State v. Pitts
| Decision Date | 04 May 1993 |
| Docket Number | No. 60488,60488 |
| Citation | 852 S.W.2d 405 |
| Parties | STATE of Missouri, Respondent, v. Jerry PITTS, Appellant. |
| Court | Missouri Court of Appeals |
John Klosterman, Susan K. Eckles, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals his convictions for unauthorized use of a weapon, possession of marijuana, and driving while license revoked. We affirm.
Defendant does not challenge the sufficiency of the evidence. Therefore, only a brief recitation of the facts is necessary. On May 11, 1990, two police officers observed Defendant drive away from a local bar. They followed Defendant and pulled him over, because they knew his license had been revoked. A subsequent search of Defendant revealed a revolver in his waistband. An inventory search of the vehicle revealed three bags of marijuana in the front seat.
On July 9, 1990, Defendant was charged by information with one count of unlawful use of a weapon, one count of misdemeanor possession of marijuana, and one count of driving while license revoked. His trial began on June 3, 1991, and the jury convicted him of all three counts. On July 2, 1991, the trial court sentenced Defendant pursuant to § 558.016, RSMo Supp.1992, to concurrent terms of three years' imprisonment for unlawful use of a weapon, six months' imprisonment for possession of marijuana, and six months' imprisonment for driving while license revoked.
For his first point, Defendant argues the trial court erred in sentencing him as a persistent misdemeanor offender pursuant to § 558.016. Defendant asserts the application of § 558.016 is an ex post facto law in violation of the fourth, fifth, sixth, and fourteenth amendments to the United States Constitution and Article I, §§ 10 and 18(a) of the Missouri Constitution. The crimes in question were committed on May 11, 1990. Defendant was tried on June 3-4, 1991, and the court sentenced him on July 2, 1991. In the interim, on August 28, 1990, amendments to § 558.016 went into effect. These amendments allow the judge, rather than the jury, to sentence persons who are "persistent misdemeanor offenders." § 558.016.
Two elements must be present to establish an ex post facto violation: (1) the law must be retrospective, and (2) it must disadvantage Defendant. State v. Hillis, 748 S.W.2d 694, 697 (Mo.App.1988). Clearly, the amendment to § 558.016 is retrospective as to Defendant, because it was not enacted until after the crimes were committed. However, Defendant was not disadvantaged by this retrospective application.
A law will disadvantage Defendant if it: (1) declares acts to be criminal which were not criminal when committed; (2) aggravates a crime, or makes it greater than it was; (3) increases punishment of a crime; or (4) alters the rules of evidence to allow less or different testimony. Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715 2719, 111 L.Ed.2d 30 (1990); and Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). Further, "no ex post facto violation occurs if the change in the law is merely procedural and does 'not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.' " Miller, 482 U.S. at 433, 107 S.Ct. at 2452-53, quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884).
Defendant argues a change from jury sentencing to judge sentencing does increase his punishment, and further, it is not merely procedural. Defendant relies primarily on Hillis, 748 S.W.2d at 694, to support his argument. In Hillis, the legislature enacted § 558.019 after the defendant was charged but before he was tried and sentenced. Section 558.019 allows the court to sentence a defendant as a Class X offender and requires him or her to serve a minimum of eighty percent of his or her sentence before eligible for parole. § 558.019, RSMo Supp.1992. This court held § 558.019 was an ex post facto law as applied retrospectively to the defendant, because changes in parole eligibility disadvantaged him by potentially increasing his punishment. Id. at 697-98; See also, State v. Lawhorn, 762 S.W.2d 820, 824-26 (Mo. banc 1988); and State v. McCoy, 748 S.W.2d 809, 811 (Mo.App.1988).
We find Hillis distinguishable. Parole eligibility constitutes part of the punishment of the crime and minimum prison terms clearly operate as a disadvantage to the defendant by increasing his or her time in prison. Hillis, 748 S.W.2d at 697-98. The persistent misdemeanor amendment to § 558.016 does not operate as an increase in Defendant's prison term. It merely removes sentencing from the jury and gives it to the judge. The judge is still bound by the terms of imprisonment authorized in § 558.011.
In Heistand v. State, 740 S.W.2d 282, 287-88 (Mo.App.1987), the court found the retrospective application of §§ 557.036 and 558.016.2, RSMo 1986, to sentence the defendant as a prior offender was not ex post facto. The court reasoned the statutes did not increase punishment, but rather, merely allowed the judge, not the jury, to assess the punishment. Id. It was merely a procedural change. Id.; See also, State v. Griffin, 339 S.W.2d 803, 806 (Mo.1960); State v. Morton, 338 S.W.2d 858, 863[7, 8] (Mo.1960). Furthermore, our courts have repeatedly held there is no constitutional right to jury sentencing. See, State v. Cline, 808 S.W.2d 822, 826 (Mo. banc 1991); and State v. Griffin, 756 S.W.2d 475, 487 (Mo. banc 1988). Point denied.
In Point II, Defendant contends the trial court erred in denying his motion to quash the jury panel and motion for new trial when the prosecutor used one of his peremptory strikes against a black venireperson in violation of Batson v. Kentucky.
Our review of Defendant's Batson challenge is limited to finding the decision clearly erroneous. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 1868-1869, 114 L.Ed.2d 395 (1991); State v. Davis, 835 S.W.2d 525, 527 (Mo.App.1992). In making that determination, we give extreme deference to the trial court's finding because it rests largely on credibility. Hernandez, 111 S.Ct. at 1868-1869; Davis, 835 S.W.2d at 527. In addition, Defendant bears the burden of showing the decision of the trial court was clearly erroneous and the prosecutor's explanations were merely pretextual. State v. Antwine, 743 S.W.2d 51, 63-64 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).
After the prosecutor exercised his peremptory strikes, defense counsel made a timely objection to those strikes pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1985). The following colloquy was then had concerning Venireperson Marble:
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...peremptory strike based on legitimate "hunches" and past experience so long as racial discrimination is not the motive. State v. Pitts, 852 S.W.2d 405, 408 (Mo.App.1993). The prosecutor's explanation is presumed to be race-neutral unless a discriminatory intent is inherent in the explanatio......
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...whether the retrospective application of § 558.016 is ex post facto under facts similar to those presented in this case. State v. Pitts, 852 S.W.2d 405 (Mo.App.E.D.1993); State v. Miller, 851 S.W.2d 715 (Mo.App.E.D.1993). In both Pitts and Miller, the 1990 amendment of § 558.016 became effe......