Opinion
No. ED105084
11-21-2017
STATE OF MISSOURI, Plaintiff/Respondent, v. ALOK KUMAR ROHRA, Defendant/Appellant.
Appeal from the Circuit Court of the City of St. Louis Hon. Michael F. Stelzer
Judge Stelzer presided over Rohra's guilty plea and sentencing hearing and entered final judgment in the case. Judge Theresa Counts Burke ruled on Rohra's motion to dismiss.
OPINION
Alok Rohra appeals the trial court's judgment and sentence on a charge of unlawful possession of a firearm. Rohra asserts that an Oklahoma deferral of judgment and sentence is not a prior "conviction" rendering gun possession unlawful under Missouri's felonious possession statute. We agree and would reverse and vacate Rohra's present conviction on that count. However, given the general interest and importance of the question as to which state's law determines the existence of a conviction, we transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02.
Background
In 2013, the State of Oklahoma charged Rohra with possession and intent to distribute a controlled substance. Rohra pleaded guilty and received a deferral of judgment under Oklahoma law. Then in 2015, during a traffic stop in St. Louis, officers discovered Rohra in possession of marijuana, drug paraphernalia, and a firearm. The State charged Rohra with misdemeanor possession and, as relevant here, unlawful possession of a firearm. Specifically, the State charged that Rohra's gun possession was unlawful by virtue of his earlier drug offense in Oklahoma. Rohra moved to dismiss the unlawful possession charge, arguing that his deferral from Oklahoma was not a prior conviction rendering gun possession unlawful. The trial court denied Rohra's motion on the basis that, under Oklahoma law, Rohra's deferral is deemed a conviction for purposes of subsequent firearm possession. Rohra then pleaded guilty on all three counts.
Rohra appeals and asserts that the trial court erred by denying his motion to dismiss the charge of unlawful possession of a firearm because the State had no factual basis for the charge. Rohra argues that his possession of a firearm at the time of his arrest in St. Louis could not have been unlawful because he had no prior felony conviction as that term is used in Missouri. Rohra's point presents a question of law, which we review de novo. State v. Smothers, 297 S.W.3d 626, 632 (Mo. App. 2009).
Preservation
As a preliminary matter, the State asserts that Rohra waived his claim by withdrawing his motion to dismiss and ultimately pleading guilty. The State originally charged Rohra with unlawful possession based on a prior Missouri misdemeanor conviction. Rohra filed a motion to dismiss that charge because the underlying prior conviction was not a felony. At a hearing on that motion October 1, 2015, the State filed an amended complaint identifying the Oklahoma deferral as the prior felony. In response, Rohra orally amended his motion to dismiss, challenging the complaint based on the Oklahoma deferral. Although the record on Rohra's motions is unclear, the trial court ultimately considered and ruled on Rohra's amended motion in February 2016. Rohra persisted in his challenge by filing a motion to quash the indictment in June 2016, which the court heard and summarily denied that August.
On October 6 (at 9:41 p.m.), the State filed a written response to Rohra's amended motion challenging the Oklahoma deferral. On October 7, the docket sheet reflects a substitution of counsel. On October 8, Rohra's "motion to dismiss withdrawn" was granted without specificity. Rohra submits that the withdrawal concerned his original motion and not his amended motion, as the trial court later decided the latter on the merits.
We deem the matter properly before us for review on the merits. The trial court's written judgment, which begins "the court has before it Defendant's motion to dismiss," belies the State's characterization of the record. Clearly, the trial court did not view Rohra's amended challenge as withdrawn or otherwise waived. Moreover, even if Rohra hadn't raised the issue at trial, a defect in the information may be raised for the first time on appeal. State v. Sparks, 916 S.W.2d 234, 237 (Mo. App. S.D. 1995), citing State v. Parkhurst, 845 S.W.2d 31 (Mo. 1992). Even when first raised on appeal, an information may be deemed insufficient if (1) it does not, by any reasonable construction, charge the offense of which the defendant was convicted and (2) the defendant demonstrates actual prejudice as a result of the insufficiency. Id. As discussed below, these conditions exist in this case.
