arrangements that had been made between defense counsel and the prosecutor with reference to the plea of guilty were that (a) the prosecutor would recommend there be a presentence investigation, and (b) the state would make no other recommendations in the case, and (c) the court would dismiss a certain case No. 3407. The substance of the charge in case No. 3407 was not further described at the time of the plea of guilty, but at a subsequent hearing the record reflects the dismissed charge was one of selling a larger quantity of marihuana which the defendant admitted along with admitting other sales of marihuana in that same area. At the time appellant entered his plea, and on advice of counsel, appellant declined to reveal to the court any of the facts pertaining to the charge to which he was pleading guilty on the premise that he desired to enter a plea of guilty under the precepts of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court made it clear to appellant that the court, after considering the presentence investigation, but not being bound by it, may sentence the appellant to a long term, to a short term, or may put him on probation. Appellant was also given the opportunity of withdrawing his plea of guilty on the day it was entered, which appellant declined. The plea of guilty was accepted and the matter was reset for June 8, 1976, the intervening time being necessary for the preparation of a pre-sentence investigation.

On June 8 the parties and attorneys again appeared in court and appellant was asked if he persisted in his plea of guilty entered on April 13, to which he replied "Yes, sir." The court stated its thoughts concerning the type of offense involved in the sale of marihuana, its seriousness, and its effect upon younger people and the community. The court then sentenced defendant to twelve years in the penitentiary and denied probation.

On June 14, 1976, appellant filed a motion to withdraw his plea of guilty and set aside the sentence in circuit court. A hearing on this motion took place on July 9, 1976. ¹ By this time the case had attracted some national attention and attorneys from other parts of the country representing organizations interested in the reform of marihuana laws entered their appearance as co-counsel for appellant. At the outset of this hearing, one of the attorneys for appellant advised the court that he had discussed the matter with the other counsel and with appellant and it was appellant's desire to withdraw the motion to set aside the guilty plea and that appellant desired to make a further statement to the court. The appellant then told the court that he was guilty of two charges of sale and that he had sold marihuana on other occasions. One of the sales involved a much larger quantity of marihuana to some undercover agent. The record reflects that appellant admitted to having been in the circuit court of Howell county before on previous charges of possession of a controlled substance and had been placed on probation. Further colloquy took place between the court and appellant concerning marihuana during which each expressed his view as to its effect upon users. The court indicated that he believed there had been a change in the attitude on the part of the appellant since the date of sentencing a short time before and the court was, therefore, going to set aside the twelve-year sentence and impose a seven-year sentence, which the court did. The record reflects in general a satisfaction on the part of the defense side of the case with the manner in which the circuit court handled the sentencing; however, at the same time, a very respectful but strong viewpoint was stated to the effect that the classification of marihuana and the statutory punishments therefor were unconstitutional. The trial court disagreed but encouraged the defense to seek an appellate adjudication in this case on the question of the constitutionality of the Missouri statutes relating to marihuana.

This appeal is limited to consideration of the facial constitutionality of the statutes relating to the sale of marihuana. It is obvious from the statement of facts that there is no question but what the appellant violated the terms of the statute by making a sale of marihuana. That is admitted.

On this appeal the appellant challenges the constitutionality of sec. 195.017, RSMo Supp.1975 (classification of marihuana as a schedule I substance) and sec. 195.200, subsec. 1(4), RSMo Supp.1975 (penalty provision for sale of schedule I substances, which includes marihuana).

The initial issue is whether the appellant preserved the issues he now seeks to raise on appeal in light of the fact he pled guilty to the offense. We think this question is answered by Kansas City v. Hammer, 347 S.W.2d 865, at 868 (Mo.1961), wherein the court stated:

"This state is thoroughly committed to the proposition that the unconstitutionality of an ordinance or statute on which a prosecution is based cannot be waived. The invalidity of such an act on constitutional grounds goes to the subject matter of the prosecution and may be raised at any stage of the proceedings, even by a collateral attack after conviction. Ex parte Lerner, 281 Mo. 18, 218 S.W. 331; Ex parte Taft, 284 Mo. 531, 225 S.W. 457; Ex parte Smith, 135 Mo. 223, 229, 36 S.W. 628, 33 L.R.A. 606; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; and State v. Finley, 187 Mo.App. 72, 172 S.W. 1162."

Kansas City v. Hammer, supra, did not involve a guilty plea but it is well settled in this state that jurisdictional defects and defenses are not waived by entering a guilty plea. State v. Cody, 525 S.W.2d 333 (Mo. banc 1975); Kansas City v. Stricklin, 428 S.W.2d 721 (Mo. banc 1968). It is apparent therefore that appellant did not waive his objections to the facial constitutionality of the statute under which he was convicted since, if it were found facially unconstitutional, the appellant could not have been legally convicted and incarcerated for its violation.

Appellant does not contend that the sale of marihuana is a fundamental right. Accordingly, to determine whether the scheme of statutory classification set forth in sec. 195.017 violates the strictures of the equal protection clause, the appropriate standard to be applied is the "rational basis test". The rules pursuant to which the appellant's case must be tested were set forth in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 69 (1911):

"1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary."

In other words, it must be determined whether the legislature in classifying marihuana in schedule I had a rational reason for doing so or whether the classification is arbitrary. If arbitrary, the statute must be held unconstitutional.

The court is guided in its determination by the standards for classifying schedule I substances set forth in sec. 195.017 as...