State v. Russ, 68180

• Decision Date: 20 May 1997
• Docket Number: No. 68180,68180
• Citation: 945 S.W.2d 633
• Parties: STATE of Missouri, Respondent, v. Thomas RUSS, Appellant. Thomas RUSS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 633

945 S.W.2d 633

STATE of Missouri, Respondent, v. Thomas RUSS, Appellant.

Thomas RUSS, Appellant, v. STATE of Missouri, Respondent.

No. 68180.

Missouri Court of Appeals,

Eastern District,

Division One.

May 20, 1997.

Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, C. Wayne Davis, Assistant Attorney General, Jefferson City, for respondent.

GARY M. GAERTNER, Judge.

Appellant, Thomas Russ ("defendant"), appeals the judgment of conviction entered by the Circuit Court of the City of St. Louis after a jury found him guilty of one count of rape, RSMo § 566.030, ¹ two counts of armed criminal action, RSMo § 571.015, one count of robbery in the first degree, RSMo § 569.020, and one count of felonious restraint, RSMo § 565.120. Defendant also appeals the denial of his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We affirm in part, and vacate and remand in part.

A brief summary of the procedural facts of the case will suffice for the purpose of our review. On March 22, 1994, defendant was charged by indictment with the various offenses listed above. ² The state then filed a substitute information in lieu of indictment charging defendant as a prior and persistent offender pursuant to RSMo § 558.016. ³ A jury trial was conducted from February 28 to March 2, 1995. On March 1, and continuing on March 2, outside the presence of the jury, the court held a hearing on the state's allegations of defendant's status as a prior and persistent offender. The state presented testimony from the Deputy Circuit Clerk of the Circuit Court of St. Louis City, a court file containing information as to one of defendant's alleged prior convictions, and serial records from the Missouri Department of Corrections showing defendant's periods of incarceration for various offenses. At the conclusion of the hearing, the trial court found defendant was a prior and persistent offender based on this evidence. After the jury returned verdicts of guilty on each of the five counts submitted to it, the trial court sentenced defendant, as a prior and persistent offender, to the following consecutive terms of imprisonment: Count I, life imprisonment; Count II, thirty years; Count III, thirty years; Count IV, thirty years; and Count V, fifteen years.

Defendant raises two points on appeal. He first claims the trial court erred in overruling his motion to suppress identification of defendant. We have reviewed this issue and, finding it to lack merit, affirm the trial court's decision pursuant to Rule 30.25(b).

In his second point on appeal, defendant contends the motion court clearly erred in finding that the state adduced sufficient evidence on defendant's status as a prior and persistent offender. Specifically, defendant argues the state failed to offer evidence proving defendant's alleged offenses occurred at different times, as required by RSMo § 558.016.3, or defendant was represented by counsel at the alleged prior proceedings, State v. McGreevey, 832 S.W.2d 929, 932 (Mo.App. W.D.1992).

Under RSMo § 558.021, a court shall find a defendant a prior and persistent offender if: (1) the information pleads all essential facts warranting a finding that defendant is a prior and persistent offender; (2) the state adduces evidence establishing sufficient facts pleaded to warrant a finding beyond a reasonable doubt that defendant is a prior and persistent offender; and (3) the court makes findings of fact that warrant a finding beyond a reasonable doubt that the defendant is a prior and persistent offender. Among the facts the state must prove is that defendant was represented by counsel at the proceedings on the convictions or that defendant was advised of that right and voluntarily waived it. Id.

In its substitute information, the state alleged:

Defendant is a prior offender in that he has pleaded guilty to or has been found guilty of a felony. Defendant is also a persistent offender, punishable by sentence to an extended term of imprisonment under Sections 558.016 and 557.036.4, RSMo, in that he has pleaded guilty to or has been found guilty of two or more felonies committed at different times. The felonies are as follows:

On June 27, 1979, defendant was found guilty to [sic] the felony of MURDER SECOND DEGREE in the Circuit Court of the City of St. Louis, Missouri, and

On July 24, 1979, defendant was found guilty to [sic] the felony of ROBBERY FIRST DEGREE in the Circuit Court of the City of St. Louis, Missouri.

At the hearing on the state's allegations, the state presented testimony of the Deputy Circuit Clerk of the Circuit Court of the City of St. Louis. The clerk testified as to the contents of a court file, labeled Cause No. 78-0443 and bearing the style "State of Missouri v. Thomas Russ," which included a record of conviction of defendant for one count of robbery in the first degree. The clerk's testimony included the following passage:

On July 24, 1979, State by Assistant Circuit Attorney Henry Frederick. Defendant in person and by attorney James Bell.... Verdict at 12:30 p.m.

As to Count I, robbery first degree, guilty. Punishment fixed at five years.... Sentencing set for 8/17/79.

The state then requested the court take judicial notice of the file. When the hearing continued the following day, the state presented a copy of the serial records from the Missouri Department of Corrections. This exhibit stated defendant was delivered to the Department of Corrections on September 13, 1979, on a charge of robbery in the first degree, after having been sentenced on August 17, 1979, in Cause No. 78-0443. This evidence sufficiently proved defendant had been convicted of one of the felonies necessary to find him a prior and persistent offender. See State v. Hurst, 845 S.W.2d 669, 670-71 (Mo.App. E.D.1993)(finding court's judicial notice of court files sufficient evidence of defendant's prior convictions); State v. Quinn, 717 S.W.2d 262, 265-66 (Mo.App. S.D.1986)(finding testimony of deputy circuit clerk sufficient evidence of defendant's prior convictions).

However, with respect to the second felony conviction, murder in the second degree, we believe the state failed to offer sufficient evidence from which the court could find the alleged offense occurred at a time different from the robbery offense, and further failed to offer evidence demonstrating defendant was represented by counsel in the proceeding or had waived that right.

One of the essential elements the state had to prove was that the murder offense was committed at a different time than the robbery offense. RSMo § 558.016.3. In its substitute information, the state alleged defendant was found guilty of murder in the second degree on June 24, 1979. The record contains no reference to when the murder offense occurred. ⁴ The only testimony or document--aside from the substitute information--mentioning defendant's alleged murder conviction is the serial record from the Missouri Department of Corrections. It provides defendant was sentenced on September 7, 1979, on a charge of murder in the second degree, in Cause No. 78-350. However, this exhibit provides no information concerning when the offense occurred, nor does it refer to the date the conviction was entered, either after a trial or a guilty plea. Although the state pled in its information "[o]n June 27, 1979, defendant was found guilty to [sic] the felony of MURDER SECOND DEGREE," the state's information is not evidence, but only a pleading which contains allegations to be proven. See Nash v. State, 775...