Rohra also did not waive his claim of error by pleading guilty. It is well-settled that "a person who pleads guilty to a criminal offense has a right to challenge the sufficiency of the information or indictment by direct appeal." Dodds v. State, 60 S.W.3d 1, 6 (Mo. App. E.D. 2001).
Lastly here, the State argues that Rohra's appellate point of error is deficient in that it attacks the trial court's denial of his motion to dismiss and not directly the subsequent indictment. "A brief impedes disposition on the merits when it is so deficient that it fails to give notice to this court and to the other parties as to the issues presented on appeal." Comp & Soft, Inc. v. AT & T Corp., 252 S.W.3d 189, 193-94 (Mo. App. E.D. 2008). Rohra's point does not impede disposition on the merits. Both the State and this court fully understand the substantive issue presented on appeal. Rohra frames his argument around the trial court's denial of his motion to dismiss because that written order contains the trial court's legal analysis for this court to review. But Rohra's brief also cites to his subsequent motion to quash the indictment and the trial court's summary denial of that motion. Clearly Rohra's point challenges that ruling as well. As a matter of policy, this court prefers to decide cases on their merits whenever possible. Id. Rohra's point of error is adequately preserved and presented for our review on the merits.
Analysis
Missouri's felon-in-possession statute states in pertinent part:
A person commits the crime of unlawful possession of a firearm if such person knowingly has a firearm in his or her possession and such person has been convicted of a felony under the laws of this state or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony.§571.070(1). To simplify, a person commits unlawful possession if he carries a firearm after being convicted of a crime that is a felony either in Missouri or elsewhere, if Missouri also would consider it a felony. Thus, the central dispute here is: what constitutes a conviction for purposes of felonious possession?
As general premise, we observe that a deferred sentence in Oklahoma is the same as a suspended imposition of sentence (SIS) in Missouri, the key feature being that neither results in a conviction initially. In Missouri, "a suspended imposition of sentence ... defers the sentencing as well as the entry of a conviction on defendant's record." Hoskins v. State, 329 S.W.3d 695, 700 FN 3 (Mo. 2010). "An offender on a suspended imposition of sentence who successfully completes probation does not have a criminal conviction on his record. Id. "The obvious legislative purpose of the sentencing alternative of suspended imposition of sentence is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow." Yale v. City of Independence, 846 S.W.2d 193, 194 (Mo. 1993). Similarly, in Oklahoma:
The court may... without entering a judgment of guilt... defer further proceedings and place the person on probation.... Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction ... for purposes of disqualifications ... imposed by law upon conviction of a crime.Okla. Stat. Ann. Title 63, § 2-410(A). Thus, as a general rule, neither a Missouri SIS nor an Oklahoma deferral results in a conviction.
However, Oklahoma has a specific statutory exception applicable to drug offenses such as those to which Rohra pleaded guilty and received deferral in 2013. It states:
Any plea of guilty ... to a violation of the Uniform Controlled Dangerous Substances Act shall constitute a conviction of the offense for the purpose of the [Act] or any other criminal statute under which the existence of a prior conviction is relevant.Okla. Stat. Ann. Title 63, §2-410(B). This exception applies for 10 years after a defendant's successful completion of probation. Id. Oklahoma appellate precedent further clarifies that, under this exception, an Oklahoma deferral is treated as a conviction for purposes of the defendant's subsequent conduct. In Platt v. State, 188 P. 3d 196 (Okla. Crim. App. 2008), the defendant was on probation for a drug offense when he was arrested for unlawful possession of a firearm. Platt argued that his carrying a gun wasn't unlawful because, at the time, he didn't have a prior conviction but only a deferral. The Oklahoma appellate court rejected Platt's logic and concluded that the statutory exception converted his deferral into a conviction as applied to Platt's conduct while on probation and for 10 years thereafter.
