State v. Pliemling

• Decision Date: 04 May 2022
• Docket Number: SD 36831
• Parties: STATE of Missouri, Respondent, v. Angela M. PLIEMLING, Appellant.
• Court: Missouri Court of Appeals

645 S.W.3d 86

STATE of Missouri, Respondent,

v.Angela M. PLIEMLING, Appellant.

No. SD 36831

Missouri Court of Appeals, Southern District, Division One.

Filed: May 4, 2022

Appellant's attorney: Samuel Buffaloe, Columbia, MO.

Respondent's attorneys: Eric S. Schmitt, Attorney General, Amber L. Krisp, Assistant Attorney General, Evan Buchheim, Assistant Attorney General, and Sarah Ernst, Assistant Attorney General, Jefferson City, MO.

JACK A. L. GOODMAN, J.

Angela Pliemling appeals her felony conviction for unlawful receipt of public assistance benefits. She asserts the state did not meet its burden to present evidence from which a reasonable jury could conclude she knowingly received benefits to which she was not legally entitled. We are required to decide this appeal on a different ground. Because the trial court committed an evident, obvious and clear error resulting in a manifest injustice to Pliemling, we reverse and remand for further proceedings consistent with this opinion.

Background¹

In 2014, Pliemling pleaded guilty to felony possession of a controlled substance. The same year, a jury found her guilty of a separate felony and she pleaded guilty to a third felony. Pliemling was placed on probation with the sentences in two of her three cases to run concurrently.

In December of 2016, while Pliemling remained on probation for her felony drug offense, an application for public assistance bearing Pliemling's name, personal identifying information, and residential address was submitted to the Missouri Department of Social Services ("DSS"). A box was checked "No" next to the question, "Have you or any member of your household been convicted in a federal or state court of a felony committed after 8-22-96 related to illegal possession, use, or distribution of a controlled substance?" Subsequent applications in 2017 and 2018 bore the same identifying information and negative answer to the question about drug convictions. The signatures on all three applications were similar and appeared similar to Pliemling's signature in court records.

An account was opened and an electronic benefits transfer ("EBT") card was issued in Pliemling's name. Pliemling used the EBT card many times at different businesses. Between October of 2017 and July of 2018, Pliemling received and used some $2,270 in state assistance via the EBT card.

In May of 2018, a DSS investigator discovered Pliemling's undisclosed felony drug conviction. On November 6, 2018, the state filed an information alleging Pliemling, a prior offender, had violated § 578.377, a class D felony, in that on or about December 6, 2016, she knowingly received more than $500 in public assistance to which she was not legally entitled.

An amended information filed almost a year later contained the same allegations except the dates were amended to "on or about or between December 6, 2016 and June 12, 2018." A second amended information, filed on the day of the November 2019 jury trial, contained the same substantive allegations as the amended information along with averments of her two prior, non-drug-related felonies and an assertion that Pliemling was a prior offender and a persistent offender.

Pliemling presented no evidence and elected not to testify at trial. Her attorney conceded Pliemling had received more than $500 in public assistance but argued the applications for assistance were not sufficient to show Pliemling knew she was not legally entitled to benefits. The state submitted, without objection, a non-MAI verdict director patterned from MAI-CR 3^rd 304.02. That document directed the jury to find Pliemling guilty if they believed the following beyond a reasonable doubt:

First, that on or about or between December 6, 2016 and June 12, 2018, ... [Pliemling] received public assistance benefits, and

Second, that at that time, [Pliemling] knew she was not entitled to receive such benefits because [she] had been previously convicted of a felony, ... and

Third, that the amount of benefits exceeded five hundred dollars[.]

The jury found Pliemling guilty. Because Pliemling had been found to be a persistent offender, the authorized range of punishment was enhanced from that of a D felony to that of a C felony. Section 558.016.7 RSMo. (2016). Pliemling was sentenced to seven years in the department of corrections. Over the state's objection, execution of the sentence was suspended, she was placed on supervised probation, and she was ordered to pay the full amount of restitution within two months.

Discussion

One of the first steps we take when reviewing a challenge that a judgment is not supported by sufficient evidence is to look at the elements the state was required to prove. Pliemling was charged with a violation of § 578.377 RSMo. (Cum. Supp. 2013), a statute that had been repealed and replaced with § 570.400 RSMo. (2016) as part of the comprehensive reform of Missouri's Criminal Code. The General Assembly approved Senate Bill 491 in 2014 with an effective date of January 1, 2017. 2014 Mo. Laws 941, 1253. In briefing to this court, Pliemling's appellate counsel only referenced § 578.377, as if no repeal had occurred, while the state referenced § 578.377 as the "prior citation" of § 570.400, as if the statute had only been renumbered.

