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State v. Johnson

Supreme Court of Missouri, En Banc

August 22, 2017

STATE OF MISSOURI, Respondent,
v.
ANGELO JOHNSON, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable Thomas J. Prebil, Judge

          ZEL M. FISCHER, CHIEF JUSTICE

         A jury convicted Angelo Johnson of five counts of first-degree statutory sodomy, three counts of first-degree statutory rape, three counts of incest, and one count of second-degree statutory rape. At sentencing, the circuit court found Johnson to be a predatory sexual offender pursuant to § 558.018.5(3)[1] and sentenced Johnson to the corresponding mandatory minimum sentence, life imprisonment with the possibility of parole, for each of the five first-degree statutory sodomy convictions and three first-degree statutory rape convictions. Johnson appeals these eight sentences, arguing the circuit court improperly sentenced him as a predatory sexual offender. The circuit court's judgment is affirmed.

         Factual and Procedural History

         The State charged Johnson with 13 felony counts stemming from the sexual abuse of his two step-daughters, D.P. and R.J., and his biological daughter, L.J. The specific charges were: six counts of first-degree statutory sodomy and three counts of first-degree statutory rape as to D.P. and R.J.; three counts of incest as to D.P., R.J., and L.J.; and one count of second-degree statutory rape as to L.J. For the first-degree statutory sodomy charges and first-degree statutory rape charges (which involved only D.P. and R.J.[2]), the State also charged Johnson as a predatory sexual offender pursuant to § 558.018, section 558.018 defines "predatory sexual offender" and subjects a defendant, found by the circuit court to be a predatory sexual offender and also found guilty of a predicate offense, to a mandatory minimum sentence of life imprisonment with the possibility of parole. Prior to trial, Johnson waived his statutory right to jury sentencing.

         After the close of evidence and prior to submission of the case to the jury, the circuit court, outside of the jury's presence, initially considered the State's request to find Johnson to be a predatory sexual offender. The charges against Johnson involved multiple victims. The State argued Johnson was a predatory sexual offender pursuant to § 558.018.5(3), which provides a person is a predatory sexual offender if the person "[h]as committed an act or acts against more than one victim." Johnson argued § 558.018.5(3) did not apply because that section applies only to prior acts, not acts that are the bases for the current charges. The circuit court initially agreed with Johnson and denied the State's request to find Johnson to be a predatory sexual offender.

         The case was submitted to the jury, which found Johnson guilty on 12 of 13 counts and acquitted him on one count of first-degree statutory sodomy. At sentencing, the State again requested the circuit court find Johnson to be a predatory sexual offender pursuant to § 558.018.5(3). Johnson again argued that section did not apply to him because it applies only to prior acts. Johnson did not, however, argue the circuit court was precluded by § 558.021.2 from finding him to be a predatory sexual offender because the case had already been submitted to the jury. The circuit court reconsidered its prior interpretation of § 558.018.5(3), was persuaded the State's interpretation of the statute was correct, and, therefore, found Johnson to be a predatory sexual offender.[3] Based on that finding, Johnson was sentenced to eight concurrent terms of life imprisonment with eligibility for parole after 25 years for his first-degree statutory sodomy and first-degree statutory rape convictions.[4] Johnson appealed the sentences. After opinion by the court of appeals, this Court transferred the case pursuant to article V, § 10 of the Missouri Constitution.

         Analysis

         A "predatory sexual offender" is statutorily defined as a person who:

(1) Has previously been found guilty of committing or attempting to commit any of the offenses listed in subsection 1 of this section, or committing child molestation in the first degree when classified as a class B felony or sexual abuse when classified as a class B felony; or
(2) Has previously committed an act which would constitute an offense listed in subsection 4 of this section, whether or not the act resulted in a conviction; or
(3) Has committed an act or acts against more than one victim which would constitute an offense or offenses listed in subsection 4 of this section, whether or not the defendant was charged with an additional offense or offenses as a result of such act or acts.

Section 558.018.5. "In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing . . . ." Section 558.021.2. If the circuit court finds the defendant is a predatory sexual offender and the defendant is found guilty of committing or attempting to commit one of several predicate crimes, then the defendant is subject to a mandatory minimum sentence of life imprisonment with the possibility of parole. Sections 558.018.4, 558.018.6.

