Thornton v. Denney
| Decision Date | 17 March 2015 |
| Docket Number | WD 77276 |
| Citation | 467 S.W.3d 292 |
| Parties | In re: Frederick W. Thornton, III, Petitioner, v. Larry Denney, Warden, Respondent. |
| Court | Missouri Court of Appeals |
Sean D. O'Brien, Kansas City, MO for petitioner
Andrew T. Bailey and Stephen D. Hawke, Jefferson City, MO for respondent
Before Writ Division: Alok Ahuja, C.J., and Joseph M. Ellis and Thomas H. Newton, JJ.
Frederick W. Thornton III pleaded guilty in October 2007 to driving while intoxicated (or “DWI”). The circuit court found Thornton to be a persistent offender because he had two prior convictions for driving while intoxicated. By finding that Thornton was a “persistent offender” with two prior DWI convictions, rather than a “prior offender” with one previous conviction, the circuit court enhanced Thornton's current offense from a Class A misdemeanor to a Class D felony. Thornton was given a sentence which exceeded the statutory punishment for a Class A misdemeanor. Thornton filed a petition for writ of habeas corpus, arguing that, as a result of the Missouri Supreme Court's decision in Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), one of the convictions on which the circuit court relied to find him to be a persistent offender could not be used for enhancement purposes. We agree, and conclude that under Turner, Thornton could be classified only as a prior, rather than a persistent, offender. We accordingly grant Thornton's petition for writ of habeas corpus, vacate his 2007 conviction of a felony offense, and order that the record of Thornton's 2007 conviction be amended to reflect a conviction of Class A misdemeanor driving while intoxicated.
On October 2007, Thornton pleaded guilty in the Circuit Court of DeKalb County in Case No. 07K4–CR00429 to the charge of driving while intoxicated under § 577.010,1 based on an incident which occurred on August 19, 2007. The State charged Thornton as a persistent offender, based on the fact that he had been convicted of driving while intoxicated on two prior occasions. Thornton's status as a persistent offender had the effect of enhancing the charge from a misdemeanor to a Class D felony. See § 577.023. The court sentenced Thornton to four years' imprisonment. Following Thornton's completion of an institutional treatment program, the court entered a 120–Day Order of Probation in February 2008, which suspended the execution of the balance of Thornton's sentence, and placed him on probation for five years.
On November 21, 2011, the court revoked Thornton's probation for the 2007 offense and executed his sentence, following his guilty plea to charges stemming from a January 28, 2011 accident in which another driver was killed. The court ordered that the sentences imposed in connection with the 2011 accident be served consecutively to Thornton's 2007 sentence.2
On January 14, 2013, Thornton petitioned the DeKalb County Circuit Court for habeas corpus relief with respect to his 2007 conviction, arguing that he did not qualify as a persistent offender under the Missouri Supreme Court's decision in Turner, because he had only one prior conviction that would qualify for enhancement. In response, the State argued that Thornton's failure to file a timely post-conviction relief motion under Supreme Court Rule 24.035 barred him from seeking habeas relief. The circuit court denied Thornton's petition.
Thornton then filed a Petition for Writ of Habeas Corpus with this Court. We issued an order to show cause, and thereafter received briefing and heard oral argument.3
“ ‘Habeas corpus is the last judicial inquiry into the validity of a criminal conviction and serves as “a bulwark against convictions that violate fundamental fairness.” ’ ” State ex rel. Taylor v. Steele, 341 S.W.3d 634, 639 (Mo. banc 2011) (quoting Amrine v. Roper, 102 S.W.3d 541, 545 (Mo. banc 2003) (in turn quoting Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) )). In determining whether or not to grant habeas relief, we are “limited to determining the facial validity of confinement, which is based on the record of the proceeding that resulted in the confinement.” State ex rel. Zinna v. Steele, 301 S.W.3d 510, 513 (Mo. banc 2010), quoting State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001).
In 2007, the circuit court found Thornton to be a persistent offender based, in part, on his guilty plea on August 22, 2000 to driving while intoxicated in the Cameron Municipal Division of the Circuit Court of Clinton County.4 It is undisputed that Thornton received a suspended imposition of sentence (or “SIS”) in the 2000 case.
On March 4, 2008, the Missouri Supreme Court decided Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), which held that “the use of prior municipal offenses resulting in an SIS cannot be used to enhance punishment under section 577.023.” Id. at 829.
