Opinion
WD 56309
Opinion Filed: July 27, 1999
Appeal From The Circuit Court Of Clay County, Missouri, Honorable A. Rex Gabbert, Judge.
Philip M. Koppe, Assistant Attorney General, Kansas City, MO, attorney for respondent.
John R. Shank, Jr., Kansas City, MO, attorney for appellant.
Before: Smith, P.J., and Hanna and Spinden, JJ.
Mark E. Graham appeals the judgment of his jury convictions and sentences in the Circuit Court of Clay County, Missouri, for three counts of sodomy, § 566.060, RSMo Supp. 1990, following this court's recalling of its mandate in State v. Graham, 969 S.W.2d 759 (Mo.App. 1998) and remanding the case for resentencing only, without jury assessment. On remand, the circuit court, the Honorable A. Rex Gabbert, sentenced the appellant to three consecutive terms of four years imprisonment.
All statutory references are to RSMo 1994, unless otherwise indicated. Although this court in State v. Graham, 906 S.W.2d 771, 775 (Mo.App. 1995) and State v. Graham, 969 S.W.2d 759, 759 (Mo.App. 1998), stated that the appellant was charged with and convicted of violating § 566.060, RSMo 1986, a criminal defendant is charged and tried under the law that was in existence at the time the offense was committed. State v. Pritchard, 982 S.W.2d 273, 277-78 ( Mo. banc 1999). Here, because the appellant committed the offense of sodomy in August 1991, he would have been properly charged and tried under § 566.060, RSMo Supp. 1990.
The appellant raises four points on appeal. In Point I, he claims that the trial court erred in resentencing him without a jury's assessing his punishment because, in doing so, the court deprived him of his statutory right to jury assessment of punishment under § 557.036, RSMo Supp. 1990. In Point II, he assigns the same error as in Point I, except to claim that the action of the trial court deprived him of his right to due process. In Point III, the appellant claims that the trial court erred in resentencing him to consecutive terms of imprisonment because, in doing so, it believed, contrary to the law, that it was required to resentence him to consecutive terms. In Point IV, he claims that the trial court erred in resentencing him for child molestation in the first degree, § 566.067, because, in doing so, it was required to, but did not, allow the prosecuting attorney to exercise his discretion in determining whether he should be resentenced for child molestation or for sexual misconduct in the first degree, § 566.090.
We reverse and remand.
Facts
The appellant was a volunteer leader with a church youth group. From time to time in this capacity, he invited students to spend the night at his apartment. On several such occasions in August 1991, when church students were spending the night at his apartment, he placed his hand inside a ten-year-old child's pajamas and underwear and held his penis between ten and twenty minutes.
On January 22, 1992, the appellant was indicted, and subsequently charged by information, for four counts of sodomy, § 566.060, RSMo Supp. 1990. The case proceeded to jury trial on July 13, 1992. On July 14, 1992, the jury found him guilty of three counts of sodomy, § 566.060, RSMo Supp. 1990. On each count, the jury assessed punishment for a term of twenty years imprisonment. On September 11, 1992, the trial court sentenced the appellant to three consecutive terms of twenty years imprisonment. On appeal, this court affirmed the appellant's convictions in State v. Graham, 906 S.W.2d 771 (Mo.App. 1995).
The fourth count of sodomy was dismissed by the court at the close of all the evidence on the appellant's motion.
While the appellant's appeal was still pending, several amendments to chapter 566 went into effect. State v. Pritchard, 982 S.W.2d 273, 275 (Mo. banc 1999). Section 566.060, RSMo 1990, the statute under which the appellant was charged, was amended, deleting subsection 3 thereof dealing with statutory sodomy and enacting in lieu thereof §§ 566.062 and 566.064, the first creating the offense of statutory sodomy in the first degree, and the second creating the offense of statutory sodomy in the second degree. Id.; State v. Paro, 952 S.W.2d 339, 341 (Mo.App. 1997). As part of the 1994 amendments, § 566.010, RSMo Supp. 1990, dealing with chapter 566 and 568 definitions was also amended. One amendment was to § 566.010(2), RSMo Supp. 1990, defining "deviate sexual intercourse," which both § 566.060.3, RSMo Supp. 1990, and § 566.062 reference in establishing the necessary conduct for the offense of statutory sodomy. The prior definition of "deviate sexual intercourse" defined it as "any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person." § 566.010(2), RSMo Supp. 1990 (emphasis added). The amended definition defines it as
any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.