Citing Platt, the trial court here applied the same rationale to Rohra's status: by operation of Oklahoma's statutory exception, Rohra's Oklahoma deferral was deemed a conviction, and §571.070(1) prohibits convicted felons from possessing firearms. The fatal flaw in this logic is that Missouri law contains no equivalent to Oklahoma's self-executing conviction statute. Rather, in Missouri, an SIS exists precisely to avoid the punitive collateral consequences of a conviction. Yale, 846 S.W.2d at 195. An SIS is not a final judgment. Id. A final judgment of conviction occurs only upon the entry of sentence. State v. Jansen, 21 S.W.3d 86, 87 (Mo. App. S.D. 2000); Rule 29.07(c).
Nevertheless, the State insists that Rohra's deferral should be treated as a conviction for purposes of felonious possession because Oklahoma would treat it as such. But none of the State's cited precedents is authoritative here. In State v. Evans, the defendant's prior offense in Iowa resulted in a conviction and sentence, with suspended execution of sentence and probation. 410 S.W.3d 258 (Mo. App. W.D. 2013). Although Evans later received a restoration of citizenship from the Governor of Iowa, that conferral was not a pardon or expungement, so the State's evidence of a prior conviction was sufficient. Id. In People v. Allaire, the Colorado Court of Appeals held that a guilty plea and deferred judgment can constitute a prior conviction for purposes of its felon-in-possession statute. 843 P.2d 38, 41 (Colo. App. 1992). But this is not the law in Missouri, where established precedent instructs that an SIS is decidedly not a conviction. Hoskins, 329 S.W.3d at 700; State v. Prell, 35 S.W.3d 447, 450 (Mo. App. W.D. 2000), citing Yale, 846 S.W.2d at 194. In U.S. v. Solomon, the federal district court observed that a Missouri SIS is not a conviction for purposes of the federal felon-in-possession statute. 826 F.Supp. 1221 (E.D. Mo. 1993). Though the State relies on Solomon for the proposition that what constitutes a conviction is determined by the jurisdiction where proceedings were held, that proposition is codified under federal law for federal crimes (18 U.S.C. §921(a)(20)) and does not apply here.
Finally, the State suggests that Missouri must enforce Oklahoma's self-executing conviction statute as a matter of comity. "The doctrine of comity is not a rule of law, but one of practice, convenience, and expediency." Ramsden v. State of Ill., 695 S.W.2d 457, 459 (Mo. 1985). "It does not of its own force compel a particular course of action. Rather, it is an expression of one state's entirely voluntary decision to defer to the policy of another." Id. Given Missouri's clear and long-standing policy favoring deferral as a tool for trial judges in "handling offenders worthy of the most lenient treatment" and enabling defendants to avoid the punitive collateral consequences of conviction (Yale, 846 S.W.2d at 195), we find no basis to defer to Oklahoma's contrary policy treating deferral as a conviction in this instance.
Other states, too, have chosen to apply their own laws to determine the effect of out-of-state offenses. Closest to home, the state of Kansas treated a Missouri SIS as a prior conviction for purposes of felonious possession in State v. Evans, 51 Kan. App. 2d 168 (Kan. App. 2015). There, the Kansas Court of Appeals held that "Kansas law controls the determination of what constitutes a conviction for predicate offenses." Id. at 177. "Whether Evans' actions would constitute criminal possession of a firearm in Missouri is irrelevant." Id. "The Kansas Legislature is entitled to determine its own standards of what conduct constitutes a crime in Kansas." Id. See also State v. Menard, 888 A.2d 57, 61 (R.I. 2005); Brown v. Handgun Permit Review Bd, 982 A.2d 830 (Md. App. 2009); State v. Moya, 161 P.3d 862 (N.M. 2007); and Farnsworth v. Commonwealth, 599 S.E. 482 (Va. App. 2004).
