Joplin MO Criminal Defense Lawyer Blog

Case Review - Sentencing Guidelines & Double Jeopardy

In State v. Edwards the defendant was originally charged with first degree murder and armed criminal action. The jury found the defendant guilty of second degree murder and armed criminal action and sentenced him to 25 years on the murder charge and 5 years on the armed criminal action.  On appeal the appellate court upheld  the convictions but reversed the sentences because the trial court refused to allow the defendant to testify during the penalty-phase.  During the second penalty-phase the jury was unable to reach an unanimous decision and the trial court sentenced the defendant to concurrent sentences of 25 years on the murder charge and 5 years on the armed criminal action charge.  The defendant appealed on three grounds - failure of the trial court to allow the sentencing guidelines to be introduced as evidence; refusing his jury instruction; and a double jeopardy claim.

During the second penalty-phase the defendant attempted to introduce evidence through a parole officer's testimony of what the recommendation would be under  the Missouri Sentencing Advisory Commission's sentencing guidelines.  These guidelines would have recommended that the defendant be sentenced to 10 years or under the aggravated sentence to 15 years.  The trial court refused to allow the evidence in but did let the defendant give an offer of proof on the sentencing guidelines presumed sentence.  After the offer of proof the State objected to the offer and the trial court sustained the objection. 

On appeal the defendant stated the trial court erred in not allowing this evidence in before the jury because if the jury had heard the testimony it would have reached an unanimous verdict and would have assessed a sentence less than that which he received from the trial court, and that the jury was entitled to rely on the same resources as that of the trial court judge.    The appellate court disagreed with this and stated that allowing the jury to rely on the sentencing guidelines alone would create a risk that it would place too much emphasis on the guidelines and not treat them as the recommendations that they are; that the guidelines are only guidelines or recommendations which the trial court is not mandated to follow; the trial court is only mandated to stay within the statutory range of punishment for the crime convicted; and that the guidelines do not account for the history and character of the defendant  nor the circumstances of the crime.  Further, the appellate court ruled that the sentencing guidelines are beyond the scope of permissible evidence allowed under section 557.036, RSMo Cum.Supp. 2006, in the penalty-phase of a jury trial.

The defendant also alleged that by refusing to allow his instruction which limited the range of punishment the jury could consider violated the Double Jeopardy Clause.  The range of punishment for second degree murder is 10 to 30 years or life imprisonment.  The defendant sought to limit the range of punishment to 25 years, the number of years the first jury had recommended.   This was the instruction that he submitted and which was refused by the trial court.  Without going into the reasoning here, the appellate court found against the defendant on the jury instruction issue. 

The Double Jeopardy Clause forbids a retrial of a defendant who has been acquitted of a crime charged.  On this  issue the defendant contended that by allowing the second  jury to consider the full range of punishment during the penalty-phase was a violation of the Clause because the first jury had acquitted him of any conduct mandating a higher sentence than that of 25 years.  The appellate court rejected this argument and stated that the Double Jeopardy Clause is inapplicable to non-capital cases because the jury in a non-capital case does not have the requirement to make findings of fact beyond a reasonable doubt and, thus, the Clause is not implicated.

The judgment of the trial court was affirmed.

Source:  State v. Edwards, ED83320, 07/10/2007.

Follow-up - Megan's Law (Message for Tsand too)

I have received several comments on my posting about Megan's Law and the fact that I choose not to represent defendant's accused of abusing children.    Some comments have supported my decision but others chastise me for "assuming the defendant is automatically guilty."  I want to clear this up.  I do not automatically assume a defendant is guilty if he or she is charged with abusing a child.  I know there are circumstances when allegations are made that are not true.  This particularly happens when the defendant is involved in a custody case and the other party makes allegations that may or may not be true.  I have problems with a party making these allegations only when a custody battle starts to brew - where was the other party when the abuse was occurring?  But that is another matter. 

As I was stating, I do not automatically assume a defendant is guilty.  I just do not want to represent them for my own reasons and, being in private practice, I can do that.  In the past I have defended persons charged with child abuse.  I was at one time an appellate public defender.  I have represented defendants that were guilty - where a very young child was suffocated enough to leave her alive but in a vegetative state; some children suffered severe brain damage or physical deformities; etc.  These cases take a toll on you after a while.   

Also, just because I choose not to represent these defendants does not mean they will not have the benefit of a good lawyer.  There are many criminal defense lawyers that will represent defendants no matter what the charge is. Each defendant, no matter what the charge is, deserves to have a lawyer that will aggressively represent him or her and to not pass judgment.  On child abuse charges I am not sure I can do that any more and, therefore, I have taken myself out of that defense.  I do not want to question whether I did the best job I could for the defendant and I definitely do not want the defendant to feel that I did not do my best.   This explanation may not satisfy some of the people who have sent negative comments to me and that is okay.  I can live with my decision.

