State v. Thornton, WD33387

• Decision Date: 15 March 1983
• Docket Number: No. WD33387,WD33387
• Citation: 651 S.W.2d 164
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Calvin R. THORNTON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 164

651 S.W.2d 164

STATE of Missouri, Plaintiff-Respondent, v. Calvin R. THORNTON, Defendant-Appellant.

No. WD33387.

Missouri Court of Appeals,

Western District.

March 15, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 3, 1983.

James W. Fletcher, Public Defender, Kansas City, Gary L. Gardner, Asst. Public Defender, Michael D. Rudloff, Certified Law Student, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, William K. Haas, Asst. Atty. Gen., for plaintiff-respondent.

Before SHANGLER, P.J., and PRITCHARD and DIXON, JJ.

DIXON, Judge.

Defendant was convicted by a jury of second degree burglary, a class C felony. § 569.170 RSMo 1978. Defendant maintains on appeal that his sentence could not have been extended under the persistent offender statutes and that the trial court erred in ordering defendant to submit to a second fingerprinting the morning of the day of trial.

Defendant was found guilty by a jury of the second degree burglary of a beauty shop. Police arrested defendant inside the shop. He testified that he entered the shop through a window in the back of the building. Defendant does not challenge the sufficiency of the evidence to support the jury's verdict. The jury assessed punishment at two years, which the court extended an additional year on its finding that defendant was a persistent offender.

The contention that defendant's sentence could not have been extended under the persistent offender statutes must be prefaced by recognition of that point's posture on this appeal. Defendant's attorney made no objection at the sentencing hearing that would even foreshadow the ingenious argument raised in defendant's appellate brief. Nor does it appear in defendant's motion for new trial. The defendant asserts that it is plain error. The Attorney General's brief is of no help on either the issue of the availability of plain error review, nor on the substantive issue presented. The state's brief does not even mention, let alone discuss, the authorities cited by the defendant's brief. Since the defendant's argument attacks the validity of the sentence and raises a novel issue with respect to the trial court's power to enhance the sentence, the matter will be reviewed upon defendant's request for plain error review. Rule 29.12(b).

Trial was held on September 9-10, 1981. At that time §§ 557.036, 558.016, and § 558.021 RSMo 1978 were in effect. Trial was conducted and defendant was sentenced in accordance with the statutes in effect at time of trial. By the time the sentencing hearing was held on November 5, 1981, all three statutes had been amended. 1981 Mo.Laws 636-37. The amended statutes change the procedure under which an extended sentence can be imposed on a persistent offender. If a jury trial is requested, the state must plead and establish and the judge must find that the defendant is a persistent offender before the case is submitted to the jury. § 558.021.2 RSMo Cum.Supp.1981. Under § 558.021.1(2) RSMo 1978, the prior statute, the comparable sentencing hearing was held after the finding or plea of guilty. Pursuant to the amended law, § 557.036.5 RSMo Cum.Supp.1981, the jury plays no role, not even an advisory one, in passing sentence on an adjudged persistent offender. Under the law in effect at the time the defendant's trial commenced, § 557.036 RSMo 1978, now repealed, the jury assessed punishment subject to the court's authority to increase the sentence in accordance with § 558.016 RSMo 1978, now repealed.

Defendant argues that the trial court was required to sentence him under the statutes in effect at the time of his sentencing hearing rather than those in effect at the time of his trial. He contends that § 1.160 RSMo 1978 compels this conclusion. Section 1.160 provides generally that repeal or amendment of a penal law has no effect on pending or commenced prosecutions except that "all such proceedings" are to be conducted according to "existing laws." Since amended § 558.021 is a procedural statute, the argument runs, the court was required to conduct the sentencing hearing in accordance with it. Because it would have been impossible for the trial judge to make the persistent offender determination before trial, as no statute existed that would have empowered the court to do so, and because the statute under which defendant's sentence was extended had been repealed by the time the sentencing hearing was held, defendant argues that the court lacked authority to tack the additional year onto the jury's sentence.

