IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
In re: FREDERICK W. THORNTON, )
III, )
Petitioner, )
)
v. ) WD77276
)
LARRY DENNEY, Warden, ) FILED: March 17, 2015
Respondent. )
Original Proceeding on Petition for Writ of Habeas Corpus
Before Writ Division: Alok Ahuja, C.J., and Joseph M. Ellis and Thomas H. Newton, JJ.
Frederick W. Thornton III pleaded guilty in October 2007 to driving while intoxicated (or
“DWI”). The circuit court found Thornton to be a persistent offender because he had two prior
convictions for driving while intoxicated. By finding that Thornton was a “persistent offender”
with two prior DWI convictions, rather than a “prior offender” with one previous conviction, the
circuit court enhanced Thornton’s current offense from a Class A misdemeanor to a Class D
felony. Thornton was given a sentence which exceeded the statutory punishment for a Class A
misdemeanor. Thornton filed a petition for writ of habeas corpus, arguing that, as a result of the
Missouri Supreme Court’s decision in Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), one of
the convictions on which the circuit court relied to find him to be a persistent offender could not
be used for enhancement purposes. We agree, and conclude that under Turner, Thornton could
be classified only as a prior, rather than a persistent, offender. We accordingly grant Thornton’s
petition for writ of habeas corpus, vacate his 2007 conviction of a felony offense, and order that
the record of Thornton’s 2007 conviction be amended to reflect a conviction of Class A
misdemeanor driving while intoxicated.
Factual Background
On October 2007, Thornton pleaded guilty in the Circuit Court of DeKalb County in
Case No. 07K4-CR00429 to the charge of driving while intoxicated under § 577.010,1 based on
an incident which occurred on August 19, 2007. The State charged Thornton as a persistent
offender, based on the fact that he had been convicted of driving while intoxicated on two prior
occasions. Thornton’s status as a persistent offender had the effect of enhancing the charge
from a misdemeanor to a Class D felony. See § 577.023. The court sentenced Thornton to four
years’ imprisonment. Following Thornton’s completion of an institutional treatment program,
the court entered a 120-Day Order of Probation in February 2008, which suspended the
execution of the balance of Thornton’s sentence, and placed him on probation for five years.
On November 21, 2011, the court revoked Thornton’s probation for the 2007 offense and
executed his sentence, following his guilty plea to charges stemming from a January 28, 2011
accident in which another driver was killed. The court ordered that the sentences imposed in
connection with the 2011 accident be served consecutively to Thornton’s 2007 sentence.2
On January 14, 2013, Thornton petitioned the DeKalb County Circuit Court for habeas
corpus relief with respect to his 2007 conviction, arguing that he did not qualify as a persistent
offender under the Missouri Supreme Court’s decision in Turner, because he had only one prior
conviction that would qualify for enhancement. In response, the State argued that Thornton’s
1
Unless otherwise indicated, statutory citations refer to the 2000 edition of the Revised
Statutes of Missouri, updated through the 2007 Cumulative Supplement.
2
Thornton’s motion for post-conviction relief in relation to the 2011 guilty plea was
denied by the circuit court, and that ruling was affirmed by this Court. Thornton v. State, No. WD76734,
2014 WL 6781171 (Mo. App. W.D. Dec. 2, 2014), application for transfer filed Feb. 11, 2015, No.
SC94786.
2
failure to file a timely post-conviction relief motion under Supreme Court Rule 24.035 barred
him from seeking habeas relief. The circuit court denied Thornton’s petition.
Thornton then filed a Petition for Writ of Habeas Corpus with this Court. We issued an
order to show cause, and thereafter received briefing and heard oral argument.3
Analysis
“‘Habeas corpus is the last judicial inquiry into the validity of a criminal conviction and
serves as “a bulwark against convictions that violate fundamental fairness.”’” State ex rel.
