Criminal Law

Ellen H. Flottman, Esquire

Where the transcript shows Defendant received concurrent sentences, the written judgment must reflect that, even if the parties recalled otherwise.  Shaw v. State, No. 30814 (Mo. App. S.D., August 17, 2011), Bates, J.,

Appeal from an order denying a Rule 24.035 motion for postconviction relief. 

Held:  Affirmed in part, reversed in part and remanded with instructions
. The written judgment stated that Defendant’s sentences of fifteen and four years were to be served consecutively.  The certified transcript of the proceeding said “concurrent.” Despite testimony at the evidentiary hearing on the postconviction case that the judge thought he sentenced Defendant to consecutive time, and the defense counsel thought Defendant received consecutive time, the transcript controls.  A written judgment and sentence in a criminal case may not deviate from the court’s oral pronouncement of sentence.   

Officer’s use of force form was not privileged, and should have been released to the Defendant in discovery.  The form was not a personnel record which would not be discoverable under the Sunshine Law.  State v. Jackson, No. 30129 (Mo. App. S. D., August 12, 2011), Bates, J.,

Defendant was convicted of third degree assault of a law enforcement officer and resisting a lawful detention. 

Held: Reversed.
The trial court erred in overruling Defendant’s motion to compel the custodian of records for the Springfield Police Department to release a document containing a written description of the event by the officer who was involved, pursuant to a Sunshine Law request.  The “resistance control form,” which must be filed whenever there is a use of force during an encounter, was not privileged.    

Out-of-state conviction could not be used as a prior offense, when it did not show what court convicted the Defendant.  State v. Lemons, No. 30959 (Mo. App. S.D., August 25, 2011), Francis, J.

Defendant was convicted of driving while intoxicated and sentenced as a chronic offender to seven years. 

Held:  Affirmed in part, reversed in part and remanded with instructions.
Alleged Arkansas conviction used to prove Defendant had a prior offense did not identify the convicting court.  That is necessary as part of the ‘minimal information” required.  This is because a defendant who does not know the court in which action was taken may find it practically impossible to disprove an erroneous out-of-state conviction.  Remanded for sentencing as an aggravated offender based on the three prior Missouri convictions.

Habeas corpus relief granted where the State suppressed evidence of an alternative murder weapon in violation of Brady v. Maryland. State ex rel., et al. v. Denney, No. 91112 (Mo. banc, August 2, 2011), Teitelman, C.J.

Petitioner filed for writ of habeas corpus challenging his murder conviction. 

Held: Habeas relief granted.
  Petitioner was convicted of a murder of another inmate in the Department of Corrections and sentenced to death.  After a reversal and a new penalty phase, Petitioner was re-sentenced to life without the possibility of parole.  His habeas petition alleged that the State failed to disclose evidence that the prison guards had seized an alternative murder weapon from another inmate, and that this failure to disclose violated Brady v. Maryland, 373 U.S. 83 (1963).  Petitioner met his burden to show that the evidence was favorable to him, the State suppressed the evidence, and that Petitioner was prejudiced. 

Enticement of a child statute is not void for vagueness.  Although “child” was actually a police officer, the statute makes clear that factual impossibility is not a defense. State v. Faruqi, No. 91195 (Mo. banc August 2, 2011), Stith, J.

Defendant was convicted of attempted enticement of a child and challenged his conviction on the grounds that the statute is void for vagueness. 

Held: Affirmed.
  Defendant’s assertion that the completed offense was impossible does not make the statute vague, where he was charged with attempt rather than the completed offense, and the statute specifically states that impossibility of completion is not a defense. 

That Defendant would have accepted a different plea offer is not Strickland prejudice allowing for postconviction relief.  Brantley v. State, No. 30868 (Mo. App. S.D., August 2, 2011), Rahmeyer, J.

Appeal from a motion for postconviction relief challenging Defendant’s plea of guilty to assault. 

Held:  Affirmed.
  Defendant’s challenge that had he not received ineffective assistance of counsel, he would have accepted an earlier more favorable plea agreement was not cognizable under Beach v. State, 220 S.W.3d 360 (Mo. App., S.D. 2007).  It is noteworthy that this issue is currently pending in the United States Supreme Court.  See: Missouri v. Frye, No. 10-444, argument set October 31, 2011.  

Section 566.150, stating that certain  offenders may not be present  within 500 feet of park, was unconstitutionally retrospective as applied.  State v. Davis, No. 91368 (Mo. banc, August 30, 2011), Breckenridge, J.

State’s appeal from the dismissal of complaint charging Defendant, a registered sex offender, with knowingly being present within 500 feet of a public park that contains playground equipment or a public swimming pool. 

Held:  Affirmed.

Rosalynn Koch, Esquire

Sheriff’s department was statutorily authorized to enforce speed limit set by a municipality; but testimony that the defendant “just appeared” to be exceeding the limit was insufficient to support speeding conviction.  State v. Ostdiek, No. 72397 cons/72398, 72399 (Mo. App. W.D. August 30, 2011), Smart, J.

After a Clay County deputy sheriff stopped the defendant for speeding on a Kansas City street, the defendant was ultimately charged with speeding, driving while intoxicated and a possession charge.  He moved to suppress evidence, contending that the deputy lacked jurisdiction to make the stop absent an agreement with the municipality authorizing the department to enforce municipal violations.  After the motion was denied, at trial the state failed to establish the radar’s accuracy but obtained a conviction on the deputy’s testimony that the defendant was traveling faster than normal.

Held:  Reversed in part
.  Section 304.010 criminalizes speeding on “highways,” which term encompasses all roads traveled by the public regardless of legal status.  The speeding conviction is reversed because under the facts presented the deputy’s observations were insufficient.

Failure to inform client of parole consequences of guilty plea is not ineffective assistance of counsel.  Smith v. State, No. 95723 (Mo. App. E.D. August 30, 2011), Dowd, J.

Movant appealed denial of his Rule 24.035 motion, alleging counsel was ineffective for failing to advise him of parole ramifications before he pled guilty.

Held:  Affirmed.
  While the Missouri Supreme Court has held that affirmative misinformation as to parole may constitute deficient representation, it has not overturned caselaw holding that parole remains a collateral matter.