Opinion
No. WD 51078
Opinion Filed: March 3, 1998
APPEAL FROM CIRCUIT COURT OF JACKSON, MISSOURI, THE CHARLES SHANGLER, JUDGE.
Philip M. Koppe, Esq., Kansas City, MO, Attorney for Respondent.
Kent E. Gipson, Esq., Kansas City, MO, Attorney for Appellant.
Before: Smith, P.J., Stith and Lowenstein, JJ.
ON MOTION TO RECALL MANDATE
This is a motion to recall mandate filed on behalf of Edwards, who was convicted by a jury of sodomy, § 566.060.2, RSMo 1992, and sentenced by the court as a class X offender to eight years in prison. His direct appeal was affirmed in State v. Edwards , 918 S.W.2d 841 (Mo.App. 1996). He was also convicted of sexual abuse and received a two-year sentence, which was also affirmed in this court's opinion. This motion to recall mandate is directed only to the sodomy conviction portion of the mandate. This motion asks the court to recall the mandate as to sodomy and return the matter to the trial court for the sole purpose of resentencing. The facts here are similar to this court's decision on a recall of mandate motion reported in State v. Williams , 844 S.W.2d 562 (Mo.App. 1992), and the result will be the same as in Williams.
The victim testified Edwards touched her on the breast, vagina and on her panties for approximately six years. The last occurrence was in 1993 when he got on top of her. She was twelve years old at that time.
As reported in Williams , 844 S.W.2d at 563, and State v. Helmig , 924 S.W.2d 562, 566-67 (Mo.App. 1996), effective January 1, 1995, Missouri revamped its sexual crimes statutes and § 566.060.2, RSMo 1992, was repealed and a new scheme was set in place. Prior to January 1, 1995, conduct in violation of § 566.060.2 was a felony. After January 1, 1995, § 566.060.2 became, because of changes in definitions, elements, and ages of victims, either: (1) first degree statutory sodomy — a felony under § 566.062 if the person committed "deviate sexual intercourse" which included, among other things, ". . . the penetration, however slight, of the male or female sex organ . . . by a finger . . ." of a person under fourteen; or (2) second degree child molestation — a class A misdemeanor under § 566.068.1 if the person had "sexual contract" with a person who is twelve or thirteen years of age.
"Sexual contact means any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, for the purpose of arousing or gratifying sexual desire of any person." § 566.010 RSMo. 1997.
Trial commenced under the 1992 charges, on February 7, 1995, with sentencing on April 11, 1995. The change in the law was never presented until this motion to recall the mandate was filed.
Section 1.160(2) states that if the punishment or penalty for any offense is reduced by any alteration of the law creating the offense, and this is done prior to sentencing, the punishment shall be assessed according to the amendatory law. The state argues that trial counsel was derelict and any error in sentencing went out the window when the amendments were not brought up. In State v. Helmig , 924 S.W.2d 562, 566-68 (Mo.App. 1996), under similar facts and after the changes in chapter 566, the court said if the conduct of the defendant which gave rise to the original charge is now in a new or amended statute, then the plain language of § 1.160(2) entitles the defendant to relief, regardless of the reclassification of the crime.
The state says we can assume a penetration of the finger, so that a cause would have been made under the new statutory sodomy section, § 566.062. This cannot be so. It would appear that the only crime the state proved, under the statute with which the defendant was charged, is the class A misdemeanor under § 566.068.
The failure of appellate counsel to raise the issue of Edwards' entitlement to the benefit of the reduced punishment constituted ineffectiveness of counsel. The mandate, by which the sodomy sentence was affirmed, is vacated as to punishment and sentencing. State v. Sumlin , 820 S.W.2d 487, 490 (Mo. banc 1991). The cause is remanded for resentencing.
All Concur.