Taylor v. Steele, 341 S.W.3d 634, 639 (Mo. banc 2011) (quoting Amrine v. Roper, 102 S.W.3d
541, 545 (Mo. banc 2003) (in turn quoting Engle v. Isaac, 456 U.S. 107, 126 (1982))). In
determining whether or not to grant habeas relief, we are “limited to determining the facial
validity of confinement, which is based on the record of the proceeding that resulted in the
confinement.” State ex rel. Zinna v. Steele, 301 S.W.3d 510, 513 (Mo. banc 2010), quoting State
ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001).
In 2007, the circuit court found Thornton to be a persistent offender based, in part, on his
guilty plea on August 22, 2000 to driving while intoxicated in the Cameron Municipal Division
of the Circuit Court of Clinton County.4 It is undisputed that Thornton received a suspended
imposition of sentence (or “SIS”) in the 2000 case.
On March 4, 2008, the Missouri Supreme Court decided Turner v. State, 245 S.W.3d 826
(Mo. banc 2008), which held that “the use of prior municipal offenses resulting in an SIS cannot
be used to enhance punishment under section 577.023.” Id. at 829.
3
The Court expresses its appreciation to attorney Sean D. O’Brien, who accepted this
Court’s appointment and represented Thornton on a pro bono basis.
4
This guilty plea was identified in the charging document as occurring on August 22,
2002. The parties do not dispute that the charging document was intended to refer to Thornton’s August
2000 guilty plea.
3
The State does not dispute that, if Turner is applicable to Thornton’s 2007 conviction,
there was no basis to find Thornton to be a persistent offender, and he should not have been
convicted of a Class D felony. The State argues, however, that Thornton is not entitled to habeas
corpus relief for two reasons: first, because he should have raised the Turner issue in a motion
for post-conviction relief under Supreme Court Rule 24.035, which was required to be filed no
later than May 2008; and second, because Turner should not be applied “retroactively” to
Thornton’s 2007 conviction, which is now final. We reject both of the State’s arguments.
I.
Thornton could have raised his current claim in a motion for post-conviction relief under
Rule 24.035. Turner was decided before the time for Thornton to file a post-conviction relief
motion expired, and he therefore could have relied on that decision in a timely Rule 24.035
motion. We must first decide whether Thornton may raise his claim in this habeas corpus
proceeding, despite his failure to raise it earlier in a timely-filed post-conviction relief motion.
Normally, a petitioner’s failure to raise a claim in a direct appeal or in a post-conviction
relief motion bars the petitioner from subsequently raising the claim in a petition for writ of
habeas corpus. State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516 (Mo. banc 2010).
A defendant who fails to raise a challenge to his conviction on direct
appeal or in a timely post-conviction proceeding is said to have procedurally
defaulted on those claims. Procedurally defaulted claims cannot be raised in a
petition for writ of habeas corpus unless: (1) the claim relates to a jurisdictional
issue; or (2) the petitioner establishes a showing by the preponderance of the
evidence of actual innocence, that would meet the manifest injustice standard for
habeas relief under Missouri law, (a “gateway of innocence claim”); or (3) the
petitioner establishes cause for failing to raise the claim in a timely manner and
prejudice from the constitutional error asserted, (a “gateway cause and prejudice
claim”).
Ferguson v. Dormire, 413 S.W.3d 40, 52-53 (Mo. App. W.D. 2013) (citations and internal
quotation marks omitted).
4
“Cases in which a person received a sentence greater than that permitted by law
traditionally have been analyzed under the [‘jurisdictional defect’] exception[ ].” Zinna, 310
S.W.3d at 517. Following the decision in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249
(Mo. banc 2009), it is a misnomer to describe such unauthorized sentences as involving a
“jurisdictional defect.” Zinna, 310 S.W.3d at 517. Zinna emphasized, however, that “[w]hatever
label is applied, . . . it is settled that the imposition of a sentence beyond that permitted by the
applicable statute or rule may be raised by way of a writ of habeas corpus.” Id.; see also State ex
rel. Koster v. Jackson, 301 S.W.3d 586, 590 (Mo. App. W.D. 2010) (“Even if a habeas petitioner
has failed to timely raise a claim in a Rule 24.035 motion, it is settled that the imposition of a
sentence beyond that permitted by the applicable statute or rule may be raised by way of a writ of
habeas corpus.”; citing Zinna and Merriweather v. Grandison, 904 S.W.2d 485, 486 (Mo. App.