         Relevant here, the predicate crimes include first-degree statutory sodomy and first-degree statutory rape. Sections 558.018.1, 558.018.4. Because the jury found Johnson guilty on five counts of first-degree statutory sodomy and three counts of first-degree statutory rape, and because the circuit court found Johnson to be a predatory sexual offender pursuant to § 558.018.5(3), the circuit court sentenced Johnson to life imprisonment with eligibility for parole on each of those eight convictions. Had the circuit court not found Johnson to be a predatory sexual offender, the circuit court could have still sentenced Johnson to life imprisonment for each of the eight convictions, but Johnson would have been subject to a lesser mandatory minimum sentence of either 5 years or 10 years, depending on the conviction.[5] Johnson presents two points on appeal and asks this Court to remand his case for resentencing on the eight convictions without the possibility of sentencing him as a predatory sexual offender.

         Section 558.018.5(3) Applies to Charged Acts and Is Not Facially Unconstitutional

         Johnson argues the circuit court erred in finding him to be a predatory sexual offender pursuant to § 558.018.5(3), alleging that section applies only to prior acts, not acts that are the bases for the current charges. As an extension of this argument, Johnson argues interpreting § 558.018.5(3) to apply to charged acts violates his right to a jury trial guaranteed by the Sixth and Fourteenth amendments to the United States Constitution and article I, § 18(a) of the Missouri Constitution.[6] "Statutory interpretation is an issue of law that this Court reviews de novo." S. Metro. Fire Prot. Dist. v. City of Lee's Summit, 278 S.W.3d 659, 666 (Mo. banc 2009).

         Generally, to preserve an allegation of error, it must be presented to the circuit court in a motion for new trial. E.g., State v. Winfield, 5 S.W.3d 505, 511 (Mo. banc 1999); Rule 29.11(d). Here, however, the claim of error relates to the circuit court applying § 558.018.5(3) to Johnson, which he raised at the first opportunity and again at sentencing; therefore, this claim of error is preserved.

         "This Court's primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue." Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). "It is a basic rule of statutory construction that words should be given their plain and ordinary meaning whenever possible." State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 479 (Mo. banc 2013) (internal quotations omitted). This Court may not add language to an unambiguous statute. State v. Collins, 328 S.W.3d 705, 709 n.6 (Mo. banc 2011). "This Court must presume every word, sentence or clause in a statute has effect, and the legislature did not insert superfluous language." Bateman v. Rinehart, 391 S.W.3d 441, 446 (Mo. banc 2013). "When the words are clear, there is nothing to construe beyond applying the plain meaning of the law." Id. (internal quotations omitted); see also, e.g., Treasurer of State-Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 461 (Mo. banc 2013) ("Only where the language is ambiguous will the Court resort to other rules of statutory construction.").

         Section 558.018.5(3) is unambiguous. It refers simply to "an act or acts against more than one victim." Nowhere does it refer to "prior" acts or "previous" acts. To hold, as Johnson argues, that § 558.018.5(3) applies only to prior acts, this Court would not only have to impermissibly add language to an unambiguous statute, but also impermissibly find § 558.018.5(3) to be superfluous. Section 558.018.5(2) already encompasses the same general types of acts as § 558.018.5(3)-those which would constitute an offense pursuant to § 558.018.4-but § 558.018.5(2) specifically refers to acts "previously committed." Therefore, giving effect to legislative intent reflected in the unambiguous plain language, § 558.018.5(3) applies not only to prior acts, but also applies to acts that are the bases for the current charges. With nothing for this Court to construe, this is not a case in which this Court must apply principles of statutory construction to choose between plausible, competing interpretations. See Bateman, 391 S.W.3d at 446; Witte, 414 S.W.3d at 461.

         Johnson also argues this "interpretation" is unconstitutional. But because this is not a matter of construction or competing interpretations-merely one of applying § 558.018.5(3)'s unambiguous plain language-Johnson's argument is necessarily a challenge to the constitutional validity of § 558.018.5(3) on its face. See New Garden Rest., Inc. v. Dir. of Revenue, 471 S.W.3d 314, 318 (Mo. banc 2015). This part of Johnson's argument was not presented to the circuit court at any point and, therefore, has not been preserved. See State v. Driskill, 459 S.W.3d 412, 426 (Mo. banc 2015) ("To preserve a constitutional claim of error, the claim must be raised at the first opportunity with citation to specific constitutional sections."). Nevertheless, because this is the first challenge to the constitutional validity of § 558.018.5(3) to reach this Court, this Court will exercise its discretion to review this argument ex gratia.

