Opinion
Nos. 66652, 68760
OPINION FILED: January 7, 1997
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, HONORABLE ANNA C. FORDER
Defendant appeals the judgment and sentence entered upon his conviction for robbery in the second degree, § 569.030 RSMo 1994, as well as the judgment denying his Rule 29.15 motion for post-conviction relief. We affirm the judgment and sentence as well as the denial of relief pursuant to Rule 29.15 but transfer the direct appeal to the Missouri Supreme Court to resolve a conflict among the districts of this court with regard to the following recurring issue of general interest and importance:
In sentencing a defendant previously found to be a prior, prior and persistent, persistent or Class X offender, must the trial court repeat the finding as part of its oral pronouncement of sentence?
The sufficiency of the evidence to support the conviction is not in dispute. Using threats and intimidation, Defendant and an accomplice forced the victim and her children out of her car, stole her rings, and left the scene in victim's vehicle. One week later Defendant was apprehended driving the vehicle. Victim identified Defendant in a photo spread and in a live line-up prior to trial and again in person at the trial.
On the second day of trial, the State filed an amended information charging Defendant with four specified prior felony convictions and alleged that Defendant was a prior offender under §§ 558.016 and 557.036.4 RSMo 1992 Supp., had a prior conviction under § 558.019 RSMo 1992 Supp., was a persistent offender as defined in §§ 558.016, 557.036.4 and 558.019 RSMo 1992 Supp., and that Defendant had three or more prior felony convictions as defined in § 558.019 RSMo 1992 Supp.
At the close of the State's case, the prosecuting attorney introduced certified records from the Circuit Court of St. Louis County and the trial court found that Defendant had a previous conviction for unlawful use of a weapon, a felony, on September 7, 1990 and that he was a prior offender.
On the fourth day of trial, the case was submitted to the jury, which found Defendant guilty of robbery in the second degree. Thereafter, at Defendant's sentencing hearing, the State presented additional evidence of Defendant's prior convictions and imprisonment and the trial court found him to be a "Class X" offender as defined in § 558.019 RSMo 1992 Supp.
Section 558.019 has since been amended and no longer uses the "Class X" designation. See § 558.019 RSMo 1994. The parties agree, however, that the provision applicable to this case was the prior version, § 558.019 RSMo 1992 Supp. which provided:
558.019. Minimum prison terms for certain repeat offenders — definitions. — 1. This section shall not be construed to affect the powers of the governor under article IV, section 7, of the Missouri Constitution. This statute shall not affect those provisions of section 195.200, 565.020, 558.018 or 571.015, RSMo, which set minimum terms of sentences, or the provisions of section 217.775, RSMo, relating to probation.
2. The provisions of this section shall be applicable only to class A and B felonies committed under the following Missouri laws: chapters 195, 491, 565, 566, 567, 568, 569, 570, 571, 573, 575, RSMo. Other provisions of the law to the contrary notwithstanding, any defendant who has pleaded guilty to or has been found guilty of a felony and served time of imprisonment of not less than one hundred twenty days in the department of corrections and human resources, or in a penal institution in another state which is equivalent to the department of corrections and human resources, or a federal prison, the calculation of which shall include any jail time credit and has been committed to the department of corrections and human resources as a prior offender, persistent offender, or class X offender shall be required to serve the following minimum prison terms:
(1) If the defendant is a prior offender, the minimum prison term which the defendant must serve shall be forty percent of his sentence;
(2) If the defendant is a persistent offender, the minimum prison term which the defendant must serve shall be sixty percent of his sentence;
(3) If the defendant is a class X offender, the minimum prison term which the defendant must serve shall be eighty percent of his sentence.
3. If the defendant is not a prior offender, persistent offender, or class X offender and has pleaded guilty to or has been found guilty of a felony and sentenced to life imprisonment, the minimum prison term which the defendant must serve shall be fifteen years.
4. For the purpose of determining the minimum prison term to be served, the following calculators and definitions shall apply:
(1) A "prior offender" is one who has previously pleaded guilty to or has been found guilty of one felony;
(2) A "persistent offender" is one who has previously pleaded guilty to or has been found guilty of two felonies committed at different times.
