Disregarding Statutory Safeguards: The Supreme Court of Missouri's Failure to Recognize Manifest Injustice in Predatory Sexual Offender Determinations.

• Author: Vincent, Lauren
• Position: NOTE

State v. Johnson, 524 S.W.3d 505 (Mo. 2017) (en banc)

1. INTRODUCTION

   The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." (1) This right, in conjunction with the Due Process Clause, (2) requires that each element of a crime be proved to a jury beyond a reasonable doubt. (3) Over the course of the twentieth century, however, legislatures across the country have adopted schemes that allow certain factors that impact sentencing to be found by the trial judge, independent of the jury. (4) The way these legislative sentencing schemes intersect with the jury-trial guarantee provided by the Sixth Amendment has been a subject of confusion and controversy for decades. (5)

   The United States Supreme Court has interpreted the Sixth Amendment in this context in a series of decisions, beginning with McMillan v. Pennsylvania (6) in 1986, followed by Apprendi v. New Jersey (7) in 2000, Harris v. United States (8) in 2002, Blakely v. Washington (9) in 2004, United States v. Booker (10) in 2005, and most recently Alleyne v. United States (11) in 2013 and Hurst v. Florida (12) in 2016. In each of these opinions, the Court attempted to clarify the messy topic of constitutionality in criminal sentencing and grappled with providing answers to two questions. First, what facts constitute elements of a crime such that a jury must prove them beyond a reasonable doubt? Second, what facts that can impact sentencing are not elements but, rather, mere "sentencing factors," such that a judge may determine them by a lower standard of persuasion?

   However, with each decision, a "thicket of knotty issues" emerged, many of which involved determining the proper relationship between the judiciary and legislature in criminal sentencing. (13) In June 2013, the United States Supreme Court sought to put these constitutional sentencing questions to rest with its decision in Alleyne. Many legal scholars have written about the clarity they hoped Alleyne would bring to the national stage. (14) The general thrust of their scholarship voiced optimism that Alleyne would once and for all silence the ongoing sentencing debate regarding the proper relationship between the judiciary and the legislature in sentence enhancement. (15) The Supreme Court of Missouri's August 2017 decision in State v. Johnson, however, proves that the clarity many legal scholars believed Alleyne would bring is more of a dream than a reality--at least in Missouri. (16)

   The predatory sexual offender sentence enhancement scheme, as written in the 2017 version of Missouri's Criminal Code, provides a perfect illustration of the Sixth Amendment violations that can occur when the legislature allows a judge to make findings of fact that the Constitution requires to be proven to a jury beyond a reasonable doubt. (17) In August 2017, this sentencing scheme was brought to the attention of the Supreme Court of Missouri, for the first time since Alleyne was decided. (18) In Johnson, the Supreme Court of Missouri determined whether the fact that a defendant committed a sexual offense against multiple victims--a fact that, if found, triggers the enhanced sentencing mechanisms provided by the predatory sexual offender laws in Missouri's Criminal Code--was an element of the crime, and thus "must be submitted to a jury and found beyond a reasonable doubt," or a mere sentencing factor, and thus may be found independently by a judge by a preponderance of the evidence. (19)

   This Note scrutinizes the way in which the Supreme Court of Missouri resolved the issue of whether the predatory sexual offender statute, section 566.125.5(3), is constitutional when applied to currently charged acts in light of the procedural mandates for sentence enhancement provided in section 558.021.2. This Note argues the Supreme Court of Missouri erred in its interpretation of the statutory language provided in section 566.125.5(3) and in its application of Alleyne precedent. This Note further argues the Supreme Court of Missouri failed to recognize the manifest injustice that resulted when the trial court disregarded the statutory timing requirements that should have been followed in order to extend Johnson's sentence pursuant to the predatory sexual offender provisions.

