State v. Reynolds

• Decision Date: 19 November 1991
• Docket Number: No. 73782,73782
• Citation: 819 S.W.2d 322
• Parties: STATE of Missouri, Respondent, v. William E. REYNOLDS, Appellant. and William E. REYNOLDS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 322

819 S.W.2d 322

STATE of Missouri, Respondent, v. William E. REYNOLDS, Appellant. and William E. REYNOLDS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 73782.

Supreme Court of Missouri,

En Banc.

Nov. 19, 1991.

Melinda K. Pendergraph, Columbia, for appellant.

William L. Webster, Atty. Gen., Barbara J. Wood, Asst. Atty. Gen., Jefferson City, for respondent.

CHARLES SHANGLER, Special Judge.

The defendant William E. Reynolds was found guilty by the jury of separate counts of burglary in the first degree [§ 569.160, RSMo 1986] and armed criminal action [§ 571.015, RSMo 1986]. The defendant was sentenced by the trial court as a class X offender to a term of thirty years imprisonment on the burglary conviction and to a concurrent sentence of ten years on the armed criminal action conviction. There is no appeal from the burglary conviction. The defendant seeks to reverse the armed criminal action count on the ground that the prosecution failed to prove the offense.

The defendant appeals also from the denial without evidentiary hearing of his post-conviction motion for relief on the ground that the failure of appointed counsel to file an amended motion was a presumptive violation of Rule 29.15(e) and entitles him to be heard on that issue. See Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991).

The appeals were to the Court of Appeals, Eastern District. The court declined review of the direct appeal of the armed criminal action conviction under the concurrent sentence doctrine. The applied doctrine treats as redundant the review of more than one count of a multiple count conviction with concurrent sentences where the conviction of one count was reviewed and found valid and the unreviewed convictions would not reduce incarceration nor have foreseeable adverse legal consequence for the appellant. W. LaFave & J. Israel, Criminal Procedure § 26.5(b) (4th ed. 1985). The resort to the doctrine to decline review is at the discretion of the appellate court. Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 2060-61, 23 L.Ed.2d 707 (1969); State v. Spicuzza, 806 S.W.2d 719, 721 (Mo.App.1991).

We ordered transfer of the case because of the general interest and importance of the validity of the concurrent sentence doctrine as a practice of criminal appellate procedure, a question that has not been definitively addressed by this Court. Rule 83.02.

THE CONCURRENT SENTENCE DOCTRINE

The concurrent sentence doctrine is an anomalous extension of a common law practice of federal criminal procedure already in discard. ¹ The doctrine was introduced into American criminal jurisprudence by the United States Supreme Court in Claassen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966 (1891). In that case the accused was convicted on several counts of an indictment but given a single general sentence. The United States Supreme Court drew upon the English common law rule derived from Lord Mansfield to hold "as settled law in this court ... that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only." Id. at 146-47, 12 S.Ct. at 170.

Then, in Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542 (1920), the United States Supreme Court applied the Claassen rationale to a conviction that involved concurrent sentences. There was no explanation why the Claassen presumption that the court imposes a general sentence on the good count only, so that review of the other counts is superfluous, applies to concurrent sentences specifically imposed on each separate count. ² Pierce suggests only that in cases where one of several counts is valid, a concurrent sentence under an invalid count "adds nothing to [the] punishment." Id. at 252-53. The concurrent sentence doctrine was again applied in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), to find it unnecessary to consider questions as to one count where the conviction was sustained on another count. The doctrine, albeit without other rationale than that an invalid count does not add to the punishment, thereafter became entrenched in the federal appellate criminal procedure. ³

It was then, in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), that the United States Supreme Court openly acknowledged that "[o]ne can search through these cases, and related ones, without finding any satisfactory explanation for the concurrent sentence doctrine." Id. at 789, 89 S.Ct. at 2059. It was "as a rule of judicial convenience," the court observed, that "[t]he concurrent sentence rule may have some continuing validity." Id. at 791, 89 S.Ct. at 2061. The court in Benton made the point that additional convictions [as distinct from the sentences they carry] " 'do in fact entail adverse collateral legal consequences.' " Id. at 790, 89 S.Ct. at 2060. Thus, the continuing validity of the concurrent sentence doctrine as a rule of judicial convenience assumed, the discretion as to its use by a court of review must be guided by the adverse collateral legal effects that the unreviewed conviction engenders. Id.