The State does not dispute that, if Turner is applicable to Thornton's 2007 conviction, there was no basis to find Thornton to be a persistent offender, and he should not have been convicted of a Class D felony. The State argues, however, that Thornton is not entitled to habeas corpus relief for two reasons: first, because he should have raised the Turner issue in a motion for post-conviction relief under Supreme Court Rule 24.035, which was required to be filed no later than May 2008; and second, because Turner should not be applied “retroactively” to Thornton's 2007 conviction, which is now final. We reject both of the State's arguments.
Thornton could have raised his current claim in a motion for post-conviction relief under Rule 24.035. Turner was decided before the time for Thornton to file a post-conviction relief motion expired, and he therefore could have relied on that decision in a timely Rule 24.035 motion. We must first decide whether Thornton may raise his claim in this habeas corpus proceeding, despite his failure to raise it earlier in a timely-filed post-conviction relief motion.
Normally, a petitioner's failure to raise a claim in a direct appeal or in a post-conviction relief motion bars the petitioner from subsequently raising the claim in a petition for writ of habeas corpus. State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516 (Mo. banc 2010).
A defendant who fails to raise a challenge to his conviction on direct appeal or in a timely post-conviction proceeding is said to have procedurally defaulted on those claims. Procedurally defaulted claims cannot be raised in a petition for writ of habeas corpus unless: (1) the claim relates to a jurisdictional issue; or (2) the petitioner establishes a showing by the preponderance of the evidence of actual innocence, that would meet the manifest injustice standard for habeas relief under Missouri law, (a “gateway of innocence claim”); or (3) the petitioner establishes cause for failing to raise the claim in a timely manner and prejudice from the constitutional error asserted, (a “gateway cause and prejudice claim”).
Ferguson v. Dormire, 413 S.W.3d 40, 52–53 (Mo.App.W.D.2013) (citations and internal quotation marks omitted).
“Cases in which a person received a sentence greater than that permitted by law traditionally have been analyzed under the [‘jurisdictional defect’] exception[ ].” Zinna, 301 S.W.3d at 517. Following the decision in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), it is a misnomer to describe such unauthorized sentences as involving a “jurisdictional defect.” Zinna, 301 S.W.3d at 517. Zinna emphasized, however, that “[w]hatever label is applied, ... it is settled that the imposition of a sentence beyond that permitted by the applicable statute or rule may be raised by way of a writ of habeas corpus.” Id. ; see also State ex rel. Koster v. Jackson, 301 S.W.3d 586, 590 (Mo.App.W.D.2010) ().
We recently suggested that, because the unauthorized sentences subject to review in habeas corpus proceedings do not implicate the subject-matter jurisdiction of the sentencing court, such unauthorized sentences are more properly referred to as “sentencing defects,” rather than “jurisdictional defects.” Branch v. Cassady, No. WD77788, ––– S.W.3d ––––, –––– n. 2, 2015 WL 160718, at *2 n.2 (Mo.App.W.D. Jan. 13, 2015). We use that terminology here.
In State ex rel. Koster v. Jackson we held that the exact same claim raised by Thornton in this case—that he did not qualify as a “persistent offender” in light of Turner —was a “sentencing defect” claim which could properly be raised in a habeas corpus proceeding, despite the petitioner's failure to raise the claim in a motion for post-conviction relief:
In this case, Mitchell [ (the habeas petitioner) ] was sentenced as a persistent offender, supported, in part, by a guilty plea to a municipal charge of driving while intoxicated for which Mitchell received a suspended imposition of sentence. Following the interpretation of Section 577.023 provided in Turner, which held that a prior municipal offense resulting in a suspended imposition of sentence could not be used to enhance punishment, the State failed to demonstrate Mitchell was a persistent offender. Thus, the sentencing court exceeded its authority in sentencing Mitchell to five years of imprisonment as a persistent offender because the factual predicate necessary to place Mitchell in this enhanced statutory range of punishment was lacking.
The State argues that Jackson is distinguishable, because Turner was decided after the time had expired for the habeas petiti...
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...properly understood statute that was in effect at the time of his conviction, relying on this court's holding in Thornton v. Denney , 467 S.W.3d 292, 298-99 (Mo. App. W.D. 2015).2 On April 6, 2017, the habeas court granted Vaughn a writ of habeas corpus which vacated Vaughn's conviction and......
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