State v. Severe
| Citation | 307 SW 3d 640 |
| Decision Date | 12 January 2010 |
| Docket Number | No. SC 89948.,SC 89948. |
| Parties | STATE of Missouri, Respondent, v. Vanessa J. SEVERE, Appellant. |
| Court | United States State Supreme Court of Missouri |
Nancy A. McKerrow, Office of the Public Defender, Columbia, MO, for appellant.
Chris Koster, Attorney General, Richard A. Starnes, Asst. Attorney General, Jefferson City, MO, for respondent.
Vanessa Severe was charged with driving while intoxicated (DWI) and, because of two prior offenses, she was charged as a persistent offender. The persistent offender statute—which raises the offense from a misdemeanor to a class D felony— requires the state to present evidence to the trial court of her prior convictions and findings of guilt before the case is tried to a jury. The state submitted two prior alcohol-related offenses—a class B misdemeanor DWI conviction and a municipal DWI guilty plea that resulted in a suspended imposition of sentence. Upon the jury's verdict of guilt in this case, the trial court sentenced Severe as a persistent offender to three years in prison.
While the appeal of her conviction was pending, this Court decided Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), which held that a municipal DWI plea that resulted in a suspended imposition of sentence could not be used to enhance the offense to a class D felony.
Severe is guilty of DWI, and there is no cause for a new trial. But Turner requires that Severe's felony conviction be reversed and that, as in Turner, the case be remanded for re-sentencing. The question presented here is whether, on remand of Severe's conviction to the trial court, the state may offer evidence of other alcohol-related offenses that were not presented before the original trial.1
Because of the timing requirement of the statute—which requires the trial court to determine persistent offender status before the case is submitted to the jury— there is no opportunity for the state to have a twice-bitten apple.
The judgment is reversed, and the case is remanded.
Vanessa Severe and Steve Gabriel were driving in Gentry County when their car flipped into a ditch in January 2007. Passersby who helped get Severe and Gabriel out of the car reported that they smelled beer and saw beer cans in the car. Severe admitted that she was driving. At the hospital, Trooper Jason Cross noticed that Severe had a strong odor of alcohol, that her eyes were bloodshot and that her speech was slurred. He performed several field sobriety tests on which she performed poorly. Severe agreed to take a breath test but gave a sample too small to make a measurement.
Severe was charged by amended information as a persistent DWI offender with one count of DWI. Before submitting the case to the jury, the trial court found Severe to be a prior and persistent DWI offender based on the state's submission of two prior alcohol related-convictions.
The first prior conviction was a Missouri municipal violation from 1999 in which Severe pleaded guilty to DWI and received a suspended imposition of sentence. The second was a Gentry County charge of the class B misdemeanor of driving while intoxicated to which Severe pleaded guilty and received a $350 fine plus the payment of all court costs. Severe presented no evidence, and the jury returned a verdict finding her guilty of DWI. She was sentenced as a persistent DWI offender to three years imprisonment. Severe appeals.
While her appeal was pending, this Court decided Turner v. State, 245 S.W.3d 826, in which this Court held that a prior municipal DWI conviction that resulted in a suspended imposition of sentence could not be used to enhance a conviction for driving while intoxicated.
After opinion in the court of appeals, this Court granted transfer and has jurisdiction. Mo. Const. art. V. sec. 10.
Any issue that was not preserved can only be reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted from the trial court error. State v. McLaughlin, 265 S.W.3d 257, 262 (Mo. banc 2008). Rule 30.20 provides that the appellate courts can conduct plain error review of sentences. Being sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice. State v. Kimes, 234 S.W.3d 584, 590 (Mo.App.2007).