(3) A "class X offender" is one who has previously pleaded guilty to or has been found guilty of three felonies committed at different times;
(4) A sentence of life shall be calculated to be fifty years;
(5) Any sentence either alone or in the aggregate with other consecutive sentences for crimes committed at or near the same time which is over seventy-five years shall be calculated to be seventy-five years.
5. Prior pleas of guilty and prior findings of guilty shall be pled and proven in the same manner as required by the provisions of section 558.021. The final judgment and sentence of anyone found to be a prior offender, a persistent offender, or a class X offender shall reflect such finding.
6. If a period of twenty-five years or more has passed between a prior plea of guilty, finding of guilty, or any type of release from the department of corrections and human resources, whichever is later, and the present felony and accompanying commitment to the department, then the defendant shall not be classified as a prior offender for purposes of this section.
7. For purposes of this section, the term "minimum prison term" shall mean time required to be served by the defendant before he is eligible for probation, parole, conditional release or other early release by the department of corrections and human resources.
The trial court then asked counsel for Defendant and the State if they knew of any legal reason why the sentence and judgment of the court should not be pronounced. Counsel for Defendant stated that he did not. The prosecutor stated he had no legal reason but went on to point out to the court that in addition to the prior felonies pled and proven to show that Defendant was a chronic and Class X offender, he had several additional felony convictions, some involving weapons.
The trial court then asked if the State had a recommendation and the State recommended the maximum, subject to the discretion of the court. The court then inquired as to the range of punishment, which the prosecutor stated was five to thirty years imprisonment as a Class X offender. The court then sentenced Defendant to twenty years with the Department of Corrections.
Defendant's counsel then took issue with one of the additional convictions related by the prosecutor in making his recommendation and the prosecutor agreed that one of the prior convictions had been reduced from Robbery First Degree to Stealing from a Person. Following this concession, Defendant's counsel began to argue facts in mitigation of punishment. After being admonished by the trial court that he had been offered the opportunity to do so earlier, counsel said he hadn't understood that was the court's intent at that time. The trial court then permitted counsel for Defendant to argue for a lesser sentence. Among the arguments advanced was the following:
. . . Gary is approaching 40 years old and proven as a Class X offender. He will do 80% minimum. The Board of Probation and Parole cannot consider him for parole before he has served 80% of his term, which means the State's recommendation was 12 years and I would ask the Court not punish him for going to trial on this matter. If he were sentenced to the State's recommendation of 12 years at this time, he would be required to serve a minimum of 80% or approximately 9 or 10 years, leaving him around 50 years old when he gets out, and out of the penitentiary, and at that time if he is charged as a Class X offender, cannot release him before that time. I think for the matters before the Court and jury, releasing him at that age would be the right thing to do.
This was not one of the prior convictions found to support Defendant's Class X status and had no effect on that determination.
As indicated earlier, the State's recommendation at sentencing was 30 years, not 12 years. Although the record is not entirely clear on this point, counsel was apparently referring to what the State was willing to recommend if Defendant pleaded guilty. This would explain the reference to punishing Defendant for going to trial.
After some additional discussion by both counsel, the court stated:
The Court then will sentence Mr. Gary Richie to 15 years with the Missouri Department of Corrections. Now I'm sentencing you to 15 years because I think you do not understand that what you did makes most women in the City of St. Louis feel imprisoned and not free to even get out of their cars to be on the streets because of what you have done to this young woman. And I'm not unaware that women in the City are afraid because of men like you, and you put us in prison. Now, you are going to spend time there as a result of putting us all in prison for all our lives.
Later that same day, the trial court entered its sentence and judgment, a combination of handwritten entries on a preprinted form:
SENTENCE AND JUDGMENT
The Court finds beyond a reasonable doubt that the Defendant is a:
Underlining indicates handwritten portions of the Sentence and Judgment.
[X] Persistent offender
[ ] Dangerous offender
[ ] Prior drug offender
and
[X] Defendant is a Class X offender also subject to a minimum prison term pursuant to § 558.019 RSMo., having previously served 120 days in a penal institution as defined in § 558.019.2
The Court further finds beyond a reasonable doubt that as a basis for such determination the Defendant has previously been convicted of the following:Stealing over $150 1983 Unlawful use of a weapon 1990 Uttering a forged instrument 1991
The Defendant is therefore subject to an extended term of imprisonment under § 558.016 RSMo. and/or § 558.019 RSMo. and/or § 195.200 RSMo.