The appellant filed a pro se motion to recall this court's mandate. He claimed that he was denied effective assistance of appellate counsel because his counsel failed to raise on direct appeal his claim that, pursuant to § 1.160, he was entitled to a reduction in his sentences in that the criminal statute under which he was convicted had been amended and went into effect while his case was on appeal. Finding merit in the appellant's claim, this court recalled its mandate and remanded the case for resentencing only without jury assessment of punishment. Graham, 969 S.W.2d at 761 . In ordering the appellant resentenced, this court found that the appellant's appellate counsel was ineffective for failing to claim that his sentences on each count of sodomy should have been reduced to a maximum of seven years imprisonment because the conduct for which he had been convicted, hand to genital contact with another person who was less than fourteen years of age, had been reclassified while his direct appeal was pending from the offense of sodomy, § 566.060, RSMo 1990, to the offense of child molestation in the first degree, § 566.067. Id. at 760-61. On August 20, 1998, the trial court, on remand, resentenced the appellant to three consecutive terms of four years imprisonment.
Prior to January 1, 1996, claims of ineffective assistance of appellate counsel were raised by a motion to recall the mandate of the appellate court. Rule 29.15, as amended in June 1995 and effective January 1, 1996, provides that a Rule 29.15 motion is now the exclusive procedure for claims of ineffective assistance of trial and appellate counsel for sentences imposed after January 1, 1996. State v. Edwards, 983 S.W.2d 520, 522 n. 2 ( Mo. banc 1999).
This appeal follows.
I.
In Point I, the appellant claims that the trial court erred in resentencing him without a jury's assessing his punishment because, in doing so, the court deprived him of his right to jury assessment of punishment under § 557.036, RSMo Supp. 1990. In Point II, he assigns the same error as in Point I, except to claim that the action of the trial court deprived him of his right to due process. Because both Points I and II raise the same issue, we will discuss them together.
We initially note that in Points I and II of his points relied on, the appellant does not raise the issue of his entitlement to a complete new trial. Instead, he raises only the issue of his right to jury assessment on resentencing. He does, however, raise the issue of his right to a complete new trial in his argument of the points. Nonetheless, because he failed to raise the issue in his points relied on, we are not required to address it. State v. Rogers, 973 S.W.2d 495, 498 (Mo.App. 1998). He further failed to preserve this issue by not raising it with the trial court below. State v. Clark, 846 S.W.2d 750, 751 (Mo.App. 1993). Furthermore, even if we were to address the issue as plain error pursuant to Rule 30.20, which the appellant does not request, he would not prevail thereon, as indicated in our discussion, infra, of the properly preserved issue of whether he was, as he claims, entitled to resentencing with jury assessment.
Logically, before addressing the merits of the appellant's claim, we must address the State's contention that our review of Points I and II is limited exclusively to determining whether, in resentencing the appellant without jury assessment of punishment, the trial court complied with the mandate of this court in State v. Graham, 969 S.W.2d 759 (Mo.App. 1998). This is so in that if the State is correct in this contention, we would not be required to address the merits of the issues raised in these points in that the appellant implicitly concedes therein that the trial court followed this court's mandate on remand, but that in resentencing him without jury assessment of punishment, it nonetheless erred.
The doctrine of the law of the case governs successive appeals involving substantially the same issues and facts. Bandy v. State, 847 S.W.2d 93, 94 (Mo.App. 1992). Pursuant to this doctrine, prior decisions of the appellate court become the law of the case in any subsequent proceedings of the same cause. Id. Thus, when an issue is decided on appeal and the case is remanded to the trial court for further proceedings, the trial court does not have the jurisdiction to overrule the appellate court. Student Loan Mktg. Ass'n v. Raja, 914 S.W.2d 825, 829 (Mo.App. 1996) ( citing Hankins v. Hankins, 864 S.W.2d 351, 353 (Mo.App. 1993)). It is bound to render judgment in conformity with the appellate court's mandate and is without power to alter, amend, or otherwise depart from the appellate judgment. Enyeart v. Shelter Mut. Ins. Co., 784 S.W.2d 205, 208 (Mo.App. 1989) ( citing Davis v. J.C. Nichols Co., 761 S.W.2d 735, 737 (Mo.App. 1988)).
Generally, successive direct appeals in criminal cases are not authorized. State v. Galvan, 744 S.W.2d 510, 511 (Mo.App.W.D. 1988). However, where . . . a case on direct appeal is remanded for resentencing, a defendant is entitled to have the new judgment reviewed to determine whether the judgment entered by the trial court is in conformity with [the appellate court's] mandate. State v. Jones, 552 S.W.2d 45, 46 (Mo.App.E.D. 1977).