Message for Tsand - I understand you're feelings about what happened to your friend Paul.  I do not necessarily agree with charges being brought under the circumstances you have described (yes, I was a former assistant prosecuting attorney at one time).  I also think that if your friend was charged then something should have happened to the girl also.    Be that as it may, if your friend has to register under Megan's Law he may want to check to see if he can have his name removed from the registry at some point.  In Missouri if a defendant is 19 years of age or younger and the victim was 13 years of age or older at the time the offense was committed, after two years the defendant can petition the court to be removed from the registration requirements.  If what you stated is accurate, I find it hard to believe a court would deny his petition.  Good luck to him. 

Missouri's Sex Offender Registration Act (Megan's Law)

I'm a criminal defense attorney.  However, there are some cases that I choose not to take.  One type of case I will not take is child abuse - whether physical or sexual.  To me, there is no excuse for abusing a child.  I will defend a person accused of murder, drugs, etc., but not abusing a child.  I know that everyone deserves to be represented by an attorney.  I support that but I also know that I will not be that attorney.  Why?  Because the defendant deserves the best representation he or she can receive.  I am not that attorney because of my feelings on the subject.   

With that stated, I want to get to the subject of this post - Missouri's Sex Offender Registration Act (SORA), also known as Megan's Law.    This is the law that requires certain sexual offenders to register with the chief law enforcement official (usually the sheriff)  in the county where the offender resides. These offenders include any person who has been convicted or pled guilty to a felony offense under chapter 566, including sexual trafficking of a child and sexual trafficking of a child under 12, and any offense under chapter 566 where the victim was a minor.  The offender has to fill out a form that has been designed by the Missouri State Highway Patrol.  This information is then sent by the chief law enforcement official to the Missouri State Highway Patrol where the information is put into the Missouri Uniform Law Enforcement System  (MULES) to be viewed by other law enforcement officials and prosecuting attorneys.   Some of this information is also posted online and made available to the general public.  The public can look to see whether a certain individual may be a sex offender or if there are sex offenders living in a certain area.  I admit, I have looked to see whether there are sex offenders living near my residence.  Thankfully I found none.

In most circumstances the sex offender must register for his or her lifetime.  However, under the statute (section 589.400) there are certain offenses  that allow for the offender to petition the court for removal from the registration requirements.  These include those who were convicted of promoting prostitution in the 2nd and 3rd degree, public display of explicit sexual material, statutory rape in the 2nd degree, and no physical force or threat of physical force was used.  Those convicted of these offenses may petition the court after 10 years to be removed from the registration requirements.  Also, those who were 19 years of age or younger and the victim was 13 years of age or older may petition the court after 2 years.  All who petition the court have to prove  that they fall into one of the categories that allow the petition, that they have complied with the provisions of the statute, and they are not a current or potential threat to public safety.  If the offender cannot prove these elements, the offender is not entitled to the removal.  And, even if the offender does prove these elements, the court does not have to grant the removal.  If the court denies the removal, the offender must wait for twelve months before petitioning the court again.

Why is this on my mind?    I have recently had to do research on this matter in order to keep an offender from being removed from the registration requirement.   The removal from the registration requirement is a civil matter and  I was hired to defend the registration.   This offender pled guilty to the class D felony of sexual abuse with a child, his child,  who was 6 years old at the time.  I do not want this man released from the requirement to register for the remainder of his life.  At this time the court hasn't made a ruling.  I will keep you posted.

Case Review - Commercial Driver's License Not Eligible for Expungement of Alcohol-Related Conviction

Any person who has been issued a commercial driver's license is ineligible to have an expungement of an alcohol-related driving offense pursuant to section 577.054.  This statute allows for a person convicted of an alcohol-related driving offense, first offense, to have the record expunged after ten years if the person has not been convicted of any other offenses during that time.   However, subsection 2 of the statute states that the expungement shall not apply to a person who "has been issued" a commercial driver's license.  In State v. Owen, the defendant received a conviction of driving with excessive blood alcohol content on August 21, 1981.  This offense did not involve a commercial vehicle and the defendant did not receive any other convictions.  After ten years he filed a petition to have the record expunged.  The Director of Revenue objected because the defendant had been issued a commercial driver's license and had only surrendered it right before the petition had been filed.  The Director contended that this made the defendant ineligible to have his record expunged.  The defendant contended that because he did not have a commercial driver's license at the time he filed the petition, he was eligible for the expungement.  The trial court and the appellate court agreed with the Director of Revenue's interpretation of the statute and the defendant's record was not expunged.

