Opinion
No. WD 56804
Opinion Filed: November 23, 1999
ORIGINAL PROCEEDING IN HABEAS CORPUS AND MANDAMUS.
Susan Lynn Hogan, Kansas City, for relator.
Attorney Generals Office, Jefferson City, for respondent.
Before Presiding Judge Laura Denvir Stith, Judge Edwin H. Smith and Judge Albert A. Riederer.
Defendant-Relator Arthur Scott Clay was convicted of forcible rape in 1989. Mr. Clay was sentenced by the judge rather than by the jury because the judge found him to be a prior offender based on the erroneous consideration of an expunged prior conviction, and received a 20-year sentence. A copy of the expungement order came to light only after Mr. Clay's direct appeal and post-conviction motion had been denied. He therefore applies for habeas corpus relief, asserting manifest injustice resulted from the improper consideration of the expunged prior conviction, as it was used to deny him jury sentencing.
We agree that the trial court should not have considered the expunged prior conviction, that Relator timely raised this issue as soon as he became aware of it, and that, in this circumstance, manifest injustice has resulted because consideration of this expunged conviction resulted in denial of Mr. Clay's right to jury sentencing. We therefore grant Mr. Clay's Petition for Writ of Habeas Corpus and direct Respondent to remand Mr. Clay to Platte County for a complete new trial, at which Mr. Clay's sentence will be determined by a jury. We also grant Mr. Clay's Petition for Mandamus, and issue our Permanent Writ of Mandamus directing Respondent to expunge from its records all references to Mr. Clay's 1974 conviction and all references to him as a prior offender, and direct that, upon resentencing, he be given the status and rights as to confinement and consideration for parole of one who is not a prior offender.
I. FACTUAL AND PROCEDURAL HISTORY
On July 12, 1974, Relator Clay pled guilty to one count of distributing hashish, and received probation. He was 19 years old. Six years later, having successfully completed his probation, Mr. Clay requested the Circuit Court of Platte County to expunge his 1974 conviction pursuant to Section 195.290 RSMo 1978 (Repealed L. 1989). That statute, as then in force, stated that a defendant's criminal record may be expunged if the party seeking the order was 21 years or younger at the time of the offense and had committed no crimes subsequent to his sentencing for the conviction sought to be expunged. It required the court to expunge the conviction if the court found these requirements were met, and stated that:
The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and conviction.
Sec. 195.290 RSMo 1978 (Repealed L. 1989).
The record in this Court contains an order of Judge J.M. Yeaman, dated July 21, 1980, granting the motion for expungement. Normally, such an order would be placed in the file upon signing and mailed to the parties. As discussed below, however, so far as the record shows this did not occur here, and it is unclear from that record where the signed order remained for the next eight and one-half years.
The record does reveal that, on September 13, 1988, approximately 14 years after Mr. Clay was convicted of drug possession and 8 years after Judge Yeaman granted the expungement of that conviction, Mr. Clay was charged with forcible rape of a 14-year old girl who was a friend of his daughter. Mr. Clay was tried on that charge in the spring of 1989. During the trial on the rape charge, the court found that Relator was a prior offender based on the prosecutor's introduction of a copy of Mr. Clay's 1974 drug conviction. The document presented by the prosecutor bore the Platte County Clerk's certification dated January 17, 1989. Thus, as of that date, the Platte County record of Mr. Clay's conviction had not been expunged, despite the order 8 years earlier so requiring.
On April 18, 1989, the jury found Mr. Clay guilty of forcible rape, a crime that can carry a sentence of 5 years to life. The jury should have been the body to assess sentence. See Sec. 557.036.2(2) RSMo 1994. Because the judge had erroneously found Mr. Clay to be a prior offender through the prosecutor's presentation of the "expunged" conviction, however, Mr. Clay was instead sentenced by the judge. The judge affirmatively considered Mr. Clay's expunged conviction, and his successful completion of probation, in sentencing Mr. Clay to 20 years imprisonment for the rape.