Like our sister states, Missouri is equally entitled to determine its own standards and apply its own laws. The Missouri General Assembly has demonstrated its ability to differentiate between pleas and convictions in a variety of collateral contexts and has decided that felonious possession requires a prior conviction. The Missouri Supreme Court has declared that "the term 'conviction' does not include a plea or finding of guilt where imposition of sentence is suspended ... [S]uch a disposition is not one to which collateral consequences attach." Yale, 846 S.W.2d at 196. This court must enforce Missouri statutes as written and in accordance with Missouri Supreme Court precedent. The State offers no Missouri authority directing or even permitting this court to follow Oklahoma law as to what constitutes a conviction, much less compelling the conclusion that an out-of-state deferred judgment is tantamount to an adjudicated Missouri conviction rendering otherwise lawful gun possession felonious. We reject such a consequential theory.
For example, §571.090 precludes individuals from obtaining a permit to carry a concealed firearm when they have "pled guilty to or been convicted of" a crime punishable by a year or more in prison. See Carr v. Sheriff of Clay County, 210 S.W.3d 414 (Mo. App. W.D. 2006) (noting legislative distinction and intent to include both pleas and convictions in bar to concealed carry). In the context of driving offenses, the sentencing enhancement statute (§577.023) has been amended to eliminate references to pleas and convictions in favor of any "findings of guilt," and all forms of disposition must be reported to the Missouri highway patrol (§302.592). Elsewhere, §491.050 allows evidence of convictions and pleas to impeach a witness in a criminal case but allows only for actual convictions in a civil case. See M.A.B. v. Nicely, 909 S.W.2d 669 (Mo. 1995) (finding error where prior plea admitted to impeach a witness in a civil case). These statutes "represent an awareness by the general assembly that the term "conviction," standing alone, does not include a plea or finding of guilt where imposition of sentence is suspended and that such a disposition is not one to which collateral consequences attach." Yale, 846 S.W.3d at 195. --------
Finally, even accepting arguendo that §571.070(1) leaves doubt as to whether Missouri should apply its own definition of conviction or the definition imposed by the state where the predicate offense was prosecuted, the rule of lenity guides us to the same conclusion. "The rule of lenity gives a criminal defendant the benefit of a lesser penalty where there is an ambiguity in the statute allowing for more than one interpretation." Woods v. State, 176 S.W.3d 711, 712 (Mo. 2006). In Woods, the Supreme Court considered whether a penalty enhancement statute applicable after guilty pleas "on two separate occasions" could be invoked to enhance the penalty on a third plea entered at the same time. Observing that the statute was ambiguous as to whether it required the pleas or rather the crimes be on separate occasions, the Court concluded that Woods was entitled to the benefit of that ambiguity. Likewise here, to the extent that §571.070(1) might be susceptible to varying interpretations of conviction, by application of the rule of lenity as prescribed by our Supreme Court, Rohra is entitled to the benefit of doubt.
Point I is granted.
Conclusion
At the time of his arrest, Rohra did not have a prior felony conviction as that term is understood in Missouri law. Accordingly, the State lacked a factual basis to charge him with unlawful possession, and actual prejudice resulted. We would reverse and vacate the trial court's judgment of conviction and sentence on the charge of unlawful possession under §571.070(1). However, due to the general interest and importance of the question presented, we transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02.
/s/_________
Lisa Van Amburg, Judge Colleen Dolan, P.J., concurs and
Mary K. Hoff, J., dissents in a seperate opinion.
DISSENT
I respectfully dissent.
Without addressing other deficiencies in this appeal as suggested by the State, I will only address the main legal issue in this case: the application of Section 571.070(1), the Missouri felon-in-possession statute, in Rohra's case. It reads in pertinent part:
A person commits the crime of unlawful possession of a firearm if such person knowingly has a firearm in his or her possession and such person has been convicted of a felony under the laws of this state or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony. [Emphasis added.]
As noted in the majority opinion, there is no dispute that Rohra knowingly possessed a firearm in this case and that he had pled guilty in 2013 in Oklahoma, to possession of Ecstasy and unlawful possession of controlled substance with intent to distribute. The legal question before us is whether Rohra was a "felon" in possession of a firearm under the Missouri statute as a result of his earlier Oklahoma guilty pleas.