W.D. 1995)).
We recently suggested that, because the unauthorized sentences subject to review in
habeas corpus proceedings do not implicate the subject-matter jurisdiction of the sentencing
court, such unauthorized sentences are more properly referred to as “sentencing defects,” rather
than “jurisdictional defects.” Branch v. Cassady, No.WD77788, 2015 WL 160718, at *2 n.2
(Mo. App. W.D. Jan. 13, 2015). We use that terminology here.
In State ex rel. Koster v. Jackson we held that the exact same claim raised by Thornton in
this case – that he did not qualify as a “persistent offender” in light of Turner – was a
“sentencing defect” claim which could properly be raised in a habeas corpus proceeding, despite
the petitioner’s failure to raise the claim in a motion for post-conviction relief:
In this case, Mitchell [(the habeas petitioner)] was sentenced as a
persistent offender, supported, in part, by a guilty plea to a municipal charge of
driving while intoxicated for which Mitchell received a suspended imposition of
sentence. Following the interpretation of Section 577.023 provided in Turner,
5
which held that a prior municipal offense resulting in a suspended imposition of
sentence could not be used to enhance punishment, the State failed to demonstrate
Mitchell was a persistent offender. Thus, the sentencing court exceeded its
authority in sentencing Mitchell to five years of imprisonment as a persistent
offender because the factual predicate necessary to place Mitchell in this
enhanced statutory range of punishment was lacking.
Jackson, 301 S.W.3d at 590.
The State argues that Jackson is distinguishable, because Turner was decided after the
time had expired for the habeas petitioner in Jackson to file a motion for post-conviction relief.
Thus, the petitioner in Jackson could not have raised the Turner issue in a timely post-conviction
relief motion. In this case, by contrast, Thornton had approximately two months following the
decision in Turner within which to file a timely post-conviction relief motion raising the Turner
issue.
The State’s attempt to distinguish Jackson is unpersuasive. Under Zinna, a habeas corpus
petitioner is entitled to raise a sentencing defect in a habeas corpus proceeding despite the fact
that the petitioner could have raised the issue in a post-conviction relief motion; a petitioner
raising a sentencing defect need not show that he had “cause” for failing to raise the issue at an
earlier time. Indeed, in Zinna, the petitioner plainly could have raised his habeas claim in a
timely direct appeal or post-conviction relief motion. The petitioner in Zinna argued that his
sentence was unauthorized because the court’s written judgment, which stated that his sentences
would run consecutively, was inconsistent with the oral pronouncement of his sentences, which
would be interpreted to impose concurrent sentences by virtue of Supreme Court Rule 29.09.
The petitioner’s argument in Zinna was based on Rule 29.09 (which has been in existence
without amendment since 1980), and on caselaw which predated his conviction. In Zinna,
therefore, the sentencing argument was available to the petitioner at a time when he could have
appealed from the trial court’s written judgment, or filed a timely post-conviction relief motion.
6
Yet the Supreme Court held that the claim could properly be raised in a habeas proceeding.
Therefore, whether or not Thornton had the ability to raise the Turner issue in a timely post-
conviction relief motion is irrelevant. Jackson’s holding that a claim like Thornton’s involves a
“sentencing defect” excuses Thornton’s failure to raise the claim earlier.
