APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. The Honorable John I. Moran, Judge
Before Ulrich, P.j.; Berrey and Smart, JJ.
The opinion of the court was delivered by: Smart
Michael A. Davis appeals from the trial court's judgment finding him guilty of two counts of kidnapping in violation of § 565.110, RSMo 1986, three counts of forcible rape in violation of § 566.030, RSMo 1986, and two counts of armed criminal action in violation of § 571.015, RSMo 1986. Davis was sentenced as a prior and persistent offender to a total of nine hundred and ninety-nine years imprisonment. Davis also appeals from the motion court's denial of his Rule 29.15 motion for post-conviction relief.
The judgment is affirmed in part, and reversed and remanded for re-sentencing.
On June 26, 1989, Regina Butler *fn1 , fifteen years old, and Melissa Jackson, seventeen years old, celebrated Melissa's birthday at her home, where they spent the night. Early the next morning, the girls walked to a store to buy some soda. As the girls exited the store they were approached by defendant and a man named Ronald Fox, who asked them if they knew where Montgomery Street was located. Before the girls could answer, defendant put a knife to Regina's throat threatening to hurt her if she resisted. At that same moment, Fox grabbed Melissa and put his arm around her neck threatening to break her neck if she screamed or attempted to run away.
The men forced the girls into a pickup truck and drove them to a field, then forced them to walk into a nearby woods. Fox raped Regina twice and defendant raped Melissa once. Regina and Melissa were told that they would be killed if they told anybody what had happened. The men left the girls in the woods and as they were leaving the girls heard them say that they were going to "hit the road and do it again."
Later on that same day, Fox and Davis drove to Higginsville. At around 10:00 p.m., they waited outside of the high school in the parking lot. They saw a woman walking alone coming out of the high school and walking towards her car. The woman was JoAnn Watkins, a teacher at the school. Defendant approached Ms. Watkins and asked her where Montgomery Street was located or where the Montgomery family lived. Before she could answer, defendant pulled a knife from behind his back and forced her into the passenger side of her car. Fox entered the back seat of the car and defendant drove the vehicle. Over the next seven hours, defendant drove Fox and Ms. Watkins to Kansas City and then to Springfield. During the trip, defendant raped Ms. Watkins twice and sodomized her once. Fox sodomized her twice and raped her twice. Defendant and Fox tried to check into a Holiday Inn with Ms. Watkins, using her credit card. However, while in the hotel, Ms. Watkins got away from defendant, who in turn fled from the premises. The men next went to the parking lot of St. John's Mercy Hospital where they tried to abduct another woman unsuccessfully. Defendant Davis was apprehended and charged with kidnapping, rape, and armed criminal action.
At the trial of the charges related to Regina Butler and Melissa Jackson, Defendant Davis represented himself, having expressed dissatisfaction with his appointed attorney. Defendant also testified at trial. He denied that he had sexual contact with Melissa Jackson. He testified that he feared his associate, Ronald Fox, who insisted that Davis participate in these assaults. Davis testified that he made Melissa remove her clothes so that Fox would think that he was "doing something to her." Defendant did not deny that he had sexual intercourse with JoAnn Watkins. He testified that he did not force her to have sex. He suggested to Ms. Watkins that if she would have sex with him, he would not allow Fox to harm her. Defendant testified that he believed that by having sex with JoAnn Watkins he saved her from the violence of Ronald Fox. At the close of all the evidence, the jury found defendant guilty on all counts. On June 13, 1991, defendant was sentenced as a prior and persistent offender to three hundred years imprisonment on each of the rape convictions, fifteen years imprisonment on each kidnapping conviction and a total of sixty-nine years imprisonment on the two armed criminal action convictions. The sentences were ordered to run consecutively. The trial court denied defendant's Rule 29.15 motion without an evidentiary hearing. Defendant appeals from the conviction and from the denial of his post-conviction motion.