State v. Olney, 987 S.W.2d 466, 468 (Mo.App. 1999) (citations omitted). This limitation as to the scope of review on appeal in a criminal case, after remand for resentencing only, is in keeping with the operation of the doctrine of the law of the case, which normally precludes re-examination of issues decided in the original appeal. Bandy, 847 S.W.2d at 94 . However,
[t]he doctrine is . . . a rule of policy and convenience, a concept that involves discretion. Pathway Financial v. Schade, 793 S.W.2d 464, 469 (Mo.App. 1990). Thus, an appellate court has discretion to refuse to apply the doctrine where the first opinion arose from mistake or resulted in manifest injustice, Williams v. Ford Motor Co., 454 S.W.2d 611, 614 (Mo.App. 1970), or where a change in the law intervened between the appeals, Enyeart v. Shelter Mut. Ins. Co., 784 S.W.2d 205, 209 (Mo.App. 1989).
Id. at 94-95.
'If circumstances arise that cast doubt on the correctness of the law of the case as established on appeal, our procedures enable a litigant to press the appellate court to depart from the mandate and opinion by motion for rehearing, motion to recall mandate, or by appeal from the judgment entered after remand.'
Enyeart, 784 S.W.2d at 208-09 ( quoting Davis, 761 S.W.2d at 740 ). "'An appellate court is a court for the correction of errors — its own as well as others. In correcting the errors of lower courts we do not need proceed on the theory we make none of our own. . . .'" Raja, 914 S.W.2d at 830 ( quoting Laclede Inv. Corp. v. Kaiser, 596 S.W.2d 36, 41 (Mo.App. 1980)). Thus, if we find in the second appeal that our prior mandate was incorrect, we are free to and should correct it. Bandy, 847 S.W.2d at 94 .
As discussed, infra, we believe, that due to a clarification of the law in State v. Pritchard, 982 S.W.2d 273 (Mo. banc 1999) and State v. Edwards, 983 S.W.2d 520 (Mo. banc 1999), this court's mandate in State v. Graham, 969 S.W.2d 759 (Mo.App. 1998) was incorrect in directing that the appellant be resentenced without jury assessment and that to apply the doctrine of the law of the case would result in manifest injustice in that the appellant would be denied his valuable right to have a jury assess his punishment. As such, we hold that our review is not, as the State contends, limited to determining whether the trial court complied with this court's prior mandate, wherein we ordered the case remanded for resentencing only, without jury assessment of punishment. And, because the appellant does not claim that the trial court did not follow the mandate of this court in resentencing him without jury assessment of punishment, the issue for us to decide, in the appellant's first two points, is whether this court's mandate in the first appeal was incorrect.
The question of whether our prior mandate was incorrect in ordering the trial court to resentence the appellant without jury assessment of punishment is a question of law. As such, it falls within this court's province of independent review and correction. State v. Tinoco , 967 S.W.2d 87, 89 (Mo.App. 1998) ( citing Barry Serv. Agency v. Manning, 891 S.W.2d 882, 887 (Mo.App. 1995)). "Or, in other words, . . . our review is de novo with no deference being paid to the trial court's determination of the law." Id .
The appellant was indicted on January 22, 1992, and subsequently charged by information on July 13, 1992, with four counts of sodomy in violation of § 566.060, RSMo Supp. 1990. At the time of the appellant's charged conduct, § 566.060, RSMo Supp. 1990, provided:
Sodomy. — 1. A person commits the crime of sodomy if he has deviate sexual intercourse with another person without that person's consent by the use of forcible compulsion.
2. Forcible sodomy or an attempt to commit forcible sodomy as described in subsection 1 of this section or sodomy as described in subsection 3 of this section is a felony for which the authorized term of imprisonment, including both prison and conditional terms, is life imprisonment or a term of years not less than five years, unless in the course thereof the actor inflicts serious physical injury on any person, displays a deadly weapon or dangerous instrument in a threatening manner or subjects the victim to deviate sexual intercourse or sexual intercourse with more than one person, in which cases forcible sodomy or an attempt to commit forcible sodomy is a class A felony.
3. A person commits the crime of sodomy if he has deviate sexual intercourse with another person to whom he is not married who is less than fourteen years old.
(Emphasis added.) Given the appellant's charged conduct of hand to genital contact with a person to whom he was not married and who was less than fourteen years old, and given the provisions of § 566.060, RSMo Supp. 1990, it is apparent that he was charged under subsection 3 thereof with "statutory sodomy."
