State v. Repp, 62081.

• Citation: 603 S.W.2d 569
• Decision Date: 18 August 1980
• Docket Number: No. 62081.,62081.
• Parties: STATE of Missouri, Respondent, v. William REPP, Appellant.
• Court: Missouri Supreme Court

603 S.W.2d 569

STATE of Missouri, Respondent, v. William REPP, Appellant.

No. 62081.

Supreme Court of Missouri, En Banc.

August 18, 1980.

Ronald E. Pedigo, Public Defender, Farmington, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

William Repp, with two prior convictions of issuing no account checks in violation of § 561.450, RSMo 1969, was charged as a second offender under § 556.280, RSMo 1969 with six counts of issuing no account checks. He was convicted by a jury on all six counts and the court fixed his punishment at five years' imprisonment on each count. Judgment was rendered accordingly with the sentences to run consecutively.

The court of appeals affirmed the judgment. This Court transferred the appeal to review whether it was plain error for the trial court to have admitted, without objection, certain hearsay evidence, and whether the punishment imposed is cruel and unusual. Affirmed.

Between March 25 and April 2, 1978, the six no account checks in issue were passed at the Town and Country Supermarket in Farmington, Missouri. The checks were placed in evidence and four employees of Town and Country identified defendant as the person who passed them. An employee of the bank upon which the checks were drawn established that they were drawn against an account that had been closed before they were passed. Town and Country's manager stated that value was given for the checks. August Nilges, a handwriting expert, gave his opinion that defendant's signature appeared on each of the checks.

Sufficiency of evidence to support conviction is not questioned and the foregoing demonstrates evidence from which a jury reasonably could find defendant guilty as charged.

During the testimony of Mr. Nilges, the State introduced the written report of William H. Storer, the expert whom defendant had commissioned on his own behalf. Mr. Storer was not called as a witness. Defendant made no objection to the admission of this report, which, in agreement with the opinion of the State's expert, was an opinion that defendant signed the checks. Through the remainder of trial, the State made a number of references to Mr. Storer's report.

In recognition of failure to preserve a charge of error, appellant charges plain error to the admission into evidence of the handwriting analysis report of Mr. Storer. In his effort to invoke the plain error rule, he argues that the report was hearsay and that with its author unavailable to him for cross-examination, he was denied his right to confront such witness.

Rule 29.12(b) provides:

Plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

In this case, Mr. Storer was defendant's expert. His report was evidence of defendant's signature on the six checks. That defendant signed the checks was otherwise proved by testimony of the supermarket employees and the State's handwriting expert. Mr. Storer's report was thus cumulative of a matter otherwise proved in the State's case. In these circumstances, had the report been excluded as hearsay, there would still be a sufficiency of evidence, particularly in proof of the agency of the defendant. Thus, this Court does not find, in the admission of Mr. Storer's report "manifest injustice or miscarriage of justice" necessary to relief under Rule 29.12(b). Compare State v. Sockel, 490 S.W.2d 336 (Mo.App.1973) where evidence erroneously admitted was the only evidence in support of the verdict, conviction was reversed under the plain error rule.

Again conceding failure to preserve his charge, appellant contends that the punishment imposed amounts to cruel and unusual punishment in violation of the 8th Amendment to the United States Constitution.

Appellant admits that the punishment as to each offense falls within the limits prescribed by the Legislature; and he does not contend that the statute setting out the limits of punishment is invalid.

Section 561.450, RSMo 1969 provides that upon conviction of issuing a no account check, a defendant shall "be punished by imprisonment by the department of corrections for a term not exceeding seven years * * *."

A punishment within statutory limits cannot as a matter of law be held cruel and unusual when the statute authorizing the punishment is not invalid, State v. Grimm, 461 S.W.2d 746, 754 (Mo.1971); when punishment imposed is within the range prescribed by statute, it cannot be judged excessive by the appellate court, State v. Crider, 419 S.W.2d 13, 15 (Mo.1967); and where defendant is convicted of separate offenses and the sentences imposed are within statutory limits, consecutive effect of the sentences does not constitute cruel and unusual punishment, State v. Neal, 514 S.W.2d 544, 549 (Mo.1974). See State v. Williams, 603 S.W.2d 562 (Mo. banc 1980); See also Rummell v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) holding that mandatory life sentences imposed under Texas recidivist statute following defendant's third felony conviction for obtaining $120.75 by false pretenses does not constitute cruel and unusual punishment.

