Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis Hon. Michael
VAN AMBURG, JUDGE.
Rohra appeals the trial court's judgment and sentence on
a charge of unlawful possession of a firearm. Rohra asserts
that an Oklahoma deferral of judgment and sentence is not a
prior "conviction" rendering gun possession
unlawful under Missouri's felonious possession statute.
We agree and would reverse and vacate Rohra's present
conviction on that count. However, given the general interest
and importance of the question as to which state's law
determines the existence of a conviction, we transfer the
case to the Supreme Court of Missouri pursuant to Rule 83.02.
2013, the State of Oklahoma charged Rohra with possession and
intent to distribute a controlled substance. Rohra pleaded
guilty and received a deferral of judgment under Oklahoma
law. Then in 2015, during a traffic stop in St. Louis,
officers discovered Rohra in possession of marijuana, drug
paraphernalia, and a firearm. The State charged Rohra with
misdemeanor possession and, as relevant here, unlawful
possession of a firearm. Specifically, the State charged that
Rohra's gun possession was unlawful by virtue of his
earlier drug offense in Oklahoma. Rohra moved to dismiss the
unlawful possession charge, arguing that his deferral from
Oklahoma was not a prior conviction rendering gun possession
unlawful. The trial court denied Rohra's motion on the
basis that, under Oklahoma law, Rohra's deferral is
deemed a conviction for purposes of subsequent firearm
possession. Rohra then pleaded guilty on all three counts.
appeals and asserts that the trial court erred by denying his
motion to dismiss the charge of unlawful possession of a
firearm because the State had no factual basis for the
charge. Rohra argues that his possession of a firearm at the
time of his arrest in St. Louis could not have been unlawful
because he had no prior felony conviction as that
term is used in Missouri. Rohra's point presents a
question of law, which we review de novo. State
v. Smothers, 297 S.W.3d 626, 632 (Mo. App. 2009).
preliminary matter, the State asserts that Rohra waived his
claim by withdrawing his motion to dismiss and ultimately
pleading guilty. The State originally charged Rohra with
unlawful possession based on a prior Missouri misdemeanor
conviction. Rohra filed a motion to dismiss that charge
because the underlying prior conviction was not a felony. At
a hearing on that motion October 1, 2015, the State filed an
amended complaint identifying the Oklahoma deferral as the
prior felony. In response, Rohra orally amended his motion to
dismiss, challenging the complaint based on the Oklahoma
deferral. Although the record on Rohra's motions is
unclear,  the trial court ultimately considered and
ruled on Rohra's amended motion in February 2016. Rohra
persisted in his challenge by filing a motion to quash the
indictment in June 2016, which the court heard and summarily
denied that August.
the matter properly before us for review on the merits. The
trial court's written judgment, which begins "the
court has before it Defendant's motion to dismiss, "
belies the State's characterization of the record.
Clearly, the trial court did not view Rohra's amended
challenge as withdrawn or otherwise waived. Moreover, even if
Rohra hadn't raised the issue at trial, a defect in the
information may be raised for the first time on appeal.
State v. Sparks, 916 S.W.2d 234, 237 (Mo. App. S.D.
1995), citing State v. Parkhurst, 845 S.W.2d 31 (Mo.
1992). Even when first raised on appeal, an information may
be deemed insufficient if (1) it does not, by any reasonable
construction, charge the offense of which the defendant was
convicted and (2) the defendant demonstrates actual prejudice
as a result of the insufficiency. Id. As discussed
below, these conditions exist in this case.
also did not waive his claim of error by pleading guilty. It
is well-settled that "a person who pleads guilty to a
criminal offense has a right to challenge the sufficiency of
the information or indictment by direct appeal."
Dodds v. State, 60 S.W.3d 1, 6 (Mo. App. E.D. 2001).
here, the State argues that Rohra's appellate point of
error is deficient in that it attacks the trial court's
denial of his motion to dismiss and not directly the
subsequent indictment. "A brief impedes disposition on
the merits when it is so deficient that it fails to give
notice to this court and to the other parties as to the
issues presented on appeal." Comp & Soft, Inc.
v. AT & T Corp., 252 S.W.3d 189, 193-94 (Mo. App.
E.D. 2008). Rohra's point does not impede disposition on
the merits. Both the State and this court fully understand
the substantive issue presented on appeal. Rohra frames his
argument around the trial court's denial of his motion to
dismiss because that written order contains the trial
court's legal analysis for this court to review. But
Rohra's brief also cites to his subsequent motion to
quash the indictment and the trial court's summary denial
of that motion. Clearly Rohra's point challenges that
ruling as well. As a matter of policy, this court prefers to
decide cases on their merits whenever possible. Id.
Rohra's point of error is adequately preserved and
presented for our review on the merits.
felon-in-possession statute states in pertinent part:
A person commits the crime of unlawful possession of a
firearm if such person knowingly has a firearm in his or her
possession and such person has been convicted of a
felony under the laws of this state or of a crime under the
laws of any state or of the United States which, if committed
within this state, would be a felony.
§571.070(1). To simplify, a person commits unlawful
possession if he carries a firearm after being
convicted of a crime that is a felony either in
Missouri or elsewhere, if Missouri also would consider it a
felony. Thus, the central dispute here is: what ...