Court of Appeals of Missouri, Western District, Writ Division
In re: FREDERICK W. THORNTON, III, Petitioner,
LARRY DENNEY, Warden, Respondent
Sean D. O'Brien, Kansas City, MO for petitioner.
Andrew T. Bailey and Stephen D. Hawke, Jefferson City, MO for respondent.
Before Writ Division: Alok Ahuja, C.J., and Joseph M. Ellis and Thomas H. Newton, JJ. All concur.
Alok Ahuja, J.
Original Proceeding on Petition for Writ of Habeas Corpus
Frederick W. Thornton III pleaded guilty in October 2007 to driving while intoxicated (or " DWI" ). The circuit court found Thornton to be a persistent offender because he had two prior convictions for driving while intoxicated. By finding that Thornton was a " persistent offender" with two prior DWI convictions, rather than a " prior offender" with one previous conviction, the circuit court enhanced Thornton's current offense from a Class A misdemeanor to a Class D felony. Thornton was given a sentence which exceeded the statutory punishment for a Class A misdemeanor. Thornton filed a petition for writ of habeas corpus, arguing that, as a result of the Missouri Supreme Court's decision in Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), one of the convictions on which the circuit court relied to find him to be a persistent offender could not be used for enhancement purposes. We agree, and conclude that under Turner, Thornton could be classified only as a prior, rather than a persistent, offender. We accordingly grant Thornton's petition for writ of habeas corpus, vacate his 2007 conviction of a felony offense, and order that the record of Thornton's 2007 conviction be amended to reflect a conviction of Class A misdemeanor driving while intoxicated.
On October 2007, Thornton pleaded guilty in the Circuit Court of DeKalb County in Case No. 07K4-CR00429 to the
charge of driving while intoxicated under § 577.010, based on an incident which occurred on August 19, 2007. The State charged Thornton as a persistent offender, based on the fact that he had been convicted of driving while intoxicated on two prior occasions. Thornton's status as a persistent offender had the effect of enhancing the charge from a misdemeanor to a Class D felony. See § 577.023. The court sentenced Thornton to four years' imprisonment. Following Thornton's completion of an institutional treatment program, the court entered a 120-Day Order of Probation in February 2008, which suspended the execution of the balance of Thornton's sentence, and placed him on probation for five years.
On November 21, 2011, the court revoked Thornton's probation for the 2007 offense and executed his sentence, following his guilty plea to charges stemming from a January 28, 2011 accident in which another driver was killed. The court ordered that the sentences imposed in connection with the 2011 accident be served consecutively to Thornton's 2007 sentence.
On January 14, 2013, Thornton petitioned the DeKalb County Circuit Court for habeas corpus relief with respect to his 2007 conviction, arguing that he did not qualify as a persistent offender under the Missouri Supreme Court's decision in Turner, because he had only one prior conviction that would qualify for enhancement. In response, the State argued that Thornton's failure to file a timely post-conviction relief motion under Supreme Court Rule 24.035 barred him from seeking habeas relief. The circuit court denied Thornton's petition.
Thornton then filed a Petition for Writ of Habeas Corpus with this Court. We issued an order to show cause, and thereafter received briefing and heard oral argument.
" 'Habeas corpus is the last judicial inquiry into the validity of a criminal conviction and serves as " a bulwark against convictions that violate fundamental fairness." '" State ex rel. Taylor v. Steele, 341 S.W.3d 634, 639 (Mo. banc 2011) (quoting Amrine v. Roper, 102 S.W.3d 541, 545 (Mo. banc 2003) (in turn quoting Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982))). In determining whether or not to grant habeas relief, we are " limited to determining the facial validity of confinement, which is based on the record of the proceeding that resulted in the confinement." State ex rel. Zinna v. Steele, 301 S.W.3d 510, 513 (Mo. banc 2010), quoting State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001).
In 2007, the circuit court found Thornton to be a persistent offender based, in part, on his guilty plea on August 22, 2000 to driving while intoxicated in the Cameron Municipal Division of the Circuit Court of Clinton County. It is undisputed that
Thornton received a suspended imposition of sentence (or " SIS" ) in the ...