Now on this 5th day of August, 1994, comes Mark Hagemeister, Attorney for the State of Missouri, and Defendant in person and by Will Goldstein, Attorney for Defendant, in open court.
COUNT I
Whereupon, said Defendant is informed by this Court that he has heretofore on the 30th day of June, 1994,
[X] Been found guilty by the Jury
[ ] Pleaded guilty
to the offense of (charge and degree) 2nd Degree Robbery and being now asked by the Court if he has any legal cause to show why Sentence and Judgment should not be pronounced against him according to the law, and still failing to show such cause, it is therefore the Sentence, Order and Judgment of this Court that Defendant Gary Richie, having been found guilty, as aforesaid, be and is hereby ordered committed to the Missouri Department of Corrections for a period of Fifteen (15) years, said sentence to be served (concurrently/consecutively) to the sentence imposed in (offense, cause number, court and date of conviction)
Defendant has been advised of his/her rights under Rule 29.15 and the Court has found no probable cause to believe that Defendant has received ineffective assistance of counsel.
Defendant shall receive credit for jail time prior to transfer to the Department of Corrections.Probation is denied.
It is further ordered and adjudged by this Court that the $5.00 Crime Victim Compensation Fee be assessed against the Defendant payable to the Circuit Clerk, and that execution issued thereon.
[X] It is further ordered and adjudged by this Court that court costs be taxed against Defendant and execution issued thereon.
[X] It is further ordered and adjudged by this Court that the State of Missouri have and recover of the Defendant the sum of $68.00 for Crime Victim Compensation.
SO ORDERED:
AC Forder_____________________
Honorable Circuit Judge 24129
Dated: 8/5/94
In his first point, Defendant claims the trial court erred in entering its written judgment and sentence that Defendant was sentenced as a Class X offender subject to limitations on parole eligibility under § 558.019 RSMo 1992 Supp. because the written judgment and sentence as a Class X offender differed from the formal, oral rendition of Defendant's sentence in open court when the court sentenced Defendant to fifteen years without stating that the sentence was as a Class X offender. In the argument following this point, Defendant concedes that it is doubtful that the court intended to sentence Defendant to fifteen years as a non-Class X offender but claims that, even if the court's intent was to sentence Defendant as a Class X offender, the court did not use the correct language to do so when it orally pronounced the sentence. According to Defendant, the court was required to state orally that it was sentencing Defendant to fifteen years as a Class X offender. Omission of the underlined words, says Defendant, means Defendant was not, in fact, orally sentenced as a Class X offender, regardless of what may have been the court's intent, and thus constitutes a material discrepancy between the sentence as orally pronounced and the written sentence.
Although it is not dispositive, we reject the suggestion that the record in any way supports the conclusion that the court did not intend to sentence Defendant as a Class X offender. The sentence was pronounced immediately following the finding of Class X status. Defendant's counsel's argument for leniency was expressly predicated on the fact that Defendant would be required to serve a minimum of 80% of the sentence imposed. Had the court accepted counsel's argument for leniency, counsel acknowledged "he would be required to serve a minimum of 80% or approximately 9 or 10 years." If Defendant is correct as to the necessity of orally qualifying the term imposed by the status in which it is to be served, however, Defendant would have been required to serve a minimum of only 3 years of the 15 year sentence imposed. § 558.011.4 RSMo Supp. 1992. This is because the court also failed to utter the qualifiers "as a prior offender" or "as a persistent offender." On this record, to ascribe such an intent to the trial court would be illogical and absurd. In our view, there is no doubt that the trial court intended to sentence Defendant as a Class X offender. The only issues are whether the trial court properly did so and, if not, the appropriate remedy.