Source:  State v. Owen, WD66655, (Mo. App. W.D., 03/06/2007)

Case Review - Credit for Time Served

Under section 558.031.1 (2000) "a person shall receive credit toward the service of a sentence of imprisonment for all time in prison, jail, or custody after the offense occurred and before the commencement of the sentence, when the time in custody was related to that offense."  This has been interpreted to mean by the Missouri Court of Appeals, Western District, in Wallingford v. Mo. Dept. of Corrections, that if a defendant is ineligible for bond on a first offense and would have to remain in jail anyway, the the second offense is not related to the first and no credit on the second offense is given for the time served.   In this case the defendant was charged with three counts of delivery of controlled substance (offense I) and was convicted on March 17, 2000.  His bond for this conviction was set for $200,000.00, which he did not post so he remained in jail pending his appeal.   While out on bond and before being convicted on the first offense, the defendant was charged with three additional counts of delivery of controlled substance (offense II).  The defendant pled guilty to the second offense on May 11, 2001 and requested credit for the time served from March 17, 2000 to May 11, 2001.  The trial court denied the defendant credit and he appealed.  The appellate court found that since the defendant was eligible for bond on the first offense (offense I), the second offense (offense II) was related to the first and the defendant  was entitled to credit for the time he served.  This credit applied to both the first offense (offense I) and the second offense (offense II).

Source:  Wallingford v. Mo. Dept. of Corrections, WD66366, (Mo. App. W.D. 03/06/2007)

Case Review: Criminal NonSupport & Paternity

Recently the Missouri Court of Appeals, Western District, handed down its decision in State v. Salazar.  The defendant had appealed his conviction for criminal nonsupport based upon: violation of his due process rights by the trial court refusing to order blood testing, by the responsibility to pay child support being based upon an administrative order of paternity as opposed to a court determination, and that his 28-day sentence amounts to cruel and unusual punishment in that the sentence is disproportionate to the wrongful act he allegedly committed.

During the defendant's marriage his wife became pregnant but both admitted that the child was not the defendant's.  His name was put on the birth certificate due to the insistence of a hospital clerk since they were still married at the time of the birth. Subsequently the Division of Child Support Enforcement (DCSE) served its "Notice and Finding of Financial Responsibility" on the defendant and he and the mother contested the paternity.  After the defendant's failure to show at the hearing a default decision and order was entered finding the defendant to be the father of the child and ordered him to pay child support.  Defendant did not seek a judicial review of the order and he did not  pay the child support. The defendant was charged with criminal nonsupport.  After a trial to the judge the defendant was found guilty and sentenced to 28 days in the county jail.

The appellate court found that the defendant's due process rights were not violated by the trial court's failure to order DNA testing because the biological paternity is not a required element of proof in a criminal nonsupport case.  Further, his rights were not violated because it was based upon an administrative order rather than a court order.  An administrative order of paternity is given the same force and effect as those made in a court.  The fact that the defendant failed to request judicial review of the administrative order does not change this.  The appellate court also found that the 28-day sentence was not "cruel and unusual punishment" when the defendant could have received a jail sentence of up to one year. The judgment of the trial court was affirmed.

Of particular note in this case is the dissenting opinion by Judge Ronald R. Holliger.  In this dissenting opinion Judge Holliger attacked the process of how the defendant was determined to be the legal father of the child and stated that the defendant should have been allowed to contest the paternity issue in the criminal proceeding.   Judge Holliger stated:

This court finds that Salazar is guilty of criminal non-support not based on biological paternity, ad adoption or dissolution decree or any finding by a court of law but because the child ("A.S.") had been "legitimated by legal process" for the purposes of the criminal statute by an administrative order filed with the circuit court of Buchanan County.  The DCSE order was not a judicial judgment under article V of the Missouri Constitution, was not conclusive on the issue of paternity and fails to support his conviction.  I would therefore reverse.

Source:  State v. Salazar, WD65099, (Mo. App. W.D. 02/13/2007).

Sentencing Guidelines - Federal Court

In federal courts the judges are suppose to have discretion to vary upwards or downwards from the U.S. Sentencing Guidelines when sentencing a  defendant.  It has been approximately two years since the U.S. Supreme Court made this determination.  Yet,   judges are not always allowed this discretion.  Recently in the 8th U.S. Circuit Court of Appeals a trial court's (district court's) sentences for a brother and sister charged with conspiracy to possess pseudoephedrine knowing that it would be used to manufacture methamphetamine were vacated and remanded for new sentences more in compliance with the Sentencing Guidelines.

In sentencing the brother and sister the trial court departed downward on each sentence due to factors that the trial court listed.  In addition the trial court made statements regarding the Sentencing Commission policy on pseudoephedrine, which sets forth a formula based on the presumed amount of methamphetamine that could be produced from the amount of pseudoephedrine possessed.  The trial court indicated that the formula was not as "simple" as perhaps the Sentencing Commission believed.  The 8th Circuit reviewed the factors considered as well as the trial court's view on the formula and found them unreasonable and an abuse of discretion.

Bottom line - if the trial court departs downward from the U.S. Sentencing Guidelines and the district attorney isn't happy and appeals, your sentence may be vacated and your case remanded for resentencing in compliance with the Sentencing Guidelines.

Source:  U.S. v. Gentile, 2007 U.S. App. LEXIS 909 (8th Cir. Jan. 17, 2007); Missouri Lawyers Weekly, January 22, 2007