The State also argues that Thornton is precluded from seeking habeas review under the
Missouri Supreme Court’s decision in State ex rel. Simmons v. White, 866 S.W.2d 443 (Mo. banc
1993). In Simmons, the petitioner sought to challenge a similar persistent offender finding, based
on State v. Stewart, 832 S.W.2d 911 (Mo. banc 1992), which clarified the number of prior
convictions necessary to establish “persistent offender” status. In Simmons, the petitioner
initially pled guilty and admitted his status as a “persistent offender” under a charging document
which alleged an insufficient number of prior convictions in light of the Stewart decision.
Simmons, 866 S.W.2d at 444. (Stewart was decided ten days prior to Simmons’ initial plea. Id.)
The State later realized that the initial charging document was insufficient to establish “persistent
offender” status under Stewart, and attempted to amend the charging document to allege
additional prior convictions. Id. The sentencing court set aside the previous conviction and
sentencing, and Simmons pleaded guilty to the amended charges, and received the same sentence
as before. Id. at at 444-45.
Simmons later petitioned for habeas relief, alleging that his second guilty plea was
invalid, and that the factual basis underlying his initial guilty plea failed to sufficiently establish
“persistent offender” status under Stewart. 866 S.W.2d at 446. The Missouri Supreme Court
determined that Simmons’ second plea and sentencing were void. It held, however, that
Simmons was not entitled to challenge his first conviction and sentence in a habeas corpus
proceeding. The Court held that “[h]abeas corpus may be used to challenge a final judgment
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after an individual’s failure to pursue appellate and post-conviction remedies only to raise
jurisdictional issues or in circumstances so rare and exceptional that a manifest injustice results.”
Id. The Court held that Simmons had failed to satisfy this standard.
We are convinced that petitioner's procedural defaults stemmed not from
unawareness, but from a calculated, strategic decision to forego both appeal and
post-conviction motions in the hope of receiving probation within 120 days. . . .
[¶] . . . By deliberately bypassing appellate and post-conviction remedies in an
attempt to gain a more favorable consideration of his request for probation,
Simmons waived his rights to those remedies.
Id. at 446, 447.
Simmons does not control this case. First, to the extent Simmons suggests that proof of an
insufficient number of prior convictions to support enhanced sentencing is not a “sentencing
defect” reviewable in a habeas corpus proceeding, the decision has been superseded by Zinna.
Zinna holds that “the imposition of a sentence beyond that permitted by the applicable statute or
rule may be raised by way of a writ of habeas corpus.” Zinna, 310 S.W.3d at 517. As we
recognized in Jackson, in Zinna the trial court had the statutory authority to impose consecutive
sentencing on the petitioner, but the trial court did so in a procedurally improper way – by
referencing consecutive sentencing only in its written judgment, but not in its earlier oral
pronouncement of sentence. Jackson, 301 S.W.3d at 590 n.5; see also Taylor, 341 S.W.3d at
639, and State v. Whitfield, 107 S.W.3d 253, 269 n.19 (Mo. banc 2003) (both cases holding that a
defendant presented a “sentencing defect” claim reviewable in a habeas proceeding, where the
defendant claimed that it was unconstitutional for a judge, rather than a jury, to decide whether
statutory factors justified imposition of the death penalty). Jackson followed Zinna and held that
the very same sentencing error alleged by Thornton in this case constitutes a “sentencing defect”
subject to correction in a habeas corpus proceeding. To the extent Simmons applied a narrower
8
understanding of the types of “sentencing defects” subject to review in a habeas corpus
proceeding, it no longer accurately states the law.
More importantly, Simmons’ refusal to allow the petitioner to pursue a habeas remedy
was based on the fact that the petitioner in that case chose to plead guilty a second time, after the
Stewart issue had become apparent. According to the Court, the petitioner’s actions reflected “a
calculated, strategic decision to forego both appeal and post-conviction motions,” a “deliberate[]
bypassing” of appellate and post-conviction remedies. Simmons, 866 S.W.2d at 447.5 There is
no evidence of such a “calculated, strategic decision,” or “deliberate bypass,” by Thornton in this
case.