Before turning to the merits of Defendant's contentions with regard to the manner in which oral sentencing of a Class X offender must be conducted, it is also appropriate to observe that Defendant's contention that there is a discrepancy between the oral pronouncement of sentence and the written sentence is squarely refuted by the written SENTENCE AND JUDGMENT set forth verbatim above. The written SENTENCE AND JUDGMENT corresponds precisely with what transpired orally at the hearing. It sets forth the relevant findings as to Defendant's status as a prior, persistent and Class X offender and then commits Defendant to the Department of Corrections "for a period of Fifteen (15) years," not "for a period of Fifteen (15) years as a Class X offender" as Defendant claims must occur in orally pronouncing the sentence. There is no discrepancy between the oral and written sentence, yet Defendant complains on appeal only of the omission of the qualifying phrase "as a Class X offender" from the oral pronouncement. Nevertheless, we will proceed to consider whether there is any requirement to add such a qualifying phrase, either in the oral or written sentence.
The procedure for making findings that a defendant is a Class X offender pursuant to § 558.019 RSMo. 1992 Supp. were set forth in § 558.019.5, supra n. 1, and § 558.021 RSMo 1992 Supp., which was incorporated by § 558.019.5. Section 558.021 RSMo 1992 Supp. provided:
558.021. Extended term procedures. — 1. The court shall find the defendant to be a prior offender, persistent offender, or dangerous offender, if
(1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender, persistent offender, or dangerous offender; and
(2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a prior offender, persistent offender, or dangerous offender; and
(3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender, persistent offender, or dangerous offender.
2. In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of their hearing, except the facts required by subdivision (1) of subsection 4 of section 558.016 may be established and found at a later time, but prior to sentencing, and may be established by judicial notice of prior testimony before the jury.
3. In a trial without a jury or upon a plea of guilty, the court may defer the proof and findings of such facts to a later time, but prior to sentencing. The facts required by subdivision (1) of subsection 4 of section 558.016 may be established by judicial notice of prior testimony or the plea of guilty.
4. The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence at such hearings.
5. The defendant may waive proof of the facts alleged.
6. Nothing in this section shall prevent the use of presentence investigations or commitments under sections 557.026 and 557.031, RSMo.
7. At the sentencing hearing both the state and the defendant shall be permitted to present additional information bearing on the issue of sentence.
On its face, § 558.021 makes no requirement that any of the findings required for enhancing punishment pursuant to § 558.016 RSMo 1992 Supp., or establishing the minimum term of imprisonment pursuant to § 558.019 be repeated in the oral pronouncement of sentence. Indeed, § 558.021 explicitly distinguishes between the terms "finding" and "sentence." Sections 558.021.2 and 3 expressly require that findings occur "prior to sentencing." Thus, it would require an extraordinarily strained construction to find that the Legislature considered the findings to be part of the sentence. Section 558.019.5,supra n. 1, does contain a requirement that a finding that the defendant is a prior, persistent or Class X offender be reflected in "the final judgment and sentence," but as shown by the SENTENCE AND JUDGMENT set forth verbatim above, that requirement was satisfied in this case. See State v. White, 646 S.W.2d 804, 809 (Mo.App. 1982) (Final judgment and sentence occurs upon written entry of record). A requirement that a finding be reflected in the final judgment and sentence does not, in our view, make it part of the sentence or even a qualification of the sentence.
Nor does the mere fact that the finding of the court may, by operation of law, affect the minimum time defendant will be required to serve thereby render it a part of the sentence. For example, as amended § 558.019.3 RSMo 1994 provides that a defendant convicted of certain dangerous felonies defined in another statute shall be required to serve a minimum prison term of "eighty five percent of the sentence imposed by the court." Thus, the minimum term, which applies by operation of law and not the discretion of the court, is not part of the sentence. Indeed, under the amended version of § 558.019, the minimum term the defendant must serve is determined by reference to the number of times the defendant has been remanded to the Department of Corrections for a felony offense, not by any finding of the court. § 558.019 RSMo 1994.
Defendant's cases do not compel a contrary result. Defendant relies on Johnson v. State, No. 20298 (Mo.App.S.D., April 5, 1996), a Southern District case which has since been transferred to the Missouri Supreme Court, as Johnson v. State, No. 78953 (argued November 19, 1996). Johnson thus can no longer be deemed precedential and was, in any event, distinguishable because it involved an alleged variance between findings that defendant was a prior and persistent offender, a subsequent written plea agreement that made no mention of the defendant's prior and persistent status, and the court's oral pronouncement of sentence, which mentioned only the plea agreement.