Because this issue was not raised below, review, if any, would be under Missouri Supreme Court Rule 30.20 (2020) for plain error affecting substantial rights. State v. Brandolese , 601 S.W.3d 519, 525-26, 530 (Mo. banc 2020). Plain error review is at the discretion of the appellate court. Id. at 526. Even in the absence of a request, we may exercise our discretion to engage in plain error review sua sponte. State v. Snyder , 592 S.W.3d 375, 379 n.4 (Mo. App. 2019) ; State v. Ingalsbe , 557 S.W.3d 515, 520 (Mo. App. 2018). Plain error review is the exception rather than the rule, and sua sponte plain error review is even rarer still. Because this is an unusual situation, we directed the parties to file supplemental briefing after oral argument.

Section 578.377 Was Repealed and Replaced, Not Transferred or Renumbered

"[T]he language of a given enactment exclusively is the province of the General Assembly (with the Governor's approval or inaction), but where that language is codified in the revised statutes and the structure in which that language will be published is the province of the Joint Committee on Legislative Research ... and the Revisor of Statutes acting under the Committee's supervision." State v. Wade , 421 S.W.3d 429, 441 (Mo. banc 2013) (Wilson, J., concurring). With the authority granted by § 3.060 RSMo. (2000), the committee may renumber, rearrange, transfer, divide, or combine sections, but it cannot alter the sense, meaning, or effect of any legislative act. A renumbering or transfer of a statute in such a manner is a matter of organization and convenience to the reader, not a substantive change. In contrast, an "express repeal" is "the abrogation or annulling of a previously existing law by the enactment of a subsequent statute, which ... declares that the former law shall be revoked and abrogated". City of St. Louis v. Kellman , 235 Mo. 687, 139 S.W. 443, 445 (Mo. banc 1911). Repeal of a statute and replacement is a legislative act that terminates the existence of the prior statute. Humane Soc'y of United States v. State , 405 S.W.3d 532, 536, 538 (Mo. banc 2013). Because the General Assembly expressly repealed § 578.377 and enacted § 570.400 "in lieu thereof," what occurred was a legislative abrogation of § 578.377 RSMo. (Cum. Supp. 2013) and replacement with § 570.400 RSMo. (2016), not a mere transfer or renumbering of the prior statute.

Although § 578.377 RSMo. (Cum. Supp. 2013) had been repealed before the date the state first charged Pliemling (November 6, 2018), prosecution under that statute was not barred for acts alleged to have been committed on or before December 31, 2016. Section 1.160 RSMo. (2016) provides, "No offense committed ... previous to or at the time when any statutory provision is repealed or amended[ ] shall be affected by the repeal or amendment ...." This statute preserves, among other things, "liability for offenses committed previous to or at the time a statutory provision is repealed or amended[.]" Mitchell v. Phillips , 596 S.W.3d 120, 125 (Mo. banc 2020). "The purpose of section 1.160 and other general savings statutes is to dispense ‘with the necessity of inserting a saving clause in any repealing statute.’ " Id. (quoting State v. Mathews , 14 Mo. 133, 136 (Mo. 1851) ). Therefore, the state could have elected to charge Pliemling under § 578.377 RSMo. (Cum. Supp. 2013) for acts that would have constituted unlawful receipt of public benefits prior to January 1, 2017, and/or charge her under § 570.400 RSMo. (2016) for such acts committed on or after that date. The sticky wicket here is that the state's second amended information alleged, in one count, acts spanning dates before and after January 1, 2017.

We must give every word, sentence, and section of a statute meaning, and we must construe changes to statutes " ‘on the theory that the legislature intended to accomplish a substantive change in the law.’ " State v. Knox , 604 S.W.3d 316, 322 (Mo. banc 2020) (quoting Sermchief v. Gonzales , 660 S.W.2d 683, 689 (Mo. banc 1983) ). Although both statutes criminalize similar conduct, it is plain to see that the legislature intended to change the law substantively when it repealed § 578.377 RSMo. (Cum. Supp. 2013) and enacted § 570.400 RSMo. (2016) in lieu thereof. Under § 578.377 RSMo. (Cum. Supp. 2013), unlawful receipt of public assistance benefits was a class D felony unless the value of the benefits was less than $500, in which case it was a class A misdemeanor. Under § 570.400 RSMo. (2016), unlawful receipt of public assistance benefits is a class A misdemeanor unless the amount is $750 or more, or it is the person's second such offense, in which case it is a class E felony. Third and subsequent offenses...