2. FACTS AND HOLDING

   Angelo Johnson was charged with thirteen felony counts related to the sexual abuse of his two step-daughters, D.P. and R.J., and his biological daughter, L.J. (20) Johnson allegedly committed ongoing sexual abuse against the three girls, beginning when D.P. was five or six years old, R.J. was eleven years old, and L.J. was fifteen or sixteen years old. (21) Specifically, the government charged Johnson with three counts of first-degree statutory rape, (22) six counts of first-degree statutory sodomy, (23) three counts of incest, (24) and one count of second-degree statutory rape. (25) Although he had no prior convictions, Johnson was additionally charged as a predatory sexual offender under Missouri Revised Statutes section 566.125.5 because he allegedly committed an act against more than one victim. (26) This charge subjected Johnson to the possibility of a life sentence with an eligibility of parole after twenty-five years. (27) Without the predatory sexual offender charge, Johnson "would have been entitled to unconditional release after serving twenty-five years even if he received the maximum sentence." (28)

   Johnson waived his statutory right to jury sentencing before trial. (29) After the close of evidence and before submission of the case to the jury, the trial court considered the government's request that it find Johnson to be a predatory sexual offender. (30) The trial court made this consideration outside of the jury's presence. (31) The government's argument that Johnson was a predatory sexual offender because he "[h]as committed an act or acts against more than one victim" rested on the allegations that formed the bases for the current charges against him. (32) Johnson argued section 566.125.5(3) did not apply to him because the statute referred to prior acts only. (33)

   The trial court found that section 566.125.5(3) "d[id] not apply to the facts of [Johnson's] situation," reasoning that the statute is designed to contemplate a defendant's prior conduct. (34) As such, the trial court did not find Johnson to be a predatory sexual offender prior to submitting the case to the jury. (35) Subsequently, the jury found Johnson guilty on twelve of the thirteen counts. (36) At sentencing, the government again requested that the trial court find Johnson to be a predatory sexual offender and subject him to a mandatory life sentence with a specified minimum term of twenty-five years. (37) Johnson reiterated that section 566.125.5(3) did not apply to him. (38) The trial court, however, found Johnson to be a predatory sexual offender upon the government's request for reconsideration. (39) The trial court stated its findings were "based on the evidence that was presented at trial, the testimony that was presented by the three victims and, of course, by the verdicts that were returned by the jury in this number of counts." (40) Consequently, the trial court sentenced Johnson as a predatory sexual offender to eight concurrent terms of life imprisonment for his first-degree statutory sodomy and first-degree statutory rape convictions with eligibility for parole after twenty-five years. (41)

   On appeal, Johnson argued that, when applied to currently charged acts, section 566.125.5(3) is unconstitutional in light of the timing requirements set forth in section 558.021.2. (42) Johnson argued that if a judge is permitted to deem a defendant a predatory sexual offender on the basis of currently charged acts, then the judge is required to find, before the case is submitted to the jury, that the defendant did, in fact, commit the acts alleged. (43) According to Johnson, such an occurrence "force[s] the trial court to find facts which increase the mandatory minimum punishment in violation of Alleyne" and violates his right to a jury trial, as guaranteed by the Sixth Amendment. (44) Further, Johnson claimed the trial court violated section 558.021.2 in finding him to be a predatory sexual offender because the trial judge made this finding after the case had already been submitted to the jury and after the jury returned its verdicts. (45)

   In a 5-2 ruling, the Supreme Court of Missouri affirmed Johnson's convictions, holding: (1) section 566.125.5(3), which states that a defendant can be found to be a predatory sexual offender if he "[h]as committed an act or acts against more than one victim," applies to currently charged acts and is constitutional on its face; (2) no manifest injustice resulted from the trial court's failure to adhere to the procedural requirements of section 558.021.2; and (3) the trial court appropriately sentenced Johnson as a predatory sexual offender. (46)

3. LEGAL BACKGROUND

   In Johnson, the Supreme Court of Missouri relied primarily on its interpretation of Alleyne in holding that section 566.125.5(3) of Missouri's Criminal Code is facially constitutional when applied to currently charged acts. (47) First, this Part addresses the history and current structure of the nationwide criminal justice sentencing system. Next, this Part discusses the United States Supreme Court's trend toward reining in the expansive sentencing authority asserted by legislatures over the past several decades and analyzes how Alleyne and the Court's subsequent decisions fit within that trend. Lastly, this Part examines Missouri's predatory sexual offender sentencing scheme, as described in sections 566.125 and 558.021.2, and scrutinizes how the Supreme Court of Missouri has confronted the issue of determining whether manifest injustice results from violations of the timing requirements prescribed by section 558.021.2.

   1. The Criminal Justice System

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