         "Generally, to prevail in a facial challenge, the party challenging the statute must demonstrate that no set of circumstances exists under which the statute may be constitutionally applied." State v. Jeffrey, 400 S.W.3d 303, 308 (Mo. banc 2013). "Thus, the general rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." Id. (internal quotations omitted). In this case, there is no error, plain or otherwise, because § 558.018.5(3) is not facially unconstitutional.

         Johnson's constitutional challenge is premised on the United States Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne, the Supreme Court held, pursuant to the Sixth Amendment's right to a jury trial, "Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Id. at 2155. That is, "any fact that increases the mandatory minimum [sentence] is an 'element' that must be submitted to the jury." Id. The Supreme Court reasoned, "When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury." Id. at 2162.

         Johnson argues that, in applying to the currently charged acts, § 558.018.5(3), in conjunction with § 558.021, is unconstitutional because it "allow[s] for the trial court to find in a jury trial that the defendant actually committed the crimes with which he has been charged before the case is submitted to the jury" and thus "force[s] the trial court to find facts which increase the mandatory minimum punishment in violation of Alleyne." Pursuant to § 558.018.5(3), the fact that increases the mandatory minimum sentence is that the defendant committed acts against more than one victim. According to Alleyne, this fact must be submitted to and found by the jury. 133 S.Ct. at 2155. That this fact may be found based on the current charges does not run afoul of Alleyne. If anything, it means that, despite a statutory scheme requiring only the circuit court to find the fact, the fact will necessarily also be submitted to the jury for determination.

         Here, for example, the jury found beyond a reasonable doubt Johnson committed acts against more than one victim in that Johnson committed first-degree statutory sodomy and first-degree statutory rape as to both D.P. and R.J. Therefore, no constitutional violation resulted in subjecting Johnson to an increased mandatory minimum sentence. See Alleyne, 133 S.Ct. at 2155. That the circuit court did not follow the timing requirement of § 558.021.2 is immaterial to the constitutional analysis. Even if the circuit court would have applied the plain language of § 558.018.5(3) and, in accordance with § 558.021.2, determined prior to submission of the charges to the jury that Johnson was a predatory sexual offender based on findings he committed the charged acts against D.P. and R.J, that pre-submission determination, by itself, would not have violated Johnson's constitutional right.[7] Alleyne held only that the jury must find the necessary facts, not that a statute may not require a trial court to also find these facts.[8] The circuit court's pre-submission findings of predicate facts does not necessarily preclude the jury from also having to subsequently find the same predicate facts thereafter. Simply because the jury may not always find the facts after the circuit court's pre-submission findings does not mean the jury never will or never can. This is not a case where "no set of circumstances exists under which the statute may be constitutionally applied." Jeffrey, 400 S.W.3d at 308. Applying the statute with the backdrop of Alleyne, if either the circuit court or the jury would fail to find the required predicate facts, the defendant could not be sentenced as a predatory sexual offender. That the statute could not be constitutionally applied when the jury does not also find the predicate facts would render the statute unconstitutional as applied under those circumstances, but not facially unconstitutional. Johnson's constitutional challenge, therefore, is without merit.

         Johnson Has Not Established Manifest Injustice Resulted From the Circuit Court's Violation of § 558.021.2

         Johnson argues the circuit court erred or plainly erred in finding him to be a predatory sexual offender after the case had already been submitted to the jury because this violated § 558.021.2 and his right to due process guaranteed by the Fourteenth Amendment to the United States Constitution and article I, § 10 of the Missouri Constitution. At the sentencing hearing, Johnson did not object to the circuit court finding him to be a predatory sexual offender on the basis that doing so violated § 558.021.2. An objection "must be specific and made contemporaneously with the purported error." Driskill, 459 S.W.3d at 426. Because Johnson failed to preserve this claim of error, it is entitled only to plain error review. Id.

