State v. Sumlin

• Decision Date: 17 December 1991
• Docket Number: No. 73828,73828
• Citation: 820 S.W.2d 487
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Rufus M. SUMLIN, Jr., Defendant-Appellant.
• Court: Missouri Supreme Court

Page 487

820 S.W.2d 487

STATE of Missouri, Plaintiff-Respondent, v.Rufus M. SUMLIN, Jr., Defendant-Appellant.

No. 73828.

Supreme Court of Missouri En Banc.

Dec. 17, 1991.

Scott E. Walter, Clayton, Janet M. Thompson, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Jefferson City, Ronald L. Jurgeson, Asst. Atty. Gen., Kansas City, for plaintiff-respondent.

BENTON, Judge.

Appellant, Rufus M. Sumlin, was found guilty of violating § 195.020 RSMo 1986¹ and was sentenced to concurrent terms of twenty years and five years under § 195.200(1986).A timely notice of appeal was filed.

In 1989, while the appeal was pending, the General Assembly passed S.B. 215 & 58("the Act").The Act, also known as the "Comprehensive Drug Control Act of 1989," altered significant portions of Missouri's drug laws including the provisions dealing with possession of controlled substances.The Act was approved on June 19, 1989; the relevant portion of the Act had an effective date of August 28, 1989.

Among the provisions altered by this Act were those dealing with the possession of cocaine and the maximum sentence for such possession.Despite these changes, appellant's attorney did not seek a reduction of sentence in connection with the brief filed with the court of appeals on August 15, 1989.

Appellant's conviction was affirmed by the Court of Appeals, Southern District, on December 4, 1989.Both the court of appeals and this Court denied appellant's motion for transfer.SeeState v. Sumlin, 782 S.W.2d 749(Mo.App.1989).

On March 5, 1991, appellant filed a motion to recall the mandate in the Court of Appeals, Southern District, alleging that appellate counsel was ineffective in not seeking a reduction of sentence.This motion was transferred to this Court by the court of appeals, sua sponte, after that court had filed an opinion.

Several issues have been raised by the parties to this case and by this Court.First, does this Court have jurisdiction to hear this case?Second, does § 1.160 apply to this case?Third, if § 1.160 applies to this case, was appellate counsel ineffective in failing to seek a reduction of sentence?Fourth, if § 1.160 applies to this case, what provisions of the Act constitute an amendment to §§ 195.020,195.200 (1986)?Fifth, if appellant is entitled to relief, what form should that relief take?

The opinion filed by the Court of Appeals, Southern District, denied appellant's motion.We reverse that decision and retransfer the case to the southern district with directions to sustain the motion, vacate the sentence, and remand the case to the circuit court for resentencing under the 1990statutes in accordance with this opinion.

I.Jurisdiction

This case comes before this Court after transfer from the court of appeals.Both Rule 83.02 and Article V,§ 10 of the Missouri Constitution state that the court of appeals may transfer a "pending" case to this Court after issuing an "opinion."Thus, if the motion to recall the mandate was properly before the court of appeals, there was certainly a case pending in the court of appeals for the purposes of both of these provisions.

In this case, appellant presented a claim that his appellate counsel was ineffective, through his motion to recall the mandate.This Court has held in the past that claims of ineffective assistance of appellate counsel should be presented to the appellate court in the form of a motion to recall the mandate.SeeMallett v. State, 769 S.W.2d 77, 83 n. 5(Mo. banc 1989).Therefore, as this case was properly before the court of appeals, it is properly before this Court after transfer.

II.The Applicability of § 1.160

Respondent, the State of Missouri, raises two arguments as to why § 1.160 does not apply in this case.²First, respondent argues that this case was not "pending" at the time that the Act became effective.Second, respondent argues that the Act is not an "amendatory law."

Respondent argues that, for the purposes of § 1.160, a prosecution is "pending" only until judgment is announced and a sentence imposed.In support of this argument, respondent urges this Court to overrule precedent holding that a case is "pending" until direct review has been exhausted.SeeState v. Reiley, 476 S.W.2d 473(Mo.1972);State v. Hawkins, 482 S.W.2d 477(Mo.1972).

Respondent's argument emphasizes the use of the word "assessed" in § 1.160 as a term controlling when a case is pending.This argument ignores the fact that, until a judgment becomes final, the appellate court can remand the case to the circuit court for a new trial or a new sentencing procedure at which a new penalty shall be assessed.SeeRule 30.22;Rule 30.29.