The other two cases relied upon by Defendant, McCaine v. State, 891 S.W.2d 419 (Mo.App. 1994), and Jones v. State, 910 S.W.2d 300 (Mo.App. 1995) likewise involved plea agreements. In McCaine, prior to the guilty plea hearing, the court found that the defendant was a Class X offender. McCaine, 891 S.W.2d at 419-20. The court then held a hearing as to the voluntariness of the defendant's plea, found it to be voluntary, and accepted the plea.Id. at 420. The court then sentenced the defendant to a term of years with no mention of Class X status. Id. The subsequent written sentence and judgment, however, reflected that defendant was "sentenced" as a Class X offender pursuant to § 558.019. Id. We reversed and remanded with directions to correct the written sentence and judgment to conform to the oral pronouncement of sentence by removing any reference to "sentencing" defendant as a Class X offender. Id. at 421.
Although our review of orders in other cases suggests that the written sentence and judgment are unlikely to have been materially different from the one entered in this case, the precise terms of the written sentence and judgment were not set forth in the opinion.
In Jones, the defendant specifically entered her plea as a persistent offender and was found by the court to be a persistent offender immediately prior to oral pronouncement of a sentence of seven years. Jones, 910 S.W.2d at 302. The written sentence and judgment "designated" the defendant as a persistent offender pursuant to § 558.016. Id. Relying on McCaine and State v. Johnson, 864 S.W.2d 449 (Mo.App. 1993), the court held that this was a material discrepancy between the oral pronouncement of sentence and the written sentence and judgment. Id. at 303. The cause was remanded for resentencing in accordance with defendant's plea agreement and testimony at the plea hearing.Id. See also Jones v. State, 926 S.W.2d 184 (Mo.App. 1996).
McCaine and Jones are distinguishable because acceptance of a plea after making repeat offender findings and prior to sentencing necessarily produces ambiguity when nothing further is said about repeat offender status until entry of the written judgment. The question necessarily arises whether the plea agreement contemplated any finding of repeat offender status or whether the lack of such a finding formed part of the consideration for the plea. No such ambiguity is present here. Nevertheless, we acknowledge that both McCaine and Jones assume, contrary to the reasoning set forth above, that a finding of prior, persistent Class X offender status is part of the sentence. Neither case explains the reasons for this assumption. It is not a conclusion compelled by either the logic or language of the cases cited in eitherMcCaine or Jones.
For example, Jones cites only McCaine andState v. Johnson, 864 S.W.2d 449 (Mo.App. 1993) (hereinafter "J. Johnson"), a Western District case in which the sentence orally pronounced made no mention of whether sentences were to be consecutive or concurrent. J. Johnson, 864 S.W.2d at 451. The subsequent written judgment made them consecutive. Id. Unlike the determination of prior, persistent or Class X offender status, however, Rule 29.09 specifically requires that the court state "when pronouncing sentence" whether sentences are to be served consecutively or concurrently with prior sentences. If the court fails to do so "at the time of pronouncing the sentences" the respective sentences shall run concurrently. Rule 29.09. Thus, J. Johnson is not authority for the proposition that finding of prior, persistent or Class X offender status must be part of the oral pronouncement of sentence.
A number of the cases in this area coincidentally involve defendants with a surname of Johnson. To avoid confusion, we will differentiate them by using the defendant's first initial.
McCaine similarly relies on J. Johnson for the proposition that the written sentence should reflect the oral pronouncement of sentence. McCaine, 891 S.W.2d at 420. Again, this does not establish that findings of offender status are part of the sentence. As noted above, J. Johnson involved a failure to state in the oral pronouncement of sentence whether the sentences were to be consecutive or concurrent. A statement of whether sentences are to be consecutive or concurrent is required to be included in the oral pronouncement of sentence by Rule 29.09. There is no comparable provision for findings of offender status and, as discussed above, the statute expressly provides that the findings are to be made "prior to sentencing."
