Court of Appeals of Missouri, Western District, First Division
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable James Kanatzar, Judge.
Laura Martin, Kansas City, MO, Counsel for Appellant.
Robert Bartholomew, Jr., Jefferson City, MO, Counsel for Respondent.
Before Division One: James Edward Welsh, P.J., Thomas H. Newton, and Karen King Mitchell, JJ. All concur.
JAMES EDWARD WELSH, J.
Clifford L. Williams appeals from the circuit court's judgment convicting him of driving while intoxicated as a chronic (intoxication-related) offender and driving while revoked. The circuit court found Williams to be a prior and persistent (felony) offender and sentenced him to ten years in prison on the driving while intoxicated count and to three years in prison on the driving while revoked count, with the sentences to run concurrently. Williams contends that the circuit court plainly erred in sentencing him because the court held a materially false belief that the minimum sentence applicable to the offense of driving while intoxicated as a chronic (intoxication-related) offender for a prior and persistent (felony) offender was ten years' imprisonment. The State concedes that the circuit court was mistaken about the minimum sentence applicable to the offense and agrees that we should reverse the circuit court's judgment in regard to sentencing and remand to the circuit court for resentencing.
The State filed an information in lieu of an indictment charging Williams as a prior and persistent (felony) offender with one count of driving while intoxicated as a chronic (intoxication-related) offender and one count of driving while revoked. Before trial, the circuit court found beyond a reasonable doubt that Williams was a chronic (intoxication-related) offender and a prior and persistent (felony) offender. After a trial by a jury, Williams was found guilty on both counts.
At the sentencing hearing, Williams's attorney argued that " the minimum sentence that the Court can give [Williams] is two years under the statute, and because of the prior, prior and persistent levels, it can be up to life[.]" Defense counsel acknowledged Williams's criminal history but requested that the court sentence Williams to a two-year term of imprisonment because the State's witnesses lacked credibility, no one was injured, and Williams had made positive changes over the past two and a half years and had support from his family and friends.
In response, the State argued:
As to the recommendation provided by defense counsel of two years, Your Honor, one, as the defendant is charged, he's charged with a Class B felony. Even without prior and persistent status, that would be a range of punishment of five to 15 years. By statute he has to serve two years before he'd be eligible for probation or parole, so he has to be sentenced to a minimum of five years.
The state, however, presented evidence to this Court and this Court found the defendant guilty of being a prior and persistent felony offender before any facts were presented to the jury, which raises the range of punishment from ten to life, or 30 years.
The State then recommended a sentence of 18 years in prison due to Williams's prior convictions.
In declaring its sentence, the circuit court first acknowledged that Williams was " a prior and persistent offender and a chronic alcohol offender and [will be] sentenced accordingly." The court then stated:
The prosecutor is right. My hands are tied under the law. The range of punishment that is only available to me in this case is a Class A felony, which is a minimum of ten years and a maximum of life on the driving-while-intoxicated count, and on the driving-while-revoked count, the range of punishment that's available to me is one year to seven years in the Missouri Department of Corrections. Because he is an alcohol chronic offender, he has to serve a minimum of two years before he will be eligible ...