In 1994, the General Assembly amended chapter 566. Pritchard, 982 S.W.2d at 275 . As part of the amendments, § 566.060, RSMo Supp. 1990, was amended, deleting subsection 3 thereof dealing with statutory sodomy and enacting in lieu thereof §§ 566.062 and 566.064, the first creating the offense of statutory sodomy in the first degree, and the second creating the offense of statutory sodomy in the second degree. Id.; Paro, 952 S.W.2d at 341 . Section 566.062 provides that a "person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old." Section 566.064 provides that a "person commits the crime of statutory sodomy in the second degree if being twenty-one years of age or older, he has deviate sexual intercourse with another person who is less than seventeen years of age." Hence, it would appear that the 1994 amendments moved statutory sodomy, as provided for in § 566.060.3, RSMo Supp. 1990, to § 566.062, reclassifying it as statutory sodomy in the first degree, with the same punishment, and creating another degree of statutory sodomy in § 566.064, statutory sodomy in the second degree. As such, given the appellant's charged conduct of deviate sexual intercourse with a child of ten years of age, which would constitute statutory sodomy in the first degree under the new law, it would appear at first blush that the amendments did not have any effect on his punishment. Upon closer inspection, however, we know this was not the case due to an amendment to § 566.010, RSMo Supp. 1990, changing the definition of "deviate sexual intercourse."
As part of the 1994 amendments to chapter 566, the General Assembly amended § 566.010, RSMo Supp. 1990, dealing with chapter 566 and 568 definitions. One amendment was to § 566.010(2), RSMo Supp. 1990, defining "deviate sexual intercourse," which both § 566.060.3, RSMo Supp. 1990, and § 566.062 reference in establishing the necessary conduct for the offense of statutory sodomy. The prior definition of "deviate sexual intercourse" defined it as "any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person." § 566.010(2), RSMo Supp. 1990 (emphasis added). The amended definition defines it as
any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.
§ 566.010(1). Unlike the prior definition, the amended definition of deviate sexual intercourse does not include hand to genital contact, unless the contact involves digital penetration of the victim's sex organ. As such, unless hand to genital contact involves digital penetration of the victim's sex organ, such conduct, under the present statutory definition, would not constitute "deviate sexual intercourse," and thus, could not form the basis for a charge of statutory sodomy under §§ 566.062 or 566.064.
After the 1994 amendments to chapter 566, hand to genital contact, the conduct with which the appellant was charged, rather than being classified as "deviate sexual intercourse," was reclassified as "sexual contact," as defined in § 566.010(3). This section defines "sexual contact" as "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(3). Thus, pursuant to the 1994 amendments, hand to genital contact without digital penetration would constitute "sexual contact," but not "deviate sexual intercourse." And, under present law, "sexual contact" with a person who is less than twelve years of age would be the basis for the charge of "child molestation" in the first degree under § 566.067, but not the basis for statutory sodomy under §§ 566.062 or 566.064. Section 566.067 provides that a "person commits the crime of child molestation in the first degree if he subjects another person who is less than twelve years of age to sexual contact." Thus, under present law, a person who is alleged to have had hand to genital contact, without digital penetration, with a person who was less than twelve years of age can be charged with child molestation in the first degree under § 566.067, punishable as a class B or C felony, but cannot be charged with first or second degree statutory sodomy under §§ 566.062 or 566.064.
The amendments to chapter 566 took effect on January 1, 1995. The appellant's charged conduct occurred before the effective date, as did the filing of the sodomy charges, his convictions, and original sentencing. At that time, § 1.160, RSMo 1986, dealing with the effect of the repeal of a penal statute, provided:
No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except, (1) that all such proceedings shall be conducted according to existing laws; and (2) that if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense, the penalty or punishment shall be assessed according to the amendatory law.
In 1993, this section was amended. The 1993 amendment substituted "existing procedural laws" for "existing laws" in subdivision (1) and inserted "prior to original sentencing" in subdivision (2). The amendment to the statute took effect on August 28, 1993, while the appellant's case was on appeal the first time, but after he had been originally sentenced. In 1992, at the time the appellant was originally sentenced, a suit was considered "pending" for the purposes of § 1.160, RSMo 1986, until direct review had been exhausted. Graham, 969 S.W.2d at 760-61 . The change in the statute effectively changed its application, limiting the benefit of a reduction in punishment because of the change in a penal statute to the time "prior to the original sentencing." Id. at 761.
