Furthermore, the court of appeals has refused to remand for resentencing—on plain-error review or otherwise—when the record shows the circuit court imposed sentence based on valid considerations unaffected by any mistaken belief. See, e.g. , State v. Elam , 493 S.W.3d 38, 43–44 (Mo. App. 2016) ; State v. Scott , 348 S.W.3d 788, 799–800 (Mo. App. 2011), abrogated on other grounds byState v. Sisco , 458 S.W.3d 304, 312 (Mo. banc 2015) ; State v. Seaton , 815 S.W.2d 90, 91–92 (Mo. App. 1991).The
"When the record demonstrates that the trial court imposed consecutive sentences instead of concurrent sentences based on a misunderstanding of the law, such conduct is plain error and the defendant is entitled to resentencing." State v. Elam, 493 S.W.3d 38, 43 (Mo. App. S.D. 2016); see also State v. Freeman, 212 S.W.3d 173, 177 (Mo. App. S.D. 2007). It is not enough, however, that the trial court held the mistaken belief, the court must have based its sentencing decision on that erroneous belief.
"When the record demonstrates that the trial court imposed consecutive sentences instead of concurrent sentences based on a misunderstanding of the law, such conduct is plain error and the defendant is entitled to resentencing." State v. Elam, 493 S.W.3d 38, 43 (Mo. App. S.D. 2016); see also State v. Freeman, 212 S.W.3d 173, 177 (Mo. App. S.D. 2007). It is not enough, however, that the trial court held the mistaken belief, the court must have based its sentencing decision on that erroneous belief.
[17] "When the record demonstrates that the trial court imposed consecutive sentences instead of concurrent sentences based on a misunderstanding of the law, such conduct is plain error and the defendant is entitled to re-sentencing." State v. Elam, 493 S.W.3d 38, 43 (Mo. App. S.D. 2016). We conclude therefore that the trial court’s misunderstanding of the law in this context constitutes plain error which re- quires that we remand for re-sentencing so that the trial court may exercise its discretion as mandated by section 558.026 for the limited purpose of deciding if the two statutory sodomy sentences should run concurrently or consecutively.
"When the record demonstrates that the trial court imposed consecutive sentences instead of concurrent sentences based on a misunderstanding of the law, such conduct is plain error and the defendant is entitled to re-sentencing." State v. Elam, 493 S.W.3d 38, 43 (Mo. App. S.D. 2016). We conclude therefore that the trial court's misunderstanding of the law in this context constitutes plain error which requires that we remand for re-sentencing so that the trial court may exercise its discretion as mandated by section 558.026 for the limited purpose of deciding if the two statutory sodomy sentences should run concurrently or consecutively.
Instead of applying Rule 29.09's bright-line principle, the State blurs the line by conflating an alleged error in the imposition of sentence with an alleged error in the entry of a written judgment. In support of its argument, the State cites to State v. Elam , 493 S.W.3d 38 (Mo. App. S.D. 2016), State v. Freeman , 212 S.W.3d 173 (Mo. App. S.D. 2007), and State v. Pierce , 548 S.W.3d 900 (Mo. banc 2018). In each of these cases, the issue concerned an alleged error made by the trial court in its imposition of sentence (i.e., an error when it orally pronounced sentence) and there were no claims the oral pronouncement of sentence conflicted with the written judgment.
We recognize that the pre-2013 version of Section 558.026 was "interpreted by our courts to mean that sentences for sex offenses must run consecutively to non-sex offenses committed at the same time, but the trial court has discretion to impose consecutive or concurrent sentences for multiple sex-crime convictions." State v. Elam , 493 S.W.3d 38, 43 (Mo. App. S.D. 2016) (involving sex offenses committed between 2009 and 2012). Our Supreme Court concluded that the pre-2013 version of Section 558.026 was ambiguous, because "[i]t d[id] not ... say in explicit language what must be done if there are multiple convictions of th[e] [sexual] offenses listed" in the statute.
Culpepper failed to include this argument in his motion for new trial, and Culpepper concedes this argument is therefore not preserved for our review. See State v. Elam , 493 S.W.3d 38, 42 (Mo.App. S.D. 2016). We decline to engage in plain error review.
The State contends to the contrary that other authority supports upholding the sentence on the ground that where the trial court's comments demonstrate that it has decided to impose a sentence based on proper considerations, rather than on an erroneous interpretation of a statute, a defendant fails to meet his or her burden of demonstrating plain error in sentencing. See, e.g., State v. Elam, No. SD33905, 2016 WL 3555216, at *5 (Mo. App. S.D. June 28, 2016) (stating, "The record shows that the sentences were based on valid considerations; there is no indication that the trial court's sentences were based on a misapprehension of the applicable law, or that the trial court relied on the prosecutor's misstatement of the law"); see also State v. Scott, 348 S.W.3d 788, 800) (Mo. App. S.D. 2011) (holding that trial court's comments and request that defense counsel respond to the State's position demonstrate that court "did not simply rely on prosecutor's incorrect interpretation of the statute but exercised independent discretion in imposing consecutive sentences), abrogated on other grounds by State v. Sisco, 458 S.W.3d 304 (Mo. banc 2015); State v. Seaton, 815 S.W.2d 90, 92 (Mo. App. E.D. 1991) (finding that trial court did not follow prosecutor's erroneous recommendation; court properly made sentences on sex crimes consecutive after expressing desire to impose the maximum sentence). Of note, is that, unlike here, each of these cases invol