II.
Having established that this Court has the authority to hear Thornton’s claim in this
habeas corpus proceeding, we now turn to the State’s alternative argument: that Turner should
not be applied “retroactively” to Thornton’s case.
Thornton is not seeking the “retroactive” application of Turner. Instead, Thornton’s
argument is that under § 577.023 (as interpreted in Turner), the State failed to prove the requisite
number of prior convictions necessary to support a finding that Thornton was a “persistent
offender.” Section 577.023 was in effect at the time of Thornton’s guilty plea – it is not being
applied retroactively. Moreover, the Missouri Supreme Court has held that “[i]n Turner, this
5
Simmons’ reference to the petitioner’s “deliberate bypass” of post-conviction remedies
harkens back to the standard applied to procedural defaults in federal habeas proceedings by Fay v. Noia,
372 U.S. 391, 439 (1963) (overruled by Coleman v. Thompson, 501 U.S. 722 (1991)). This “deliberate
bypass” standard required the petitioner to engage in “an intentional relinquishment or abandonment of a
known right or privilege,” reflecting “the considered choice of the petitioner.” Fay, 372 U.S. at 439; see
also, e.g. Humphrey v. Cady, 405 U.S. 504, 517 (1972) (stating that “deliberate bypass” standard requires
“an understanding and knowing decision [to forego review] by the petitioner himself”; the petitioner must
make “a deliberate strategic waiver of his claim”).
9
Court made no new law; it merely clarified the language of an existing statute.” State v. Severe,
307 S.W.3d 640, 642-43 (Mo. banc 2010). The Court held that – even before the Turner
decision – “[t]he state was on notice by the plain language of section 577.023.16 that a guilty
plea followed by a suspended imposition of sentence in ‘municipal court’ was not to be treated as
a prior conviction.” Id. at 644. The State itself argues in its Brief that “Severe makes plain that
the Turner decision was based on statutory construction and not a new rule of law.” State Br. at
19.
In these circumstances, where Thornton’s petition relies on a judicial opinion interpreting
a statute which was in effect at the time of his conviction, and that judicial opinion “created no
new law,” no retroactivity issue arises. Indeed, if the State were correct that Turner’s
construction of § 577.023 cannot be applied “retroactively” to convictions which were final at
the time Turner was decided, that would have prevented relief in Turner itself, since Turner was
decided on a motion for post-conviction relief.
The Supreme Court of the United States has addressed a virtually identical issue, and
held that no issue of “retroactivity” is presented where a later judicial decision interprets the
meaning of a pre-existing statute. In Fiore v. White, 531 U.S. 225 (2001), the defendant Fiore
was convicted of violating a Pennsylvania criminal statute. Although Fiore argued that the
statute should not be interpreted to apply to his conduct, this argument was rejected by the
intermediate Pennsylvania appellate courts, and the Pennsylvania Supreme Court refused to
review his case. Id. at 227. After Fiore’s conviction became final, the Pennsylvania Supreme
Court determined – in a case involving Fiore’s co-defendant Scarpone – that the criminal statute
at issue could not be interpreted to apply to conduct like Fiore’s. Id.
10
Fiore filed a petition for a writ of habeas corpus in the federal courts. In response to a
certified question from the Supreme Court of the United States, the Pennsylvania Supreme Court
explained that its decision in Scarpone “did not announce a new rule of law,” but “merely
clarified the plain language of the statute.” Id. at 228. Given that the Pennsylvania Supreme
Court’s decision in Scarpone was merely intended to clarify the meaning of a pre-existing
statute, the United States Supreme Court held that no retroactivity issue was presented by Fiore’s
request that Scarpone’s interpretation of the relevant statute be applied to his conviction:
The Pennsylvania Supreme Court’s reply [to the certified question]
specifies that the interpretation of § 6018.401(a) set out in Scarpone “merely
clarified” the statute and was the law of Pennsylvania – as properly interpreted –
at the time of Fiore’s conviction. Because Scarpone was not new law, this case
presents no issue of retroactivity. Rather, the question is simply whether
Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore
for conduct that its criminal statute, as properly interpreted, does not prohibit.
