Abell v. State

CRIST, Judge. Appeal by the state from a ruling on a Rule 27.26 motion wherein movant’s fifty year sentence for the sale of marijuana was vacated and a lesser, ten year sentence, imposed. We reverse and remand with instructions to reinstate the fifty year sentence. Movant was sixteen years old when first charged in juvenile court with the commission of six felonies in 1974, to-wit: (1) The sale of 100 amphetamine tablets; (2) The sale of 38.5 grams of marijuana; (3) The sale of .15 grams of phencyclidine; (4) The sale of .15 grams of amphetamine; (5) Possession of 76 grams of marijuana; and (6) The purchase and sale of stolen property. At the time, movant had no prior record of drug violations. Movant was certified to stand trial as an adult on the six aforementioned felonies, and eventually pleaded guilty to those felonies numbered (1) and (2) above. Although a presentence investigation report recommended that probation be denied, on July 24, 1975, the trial judge sentenced movant to five years imprisonment for the amphetamine sale, suspended execution of the sentence and placed movant on five years probation. The trial judge then suspended imposition of the sentence and gave movant five years probation for the charge which stemmed from the sale of marijuana. On September 12, 1975, and again on October 21, 1975, in contravention of the terms of his probation, movant engaged in the felonious sale of yet another controlled substance, specifically, hashish. Subsequently, on February 2, 1976, mov-ant was brought before the same trial judge for a probation revocation hearing. The judge revoked both probations and sentenced movant to fifty years for the 1974 marijuana sale conviction, said term to be served consecutively with the five year term for the amphetamine sale.1 Movant filed his Rule 27.26 motion and also moved for disqualification of the judge who imposed the fifty year sentence. Mov-ant’s motion to disqualify was granted, as was the state’s motion to disqualify the second judge appointed. A third judge was randomly assigned and it was he who vacated the fifty year sentence and reimposed a lesser, ten year term. This action was predicated upon the stated ground that the fifty year sentence for the sale of marijuana was so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article I, Section 21 of the Constitution of Missouri. Movant does not contend, nor may it be contended, that his punishment fell outside the limits prescribed by statute. The range of punishment for the sale of marijuana, a Schedule I controlled substance, is not less than five years nor more than life imprisonment. Section 195.200.1(4), RSMo 1975 Supp. Initially, we note that we are obliged to affirm the ruling of the Rule 27.26 judge unless it appears that his findings, conclusions, and judgment are clearly erroneous. Rule 27.26(j). “Clearly erroneous means the appellate court has a definite and firm conviction that a mistake has been committed.” Nelson v. State, 537 S.W.2d 689, 693 (Mo.App.1976). In this particular instance, the mistake committed was the enounced conclusion of the Rule 27.26 judge that the rule in State v. Cook, 440 S.W.2d 461 (Mo.1969) which, “approves any sentence as long as it is within the range of punishment prescribed by the applicable statute .... conflicts with constitutional considerations and is therefore deemed not controlling.” Inasmuch as we believe the Rule 27.26 judge either misapplied or ignored the pertinent and existing case law of this state, it committed error. [200] As we interpret the various cases of this state which recite the appropriate standard of review for sentences allegedly excessive, Cook, supra, indicates a judicial predilection to defer to the right of the legislature to set the range of punishment.2 This predilection might well be likened to the creation of a presumption, i. e., that sentences within the prescribed statutory limits are not excessive. However, the presumption is not irrefutable, and is tempered with some measure of judicial review where the punishment, though within statutory limits for the offense, “is so disproportionate to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” State v. Mitchell, 563 S.W.2d 18, 26 (Mo. banc 1978). There is also language in a number of decisions which leaves us with considerable doubt that such a claim (excessive imprisonment within statutory limits constitutes cruel and unusual punishment) may be entertained in the absence of an allegation and accompanying proof that the sentence was the result of the trial court’s prejudice or was induced by corruption. Hill v. State, 543 S.W.2d 809 (Mo.App.1976); State v. McRae, 528 S.W.2d 794 (Mo.App.1975). In any event, we do not believe that imposition of the fifty year term was a punishment so disproportionate to the offense committed as to shock the moral sense of all reasonable men, in light of the surrounding circumstances. See Whitlock v. State, 538 S.W.2d 60, 61-62 (Mo.App.1976). We have gleaned a few excerpts from