State v. Patino

• Decision Date: 30 November 1999
• Citation: 12 S.W.3d 733
• Parties: (Mo.App. S.D. 1999) State of Missouri, Respondent, v. Carlos Patino, Appellant. 22370
• Court: Missouri Court of Appeals

12 S.W.3d 733 (Mo.App. S.D. 1999)

State of Missouri, Respondent, v. Carlos Patino, Appellant.

22370

Missouri Court of Appeals Southern District

11/30/99

Appeal From: Circuit Court of Dunklin County, Hon. Stephen R. Sharp

Counsel for Appellant: Kent Denzel

Counsel for Respondent: Breck K. Burgess

Opinion Summary: None

Shrum, P.J., and Montgomery, J., concur.

Phillip R. Garrison, Chief Judge

Carlos Patino ("Defendant") received a sentence of ten years after being found guilty by the trial court of trafficking drugs in the first degree, section 195.222.2.¹ On this appeal he contends that the trial court erred in finding him guilty of attempting to commit first degree trafficking under section 195.222, rather than the inchoate offense of attempt under section 564.011; in overruling his motion to dismiss for vindictive prosecution; and in denying his motion to suppress.

The sufficiency of the evidence to support the conviction is not in dispute. Accordingly, we view the evidence and all reasonable inferences therefrom in the light most favorable to the judgment of conviction. State v. Link, 965 S.W.2d 906, 908 (Mo.App. S.D. 1998). The facts, viewed in that light, indicated that Defendant was recruited by a man in Chicago to pick up illegal drugs in Memphis and return them to Chicago for which he would be paid $3,000. Defendant, in turn, arranged with an acquaintance, Jairo Cardona-Rivera ("Rivera") to use Rivera's car in return for a payment of $500 and a loan of $500. Rivera, however, insisted on accompanying Defendant on the trip.

Defendant and Rivera left Chicago on October 27, 1993, in Rivera's 1984 Toyota. When they arrived in Memphis, Defendant contacted the person from whom he obtained the drugs and placed them in a suitcase in the trunk. The two then started on the return trip to Chicago which was interrupted when they were stopped on October 28, 1993, by Trooper Jeffrey Heath ("Trooper Heath") of the Missouri State Highway Patrol when he observed the Toyota, driven by Defendant, following a truck too closely. Trooper Heath asked Defendant to step to the rear of the vehicle after obtaining his driver's license. When they did, Trooper Heath learned from Defendant that the car belonged to his passenger, Rivera. Trooper Heath then approached Rivera who acknowledged that the car was his, but claimed not to know the name of the driver, where they were coming from, or where they were going. When Rivera produced the car's registration, Trooper Heath took Defendant to his patrol car and wrote a warning ticket while running a computer check on the vehicle and Defendant's license. While that was being done, Trooper Heath asked Defendant the name of the passenger, where they were coming from, and where they were going. Defendant claimed not to know the answer to any of these questions. When Trooper Heath asked Defendant how he knew what roads to take, Defendant told him that the passenger was telling him where to drive.

Trooper Heath gave the warning ticket to Defendant and told him that he was free to go. As they were both walking toward the front of the patrol car, Trooper Heath asked Defendant if he had any guns, drugs or weapons in the vehicle. When Defendant said "no" Trooper Heath asked him if he could search the vehicle and its contents. Defendant appeared to become "very nervous" and said that he could search the vehicle. After telling Defendant to stand in front of the Toyota, Trooper Heath went to Rivera and told him that Defendant had given him permission to search the vehicle. When Rivera made no response, Trooper Heath asked him to also stand at the front of the car. Trooper Heath then opened the truck, noticing that both Defendant and Rivera became more nervous, and opened an unlocked suitcase in the trunk, finding eight bundles of what proved to be cocaine. Trooper Heath then placed both Defendant and Rivera under arrest.

