Uncorrected Injustice: Plain Error Review of Misapplied Sentencing Law.

AuthorGuy, Alec D.

    Criminal convictions often result in a restriction on the defendant's freedom and a deprivation of the defendant's liberty. Given the gravity of these consequences, there are multiple procedures the court must follow not only in determining guilt but also in imposing a sentence. Sentencing ranges are an essential component of criminal law. In Missouri, sentencing ranges are found in statutes, (1) and these statutes help trial judges determine what sentence to impose. Unfortunately, these guidelines can be incorrectly applied. If these errors are not addressed at the trial level, the appellate process can provide relief. However, interesting questions arise when the error is not preserved and courts are required to apply plain error review instead of the abuse of discretion standard.

    In State v. Perry, (2) the Supreme Court of Missouri conducted plain error review of the application of an incorrect sentencing range. The court held that, in order to prevail under plain error review, the defendant must prove the sentence was based on a mistaken belief about the sentencing range. (3) The court affirmed Perry's sentence, (4) even though the sentencing judge, the prosecutor, and Perry's own counsel agreed upon the incorrect sentencing range. (5) This Note analyzes the Supreme Court of Missouri's reasoning in Perry and considers the limited ability of defendants to obtain relief, both on direct appeal and in seeking postconviction relief, when the incorrect sentencing range is used but the error is not preserved for appellate review. This Note argues the Supreme Court of Missouri should have created a rebuttable presumption of prejudice when an incorrect sentencing range is applied. Finally, this Note posits that judicial integrity, as well as public confidence in the judiciary, is undermined due to the result and implications of Perry.


    Joseph Perry was charged with possession of a controlled substance with the intent to distribute. (6) This charge was based on Perry's conversation with, and attempted escape from, a police officer. (7) The officer noticed Perry backing out of his driveway and started following him. (8) The police officer believed Perry's license was suspended, but she was unable to verify this information as she followed him. (9) Perry then reached his fiance's house and pulled into the driveway. (10) The officer stopped, approached Perry, and asked to speak with him. (11) Perry obliged, and the officer asked to see his license. (12) After obtaining Perry's license, the officer attempted to verify it was valid but could not do so because her radio was not functioning properly. (13) During this time period, Perry began acting suspiciously. (14) He reached into his pocket and took out what appeared to be a plastic bag. (15) The officer asked Perry to come over to her. (16) Instead, Perry took a bike out of the back of his truck and walked to the front of the vehicle, all while keeping the bag clenched in his fist. (17) The officer followed Perry to the front of the vehicle, where he quickly threw down the bike and began running. (18) Perry briefly hesitated when he came to a fence but then climbed over. (19) Eventually, he surrendered, and a plastic bag of methamphetamine was found in the fence Perry scaled. (20)

    The prosecutor charged Perry with one count of possession of a controlled substance with intent to distribute. (21) Perry filed a motion to suppress the methamphetamine, arguing it was unlawfully seized because the police officer requested his driver's license without a reasonable suspicion Perry was engaged in criminal activity, but his motion was denied. (22) A jury found Perry guilty of the lesser included offense of possession of a controlled substance. (23) During sentencing, the prosecutor stated the sentencing range was five to fifteen years' imprisonment in the Department of Corrections and recommended an eight-year sentence. (24) The prosecutor noted Perry was not convicted of the charged crime but instead possession of a controlled substance, (25) which is a class C felony carrying a sentencing range of one year in the county jail to seven years in the Department of Corrections. (26) However, Perry was subject to enhanced penalties because he was deemed a persistent offender. (27) The prosecutor argued the applicable range was still five to fifteen years, due to the enhanced penalties. (28) Perry's counsel did not object at the sentencing hearing (29) but instead agreed five to fifteen years was accurate. (30) Yet, the correct range of punishment was one year in the county jail to fifteen years in the Department of Corrections because "[a]t the time of sentencing, only the maximum sentence increased for a persistent offender, while the minimum sentence was unaffected." (31) Perry was then sentenced to eight years' imprisonment. (32)

