Vickers v. State

• Decision Date: 25 May 2000
• Citation: 17 S.W.3d 632
• Parties: (Mo.App. S.D. 2000) Brandon Vickers, Movant-Appellant v. State of Missouri, Respondent-Respondent 23035 0
• Court: Missouri Court of Appeals

17 S.W.3d 632 (Mo.App. S.D. 2000)

Brandon Vickers, Movant-Appellant v. State of Missouri, Respondent-Respondent

23035

Missouri Court of Appeals Southern District

05/25/2000

Appeal From: Circuit Court of Jasper County, Hon. George C. Baldridge, Senior Judge

Counsel for Appellant: Kent Denzel

Counsel for Respondent: Susan K. Glass

Opinion Summary: None

Montgomery, P.J., and Barney, J., concur.

James K. Prewitt, Judge

Movant-Appellant appeals from the denial of his Rule 24.035 motion, in which he sought vacation of his conviction of stealing, including the sentence received therefor.

On March 4, 1996, Appellant received a 20-year sentence, pursuant to his plea of guilty to a class C felony of stealing and upon certification by the trial court of Appellant's status as a prior and persistent offender (statutes 558.016 and 557.036.4, RSMo 1994).¹

The trial court had earlier made a finding that he was a prior and persistent offender, in that he had been adjudged guilty of forgery on July 23, 1994, and of property damage on November 28, 1994. On appeal from the denial of his initial Rule 24.035 motion, Appellant challenged his sentencing as a prior and persistent offender, contending that the prior convictions on which the trial court based its finding included a non-existent forgery conviction (which should have been a felony stealing conviction). This District agreed that Appellant had been erroneously sentenced and ruled that the motion court erred in denying Appellant's Rule 24.035 motion. Appellant's sentence was vacated and the cause remanded for resentencing with directions that the State be allowed to amend the information and submit evidence to support Appellant's repeat offender status. See Vickers v. State, 956 S.W.2d 405 (Mo.App. 1997), cert. denied, 119 S.Ct. 909 (1999).

On remand, the amended information alleged previous convictions of property damage and stealing, and the State presented certified copies (amended and filed August 21, 1996) of the judgments as proof of Appellant's prior convictions. On January 28, 1998, Appellant received an enhanced sentence of twenty years' imprisonment on the felony charge of stealing.²

Appellant filed a pro se motion pursuant to Rule 24.035, which was subsequently amended by appointed counsel, who also requested a change of judge. In his motion, Appellant contended that his twenty-year sentence was disproportionate to the crime and that the maximum sentence was imposed in retaliation for him asserting his right to a jury trial. On September 25, 1998, the trial court overruled Appellant's motion for change of judge. An evidentiary hearing was held on February 8, 1999, before the Honorable George C. Baldridge, the judge who presided over Appellant's plea hearing, sentencing and prior postconviction hearing. Appellant was not present but was allowed to present testimony via deposition taken November 17, 1998. In an attempt to elicit an explanation for the maximum sentencing, counsel endorsed Judge Baldridge as a witness for Appellant. The judge, at the request of Appellant's counsel, testified.

On May 4, 1999, the court issued its findings, conclusions and judgment, denying all relief requested by Appellant. This appeal followed. Appellant presents three points relied on.

For his first point, Appellant asserts that the trial court erred in denying his motion "because the sentencing court punished him in retaliation for exercising his right to a jury trial." In the findings of fact and conclusions of law, the court found:

Movant claims that evidence of bias exists. He points to the fact that his co-defendant received a five-year sentence, while he received a twenty-year sentence. This fact is irrelevant. Movant received a twenty-year sentence because he rejected the State's initial plea offers and chose to proceed to trial.

The sentence imposed is thus no fault of the Court.

The trial court cannot use the sentencing process to punish a defendant for exercising his right to proceed to trial. State v. Lindsey, 996 S.W.2d 577, 580 (Mo.App.

1999). Any enchancement of a defendant's sentence based on this fact would improperly punish a defendant for exercising his or her right to a full and fair trial to a jury. State v. Wright, 998 S.W.2d 78, 84 (Mo.App. 1999). Whether a defendant exercises his or her constitutional right to trial by jury to determine one's guilt or innocence must have no bearing on the sentence, and the court may not use the sentencing process to punish a defendant, guilt notwithstanding, for exercising his or her right to receive full and fair trial. State v. Vaughn, 940 S.W.2d 26, 29 (Mo.App. 1997).

Appellant relies on Thurston v. State, 791 S.W.2d 893 (Mo.App. 1990), where the Eastern District found that the sentencing judge admitted to a consistent practice over twelve years of imposing the maximum possible sentence for all prior offenders who refused to plead guilty and insisted on going to trial, and that "movant's fate, if found guilty by the jury, was fixed at the maximum allowable punishment from the very moment movant refused to plead guilty." Id. at 897.

Thurston explains that no consideration of other factors, such as the nature of the crime, defendant's background, nor any further case-by-case or defendant-by-defendant evaluation was involved in the sentencing judge's imposition of the maximum allowable sentence, and that such automatic sentencing of "the maximum allowable sentence without any consideration of the varying circumstances of the crimes committed or the background and character of the different defendants [Id. at 897-98]" does not fulfill the affirmative duty imposed upon a trial judge under Section 557.036.1, RSMo.

"A practice which discourages the Fifth Amendment right not to plead guilty, which deters the Sixth Amendment right to demand a jury trial and which chills the assertion of these constitutional rights by penalizing those who choose to exercise them is patently unconstitutional." Id. at 896, citing United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138, 147 (1968). "Enhancement of punishment based solely upon a defendant's refusal to plead guilty and to exercise his right to have his guilt proven beyond a reasonable doubt has been universally condemned." Thurston, at 896.

In State v. Wright, supra, on which Appellant also relies, the Western District ruled that the trial court's imposition of consecutive sentences violated defendant's constitutional right to proceed to trial, in that the trial court "specifically stated on the record that [its] decision to order consecutive sentences was influenced by Defendant's decision to go to trial and so to 'require' the victims to testify." Id. at 84. Acknowledging a departure from its decision in State v. Lindsey, supra, the Western District distinguished its ruling in Wright, citing to the comments made by the court at sentencing which indicated that a longer sentence was imposed based, in part, on the defendant's decision to go to trial.

Respondent cites State v. Vaughn, supra, wherein a maximum allowable sentence of ten years for a DWI conviction as a repeat offender was the issue of the appeal, as appellant contended the trial court may have been influenced by the State's request to punish appellant "for exercising his constitutional right to a jury trial." Vaughn, 940 S.W.2d at 28. There, the Southern District found there was no indication that appellant's decision to go to trial was a factor in the trial court's imposition of the sentence ("In fact, the trial judge...