In this case, because the amendment to § 1.160 became effective after the appellant was sentenced, the earlier version of § 1.160 was applicable. Id. As such, there can be no dispute that the appellant, under the applicable version of § 1.160, was entitled to benefit of the reduction in punishment as a result of the reclassification of his charged conduct of hand to genital contact with a ten-year-old child. The dispute is over how, procedurally, this is to be accomplished.
In State v. Sumlin, 820 S.W.2d 487 (Mo. banc 1991), the Missouri Supreme Court interpreted the prior version of § 1.160 as authorizing a reduction of sentence if the penalty for the offense of conviction was reduced by a statutory amendment subsequent to the commission of the offense but before the conviction became final. Id. at 492. Under this version of § 1.160, a suit was considered "pending" until direct review had been exhausted. Id. at 490. Thus, because in Sumlin the defendant's case was still pending on appeal when the statutory amendments in question took effect, his conviction was not considered final for purposes of § 1.160, RSMo 1986. Id.
In Sumlin , the defendant was convicted under § 195.020.1, RSMo 1986, of possession of cocaine and sentenced under § 195.200, RSMo 1986. Id. at 489. After conviction, but while his appeal was still pending, §§ 195.020 and 195.200, RSMo 1986, were repealed and replaced by §§ 195.202.1, RSMo Supp. 1990, and 195.223.2-3, RSMo Supp. 1990, creating three levels of criminal liability based on the amount of cocaine possessed. Id. at 489, 491. The court found that the defendant was entitled, pursuant to § 1.160, RSMo 1986, to be resentenced under the new sections, if they provided a reduction in sentence. Id. at 491. As to this issue, the court found that the amount of cocaine in the defendant's possession, which would determine under which section he would be resentenced, was never submitted to the jury for its consideration. Id. at 493. Thus, the court, in reversing and remanding for resentencing only, ordered the trial court to submit the issue of the amount of cocaine in the defendant's possession to a jury and that, based on this finding, the trial court was to resentence the defendant under the amendatory law if it provided for a reduction in sentence. Id. at 493-94. The court further held that because the defendant was a prior offender and was not entitled at trial to jury assessment of punishment, he was, likewise, not entitled to have a jury assess his punishment upon resentencing. Id. at 494. In reversing for resentencing and not for a complete new trial, the court relied on the fact that the amendment only invalidated the sentence and no other portion of the judgment.
In State v. Whardo, 859 S.W.2d 138 (Mo. banc 1993), the defendant was jury convicted of two counts of selling marijuana, in violation of § 195.020.1, RSMo 1986. Id. at 138-39. After the crimes had occurred and the charges filed, but before trial commenced, the amendments to chapter 195 became effective. Id. at 139. However, the jury was instructed as to punishment under the old statute and, thus, was found to have been incorrectly instructed as to the range of punishment available for the crimes committed by the defendant. Id. at 140. As a result, the Whardo court was again presented with the issue of to what relief a criminal defendant was entitled as a result of the amendments to chapter 195, applying § 1.160, RSMo 1986. The Whardo court recognized the procedure that the Sumlin court set out for applying § 1.160, RSMo 1986, as a result of the amendments to chapter 195 in ordering resentencing, but denying a new trial. Id. However, the Whardo court noted that Sumlin was factually distinguishable because it did not involve the circumstance of the jury being erroneously instructed as to the proper range of punishment in that the defendant, as a prior offender, was not entitled to jury-assessed punishment. Id. And, because the defendant was not charged as a prior and persistent offender, entitling him to jury-assessed punishment, the Whardo court determined that Sumlin was not controlling in deciding whether the defendant was entitled to a complete new trial or to being resentenced only. Id. Instead, the court held that the issue of whether the defendant was entitled to a new trial was controlled by the court's decision in State v. Cline, 808 S.W.2d 822 (Mo. banc 1991). Id.
In Cline , the defendant was charged with possession of methamphetamine under chapter 195, prior to the effective date of the 1989 amendments thereto. Id. at 823. However, before trial, the amendments to chapter 195 became effective, reducing the maximum sentence the defendant could receive. Id. at 824. Nonetheless, the jury was instructed as to the range of punishment under the prior law, rather than the amendatory law. Id. On appeal, the Missouri Supreme Court held that the defendant was entitled to a complete new trial because the trial court had plainly erred in instructing the jury as to punishment under the prior law in that § 1.160, RSMo 1986, required it to be instructed under the amendatory law. Id. at 824.