The defendant contends that State ex rel. Peach v. Bloom, 576 S.W.2d 744 (Mo. banc 1979), supports his argument. There the defendant had committed the crime for which he was tried before the effective date of the "new" criminal code, but trial was held after that date. Defendant argued that he could not be tried under the "old" Second Offender Act due to the dictate of § 1.160. The court agreed that the procedural Second Offender Act would not control a case tried after that Act had been superceded, absent the legislature's specific provision for such a case in § 556.031 RSMo 1978. Id. at 746. The Peach court answered the defendant's contention by asserting that § 556.031 expressly overrides § 1.160 and provides that offenses committed prior to the effective date of the code are to be construed and punished according to pre-code law. The defendant also cites earlier cases which held that repealed sentencing procedures were not to be utilized when "trial" occurred after the repeal but the offense predated the repeal. State v. Morton, 338 S.W.2d 858 (Mo.1960), and State v. Griffin, 339 S.W.2d 803 (Mo.1960). These cited cases do not reach the issue in the instant case where the trial is commenced prior to the effective date of the repeal but is not concluded until after the repeal is effective.

Thus, the nub of defendant's argument is that § 1.160 RSMo 1978, the "savings clause," does not preserve the provisions of § 558.021.1(2) RSMo 1978 providing for the sentencing hearing after trial.

The defendant's argument, however ingenious, overlooks the basic legislative purpose in the enactment of § 1.160 RSMo 1978. The purpose of the statute was to permit the prosecution and punishment of offenses which occurred during the life of a penal statute but were not prosecuted until after the repeal of the statute. In Ex Parte Wilson, 330 Mo. 230, 48 S.W.2d 919 (banc 1932), an early decision under predecessor savings clause statutes (§§ 661, 662, and 4468 RSMo 1929), a defendant was jury convicted and sentenced in January 1931 for a violation involving the acceptance of a deposit in a bank while the bank was insolvent. For a variety of reasons judgment on the jury-imposed sentence of three years was delayed until November 1931. During the interim the statute upon which the charge was predicated was repealed. The defendant argued that since not only the offense but the punishment portion of the statute had been repealed, the legislature had "reduced" the punishment to no punishment. The defendant argued that the provision of § 4468 RSMo 1929, which accorded defendant the benefit of a statutory reduction in sentence, denied the trial court jurisdiction to impose a sentence of any kind. The judgment of conviction for three years in accord with the jury verdict was affirmed. The rationale of the court in Wilson was that application of the savings statutes as suggested by defendant would negate the essential legislative purpose of preserving the power of the state to prosecute offenses occurring prior to the repeal of a statute.

The underlying rationale of the statute is that all defendants are to be treated alike and their guilt or innocence is to be dealt with in the same fashion whether they are tried before or after repeal of the statute. Nonetheless, an exception is recognized where the repeal reduces the punishment. In those instances, a trial after the legislative reduction in sentence allows defendants the benefit of the reduced sentence. See § 1.160(2) RSMo 1978.

The statute also makes exception for the situation where the procedure in affixing the punishment has been changed. Reasoning from the language of § 1.160(1) RSMo 1978, the courts have utilized the new procedures in trials commenced after the effective date of the new procedure.

Despite these settled rules, the vexing problem of the instant case remains unsolved. When, as in the instant case, the trial straddles the repeal date of procedures involved in the entire trial, can those repealed procedures be given effect after the date of repeal?

The answer would be much easier but for revision of the savings statutes. In prior versions of the savings statutes, §§ 1.160, 1.170, and 1.180 RSMo 1978, all three sections referred to both criminal and civil cases. The Session Laws of 1957 amended § 1.180 RSMo 1978 by omitting reference to criminal cases. 1957 Mo.Laws 592. The Revisor's note says that this was done because § 1.180 was duplicative of § 1.160. See § 1.180 VAMS 1969 (Revisor's Note). The importance of this is that in § 1.180 the application of procedural laws is stated as follows: "[A]ll proceedings had after the repeal becomes effective are governed by procedural rules and laws then in effect, insofar as they are applicable." Section 1.160, on the other hand, says: "... except (1) that all such proceedings shall be conducted according to existing laws; ...." The language of § 1.180 is broader in requiring conformity to existing procedures only "insofar as applicable." If that language still applied to criminal cases, the dilemma of the instant case would be easily resolved. It would be manifestly impractical to apply the procedures of present § 558.021.2 RSMo Cum.Supp.1981 to the situation where the jury had already considered and passed upon the punishment. There was no practical way for the trial court to apply the amended procedures to the instant case so...