The existence of the expungement order was not raised by Mr. Clay in his direct appeal or in his post-conviction motion. We affirmed the rape conviction and denial of post-conviction relief, except as to a minor clerical error, on June 18, 1991. On June 25, 1992, Mr. Clay forwarded a letter to the Platte County Clerk's office requesting "the judgments and orders of my convictions for prior felonies." The next day, the Platte County Clerk wrote Mr. Clay that her office was unable to find a record of any felony convictions under his name except the recent rape conviction. Thus, by that date, the prior conviction, which the clerk had certified to the prosecutor on January 17, 1989, had apparently finally been expunged from Mr. Clay's file. The record does not reveal when or how this occurred, or how the expungement order came to the Platte County Clerk's attention at that late date.
On August 25, 1992, the Platte County Clerk certified a copy of Judge Yeaman's July 2, 1980 expungement order. Shortly thereafter, the Clerk sent a copy of this certified expungement order to the Platte County prosecutor. On September 29, 1992, the prosecutor filed a motion in which he noted the above history, indicated that the law required expungement of the prosecutor's records as to Mr. Clay's expunged conviction, noted that Mr. Clay was now seeking to obtain any records in the prosecutor's possession about him, and asked for permission to expunge the records of the conviction before providing Mr. Clay with his records. This would mean that Mr. Clay would not receive a copy of the prosecutor's records of his own expunged conviction. It appears, from the limited record before us, that the court granted the prosecutor's request to expunge the record, but as a part of that order directed that a copy of his own records should be made available to Mr. Clay. Apparently, no copy of the expungement order was forwarded to the Department of Corrections and its briefing on this appeal makes it clear that its records still reflect Mr. Clay's expunged conviction. Indeed, it asks us to allow the references in that record to this conviction to remain, arguing that it will be burdensome to have to go through its records to remove references to Mr. Clay's admittedly expunged conviction.
Once Mr. Clay was made aware that his prior conviction had been expunged at the time it was used to deny him jury sentencing, he filed for habeas corpus relief in Platte County. Such relief was denied because that county was not the proper venue under Rule 91.02. He then applied for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United States District Court of the Western District of Missouri. Judge Howard F. Sachs denied that request on August 29, 1995, and the decision was affirmed by the United States Court of Appeals for the Eighth Circuit, on the basis that Mr. Clay was first required to request such relief in the state courts. Clay v. Gammon, 89 F.3d 840 (8 th Cir. 1996). Mr. Clay then filed for relief in this Court. We appointed counsel. Finding that Mr. Clay had shown good cause for requesting relief in this Court, we issued our Preliminary Writs of Habeas Corpus and Mandamus pursuant to Rules 91 and 94.
II. HABEAS CORPUS RELIEF IS AVAILABLE TO CORRECT MANIFEST INJUSTICE
The relief available under a writ of habeas corpus has traditionally been very limited, Simmons v. White , 866 S.W.2d 443, 445 (Mo. banc 1993), and courts are not required to issue this extraordinary writ where other remedies are adequate and available. White v. State , 779 S.W.2d 571, 573 (Mo. banc 1989). For this reason, a person cannot usually utilize a writ of habeas corpus to raise an issue which the person could have raised, but did not raise, on direct appeal or in a post-conviction proceeding. Id. Very limited exceptions to this rule are recognized where the person seeks to use the writ "to raise jurisdictional issues or in circumstances so rare and exceptional that a manifest injustice results" if habeas corpus relief is not granted. Simmons , 866 S.W.2d at 446. Accord , Merriweather v. Grandison , 904 S.W.2d 485, 489 (Mo. App.W.D. 1995).
In order to grant habeas corpus relief due to a jurisdictional error, it must be patent on the face of the record that the court acted beyond its jurisdiction in confining the defendant in the manner ordered. Such relief is not available merely to correct errors not evident from the face of the record. Prior cases have held that jurisdictional errors are evident on the face of the record where a court sentences defendant to a term longer than that allowed by law, but a jurisdictional error is not sufficiently patent to permit habeas corpus relief where a court has erroneously sentenced a defendant as if he had three prior convictions whereas he in fact had only two, for the error in that ruling is not evident on the face of the record.