I find that Rohra was a "felon" for purposes of the Missouri felon-in-possession statute. Critical to my analysis is that I disagree with the majority opinion's premise that a deferred sentence in Oklahoma is the same as a suspended imposition sentence in Missouri.
Okl. Stat. Ann. Title 63 Section 2-410, conditional release for first offense - Effect of expungement (in pertinent part) states:
A. Whenever any person who has not previously been convicted of any offense under this act or under any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty or nolo contendere to or is found guilty of a violation of the Uniform Controlled Dangerous Substances Act, the court may, unless otherwise prohibited by law, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place the person on probation upon such reasonable terms and conditions as it may require including the requirement that such person cooperate in a treatment and rehabilitation program of a state-supported or state-approved facility, if available. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge such person and dismiss the proceedings against the person. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this section may occur only once with respect to any person.
B. Any expunged arrest or conviction shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire or any other public or private purpose; provided, that, any plea of guilty or nolo contendere or finding of guilt to a violation of the Uniform Controlled Dangerous Substances Act shall constitute a conviction of the offense for the purpose of the Uniform Controlled Dangerous Substances Act or any other criminal statute under which the existence of a prior conviction is relevant for a period of ten (10) years following the completion of any court imposed probationary term; provided, the person has not, in the meantime, been convicted of a misdemeanor involving moral turpitude or a felony. Records expunged pursuant to this section shall be sealed to the public but not law enforcement agencies for law enforcement purposes. Records expunged pursuant to this section shall be admissible in any subsequent criminal prosecution to prove the existence of a prior conviction or prior deferred judgment without the necessity of a court order requesting the unsealing of such records. [Emphasis added.]
Based on this Oklahoma statute, and Platt v. State, 188 P.3d 196 (Okl. Crim. App. 2008), I conclude that Rohra's Oklahoma drug felonies were convictions because he had not successfully completed the requirements under the Oklahoma statute to qualify as completed deferrals nor as expunged convictions.
As a result, I cannot equate a suspended imposition of sentence under Missouri law and its benefits with the "deferred" sentences under Oklahoma Section 2-410 and the provisions therein.
Here, there is no dispute that Rohra pled guilty in Oklahoma to drug felonies and was given "deferred" sentences. Under Oklahoma Section 2-410, these are convictions for all purposes until ten years after completion of probation, and a grant of expungement. Notably, Rohra doesn't contend that he fulfilled the Oklahoma's statute requirements for deferral and expungement nor that these Oklahoma drug felonies are not felonies in Missouri.
Additionally, I agree with the trial court that the reasoning of Platt v. State, 188 P.3d 196 (Okl. Crim App. 2008) is instructive in Rohra's case. In a strikingly similar situation, Platt had a prior felony drug "deferral" under Oklahoma Section 2-410 and was arrested for felon-in-possession of a firearm. In that case, the Oklahoma appellate court found this "deferred" drug offense was a conviction for purposes of the "felon" in possession statute because Platt had not completed probation nor complied with the other mandates of Oklahoma Section 2-410.
Here, following the reasoning in Platt, Rohra had been convicted of two drug crimes (possession of Ecstasy and distribution of drugs) under the laws of Oklahoma which if committed within this state, would also be felonies. At the time of Rohra's arrest for felon-in-possession and possession of marijuana and drug paraphernalia in Missouri, he was on probation for these Oklahoma drug crimes. As indicated in Platt and the Oklahoma statute, failure to complete probation renders these deferred crimes, convictions for purposes of the subsequent felon-in-possession charge. Rohra concedes that he had not completed his deferred sentences or received expungement of these crimes. Therefore, these predicate drug crimes are felony convictions under both Oklahoma law and Missouri law, and all elements of Section 570.010(1) RSMo are satisfied. As a result, at the time of his arrest in Missouri, Rohra did have prior felony convictions and was properly convicted under the felon-in-possession statute pursuant to his guilty plea in the Circuit Court of the City of St. Louis.
I would affirm the judgment of the trial court.
/s/_________
Mary K. Hoff, Judge