While the court acknowledged that “[t]he relevant inquiry is not whether the defendant is guilty of the charge for which he or she was arrested,” it did require that the evidence show beyond a reasonable doubt that “the arresting officer contemplated making a felony arrest.” Id. at 592 (citing State v. Merritt, 805 S.W.2d 337, 339 (Mo.App.E.D. 1991) ). See also State v. Bell, 30 S.W.3d 206, 208 (Mo.App.S.D. 2000) (ruling that evidence fell short of establishing beyond a reasonable doubt basis for arrest with which defendant allegedly interfered because arrest could have been made for a “variety of charges”); DeClue v. State, 3 S.W.3d 395, 397–98 (Mo.App.E.D. 1999) (finding that plea-hearing court erred in accepting defendant's plea of guilty to felony resisting arrest because “it was not established [during the plea colloquy or via testimony] that Movant was resisting an arrest for a felony assault charge” (emphasis added)).
Miller, 372 S.W.3d at 467. Because we conclude that sufficient evidence supports Defendant's conviction, we must address his reliance on several cases that might suggest otherwise, beginning with State v. Merritt, 805 S.W.2d 337 (Mo. App. E.D. 1991). Defendant cites Merritt as holding that "[t]he relevant inquiry is what the arresting officer contemplated when making the arrest, not whether the defendant was guilty of the underlying charge."
But Shaw’s reliance on those cases is misplaced. The first case Shaw cites is State v. Merritt , 805 S.W.2d 337 (Mo. App. 1991). In Merritt , a deputy sheriff, believing Merritt to be in the process of conducting a drug transaction, approached Merritt and another individual to make an arrest.
The relevant inquiry is not whether defendant is guilty of the charge for which he was arrested, but whether the arresting officer contemplated making a felony arrest. State v. Merritt, 805 S.W.2d 337, 339 (Mo.App.E.D. 1991). In the case before us, we find the court clearly erred in accepting Movant's plea of guilty to felony resisting arrest because the court failed to establish a proper factual basis for that offense, in violation of Rule 24.02(e).
After review of the record, this court concludes that the district court did not clearly err in finding that a Grade B violation had been established. See United States v. Miller, 557 F.3d 910, 914-18 (8th Cir. 2009) (standard of review); Mo. Rev. Stat. § 575.150.1(1) (person resists arrest by fleeing from an officer), .5 (resisting arrest for a felony is a class D felony); U.S.S.G. § 7B1.1(a)(2) (offense punishable by term of imprisonment exceeding 1 year is Grade B violation); State v. Merritt, 805 S.W.2d 337, 339 (Mo. Ct. App. 1991) (defendant need not be guilty of underlying felony to be convicted of resisting arrest for a felony; rather, arresting officer need only contemplate making felony arrest). This court also concludes that the district court did not impose an unreasonable sentence.
Under § 575.150(4) and Missouri common law, an individual can be convicted of resisting arrest even where the arrest is unlawful. Miller v. Page, No. 04-4198CVCNKL, 2005 WL 3557426, at *6 (W.D. Mo. Dec. 28, 2005) (citing State v. Merritt, 805 S.W.2d 337 (Mo. Ct. App. 1991)). Here, the record is not clear that Wichlan did not resist arrest, or at least that a reasonable officer would have known that Wichlan did not do so.
Missouri courts recognize the same and hold that an individual can be convicted of resisting arrest even where the arrest is unlawful. See State v. Merritt, 805 S.W.2d 337 (Mo.Ct.App. 1991); State v. Winkelmann, 776 S.W.2d 44 (Mo.Ct.App. 1989). Thus, a defendant's conviction for resisting arrest is not tantamount to a finding that the arrest was lawful, and a civil judgment that the arrest was unlawful will not contradict or undermine a conviction for resisting arrest.
150, criminalizing resisting arrest in Missouri, "is premised upon public policy considerations against self-help . . . [and] the basic concept that [alleged] unlawful arrests should be resolved in courts, not by violence in the streets."State v. Maxey, 661 S.W.2d 641, 642-43 (Mo. App. E.D. 1983); see also State v. Nolan, 192 S.W.2d 1016, 1020 (Mo. 1946) (allowing citizens to resist arrest constitutes a threat to both "[t]he security of the people as well as the dignity of the law"); State v. Merritt, 805 S.W.2d 337, 339 (Mo. App. E.D. 1991) ("A person does not enjoy the right to resist any arrest, even an unlawful one, by a known police officer."); State v. Reynolds, 723 S.W.2d 400, 405 (Mo. App. W.D. 1986) ("Under [§ 575.150.1], appellant had the duty to submit to the arrest."); State v. Nunes, 546 S.W.2d 759, 762 (Mo. App. 1977) ("a citizen may not use force to resist any arrest, lawful or unlawful, for such self-help tends to intolerable disorder").
“The relevant inquiry to determine whether appellant's resistance constituted a felony is not whether the appellant is guilty of the underlying charge.” State v. Merritt, 805 S.W.2d 337, 339 (Mo.App.E.D. 1991). What matters is whether the officer was contemplating making a felony arrest.
The relevant inquiry is not whether the defendant is guilty of the charge for which he or she was arrested, but whether the arresting officer contemplated making a felony arrest. State v. Merritt, 805 S.W.2d 337, 339 (Mo.App.E.D. 1991). The State focuses on the collective testimony of the officers involved to show the reasonable inference from all of the evidence was that Officer Livingston contemplated arresting Defendant for a felony.