Compare Thomas v. Dormire , 923 S.W.2d 533, 534 (Mo. App.W.D. 1996); Merriweather , 904 S.W.2d at 488-89; State v. Sevier, 336 Mo. 1236, 83 S.W.2d 581, 583 (Mo. banc 1935) (all recognizing habeas corpus relief is available if sentence is above maximum permitted by law) with Simmons v. White , 866 S.W.2d at 445-46 (error is not jurisdictional if defendant is merely sentenced as if three prior convictions had been proved when in fact only two were proved). We do not decide into which category of cases Mr. Clay's claim of use of an expunged conviction falls, for, even were we to determine that it did not constitute the type of patent jurisdictional defect which would entitle him to habeas corpus relief due to the fact that, on its face, the sentence was within the range permitted by the statute, we would still be required to determine whether use of the conviction ordered expunged to deny Mr. Clay jury sentencing constituted manifest injustice. We therefore have determined to proceed directly to the latter inquiry.
By contrast, in order to be entitled to habeas corpus relief due to manifest injustice, one need not show a jurisdictional error that is patent on the record. One must, instead, make what has been termed "a broader inquiry" into the question whether there is evidence that the injustice which caused the petitioner to be wrongfully confined was caused by "the prisoner's own want of diligence, or his deliberate by-passing of an available remedy as a matter of strategy, which might constitute waiver of his habeas corpus remedy." Merriweather, 904 S.W.2d at 489 . In other words, the assessment of whether manifest injustice exists requires the court to consider whether movant had a valid reason for not raising the issue at a prior procedural juncture, such as on direct appeal or in a post-conviction motion.
In making this inquiry into whether manifest injustice occurred in this case, we are guided by the analyses and contrasting results in two prior cases, Simmons v. White , 866 S.W.2d at 446 and Brown v. Gammon , 947 S.W.2d 437, 440 (Mo. App.W.D. 1997). In Simmons , the petitioner claimed error in sentencing him as if he had three prior convictions when, in fact, only two were proved at the time of judgment and sentence. Mr. Simmons failed to raise this issue on direct appeal or by post-conviction motion under Rule 24.035, however. Our Supreme Court concluded that, while this "procedural default does not absolutely preclude him from seeking habeas corpus for this purpose, the scope of review to which he is entitled is extremely limited." Simmons, 866 S.W.2d at 446. The Court found that this type of error was not jurisdictional in nature, and thus it could review only for manifest injustice.
Simmons found that manifest injustice would not result if it failed to grant a writ of habeas corpus because "[w]e 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." 866 S.W.2d at 446-47. In other words, since the failure to raise this issue earlier was a strategy decision, it was not unjust to bar consideration of it on habeas corpus.
By contrast, in Brown , the petitioner was entitled to habeas corpus relief where the record revealed that he did not forego raising a sentencing issue on direct appeal or in his post-conviction motion in order to obtain a strategic advantage, but rather failed to raise it earlier because it was not then known to him. As we stated:
Mr. Brown's complaint was not known to him nor was it reasonably discoverable to him during the applicable ninety-day time limitation under Rule 24.035. It was impossible for Mr. Brown to realize that he would be denied probation until 120 days after he began his sentence, or thirty days after the time limits of Rule 24.035 had run. Therefore, because Mr. Brown is "restrained of liberty within this state" under Rule 91.01 and is inquiring into the cause of his restraint, a petition for a writ of habeas corpus is the appropriate remedy.
Brown , 947 S.W.2d at 440 . Thus, because Mr. Brown was not aware of the impropriety in his restraint until after his other procedural opportunities to raise the issue had passed, he was not barred from raising the issue on habeas corpus. As the error resulted in his being unjustly restrained of his liberty, he was therefore entitled to habeas corpus relief. Id.
