Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF POLK COUNTY Honorable Michael
AND REMANDED WITH INSTRUCTIONS
C. Shaw, III ("Defendant") waived his right to a
jury trial, and the trial court found him guilty of the
class-B felony of assault in the first degree. See
section 565.050. The trial court sentenced Defendant to
serve 15-years -- the maximum punishment allowed for a
class-B felony -- in the Department of Corrections
("DOC"). See section 558.011, RSMo Cum.
single point on appeal, Defendant claims,
The trial court erred or plainly erred in entering judgment
on the class B felony of assault in the first degree and in
sentencing [Defendant] to fifteen years imprisonment, because
this violated [Defendant]'s right to due process of law
as guaranteed by [the appropriate provisions of the
constitutions of the United States and the State of
Missouri], in that the information charging [Defendant] with
assault in the first degree actually charged an
attempted assault pursuant to Section 564.011, which
is a class C felony rather than a class B felony. Thus,
[Defendant]'s fifteen year sentence resulted in a
manifest injustice since the greatest sentence he should have
received for this class C felony was seven years
concedes that he failed to raise this claim at the time of
his sentencing, and he seeks plain-error review under Rule
30.20. Finding no error, plain or otherwise as to this issue,
we affirm Defendant's conviction and sentence. However,
the judgment reflects that the charge was resolved by
"Guilty Plea[, ]" despite the trial court's
finding of guilt following a bench trial. We therefore remand
the matter "to the trial court with instructions to
enter a corrected judgment accurately reflecting the nature
of the proceedings below." State v. Fuller, 267
S.W.3d 764, 767 (Mo. App. S.D. 2008).
Principles of Review and Governing Law
issue not properly preserved for appellate review "may
be reviewed for plain error only[.]" State v.
Storey, 40 S.W.3d 898, 903 (Mo. banc 2001). Plain-error
relief requires "evident, obvious, and clear" error
and a resulting manifest injustice or miscarriage of justice.
State v. Baumruk, 280 S.W.3d 600, 607-08 (Mo. banc
2009) (quotation omitted); Rule 30.20. "[D]ue process
requires that a defendant may not be convicted of an offense
not charged in the information or indictment[, ]"
State v. Miller, 372 S.W.3d 455, 467 (Mo. banc
2012), and "[a]n unauthorized sentence affects
substantial rights and results in manifest injustice."
State v. Anderson, 294 S.W.3d 96, 98 (Mo. App. E.D.
time of Defendant's conduct, the authorized term of
imprisonment for a class-B felony was "a term of years
not less than five years and not to exceed fifteen years[,
]" and for a class-C felony, "a term of years not
to exceed seven years[.]" Section 558.011.1(2)-(3).
morning of June 10, 2013, Defendant, a patient in the
geriatric psychiatric treatment unit of Citizen's
Memorial Hospital in Bolivar ("hospital"), claimed
he was not feeling well and requested assistance from Victim,
a hospital nurse. Victim entered Defendant's room and
found him in the bathroom holding a Styrofoam cup. Defendant
then started screaming and threw "a liquid
substance" from the cup at Victim's face. Victim ran
into the hallway, but Defendant caught up to her, slammed her
against a wall, and began pounding her head multiple times
with his fists while she was on the ground. Victim lost
consciousness during the attack, and another hospital staff