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Davis v. State

Court of Appeals of Missouri, Western District, First Division

January 17, 2017

DAQUETTA D. DAVIS, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri Honorable Robert Michael Schieber, Judge

          Before: Thomas H. Newton, P.J., Cynthia L. Martin, and Edward R. Ardini, Jr., JJ.

          THOMAS H. NEWTON, Presiding Judge

         Ms. Daquetta Davis appeals the circuit court decision to deny a Rule 24.035 post-conviction motion. Ms. Davis had been charged and sentenced as a prior and persistent offender under section 558.016.[1] The plea and sentencing court neglected to make statutory findings that Ms. Davis was a prior or persistent offender before the sentencing. Ms. Davis asserts that the omission of these required statutory findings invalidates the sentence. We affirm.

         Ms. Davis pleaded guilty to two counts of the class C felony of perjury on May 23, 2013. Ms. Davis had been charged by way of indictment as a prior and persistent offender, under section 558.016.

         At the plea hearing, Ms. Davis admitted that she provided false testimony under oath in February 2013. Ms. Davis also admitted that she had two prior felony convictions. Ms. Davis acknowledged that she understood that the plea agreement limited the maximum range of punishment that the plea court could impose to a ten-year sentence. The plea court accepted the guilty plea.

         At the July 2013 sentencing hearing, the sentencing court imposed concurrent ten-year sentences for both counts of perjury. During the hearing, the sentencing court did not explicitly state that it was sentencing Ms. Davis as a persistent offender. The original sentence and judgment also omitted the persistent offender finding. In August 2013, the sentencing court issued an amended judgment that included the persistent offender finding.

         In October 2013, Ms. Davis filed a pro se motion to vacate, set aside, or correct the judgment or sentence under Rule 24.035. Counsel timely filed an amended motion, raising two claims and incorporating Ms. Davis's pro se claims.

         An evidentiary hearing was held in December 2014, and the motion court entered findings of fact and conclusions of law denying Ms. Davis's motion in March 2015. Ms. Davis filed a timely notice of appeal in April 2015. This appeal follows.

         Legal Analysis

"This Court's review of the denial of a post-conviction motion under Rule 24.035 is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous." Cooper v. State, 356 S.W.3d 148, 152 (Mo. banc 2011). "The motion court's findings and conclusions are clearly erroneous only if, after review of the record, the appellate court is left with the definite and firm impression that a mistake has been made." Id. "Movant has the burden to show by a preponderance of the evidence that the motion court clearly erred in its ruling." Id.

Garris v. State, 389 S.W.3d 648, 650-51 (Mo. banc 2012), cert. denied, 134 S. ct. 113 (2013); Rule 24.035(k).

         Ms. Davis argues that the motion court erred in overruling her Rule 24.035 motion because she established that the sentencing court sentenced her outside the applicable range of punishment. Ms. Davis asserts that the sentencing court incorrectly sentenced her because it failed to make the required statutory findings about her persistent offender status until after she was sentenced in violation of sections 558.016 and 558.021. We disagree.

         Section 558.016.3 defines a persistent offender as "one who… has been found guilty of two or more felonies committed at different times." A person who is found to be a persistent offender and is found guilty of a class C felony is subject to "any ...


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