This case is analogous to Brown rather than to Simmons. Nothing in the record suggests that Mr. Clay was aware of his right to relief until after his appeal and post-conviction motions had been filed and denied. There is no evidence that he received a copy of or was otherwise aware of the order granting the expungement motion, and certainly was not so informed by the prosecutor, who affirmatively used the prior conviction to deny Mr. Clay jury sentencing. Indeed, so far as the record shows, Mr. Clay was unaware of the expungement, and thus unaware of the grounds he now asserts provide him with a right to habeas corpus relief, until he received a copy of the expungement order after the Platte County prosecutor requested permission to expunge his records of Mr. Clay's prior conviction without providing him with a copy of those records.
And, unlike in Simmons , where defendant hoped to receive probation in 120 days, here Mr. Clay had no reasonable incentive for not mentioning the expungement; this course of action could only hurt him by denying himself a jury-determined sentence. Additionally, subsequent to learning in 1992 that the expungement order had been granted, Mr. Clay diligently took steps to obtain relief. Indeed, it was his letter to the Platte County Clerk's office that initiated the discovery of this order. Furthermore, once he learned of the order, he filed petitions for writs of habeas corpus at both the state and federal levels. For these reasons, this Court finds that Mr. Clay is entitled to raise the issue of his wrongful confinement by means of habeas corpus and that his failure to raise it on direct appeal or in his post-conviction motion did not constitute a waiver of his right to habeas corpus relief.
The State asks us to engage in speculation that Mr. Clay might have known of the expungement order at the time it was used to deny him jury sentencing and made a strategy decision not to raise that issue, or that he failed to exercise "due diligence" in not inquiring earlier whether his motion to expunge his prior conviction had been granted, and that this is what caused him to be denied jury sentencing. The State cites no authority for this "due diligence" test. Even were it applicable, however, there is nothing in the record to support the claim that Mr. Clay should have known that the expungement order had been entered, and in fact the only record evidence is that the Platte County records still showed his conviction at the time of his later trial. Were this not so, then the Clerk would not have so certified and the prosecutor surely would not have knowingly used an expunged conviction to take from Mr. Clay his right to jury sentencing. Yet, if the prosecutor and the Clerk did not receive notice of entry of the expungement order, there could be no basis to infer that Mr. Clay might have done so. And, common sense indicates that Mr. Clay could not have had any reason to hide the expungement had it been granted. He could not benefit by being thought to be a prior offender, and had he wanted to avoid jury sentencing he could have done so without making the judge think he was a prior offender. We thus reject the State's argument.
We also find that this denial of Mr. Clay's right to jury sentencing rises to the level of manifest injustice. This follows from the fact that, while a criminal defendant does not have a constitutional right to have a jury determine punishment, State v. McClanahan , 954 S.W.2d 476, 481 (Mo. App.W.D. en banc 1997), the right to jury recommendation of sentence is granted by statute, and the sentence recommended by the jury will constitute the maximum punishment which the court can impose. Sec. 557.036.2(2) RSMo 1994. Such a right to jury sentencing has been found to be such a valuable right that our courts have long held that where, as here, a court has improperly classified a defendant as a prior offender for purposes of sentencing, "and the evidence is insufficient to support that finding, defendant is entitled to a new trial on all issues." State v. McFall , 866 S.W.2d 915, 919 (Mo. App.S.D. 1993). Accord, State v. Harris , 547 S.W.2d 473, 475-476 (Mo. banc 1977); State v. Blackwell , 459 S.W.2d 268, 271 (Mo. banc 1970); State v. Vermillion , 446 S.W.2d 788, 790 (Mo. banc 1969); State v. Hill , 371 S.W.2d 278, 282-283 (Mo. banc 1963); State v. Olson , 806 S.W.2d 111, 112-113 (Mo. App.W.D. 1991). The evidence was indisputably insufficient to support that finding here once the expunged conviction is excluded.
For similar reasons, if the jury is allowed to assess punishment, but is improperly instructed as to the range of punishment, then a new trial on all issues will be required even though the sentence the jury recommended was, in fact, within the range which would have been allowed had the jury been properly instructed. See, e.g., State v. Whardo , 859 S.W.2d 138, 140-41 (Mo. banc 1993); State v. Cline, 808 S.W.2d 822, 826 (Mo. banc 1991).