The Cline court, in ordering a complete new trial, did not specifically address why it found that the prejudice of the defendant's being denied the right to have a jury assess his punishment could not be cured by simply ordering the case remanded for resentencing, with the jury to assess punishment, since he was not a prior and persistent offender as in Sumlin . It seems logical that, if the prejudice on which the reversal is based is the fact that the defendant, as a result of the jury being misdirected as to punishment, is denied his right to jury assessment of punishment, the cure would be to reverse and remand for resentencing only with a jury to assess punishment. Nonetheless, the Cline court ordered a complete new trial stating that the "purpose of the rules [29.02(a), 29.03, 29.04, 29.05 and 29.06] [was] to enable the trial court to render a correct judgment where the jury ha[d] been properly instructed as to the range of punishment. This purpose [could] not be accomplished where . . . the jury was not properly instructed." Id. at 827. Hence, although the court found that § 1.160, RSMo 1986, required that the jury be instructed as to a different range of punishment, it was clear from the court's decision that it was the instructional error, not any requirement of § 1.160, RSMo 1986, that necessitated a retrial, as opposed to remanding only for resentencing of the defendant, as was done in Sumlin. Id. at 827.
Having previously addressed the application of § 1.160 to the amendments of Chapter 195, the Missouri Supreme Court was called upon to address its application to the 1994 amendments to chapter 566 in Pritchard , which was transferred to the court after opinion by this court. Pritchard, 982 S.W.2d at 274 . In Pritchard , the defendant was convicted, inter alia, of one count of sodomy, § 566.060, RSMo Supp. 1993. Id. As to the sodomy conviction, after the offense, but before trial, § 566.060, RSMo Supp. 1993, was amended, as discussed, supra, such that the defendant's charged conduct of hand to genital contact, without digital penetration, with a child under fourteen years old was no longer punishable as sodomy, but as child molestation, under § 566.068, which carries a maximum term of seven years imprisonment, as compared to a maximum term of life imprisonment for sodomy under the prior statute. Id. at 275. However, the jury was instructed as to the range of punishment under the prior, rather than the amendatory law. Id. at 277. The court held that the defendant was entitled to a complete new trial on the sodomy charge because the trial court erred in instructing the jury as to the range of punishment under the prior law in that § 1.160 required it to be instructed under the amendatory law. Id. The court further held that he should be retried on the offense as defined by the law that existed at the time of the offense, but was to be punished in accordance with the new law in that it provided for a reduction of sentence. Id. at 277-78.
The holdings in Sumlin, Whardo, Cline , and Pritchard teach us, inter alia, that, pursuant to § 1.160, if the statutory amendment reducing punishment becomes effective such that the jury was required to be instructed as to punishment under the new law, not the old law, and was not so instructed, then the defendant is entitled to a complete new trial, including jury assessment of punishment under § 557.036, RSMo Supp. 1990, provided that one of the statutory exceptions did not apply to deny the defendant jury assessment of punishment. However, if the statutory amendment becomes effective such that, at the time, the jury would have been properly instructed as to punishment under the old law, then, applying § 1.160, the defendant would not be entitled to a complete new trial, but would be entitled only to be resentenced. As to whether on resentencing the defendant would be entitled to jury assessment of punishment, the court in Sumlin said no — if he was a prior and persistent offender. Sumlin, 820 S.W.2d at 494 . It did not address the issue with which we are presented, that being whether a defendant, such as the appellant, who was at trial entitled to have and did have a jury assess his punishment and is subsequently found, pursuant to § 1.160, to be entitled to be resentenced under the amendatory law, is entitled to have his punishment on resentencing reassessed by the jury under the new law. Neither the appellant nor the State cites any appellate decisions that have addressed this issue. As such, it is a case of first impression.
The appellant claims that a jury's assessing his punishment under the old law was no assessment at all, depriving him of his right to the same under § 557.036, RSMo Supp. 1990, and due process of law. The State, while conceding that the appellant had a right to jury assessment of punishment, contends that this right was satisfied by the jury's assessment of punishment at trial, albeit in the context of the old law, rather than the new law under which he was required to be resentenced. For the reasons discussed, infra, we reject the State's argument.
There is no constitutional right to have a jury determine punishment. State v. McClanahan, 954 S.W.2d 476, 481 (Mo.App. 1997). The constitutional right to a trial by jury in a felony case does not extend to jury sentencing. Id. However, although this is technically a "judge-sentencing state," unless otherwise provided by law, the jury, as part of its verdict, is required to assess and declare punishment, pursuant to § 557.036, with some exceptions. Id. at 484 (Smith, J., dissenting). Section 557.036, RSMo Supp. 1990, in effect at the time of the appellant's offense, provided as follows:
1. Subject to the limitation provided in subsection 3 of this section, upon a finding of guilt upon verdict or plea, the court shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly.