The possible collateral legal consequences of conviction that Benton mentions are the enhancement of punishment under state recidivist statutes and the use of the conviction for impeachment at a future trial. The impact on pardon and parole, attendant social stigma, loss of civil rights, ineligibility for licensing under state laws regulating professions and occupations, and other disabilities from criminal conviction are also factors that appellate courts consider to come to a principled exercise of the discretion to review under the concurrent sentence doctrine. See also, State v. Hasnan, 806 S.W.2d 54, 56 (Mo.App.1991); United States v. McKenzie, 414 F.2d 808 (3d Cir.1969); United States v. Vargas, 615 F.2d 952 (2d Cir.1980); United States v. Kirk, 723 F.2d 1379 (8th Cir.1983). A court, even under the doctrine, will not pretermit review of the additional count where the circumstances suggest that the errors alleged as to that count spilled over to prejudice the verdict in the reviewed count. United States v. Hines, 256 F.2d 561, 563 (2d Cir.1958); Chavez v. United States, 387 F.2d 937, 939 (9th Cir.1967).

The influence of the concurrent sentence doctrine in the federal courts receded after the Benton decision. The doctrine, never a conspicuous incident of appellate review in the state courts, nevertheless has come under stricter scrutiny since Benton. Missouri is numbered among those few states that resort to this device of appellate review. The others, by count, are Florida, Maryland, Washington and Wyoming. ⁴ The Eighth Circuit of the United States Court of Appeals, after a succession of opinions that approved the doctrine despite misgivings, joined the courts that, in light of the collateral adverse consequences of conviction, "have long expressed doubt of the propriety of applying the concurrent sentence doctrine in cases on direct appeal," and declined to apply the doctrine. United States v. Bass, 794 F.2d 1305, 1311 (8th Cir.1986). The significance of that evolvement is that the concurrent sentence doctrine, as a principled theory of appellate criminal review in Missouri jurisprudence, rests its validity on United States v. Moore, 555 F.2d 658, 661 (8th Cir.1977), now placed in question by Bass. See State v. Davis, 624 S.W.2d 72, 77 (Mo.App.1981).

The Ninth Circuit Court of Appeals, long a steadfast supporter of the doctrine, peremptorily rejected any further adherence. The en banc court in United States v. De Bright, 730 F.2d 1255 (9th Cir.1984), recapitulated the concurrent sentence doctrine as "only a rule of judicial convenience" whose "discretionary use is justifiable only if the unreviewed conviction has 'no adverse collateral legal consequences' for the convicted" person. Id. at 1258. The opinion remarked that the ability of a court to discover all the specific adverse consequences of a conviction before determining whether to apply the doctrine was doubtful. But even so, the exploration of the possible consequences before allowing a conviction to stand without review would be so time-consuming as to render the notion of judicial economy, the only justification for the doctrine, illusory. Thus, the prior application by the court of the doctrine was "only a determination that no collateral consequences were apparent," a method of decision that placed the risk of the court's want of prescience "on the party who will, without present or future review, suffer from the mistake." Id. The judicial time is better spent, the court concluded, by addressing the merits of all convictions on appeal. This procedure not only ensures that no person will suffer because of the inability of the court on appeal to forecast the future effects of an unreviewed conviction, but also protects the interest of society in holding a criminal to account for each conviction unless there is legal reason to set it aside. Id. at 1259.

In addition to all else, as the court noted, continued adherence to the doctrine violates the statutory right of every federal criminal defendant "to have his or her conviction reviewed." Id. Since that right of appeal is from the judgment of conviction and not from the penalty of conviction, the concurrent sentence doctrine compromises that statutory right. Id.

The concurrent sentence doctrine, although acknowledged in Missouri decisions for more than a decade as a rule of judicial discretion in the review of criminal convictions, has yet to be given authoritative definition. The doctrine was introduced to Missouri jurisprudence in State v. Morgan, 592 S.W.2d 796 (Mo. banc 1980), but by dictum. ⁵ The Court...