Opinion
No. WD 60983
February 18, 2003
Appeal from the Circuit Court of Carroll County, Werner A. Moentmann, Judge.
Craig Allan Johnston, State Public Defender Office, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, John Munson Morris and Nicole E. Gorovsky, Attorney General Office, Jefferson City, for Respondent.
Before Ronald R. Holliger, Presiding Judge, Paul M. Spinden, Judge, and James M. Smart, Jr., Judge.
In appealing the circuit court's judgment convicting him of two counts of second-degree assault, Joseph Grubb asserts that the circuit court erred in sentencing him as a prior offender because his prior felony conviction resulted from a military court-martial. He argues that use of court-martial convictions to enhance punishment is contrary to Missouri law.
Grubb did not preserve the issue for our review because he did not include it in his motion for a new trial as required by Rule 29.11(d). The rule makes three exceptions, but Grubb's case does not fit within any of them. Hence, Grubb's issue is not preserved for our review.
Grubb requests, however, that we review his case as plain error under Rule 30.20. The rule says, "[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom."
Actually, he requested that we review his case under Rule 29.12 and 30.20. Rule 29.12 does not pertain to this court but to circuit court. Rule 30.20 provides, "Allegations of error that are not briefed or are not properly briefed on appeal shall not be considered by the appellate court except errors respecting the . . . sentence." This part of Rule 30.20 grants us the authority to consider all errors pertaining to sentencing whether briefed or not. In this case, Grubb's allegation of error pertains to sentencing, but Grubb, by failing to include it in his motion for new trial, did not preserve the issue for our review. The second part of Rule 30.20, gives us the authority to consider "plain errors affecting substantial rights . . . when [we find] that manifest injustice or miscarriage of justice has resulted" from the plain error. "By its express terms, the rule would apply to error that is unpreserved, regardless of whether briefed or not." State v. Williams, 9 S.W.3d 3, 12 (Mo.App. 1999). Hence, we can review Grubb's claim, if at all, only as plain error.
Under Rule 30.20, review is conditional. It grants us authority to exercise discretion to consider the issue only if Grubb presents an issue of plain error affecting substantial rights. So our first step is to determine whether Grubb presents an issue of plain error affecting substantial rights.
He does not. Errors are plain if they are evident, obvious, and clear. State v. Hawthorne, 74 S.W.3d 826, 829 (Mo.App. 2002). We do not discern plain error in using a conviction from a court-martial to enhance a defendant's punishment as a prior offender under § 558.016, RSMo 2000. Section 558.016.2 says, "A `prior offender' is one who has pleaded guilty to or has been found guilty of one felony." Grubb pleaded guilty to assault before a military general court-martial, after being, according to records, "advised of his various rights and the legal effect of his guilty plea." An attorney advised Grubb during each aspect of the proceedings. The military judge sentenced him to three years in confinement on June 11, 1981. The United States Army Court of Military Review reviewed the proceedings and affirmed the conviction and sentence. As defined by § 556.016, RSMo 2000, the conviction constituted a felony. The General Assembly does not make any other requirement but that the prior conviction constitutes a felony. We do not discern plain error in the circuit court's use of the conviction to enhance Grubb's punishment in this case.
The emphasis was in the original.
Section 556.016 .2 says, "A crime is a `felony' if it is so designated or if persons convicted thereof may be sentenced to death or imprisonment for a term which is in excess of one year." (Emphasis in the original).
In requesting plain error review, Grubb argues, "Missouri case law is clear — a court-martial conviction cannot be used as a qualifying conviction under Missouri recidivism statutes." He relies on State v. Mitchell, 659 S.W.2d 4 (Mo.App. 1983), in which this court's eastern district declared:
We do not question the validity of courts martial for the purposes of military order and discipline. Further, we find nothing objectionable in the use of courts-martial for the purpose of impeaching a witnesses' credibility. See State v. Himmelmann, 399 S.W.2d 58 (Mo. 1966). Statutes enhancing punishment, however, are highly penal in nature and must be strictly construed. State v. Lucas, 520 S.W.2d 609 (Mo.App. 1975).
In Missouri, the accused in a criminal prosecution enjoys the constitutional guaranty of "a speedy public trial by an impartial jury." Mo. Const. Art. I, § 18(a) (1945). See also U.S. Const. Amend. VI. Insofar as the right to trial by jury is not afforded by court-martial, we find that system of discipline sufficiently foreign from our own system of criminal justice and from that of our sister states and federal government so as to prohibit its use as a threshold predicate of enhanced punishment under § 558.016.
Id. 5-6. The Mitchell court erred.
We do not see anything within § 558.016.2, however, that mandates that the convictions of other jurisdictions match the level of due process afforded by Missouri law. The legislature simply has mandated in § 558.016.2 that the prior conviction be a felony — we assume a felony as defined by § 556.016. Grubb does not argue — nor do we discern a basis for arguing — that his conviction before the court-martial did not satisfy § 556.016's definition of a felony.