2. The court shall instruct the jury as to the range of punishment authorized by statute and upon a finding of guilt to assess and declare the punishment as a part of their verdict, unless
(1) The defendant requests in writing, prior to voir dire, that the court assess the punishment in case of a finding of guilt, or
(2) The state pleads and proves the defendant is a prior offender, persistent offender, dangerous offender, or persistent misdemeanor offender as defined in section 558.016, RSMo. If the jury finds the defendant guilty but cannot agree on the punishment to be assessed, the court shall proceed as provided in subsection 1 of this section. If there be a trial by jury and the jury is to assess punishment and if after due deliberation by the jury the court finds the jury cannot agree on punishment, then the court may instruct the jury that if it cannot agree on punishment that it may return its verdict without assessing punishment and the court will assess punishment.
3. If the jury returns a verdict of guilty and declares a term of imprisonment as provided in subsection 2 of this section, the court shall proceed as provided in subsection 1 of this section except that any term of imprisonment imposed cannot exceed the term declared by the jury unless the term declared by the jury is less than the authorized lowest term for the offense, in which event the court cannot impose a term of imprisonment greater than the lowest term provided for the offense.
4. If the defendant is found to be a prior offender, persistent offender, dangerous offender or persistent misdemeanor offender as defined in section 558.016, RSMo:
(1) If he has been found guilty of an offense, the court shall proceed as provided in section 558.016, RSMo, or
(2) If he has been found guilty of a class A felony, the court may impose any sentence authorized for the class A felony.
5. The court shall not seek an advisory verdict from the jury in cases of prior offenders, persistent offenders, or dangerous offenders; if an advisory verdict is rendered, the court shall not deem it advisory, but shall consider it as mere surplusage.
Pursuant to this section, in the first instance it is the jury's responsibility to assess punishment. McClanahan, 954 S.W.2d at 481 . "The court's authority is limited in that the term of imprisonment imposed by the court cannot exceed the term declared by the jury. In other words, it is the primary function of the jury to set the maximum punishment." Id. Only when the defendant is found to be an offender under § 558.016 or the term assessed by the jury is less than the minimum range of punishment may the court increase the term of imprisonment. Id.
The purpose of § 557.036 is to place upon the jury the duty, not merely to grant the privilege, of determining the punishment. Cline, 808 S.W.2d at 826 ( citing State v. Bevins, 43 S.W.2d 432, 434 ( Mo. banc 1931)). And "'[t]he duty being thus imposed upon the jury, the defendant certainly has a corresponding right to have that duty properly and intelligently performed, and to the end that it may be so performed it is necessary that the jury be properly instructed as to the applicable law.'" Id. ( quoting Bevins, 43 S.W.2d at 434 ). The right to jury assessment of punishment is a valuable right to the defendant. Id. at 827 (Blackmar, J., concurring). And, in order for this right to be of value or benefit to the defendant, the jury must be instructed as to the applicable law that the defendant will ultimately be sentenced under. Id. at 827. As such, when a penal statute is amended following a defendant's conviction and sentence such that, pursuant to § 1.160, the jury's original assessment of punishment was not pursuant to the amendatory law which the defendant will ultimately be sentenced pursuant to, the defendant has not received any benefit from the original jury assessment of his or her punishment. This is so in that, given the new and different range of punishment for the offense committed by the defendant, the jury's assessment of punishment may have been different. Thus, we find no logic in the State's argument that a jury's assessment of punishment pursuant to a range that was correct at the time of the original sentencing satisfies the defendant's right to jury assessment of punishment even though the defendant will ultimately be sentenced pursuant to a different range of punishment. We agree with the appellant that a prior assessment of punishment by the jury pursuant to range of punishment under which he or she is not ultimately sentenced is no assessment of punishment at all.
While the defendant in Sumlin was a prior offender such that he was not entitled to have jury assessment of his punishment and, thus, the Sumlin court did not address our issue, it is implicit from the court's opinion that if the defendant had not been a prior offender requiring court sentencing, he would have been entitled to jury assessment of his punishment on remand for resentencing. Sumlin, 820 S.W.2d at 493-94 . Furthermore, Sumlin clearly stands for the proposition that a jury can be impaneled for something less than a complete new trial, such as to assess punishment. Id. at 493-94. As such, we find that in order for the appellant to receive any benefit or value from his right to jury assessment of punishment, that on resentencing under the amendatory law, a jury should be impaneled for that purpose. Cline, 808 S.W.2d at 827 .
II.