Id. at 228. The Court held that Pennsylvania could not constitutionally punish Fiore for conduct
which did not violate the relevant statute. Id. at 228-29. The Court applied the same analysis to
a later judicial interpretation of a pre-existing statute in Bunkley v. Florida, 538 U.S. 835, 839-41
(2003).
In Severe, the Missouri Supreme Court characterized the decision in Turner in precisely
the same way that the Pennsylvania Supreme Court characterized its decision in Scarpone:
Severe holds that Turner “made no new law; it merely clarified the language of an existing
statute.” 307 S.W.3d at 642-43. Under Fiore and Bunkley, this case presents no “retroactivity”
issue which can prevent the application of Turner’s interpretation of § 577.023 to Thornton’s
2007 conviction.
III.
As noted at the outset of our analysis, the State has conceded that, if Thornton is entitled
to raise his Turner claim in this habeas proceeding, and if we conclude that Turner applies to
11
Thornton’s 2007 conviction, then that conviction violates Turner, because the State failed to
prove that Thornton had two prior DWI convictions under § 577.023 as it existed at the time.
Thornton concedes that the State proved that he had one previous DWI conviction, and
therefore that he qualified as a “prior offender” under § 577.023.1(6). Because Thornton was a
“prior offender,” under § 577.023.2 his violation of § 577.010 constituted a Class A
misdemeanor (rather than a Class D felony). Because he could only properly be found guilty of
a Class A misdemeanor, Thornton could be placed on probation for no more than two years.
§ 559.016.1(2).
The circuit court revoked Thornton’s probation associated with the 2007 conviction in
November 2011, almost four years after Thornton was placed on probation. This was well
beyond the two-year maximum probationary period to which Thornton was subject on conviction
of a Class A misdemeanor. Once the probationary period has expired, a court does “not have
jurisdiction over [a probationer] ‘for any purpose, whether to cite him for probation violations,
revoke probation, or order execution of the sentence previously imposed.’” State ex rel. Limback
v. Gum, 895 S.W.2d 663, 664 (Mo. App. W.D. 1995) (quoting State ex rel. Musick v. Dickerson,
813 S.W.2d 75, 77 (Mo. App. W.D. 1991)); see also Roach v. State, 64 S.W.3d 884, 887 (Mo.
App. S.D. 2002). Therefore, the circuit court was without jurisdiction to revoke Thornton’s
probation with respect to his 2007 conviction in November 2011, or execute any sentence
previously imposed upon him.
Conclusion
The circuit court lacked the authority to sentence Thornton for Class D felony driving
while intoxicated in connection with his 2007 conviction, or to order the revocation of his
probation and the execution of his sentence for the 2007 conviction in November 2011. We
accordingly order that Thornton be discharged and relieved from his 2007 conviction of a Class
12
D felony, and from the execution of any sentence associated with that conviction. With respect
to his 2007 DWI conviction, Thornton constituted a prior offender, not a persistent offender, and
could be convicted only of a Class A misdemeanor, not a Class D felony. We order that the
record of Thornton’s conviction in Case No. 07K4-CR00429 in the Circuit Court of DeKalb
County be amended to reflect Thornton’s conviction of driving while intoxicated as a prior
offender, a Class A misdemeanor.
Thornton’s sentences for his separate 2011 convictions were ordered to run consecutively
to the sentence on his 2007 conviction. At the time of his 2011 sentencing, however, there was
no sentence associated with his 2007 conviction which could lawfully be executed. Therefore,
no sentence associated with his 2007 conviction could delay the running of the sentences
associated with Thornton’s 2011 convictions.
__________________________________
Alok Ahuja, Chief Judge
All concur.
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