The information under which Defendant was charged alleged:

. . . that the defendant, in violation of Section 195.222.2(2), RSMo., committed the class A felony of an attempt to commit the offense of trafficking in the first degree, punishable upon conviction under Section 558.011.1(1), RSMo., in that on or about October 28, 1993, in the County of Pemiscot, State of Missouri, the defendant while travelling northbound in a 1984 Toyota Corolla was stopped by the Missouri State Highway Patrol and inside the vehicle were eight bundles which contained 450 grams or more of a mixter or substance containing a detectable amount of cocaine salts, a controlled substance, knowing or consciously disregarding a substantial and unjustifiable risk that it was a controlled substance and such oconduct [sic] was a substantial step toward delivery of the aforementioned controlled substance and constituted an attempted delivery pursuant to Section 195.222.2, RSMo., and was done for the purpose of committing such trafficking in the first degree; . . .

This appeal followed Defendant's conviction by the trial court.

In his first point on appeal, Defendant contends that the trial court plainly erred in finding him guilty of and sentencing him for the class A felony of attempting to commit first degree trafficking under section 195.222, rather than the inchoate offense and class B felony of attempt under section 564.011. In support, he argues that the State charged him with conduct constituting a "substantial step" toward delivery of the cocaine, and that the trial court's judgment reflected the same finding. According to Defendant, this indicates that he was charged with, and convicted of, an attempt under section 564.011, which provides, in pertinent part:

A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

An attempt under section 564.011.3 to commit a class A felony constitutes a class B felony.

Defendant compares the "substantial step" language from the information filed against him and section 564.011, with the language of section 195.222.2 under which he was sentenced for a class A felony:

A person commits the crime of trafficking drugs in the first degree if, he . . . attempts to distribute, deliver, manufacture or produce more than one hundred fifty grams of . . . cocaine salts . . .

He argues that not only was he charged with a violation of section 564.011.1, rather than section 195.222.2, but that, in addition, there was no evidence from which a rational trier of fact could have found beyond a reasonable doubt that when he was found with the cocaine in his possession that he had the present ability to consummate the offense within the State of Missouri (deliver the cocaine in this State) proscribed by section 195.222. He concludes that sentencing him to a class A rather than a class B felony constituted a manifest injustice and miscarriage of justice. Consequently, he argues that the case should be remanded for resentencing within the punishment range of a class B felony.

By contending that the trial court plainly erred, Defendant appears to concede that he did not preserve this contention for appellate review. In seeking plain error review, a defendant must show that the trial court's action was erroneous and that the error had such a substantial effect upon the accused's rights that manifest injustice or a miscarriage of justice will result if the error is not corrected. State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989). Defendant bears the burden of establishing manifest injustice. State v. DeJournett, 868 S.W.2d 527, 531 (Mo.App. S.D. 1993). The determination of whether plain error exists must be based on the facts and circumstances of each case. Id. The assertion of plain error places a much greater burden on a defendant than when he asserts prejudicial error. State v. Clements, 849 S.W.2d 640, 644 (Mo.App. S.D. 1993).

All three districts of the Missouri Court of Appeals have recognized that there are two types of attempt: (1) common law attempt under section 195.211; and (2) statutory attempt under section 564.011. See State v. Wurtzberger, No. WD 56473, slip op. at 9 (Mo.App. Nov. 9, 1999); State v. Little, 986 S.W.2d 924, 925 (Mo.App. E.D. 1999); State v. Farr, 978 S.W.2d 448, 450 (Mo.App. S.D. 1998) (citing State v. Reyes, 862 S.W.2d 377, 383 (Mo.App. S.D. 1993). The inchoate offense of "attempt" under section 564.011.1 is a broader offense than common law attempt. Farr, 978 S.W.2d at 450. An attempt charged under section 564.011.1 only requires proof of a "substantial step" toward consummation of the substantive offense, whereas the common law meaning of attempt requires the conduct of the accused to "nearly approach the consummation of that offense." Id. As used in section 195.211, "attempt" bears the common law meaning, and a conviction of an attempt under that statute requires proof under the common law standards. Id. In claiming that he was only charged with "attempt" under section 564.011.1 and, therefore, should only be sentenced for violation of a class B felony, Defendant does not dispute that there was sufficient evidence to support a conviction of an "attempt" pursuant to section 564.011.1.

Rule 23.01(b)² requires that an information include, inter alia, the essential facts constituting the offense charged, the section of the statutes alleged to have been violated, the section of the statutes which fixes the penalty or punishment therefor, and the name and degree of the offense charged. The information in this case specifically alleged that in violation of section 195.222.2(2), Defendant committed the class A felony of an attempt to commit the offense of trafficking in the first degree punishable under ...