If the record had been ambiguous as to whether the petitioner should have been sentenced as a prior offender, we could have remanded for a hearing on that issue. If the result of the hearing were unfavorable to him, the court could sentence him on remand; otherwise the court would have been required to grant a new jury trial on all issues. See State v. Lowery , 926 S.W.2d 712, 713 (Mo. App.E.D. 1996); State v. Martin , 882 S.W.2d 768, 772 (Mo. App.E.D. 1994); State v. Wickizer , 641 S.W.2d 849, 853 (Mo. App.W.D. 1982).
Accordingly, we find that the State's use of the expunged 1974 conviction to accord Mr. Clay prior offender status and so deny him his right to jury recommendation of sentence constitutes manifest injustice which entitles him to habeas corpus relief.
IV. MANDAMUS RELIEF
Mr. Clay also requests us to issue our writ of mandamus directing the State to expunge all references to his prior conviction from his record, as required by Judge Yeaman's July 2, 1980 order.
The State argues that this would be a cumbersome task to perform and might overtax its resources, and therefore we should not grant this relief.
In order for mandamus to be an appropriate remedy, the party seeking to invoke the writ must do so with an intent to "enforce, not establish, a claim or right and [his or her] purpose [must be to] execute not adjudicate." Carmack v. Saunders , 884 S.W.2d 394, 398 (Mo. App.W.D. 1994); St. Louis Police Officers Ass'n v. Sayad , 685 S.W.2d 913, 916 (Mo. App.E.D. 1984). Our Supreme Court has held that:
Mandamus is a discretionary writ, not a writ of right. Mandamus will lie only when there is a clear, unequivocal, and specific right. The right sought to be enforced must be clearly established and presently existing. A writ of mandamus is not appropriate to establish a legal right, but only to compel performance of a right that already exists. As this Court has often stated, the purpose of the writ is to execute, not adjudicate.
State ex rel. Chassaing v. Mummert , 887 S.W.2d 573, 576 (Mo. banc 1994) (citations omitted).
Mr. Clay is not seeking to establish a legal right, but to compel performance of his statutory right under Section 195.290 to have Respondent's records of his 1974 conviction expunged. Section 195.290, as written in 1978, specifically provided that a person "may apply to the court which sentenced him for an order to expunge from all official records, except . . . [certain drug records], and all recordations of his arrest, trial and conviction." Sec. 195.290 RSMo 1978 (Repealed L. 1989). In accordance with this statute, Judge Yeaman's order provided "that all official records, recording his arrest, trial and conviction be expunged and that the said movant, be restored, in the contemplation of the law, to the status he occupied prior to the within arrest and conviction . . ." Thus, pursuant to Section 195.290 and Judge Yeaman's order, Mr. Clay's specific right to have his 1974 conviction expunged is clearly established and presently exists. Therefore, mandamus is available here.
Neither the statute nor Judge Yeaman's order provided an exception to expungement where the State has erroneously failed to comply with the terms of the expungement order for such a long period of time that the number of improper references to the prior conviction has multiplied. We do not agree that it will be unduly burdensome for the State to comply with the statute or with Judge Yeaman's order. While the State argues that, if we grant mandamus relief here, it will have to take similar corrective action in other cases, creating a significant burden, we find it unlikely that the State has incarcerated in its prisons many other persons who have had prior expungement orders ignored, as occurred here. If there is a multitude of such persons, however, then they would be entitled to the same relief.
Accordingly, for the reasons stated above, we grant Mr. Clay habeas corpus relief and direct Respondent to remand Mr. Clay to Platte County for a new trial and jury sentencing. We also make our Preliminary Writ of Mandamus Absolute and direct Respondent to expunge from its records all references to Mr. Clay's 1974 conviction and to him as a prior offender, and we order that, in accord with Section 195.290 and Judge Yeaman's order, he be given the status and rights as to confinement and consideration for parole of one who, like Mr. Clay, is not, in the contemplation of the law, a prior offender.