Severe was charged as a persistent offender pursuant to section 577.0232 to a class D felony.3 A persistent offender is "a person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses." Section 577.023.1(4)(a). With a finding that Severe has only one prior offense, she cannot be found guilty of being a persistent offender, but she could be found guilty and sentenced for being a prior offender, a class A misdemeanor pursuant to section 577.023.2.4
The state argues that under controlling law at the time of Severe's trial, it presented sufficient evidence to support the finding that Severe was a persistent offender. While Severe's case was pending on appeal, this Court decided Turner v. State, which the state argues changed the law. In Turner the defendant was found in the trial court to be a persistent offender where one of the two prior intoxication-related offenses used to prove his status as a persistent offender was a prior municipal offense that resulted in a suspended imposition of sentence (SIS). Turner, 245 S.W.3d at 826-27. Turner argued there were two conflicting provisions within section 577.023 that addressed the use of prior municipal SIS dispositions for enhancement purposes. Id. at 827. Turner argued section 577.023.1 and 2(a) permitted the use while section 577.023.145 disallowed the use. Id. This Court determined that the sections were ambiguous and, therefore, applied the rule of lenity to interpret the statute in Turner's favor. Id. at 828. The Court held that prior municipal offenses resulting in a suspended imposition of sentence could not be used to enhance punishment as a prior or persistent offender under section 577.023. Id. at 829.
In Turner, this Court made no new law; it merely clarified the language of an existing statute. At the time of Severe's trial, section 577.023.1(4)(a) defined a "persistent offender" as someone who "pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses." "Intoxication-related traffic offenses" were defined in section 577.023.1(3) as follows:
An "intoxication-related traffic offense" is driving while intoxicated ... or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the defendant was represented by or waived the right to an attorney in writing.
Yet, section 577.023.16 stated:
A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.
(Emphasis added).
Under section 577.023.16, a plea of guilty followed by a suspended imposition of sentence in state court could be treated as a prior conviction, but the statute did not say that a plea of guilty followed by a suspended imposition of sentence in a municipal court could be treated as a prior conviction.6 Though sections 577.023.1(3) and 577.023.16 may have been contradictory, the state was on notice that, under section 577.023.16, Severe's guilty plea and suspended imposition of sentence in municipal court was not to be treated as a prior conviction. Therefore, if the state had evidence of an additional conviction that would have been treated as a prior conviction under the statute, the state should have offered it to the court before the case was submitted to the jury.
According to the state, at the time of Severe's trial, the state was following the law as interpreted in State v. Meggs, 950 S.W.2d 608 (Mo.App.1997). Although in Meggs, the court of appeals interpreted section 577.023 differently than this Court did in Turner,7 the "clear words of the statute govern interpretation." State of Missouri v. Stewart, 832 S.W.2d 911, 913 (Mo. banc 1992). In Stewart, the defendant was charged as a persistent offender based on evidence of his two prior pleas to DWI felonies. The defendant argued that the state had not presented sufficient evidence under the plain language of the statute, while the state argued that it tracked the law as stated in MACH-CR 31.02 and the Notes on Use 4.d.ii (1985 Rev.). Id. at 913-914. This Court concluded that the language of the statute established that evidence must be produced that showed a total of three offenses for a charge of persistent offender and that the state only proved that the defendant was a prior offender.8 Id. at 914. This Court further stated: "To the extent that the recommended charge and accompanying Notes are contrary to this opinion, they shall no longer be followed." Id. It is also important to note that this Court affirmed the defendant's conviction as a prior offender and did not give the state an opportunity to present additional evidence on remand.
When presenting evidence against a defendant charged with a crime, the language of the statute is of paramount importance. Here, Turner created no new law. The state was on notice by the plain language of section 577.023.16 that a guilty plea followed by a suspended imposition of sentence in "municipal court" was not to be treated as a prior conviction. The state had the opportunity to prove that Severe was a persistent offender under the statute but did not.
The state relies on State v. Cobb, 875 S.W.2d 533 (Mo. banc 1994), for the proposition that it is permissible to present additional evidence on remand for resentencing. In Cobb, the defendant was...
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