    Perry first appealed to the Missouri Court of Appeals for the Western District, but the case was transferred to the Supreme Court of Missouri after the Western District issued an opinion. (33) There, Perry raised two arguments. (34) He argued the trial court erred in sentencing him to eight years' imprisonment because the court operated "under a materially false belief regarding the sentencing range. (35) Further, he contended the trial court erred in overruling his motion to suppress the methamphetamine because he was unlawfully seized during his interaction with the police officer. (36) The majority held the trial court did not err in sentencing Perry to eight years' imprisonment (37) or denying Perry's motion to suppress. (38) Consequently, the judgment of the trial court was affirmed. (39) The dissent agreed the trial court did not err in dismissing Perry's motion to suppress but argued Perry established plain error regarding his sentencing claim. (40)


    Sentencing law has become complex, and mistakes in applying sentencing law are common. First, this Part briefly introduces Missouri sentencing law and explains the error committed in Perry. Next, this Part details multiple Missouri cases that have addressed misapplications of sentencing law. Finally, this Part examines how the federal appellate courts have applied plain error review to incorrect application of the Federal Sentencing Guidelines ("Guidelines").

    1. Missouri Sentencing Law

      In Missouri, the sentencing scheme is codified in the Revised Statutes of Missouri. (41) These statutes provide the sentencing ranges for both misdemeanors and felonies, (42) and the Supreme Court of Missouri has determined judges must impose a sentence within the specified range. (43) Chapter 558 provides further guidance concerning other aspects of sentencing. (44) For example, this chapter details the general rules for imposing multiple sentences and explains how the sentencing ranges are altered when the defendant is a prior or persistent offender. (45) Additionally, Missouri has established an eleven-member Sentencing Advisory Commission (the "Commission") that is responsible for various duties. (46) For example, the Commission studies the sentencing practices of Missouri trial courts, determines if there are sentencing disparities based on social and economic statuses, and investigates alternative sentences as well as alternative programs. (47) The Commission occasionally publishes a user guide. (48) Previously, the guide included a system of recommended sentences, but in 2012, section 558.019 was amended to remove this requirement of the Commission. (49)

      Missouri sentencing law imposes an increased range of punishment for defendants found to be persistent offenders--that is, individuals "who [have] been found guilty of two or more felonies committed at different times." (50) At the time of Perry's sentencing, the statute only increased the maximum term of imprisonment to the next felony level. (51) Unfortunately, trial courts, much like the trial court in Perry, were increasing both the minimum and maximum sentence, which led to the application of an erroneous sentencing range. (52) The applicable statute has since been amended. Missouri's sentencing scheme now provides that persistent offenders who arc sentenced to a class B, C, D, or E felony must be sentenced at the "authorized term of imprisonment for the offense that is one class higher than the offense for which the person is found guilty." (53) Consequently, both the maximum and minimum punishment will increase for persistent offenders.

    2. Missouri Case Law

      One of the leading Missouri cases addressing an incorrect application of sentencing law is Wraggs v. State. (54) There, the defendant was sentenced to thirteen years' imprisonment for a conviction of assault with intent to maim with malice. (55) Wraggs was convicted under the Habitual Criminal Act, and the judge explicitly referenced Wraggs' prior convictions at sentencing. (56) Wraggs had previously been convicted of two robberies. (57) Those convictions were later vacated, and Wraggs pleaded guilty to one count of robbery instead of two. (58) Based on this change, Wraggs filed a motion to set aside the sentence in the assault case, arguing the thirteen-year sentence was founded on an illegal and invalidated conviction. (59) The trial court denied the motion because the conviction was based on a prior burglary conviction, not the robbery convictions. (60)

      The Supreme Court of Missouri determined the sentence had to be set aside because it depended on "assumptions concerning [Wraggs'] criminal record which were materially untrue." (61) The court explained the trial judge believed Wraggs had been convicted of five felonies when he had only been legally convicted of three felonies. (62) The rationale was that the sentence "might have been different if the sentencing judge had known that at least two of (appellant's) previous convictions had been (illegally) obtained." (63) The court determined that on the record before it, "the conclusion...

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