Moreover, as the United States Supreme recognized, "The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights." Burns v. Wilson, 346 U.S. 137, 142 (1953). Thus, "[t]he judgment of a court-martial is to be accorded the same finality and conclusiveness, as to the issues there involved, as the judgment of [a] civilian court." United States ex rel. Thompson v. Price, 258 F.2d 918, 922 (3d Cir.), cert. denied, 358 U.S. 922 (1958); see also Burns, 346 U.S. at 142. In Weiss v. United States, 510 U.S. 163, 166-69 (1994), Chief Justice Rehnquist explained "the contours of the military justice system:"
Congress has established three tiers of military courts. See US Const, Art I, § 8, cl 14. At the trial level are the courts-martial, of which there are three types: summary, special, and general. The summary court-martial adjudicates only minor offenses, has jurisdiction only over servicemembers, and can be conducted only with their consent. It is presided over by a single commissioned officer who can impose up to one month of confinement and other relatively modest punishments. Arts 16(3), 20, UCMJ, 10 U.S.C. § 816(3), 820.
The special court-martial usually consists of a military judge and three court-martial members [Court-martial members may be officers or enlisted personnel, depending on the military status of the accused; the members' responsibilities are analogous to, but somewhat greater than, those of civilian jurors. See Art 25, UCMJ, 10 U.S.C. § 825.], although the Code allows the members to sit without a judge, or the accused to elect to be tried by the judge alone. Art 16(2), UCMJ, 10 U.S.C. § 816(2). A special court-martial has jurisdiction over most offenses under the UCMJ, but it may impose punishment no greater than six months of confinement, three months of hard labor without confinement, a bad-conduct discharge, partial and temporary forfeiture of pay, and a reduction in grade. Art 19, UCMJ, 10 U.S.C. § 819. The general court-martial consists of either a military judge and at least five members, or the judge alone if the accused so requests. Art 16(1), UCMJ, 10 U.S.C. § 816(1). A general court-martial has jurisdiction over all offenses under the UCMJ and may impose any lawful sentence, including death. Art 18, UCMJ, 10 U.S.C. § 818.
The bracketed sentence appeared in the original as Footnote 1.
The bracketed sentence appeared in the original as Footnote 1.
The military judge, a position that has officially existed only since passage of the Military Justice Act of 1968, acts as presiding officer at a special or general court-martial. Art 26, UCMJ, 10 U.S.C. § 826. The judge rules on all legal questions, and instructs court-martial members regarding the law and procedures to be followed. Art 51, UCMJ, 10 U.S.C. § 851. The members decide guilt or innocence and impose sentence unless, of course, the trial is before the judge alone. Ibid. No sentence imposed becomes final until it is approved by the officer who convened the court-martial. Art 60, UCMJ, 10 U.S.C. § 860.
. . . .
At the next tier are the four Courts of Military Review, one each for the Army, Air Force, Coast Guard, and Navy-Marine Corps. These courts, which usually sit in three-judge panels, review all cases in which the sentence imposed is for one or more years of confinement, involves the dismissal of a commissioned officer, or involves the punitive discharge of an enlisted service-member. Art 66, UCMJ, 10 U.S.C. § 866. . . .
. . . .
Atop the system is the Court of Military Appeals, which consists of five civilian judges who are appointed by the President, with the advice and consent of the Senate, for fixed terms of 15 years. Art 67, 142, UCMJ, 10 U.S.C. § 867, 942 (1988 ed, Supp IV).
The military services have also adopted the Military Rules of Evidence that modified the federal rules of evidence only slightly.
Further, we are persuaded by our sister states that have used a court-martial conviction for proof of prior conviction. See Turner v. Commonwealth, 568 S.E.2d 468 (Va.App. 2002); State v. Graves, 947 P.2d 209 (Ore.App. 1997); Commonwealth v. Smith, 598 A.2d 268 (Pa. 1991); People v. Roman, 176 A.D.2d 568, 574 N.Y.S.2d 742 (N.Y.App.Div. 1991); Muir v. State, 517 A.2d 1105 (Md. 1986); Millwood v. State, 721 P.2d 1322 (Okla. Cr. 1986); Esters v. State, 480 So.2d 615 (Ala.Crim.App. 1985); Scott v. United States, 392 A.2d 4 (D.C.App. 1978); State v. Bullock, 329 So.2d 733 (La. 1976); Johnson v. State, 432 S.W.2d 98 (Tex.Crim.App. 1968); People v. Calderon, 205 Cal.App.2d 566 (Cal.Ct.App. 1962); but see State v. Wimberly, 787 P.2d 729 (Kan. 1990).
We, therefore, do not find Mitchell to be persuasive and do not heed its holding that a court-martial felony conviction cannot be used to enhance punishment under § 558.016. Accordingly, we do not discern a basis for according plain error review to Grubb and, therefore, affirm the circuit court's judgment.
This position has been reviewed and approved by a majority of this court en banc.
Ronald R. Holliger, Presiding Judge, and James M. Smart, Jr., Judge, concur.