McCaine also cites Plant v. State, 608 S.W.2d 91, 92 (Mo.App. 1980) and a different State v. Johnson, 861 S.W.2d 807 (Mo.App. 1993) (hereinafter "B. Johnson"), for the proposition that the formal pronouncement of sentence is the controlling portion of the transcript. Although this may generally be so with respect to matters that the law requires to be part of the sentence, neither Plant nor B. Johnson establish that findings as to offender status must be repeated as part of the oral pronouncement of sentence.Plant involved a contention that there was a discrepancy between the oral and written sentences as to whether the sentence was to be consecutive or concurrent. 608 S.W.2d at 91. The court found no discrepancy. Id. at 92.B. Johnson involved a situation in which the trial court attempted to amend its written sentence by a nunc pro tunc order to provide that the defendant was sentenced to 15 years "without probation or parole as mandated by 195.291 RSMo." 861 S.W.2d at 809. Section 195.291 provides for service of a prison term "without probation or parole" if the defendant is found to be a "prior and persistent drug offender." The trial court, however, made no finding prior to sentencing that the defendant was a prior and persistentdrug offender, only that the defendant was a prior and persistent offender. Id. The initial written judgment likewise made no mention of § 195.291. Id. It provided that the defendant was sentenced to 15 years "without probation or parole under 558.011.1." Id. Section 558.011.1 did not contain any reference to punishment "without probation or parole." We corrected the judgment to delete any reference to "without probation or parole." Id. at 809-10. Although some language in the opinion states that the rendition of the judgment controls over the ministerial act of entering it on the record, B. Johnson is not authority for the proposition that findings of prior and persistent offender status must be orally restated as a qualification of the term imposed during sentencing. The problems in B. Johnson were that there was no prior finding that the defendant was a prior and persistent drug offender as required by § 195.291, no mention of that statute in the oral or written sentence as originally entered, and no jurisdiction to amend the judgment by a nunc pro tunc order. Id.
Although it is not dispositive here, we note that the doctrine that the oral pronouncement of sentence is controlling, repeated as a sort of mantra in many of the cases discussed herein, may be somewhat overstated. Indeed, the authority for this doctrine cited in Plant, United States v. Raftis, 427 F.2d 1145, 1146 (8th Cir. 1970), in turn cites as its principal authority Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936) which appears to say precisely the opposite. Hill involved a commitment order which provided that, in addition to the term imposed, the defendant was to remain incarcerated until he paid the additional fine imposed. The condition that the defendant was to remain incarcerated until the fine was paid was not mentioned when the sentence was orally pronounced or in the written judgment entered in the records of the court. Clarifying the issue presented on appeal, Justice Cardozo observed:
Two of the questions certified to us, the first and the third, make mention of a variance between the commitment and the sentence "orally pronounced." If that were the only variance, we should deem it unimportant. The only sentence known to the law is the sentence or judgment entered upon the records of the court. If the entry is inaccurate, there is a remedy to correct it. But the judgment imports verity when collaterally assailed. Until corrected in a direct proceeding, it says what it was meant to say, and this by an irrebuttable presumption. In any collateral inquiry, a court will close its ears to a suggestion that the sentence entered in the minutes is anything other than the authentic expression of the sentence of the judge.
Hill, 298 U.S. at 464. (citations omitted). Although the court was addressing collateral, not direct, attacks on criminal judgments, this language in no way supports the view that the formal, oral pronouncement is, in all instances, controlling. The better view is that it is the intent of the sentencing judge that is controlling, which may properly be determined by reference to the entire record. United States v. Purcell, 715 F.2d 561 (11th Cir. 1983); see also Aga v. United States, 312 F.2d 637 (8th Cir. 1963). As discussed above, in this case the intent of the trial court is manifest. Thus, if the repeat offender status were to be deemed part of the sentence, Defendant should be entitled to, at most, vacation of the sentence and remand for repronouncement and reimposition of sentence in accordance with the trial judge's intent as expressed on the record.See State v. Maddix infra, Slip. op. at p. 7.