both the original sentencing proceeding and the later probation revocation hearing which we believe aptly demonstrate the trial court’s reasonable approach to the considerations with which it was faced, and which further demonstrate that movant was apprised of the consequences of a probation violation. These excerpts follow: Sentencing Proceeding The Court: Do you understand, Mr. Abell, on a plea of guilty, you are facing life imprisonment? A: Yes, sir. The Court: Do you understand, that includes any number of years, such as 20, 30, 40, 50 years and so forth? A: Yes, Your Honor. * * * * * * The Court: I am placing you on probation. You are going to have to do six months at Gumbo. The reason for that is, showing anyone also that sells drugs to not go scot free. In addition, you are still facing life imprisonment. Do you understand? A: Yes, Your Honor. ... [Defense Counsel]: Do you understand, if he suspends imposition of sentence on this charge, he is not sentencing you at this time, on the second charge. If, in fact, you’d get in trouble after six months in jail or after today, he can sentence you anywhere to life. It simply wouldn’t be five years. . The Court: Do you understand that? A: Yes. I don’t know, it is up to you. I can’t really say anything. I’d like to not be doing any time since I have already done six months and go on with my job. [201] The Court: All right. I’m going to give you that chance. You might get a copy of the morning Globe and see yesterday I sentenced a man to 99 years awhile ago. A: I appreciate the chance. * * * * * * The Court: You almost didn’t [get the chance] because the Board recommended against probation. And, I hope the result of this morning, you have no doubt but what I will sentence you. * * * * * * Probation Revocation Hearing The Court: I will state on the record, prior to sentencing, that the length of time that Mr. Abell remains in the Missouri Department of Corrections is entirely at the discretion of the Missouri State Board of Probation and Parole. They can parole Mr. Abell at any time they determine Mr. Abell has been rehabilitated and at any time they determine it would be proper to parole Mr. Abell, regardless of the sentence I impose. . . . The State Legislature has set extremely lengthy sentences for sales of drugs, is why I have tried probation on drug sale cases. In this instance it has failed and Mr. Abell has returned to sale of drugs. As did the court in Mitchell, supra, this court recognizes the potential for rational minds to differ concerning the use of marijuana (or, we suppose, any drug). These differences may manifest themselves in the belief that the sale of marijuana should be, or should not be, proscribed, and if proscribed, will defer as to just what the penalty should be. However, we decline the opportunity to pass judgment on the relative merits of either stand, lest we be considered as merely involved in second guessing the second guesser (the Rule 27.26 judge). Movant although a juvenile, was charged with six felonies (five related to drug sales) and was certified to stand trial as an adult on all of them. He pleaded guilty to two felony drug sales and was given probation on both, contrary to the recommendation of the presentence investigation report. Once afforded probation (and not two full months after this court appearance for sentencing) movant again engaged in felonious drug-related activity by selling hashish to police. He eventually pleaded guilty to two counts of hashish possession, reduced from the charge of hashish sale. In consideration of this activity, and given the factual backdrop, it cannot be said as a matter of law that mov-ant’s fifty year term shocked the moral sense of aII reasonable men, and the Rule 27.26 judge erred by so concluding. Reversed and remanded with instructions to reinstate movant’s fifty year sentence. REINHARD, J., concurs. DOWD, P. J., dissents in separate opinion. Footnotes [1] Movant later pleaded guilty to the lesser charge of two counts of possession of hashish and was sentenced therefor to two concurrent three year terms, said terms to be served concurrently with the earlier imposed five year sentence for the amphetamine sale. [2] Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), the most recent Supreme Court decision in this field recognizes, and cites with approval, a judicial “reluctance to review legislatively mandated terms of imprisonment.” The Rummel Court draws a distinction marking a “ ‘bright line’ between the punishment of death and the various other permutations and commutations of punishments short of that ultimate sanction.” Of particular significance is the language the Court adopts at 100 S.Ct. 1139 which suggests, “one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of a sentence actually imposed is purely a matter of legislative prerogative.”11 (Footnote 11: This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, post at 1146-1147, if a legislature made overtime parking a felony punishable by life imprisonment.)