Accordingly, the judgment is affirmed.

DONNELLY, RENDLEN, WELLIVER and MORGAN, JJ., concur.

BARDGETT, C. J., concurs in part and dissents in part in separate opinion filed.

SEILER, J., dissents in separate dissenting opinion filed.

BARDGETT, Chief Justice, concurring in part and dissenting in part.

I concur in that portion of the opinion which affirms the judgment of conviction.

I dissent from that portion of the opinion which affirms the sentence in this case of five years imprisonment on each of six courts to run consecutively for a total of thirty years imprisonment for the offenses of issuing six no account checks. The range of punishment for the violation of § 561.450, RSMo 1969, is that on conviction the defendant "be punished by imprisonment by the department of corrections for a term not exceeding seven years or by confinement in the county jail for not more than one year or by a fine of not more than one thousand dollars or by both such confinement and fine." The jury found the defendant guilty of six counts of issuing no account checks. Because he was tried under the second-offender act, the judge assessed the punishment and sentenced the defendant.

A portion of the dissent written by Robert G. Dowd, P. J., of the Missouri Court of Appeals, Eastern District in this case addressed the sentencing issue, and much of which follows is taken from his dissent without use of quotation marks.

Serious doubts arise about the integrity of the sentence imposed by the trial court in its decision to require the defendant to serve all six five-year terms consecutively without any reference to the circumstances surrounding the making of the different checks. See Woolsey v. United States, 478 F.2d 139, 143-44 (8th Cir. 1973). Generally, imposition of a sentence which is within statutory limits is not subject to review except for a manifest abuse of discretion by the trial court. United States v. Hetherington, 279 F.2d 792, 796 (7th Cir. 1960). The trial court may exercise its broad discretion when sentencing within the statutory limits. However, this discretion may not be unbridled and still maintain the integrity necessary to the sentencing process. Cf. McGee v. United States, 465 F.2d 357, 358 (2d Cir. 1972). The court in McGee indicated that where the defendant is charged and sentenced on more than one count, the sentence imposed for each count must have "independent integrity". Id. at 358. In part, it is in the trial court's apparently automatic assessment of five years imprisonment for each count in the instant case, regardless of the circumstances peculiar to each count, that I believe there is a lack of independent integrity in the sentencing procedure. There is nothing in the record to indicate that the trial court did more than simply multiply the punishment it deemed appropriate for one offense by the number of counts against the defendant and then ordered them served consecutively. The result of the consecutive sentence order is a punishment imposed far in excess of that normally assessed for this type of nonviolent crime.¹

Contained in the file that came to this Court from the Missouri Court of Appeals, Eastern District at the time the cause was transferred, is the State of Missouri Board of Probation and Parole Investigation Report (presentence investigation report) on the appellant. It reflects that appellant has a history of writing no account and insufficient funds checks primarily in the area where he lives, and, as noted in the principal opinion, had previously been convicted of writing no account checks and had been sentenced to two terms of four years each to run concurrently. The six checks upon which he was convicted in the instant case were all written to "Town and Country Supermarket" in Farmington, Missouri, between March 25, and April 2, 1978, totalling $360. If given the maximum of seven years on each charge and if made to run consecutively, the total maximum sentence would be forty-two years, which was the prosecutor's recommendation. The presentence investigation report recommended a total sentence of twenty-one or twenty-eight years. As noted supra, the court then proceeded to sentence the defendant to five years on each of the convictions and made the sentences consecutive so as to impose a total of thirty years in the penitentiary. The court stated that it took into consideration the fact that the crimes were nonviolent, but noted that merchants lose large sums of money due to no account or insufficient funds checks.

In Missouri multiple sentences are to be served concurrently with each other unless the sentencing court expressly orders them to be served consecutively or cumulatively. Anthony v. Kaiser, 350 Mo. 748, ...