In Point III, the appellant claims that the trial court erred in resentencing him to consecutive terms of imprisonment because, in doing so, it believed, contrary to the law, that it was required to resentence him to consecutive terms. In making this claim, the appellant relies on the fact that, at the sentencing hearing, the court stated that he was ordering his sentences to run consecutively "since the [appellant] ha[d] been convicted of all three counts." In light of our disposition as to Points I and II, supra, we need not address the appellant's claim in Point III. However, because this issue is likely to recur on resentencing, we will address it.
Pursuant to § 558.026, which governs concurrent and consecutive terms of imprisonment, a "'trial court [has] the discretion to run the sentences for multiple convictions of sex crimes concurrent to each other.'" State v. Kuhlenberg, 981 S.W.2d 617, 621-22 (Mo.App. 1998) ( quoting State v. Newman, 839 S.W.2d 314, 317 (Mo.App. 1992)). As such, the trial court may, but is not required to, run the sentences consecutively. Where a court is under the misconception that it must run the sentences consecutively under § 558.026, it erroneously declares and applies the law, requiring remand to allow the court to exercise its sentence options with full discretion. Id. at 622. However, because we are remanding this case for resentencing with jury assessment of punishment, we need not address whether the trial court here was under the misconception that it was required to run the appellant's sentences consecutively. Even assuming, without deciding, that the trial court was under such a misconception, and we have no reason to believe it was, our discussion here is sufficient to prevent such misconception from enduring on resentencing.
Section 558.026 provides, in pertinent part, as follows:
1. Multiple sentences of imprisonment shall run concurrently unless the court specifies that they shall run consecutively; except that, in the case of multiple sentences of imprisonment imposed for the felony of rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid and for other offenses committed during or at the same time as that rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid, the sentences of imprisonment imposed for the other offenses may run concurrently, but the sentence of imprisonment imposed for the felony of rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid shall run consecutively to the other sentences.
Point denied.
III.
In Point IV, the appellant claims that the trial court erred in resentencing him for child molestation in the first degree, § 566.067, because, in doing so, it was required to, but did not, allow the prosecuting attorney to exercise his discretion in determining whether he should be resentenced for child molestation or for sexual misconduct in the first degree, § 566.090. Specifically, he claims that, because the charged conduct for which he was convicted, hand to genital contact with another person who was less than fourteen years of age, could constitute either child molestation in the first degree or sexual misconduct in the first degree, the prosecutor should have been allowed to decide under which offense he could be sentenced. We disagree.
While the decision to prosecute and what charges to file generally rests entirely within the prosecutor's discretion, State v. Miller, 981 S.W.2d 623, 629 (Mo.App. 1998), the prosecutor has no discretion in determining the offense for which a defendant will be resentenced on remand pursuant to § 1.160. Thus, in deciding under which amendatory law a defendant will be resentenced, the trial court must determine under which statute his or her charged conduct would fall. Sumlin, 820 S.W.2d at 492 . In this case, the appellant's alleged offense consisted of hand to genital contact with a person to whom he was not married and who was ten years of age. At the time the appellant was charged and at the time of trial, such conduct amounted to deviate sexual intercourse and fell within the crime of sodomy. State v. Helmig, 924 S.W.2d 562, 567 (Mo.App. 1996). Under the amendatory law, such conduct, without digital penetration, with a person who was less than twelve years of age constitutes child molestation in the first degree, § 566.067. State v. Gillespie, 944 S.W.2d 268, 272 (Mo.App. 1997); Paro, 952 S.W.2d at 341 .
As for the appellant's argument that his criminal conduct could also fall within the crime of sexual misconduct in the first degree, § 566.090, the record reflects that he was not charged simply with and convicted of hand to genital contact with another person, but was charged specifically with and convicted of hand to genital contact with another person who was less than fourteen years of age. As such, under the amendatory law, his conduct constitutes either first or second degree child molestation, § 566.067 or 566.068, depending on whether the child victim is less than twelve years of age, or is twelve or thirteen years of age. And, unlike in Sumlin , where the jury had not been presented with all the issues necessary to delineate under which of the amended statutes the defendant was required to be resentenced, in this case, the charged conduct involved a victim who was without dispute ten years of age, constituting the crime of first degree child molestation, § 566.067. Accordingly, on remand the appellant is to be resentenced for child molestation in the first degree under § 566.067.
Point denied.
Conclusion
The circuit court's judgment as to the appellant's sentences for three counts of sodomy, § 566.060, RSMo Supp. 1990, is reversed and the cause is remanded for resentencing only, in accordance with this opinion.
All concur.