Respondent also argues that construing a case as pending while it is on appeal will result in inconsistency.Any bright-line rule will result in some circumstances that seem inconsistent or inequitable.The line drawn by respondent would allow equally arbitrary results.If the General Assembly does not like the line drawn in this case, and in Hawkins and Reiley, it can change § 1.160.Until then, the provisions of § 1.160 apply to cases pending on appeal.

In addition, respondent argues that the Act repealed §§ 195.020,195.200 (1986) rather than amending those sections.While the Act includes language of repeal, this language is not significant for the purposes of this case.The General Assembly typically repeals old provisions and enacts new provisions when it is in actuality amending the old provisions.A close look at the Act indicates it to be a comprehensive "alteration" of Missouri's drug laws that divided the many offenses previously contained in § 195.020(1986) among several different new sections.As such, the provisions of § 1.160 clearly apply to this case.

III.Ineffective Assistance of Counsel

The heart of the motion to recall the mandate is the claim of ineffective assistance of counsel.Appellant is only entitled to have this Court consider the merits of his claim to a reduced sentence if the failure to raise this claim when his appeal was originally filed constituted ineffective assistance of counsel rather than a waiver of this claim.

Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674(1984), andSanders v. State, 738 S.W.2d 856, 857(Mo. banc 1987), a movant must show that his counsel's performance was deficient and that such performance prejudiced his case.

This Court has never held that a counsel must raise every possible claim on appeal.On the other hand, failure to raise a claim that has significant merit raises an inference that counsel performed beneath professional standards.Given the short period of time between the passage of the Act and the original brief by appellant, the failure to seek a reduction of sentence with that brief might have been excusable; but there was certainly enough time before this Court denied transfer for a reasonably diligent attorney to have discovered that the Act significantly revised the provisions relating to appellant's sentence and to seek a reduction of sentence.This Court's prior decisions made it clear that § 1.160 applied in this case.As such, there is a prima facie case indicating that appellate counsel's performance was beneath "an objective standard of reasonableness."Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.

Appellant was clearly prejudiced by appellate counsel's performance.At this point in time, there is insufficient evidence on the record for this Court to conclude what appellant's appropriate sentence is.As such, the failure of appellate counsel to seek a reduction of sentence leaves this Court in doubt as to the validity of the decision on original appeal to affirm his sentence as part of the affirmance of the original judgment against appellant.

Having decided that § 1.160 applies to appellant's sentence and that the failure of appellate counsel to raise the issue constituted ineffective assistance of counsel, the question becomes which parts of the Act should control appellant's sentence.Appellant argues that § 195.202(1990) is the only part of the Act that applies to him.Appellant is entitled to be resentenced under the 1990 provisions because his conviction was not yet final when the Act was passed; but he is not entitled to be resentenced solely under the most favorable part of the Act.

The question before this Court becomes: In view of the offense that appellant committed, what provisions of the new law control sentencing for the same offense?

IV.The Dual Amendment of § 195.020.1(1986)

At the time the appellant committed the activities for which he was convicted, only one provision of the Missouri statutes prohibited possession of a controlled substance, § 195.020.1(1986).³Under it, the amount of cocaine possessed was irrelevant.⁴In 1989, the General Assembly replaced that provision with two provisions, §§ 195.202.1,195.223.2-3 (1990), which create three levels of criminal liability based on the amount of cocaine possessed.

Appellant argues that only the lowest 1990 level--which does not require proof of the amount possessed--amended the prior statute.Equally true, however, the highest level of liability under the 1990 provisions is a class A felony, which parallels the old offense, § 195.200(1986), as classified by § 557.021.3(1986).

Comparing the 1990 and the 1986 provisions is thus inconclusive.The real issue is what constitutes the relevant "offense," the triggering term in § 1.160.

While the term "offense" is used repeatedly in the Missouri Constitution and in Missouri statutes, the only definition, in § 556.061(19)(1986), is circular stating " 'offense' means any felony, misdemeanor, or infraction."On a broader level, the phrase the "same offense" anchors the double jeopardy clauses of the Missouri Constitution, Article I, § 19, and the United States Constitution, Amendment V.⁵

Under the "same conduct" test of the Supreme Court of the...