Court of Appeals of Missouri, Western District, First Division
DAQUETTA D. DAVIS, Appellant,
STATE OF MISSOURI, Respondent.
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.
H. NEWTON, Presiding Judge
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. 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.
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
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.
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
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
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.
"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
Garris v. State, 389 S.W.3d 648, 650-51 (Mo. banc
2012), cert. denied, 134 S. ct. 113 (2013); Rule
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.
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 ...