Since this case was taken under submission, the Western District has issued two opinions bearing on the issue presented. In State v. Irvin, ___ S.W.2d ___, No. WD52336, (Mo.App.W.D., November 26, 1996), the trial court questioned the defendant immediately prior to sentencing as to his knowledge of being charged as a prior and persistent offender but apparently made no explicit finding to that effect. Slip op. at 3. Nor was it mentioned in the oral pronouncement of sentence.Id. The written sentence, however, apparently contained a finding that the defendant was a prior and persistent offender. The Western District reversed and remanded with instructions to correct the judgment by removing the reference to prior and persistent offender status. Slip op. at 5. Although the analysis in Irvin focuses on the discrepancy between the written sentence and the sentence formally pronounced, the true discrepancy appears to be that, as inB. Johnson, there was no finding either prior to or at the formal pronouncement of sentence which would support the written sentence entered by the court. Again, although the opinion appears to assume that the oral pronouncement must repeat any prior status findings as a qualification of the term imposed, the cases cited in Irvin do not support such a requirement. All of the cases cited for the proposition, with the exception of State v. Williams, 797 S.W.2d 734, 738 (Mo.App. 1990) have been discussed earlier in this opinion.Williams is clearly distinguishable because it involved a discrepancy in the number of years imposed in the oral and written sentences, not defendant's status as a prior, persistent or Class X offender.
In State v. Maddix, ___ S.W.2d ___, No. WD49034 (Mo.App.W.D., October 15, 1996), the facts were nearly identical to the instant case. At an earlier hearing during trial, the trial court found the defendant to be a prior, persistent and Class X offender. Maddix, Slip op. at 6. Immediately prior to sentencing, the court advised the defendant that the statute said he would have to serve at least 80% of whatever sentence the court imposed. Id. The oral pronouncement of sentence apparently made no mention of the defendant's Class X status, although the finding was reflected in the written sentence and judgment. On appeal, Maddix urged that this discrepancy constituted plain error, citing McCaine and B. Johnson, discussed supra. The Western District rejected this contention, holding that failure to repeat prior findings as to defendant's repeat offender status as part of the oral pronouncement of sentence did not negate the effect of the sentencing enhancement provisions. Id. at p. 7. Although the court found McCaine, B. Johnson and Jones distinguishable, it indicated it would decline to follow them to the extent they held otherwise. Id.
We believe Maddix is correct in its conclusion that the oral pronouncement of sentence need not include a restatement of prior findings on the record as to the defendant's repeat offender status. Although repetition of the findings may help to dispel any ambiguity, especially where there has been an intervening plea bargain, findings of repeat offender status are not technically part of the "sentence." Thus, omission of prior findings of repeat offender status from the oral pronouncement of sentence does not give rise to a "discrepancy" when the findings are included in the subsequent written sentence and judgment as required by § 558.019.5 RSMo 1992 Supp. We therefore find Defendant's first point to be without merit. However, because the issue is a recurring one and in view of the numerous cases that have at least assumed, if not held, that findings of offender status are part of the sentence, we believe the case should be transferred to the Missouri Supreme Court.
We have reviewed Defendant's remaining points and the record on appeal and find no error of law. Further, the findings of the motion court are not clearly erroneous. Extended discussion of the remaining claims of error would have no precedential value. Accordingly, we deny the balance of Defendant's points pursuant to Rules 30.25(b) and 84.16(b).
The judgment in Cause No. 68760 is affirmed. Cause No. 66652 is transferred to the Missouri Supreme Court pursuant to Rule 83.02.
Judge Stanley A. Grimm and Judge Mary K. Hoff concur.
Opinion Summary
Defendant appeals the judgment and sentence entered upon his conviction for robbery in the second degree, § 569.030 RSMo 1994, as well as the judgment denying his Rule 29.15 motion for post-conviction relief.
CAUSE NO. 68760 AFFIRMED; CAUSE NO. 66652 TRANSFERRED TO THE MISSOURI SUPREME COURT.
Division Three holds: Finding that a defendant is a prior, persistent, Class X, or other type of repeat offender made prior to oral pronouncement of sentence is not part of the sentence and is not required to be repeated during oral pronouncement of sentence. Trial court's failure to repeat finding of Class X offender status during oral pronouncement of sentence thus did not constitute a discrepancy from the written sentence and judgment which included Class X offender finding. Cause transferred to Missouri Supreme Court pursuant to Rule 83.02.