Defendant first argues that the trial court erred in accepting the jury's verdicts assessing punishment at terms of 300 years imprisonment on each count of forcible rape because the sentences imposed on those counts exceeded the statutory range of punishment. Defendant suggests that the maximum sentence authorized for the unclassified offense of forcible rape is life imprisonment and the range of punishment for a person convicted of the unclassified offense of forcible rape, and adJudged a persistent offender, is a term of years not less than ten years and not more than thirty years, or life imprisonment.
Defendant's argument is based on the fact that forcible rape is an unclassified felony. The legislature also created a class A felony of forcible rape, which is a forcible rape involving a weapon, serious physical injury, or sexual assault on more than one person. Prior to August 28, 1993, the penalty for the unclassified felony of rape was "life imprisonment or a term of years not less than five years. . . ." Section 566.030.2, RSMo 1992. The penalty for the class A felony of rape is "a term of years not less than ten years and not to exceed thirty years, or life imprisonment." See §§ 566.030.2, 558.011.1(1), RSMo Supp. 1992. Defendant argues that because the legislature intended class A forcible rape to be subject to greater punishment than unclassified forcible rape, the term of years "but not less than five years" should be construed as a term of years not less than five years and not more than 30 years. Recently, the Missouri legislature amended the penalty for the unclassified felony of rape under § 566.030, eliminating this discrepancy. The amendment, which became effective on August 28, 1993, provides that the unclassified felony of forcible rape is punishable by life imprisonment or a term of years not less than five years and not greater than thirty years. Thus, the legislature addressed the logical discrepancy suggested by defendant. Defendant argues that although he was sentenced before the effective date of the amendment, § 1.160, RSMo 1986 provides that if during the pendency of a case a "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." However, the Missouri legislature has also recently amended this statute restricting its application. Section 1.160 now only allows relief from a statute reducing a penalty if the statute's effective date is "prior to the original sentencing" of the defendant. Defendant Davis in the instant case had already been sentenced as of August 30, 1993. Thus, this amendment does not apply to him.
Ironically, the fact that defendant was sentenced as a persistent offender necessitates the granting of relief in this case. Defendant was sentenced as a persistent offender "to an extended term of imprisonment" under § 558.016. Paragraph 7 of § 558.016 sets forth the maximum terms of imprisonment for a persistent offender under each felony classification (i.e., class A, class B, class C and class D). Defendant was convicted for the unclassified felony of rape pursuant to § 566.030. Thus, at first glance, § 558.016.7 appears inapplicable to defendant's sentencing. However, § 557.021.3 specifically applies to the extended term provisions of § 558.016 and classifies every felony and misdemeanor offense not already classified by statute as class A, class B, class C or class D, based upon the authorized punishment of the underlying offense. Defendant was convicted for the unclassified felony of rape, now carrying a penalty of not less than five years and not more than thirty years, or life imprisonment. Section 557.021.3(1)(a) states that if the charged offense is a felony, then "it is a class A felony if the authorized penalty includes death, life imprisonment or imprisonment for a term of twenty years or more." Two cases decided by this court expressly provide that the unclassified felony of rape set forth in § 566.030.2 is classified as a class A felony for sentencing enhancement purposes. See Weeks v. State, 785 S.W.2d 331, 332 (Mo. App. 1990) ; Wescott v. State, 731 S.W.2d 326, 331 n. 6 (Mo. App. 1987). Thus, for the purpose of sentencing defendant as a persistent offender, the unclassified felony rape conviction constitutes a "class A" felony under § 557.021.3(1)(a).
Section 558.016.7 sets forth the "total authorized maximum terms of imprisonment for a persistent offender" under each felony classification (i.e., class A, class B, class C and class D). This section provides that the total authorized maximum term of imprisonment for a class A felony is "any sentence authorized for a class A felony." Section 558.011.1(1) provides that the authorized term of imprisonment for a class A felony is "a term of years not less than ten years and not to exceed thirty years, or life imprisonment." Thus, the maximum sentence defendant could receive on each count of unclassified forcible rape is life imprisonment. Section 558.019.4(4) provides that for the purpose of calculating the minimum prison term to be served, a life sentence equals fifty years. Thus, the trial court erred in sentencing defendant to 900 years imprisonment for the rape convictions. Accordingly, the sentence of 900 years is vacated and the case is remanded to the ...