         "[P]lain errors affecting substantial rights may be considered in the discretion of the court when the error has resulted in manifest injustice or miscarriage of justice." State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014). "First, the Court must determine whether the claimed error is, in fact, 'plain error[] affecting substantial rights.'" Id. "An error is plain if it is 'evident, obvious, and clear.'" Id. "Substantial rights are involved if, facially, there are significant grounds for believing that the error is of the type from which manifest injustice or miscarriage of justice could result if left uncorrected." Id. "Second, if plain error affecting substantial rights is found, the Court determines whether the error actually did result in manifest injustice or a miscarriage of justice." Id. "Manifest injustice is determined by the facts and circumstances of the case, and the defendant bears the burden of establishing manifest injustice." State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006). "To be entitled to relief under the plain error rule, an appellant must go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights." Winfield, 5 S.W.3d at 516. "In other words, the appellant must show that the error affected his rights so substantially that a miscarriage of justice or manifest injustice will occur if the error is left uncorrected." Id.

         The circuit court here did not find Johnson to be a predatory sexual offender until his sentencing, after the case had been submitted to the jury. Section 558.021.2 requires the circuit court to make the predicate findings prior to submission of the case to the jury. This Court has emphasized the importance of statutory timing requirements when the circuit court finds the defendant to be a status offender (e.g., prior, persistent, or chronic offender). See Collins, 328 S.W.3d at 709-10; State v. Severe, 307 S.W.3d 640, 644-45 (Mo. banc 2010); State v. Teer, 275 S.W.3d 258, 260-62 (Mo. banc 2009); State v. Emery, 95 S.W.3d 98, 101-02 (Mo. banc 2003). The circuit court's failure to comply with the timing requirement is evident, obvious, and clear. See In re Adoption of C.M.B.R., 332 S.W.3d 793, 809 (Mo. banc 2011) ("Here, the statutory errors are evident, obvious, and clear from the record, so the issue is whether they resulted in manifest injustice or a miscarriage of justice."). The circuit court's error facially involves substantial rights because a violation of "section 558.021.2 "implicates a defendant's liberty." See Teer, 275 S.W.3d at 261; see also Hunt, 451 S.W.3d at 260 ("Applying step one, the liberty of a criminal defendant is a substantial right that, when violated, can lead to manifest injustice or miscarriage of justice."). The remaining question is whether the circuit court's timing error resulted in manifest injustice or a miscarriage of justice.

         Johnson points to several cases in which this Court or the court of appeals found either prejudice or manifest injustice resulted when the defendant was sentenced as a status offender after the circuit court violated similar statutory requirements and the defendant was subjected to a punishment greater than the maximum sentence would have been had the defendant not been found to be a status offender. Johnson analogizes his case to these because he was sentenced to a mandatory minimum sentence greater than the mandatory minimum sentence he would have been subjected to had he not been sentenced as a predatory sexual offender. Assuming without deciding Johnson is correct - that there is no basis to distinguish between a higher maximum sentence and a higher minimum sentence - he still fails to recognize that the nature and context of the circuit court's statutory violation is of the utmost importance in determining whether manifest injustice has resulted. See Baxter, 204 S.W.3d at 652 ("Manifest injustice is determined by the facts and circumstances of the case . . . ."). Manifest injustice does not automatically result simply because the circuit court violated § 558.021.2, and the cases relied upon by Johnson are readily distinguishable.

         This Court has held either prejudice or manifest injustice results when the defendant is sentenced as a status offender without the State offering the evidence necessary to establish such status. See Collins, 328 S.W.3d at 708-10; Severe, 307 S.W.3d at 642-645; Emery, 95 S.W.3d at 101-02. The court of appeals also has held manifest injustice results when the circuit court sentences a defendant as a status offender without finding the necessary facts, see State v. Wilson, 343 S.W.3d 747, 750-51 (Mo. App. 2011), and when the circuit court sentences a defendant as a status offender after allowing the State to offer evidence after submission of the case to the jury because its pre-submission evidence was insufficient, see State v. Starnes, 318 S.W.3d 208, 210-18 (Mo. App. 2010). There is prejudice or manifest injustice in these cases because the respective defendants were sentenced based on an offender status never proved by the State or never expressly found by the circuit court-i.e., the necessary preconditions to sentencing a defendant as a status offender were altogether absent-or the State was unfairly given "'two bites at the apple' when the statute allows only one bite." Severe, 307 S.W.3d at 645.

         Here, however, Johnson does not argue that any of the necessary preconditions were altogether absent or that the State was unfairly given more than one opportunity to carry its burden of proof. Rather, Johnson argues he was prejudiced because the circuit court's findings were not made prior to submission to the ...


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