State Supreme Court OKs predatory sex offender law

Constitutional question on 2013 U.S. Supreme Court ruling in Alleyne v. United States

By Scott Lauck
BridgeTower Media Newswires

ST. LOUIS - The Missouri Supreme Court has resolved an apparent internal split over the constitutionality of a statute that allowed a defendant to be declared a predatory sexual offender.

In a 5-2 ruling, the court on Tuesday affirmed the conviction of Angelo Johnson in St. Louis County Circuit Court. Johnson was accused of sexually abusing his daughter and two step-daughters. Prosecutors sought to apply a state law that was strengthened in 2013 to require life sentences for "predatory" sexual offenders, defined as defendants who had committed or been accused of certain sex offenses "against more than one victim."

Johnson argued that the law was intended to apply only to prior acts and not to cases such as his where a defendant is being tried for offenses against multiple victims all at once. Initially, Judge Thomas J. Prebil agreed with that interpretation and sent the case to the jury. Under the statute, the judge is supposed to determine the defendant's predatory status before the jury considers the case.

After Johnson was convicted, however, Prebil changed his mind about the statute's applicability and found Johnson (who had waived jury sentencing) to be a predatory sex offender. He was sentenced to eight concurrent life terms with eligibility for parole after 25 years.

The appeal presented three intertwined issues for the Supreme Court to resolve: Whether the statute applied to a multiple-victim case, whether Johnson had been prejudiced by the judge's post-trial determination of his predatory status, and whether the statute's enhancement scheme was constitutional. The constitutional question hinged on a 2013 U.S. Supreme Court ruling, Alleyne v. United States, which held that the Sixth Amendment requires any fact that increases the penalty for a crime must be found by a jury, not a judge.

Chief Justice Zel M. Fischer, writing for the majority, said there had been no constitutional violation in allowing the judge to independently find the facts necessary for the defendant to be considered a predatory sex offender.

"Alleyne held only that the jury must find the necessary facts, not that a statute may not require a trial court to also find these facts," he wrote, adding in a footnote that the statute provided "a layer of protection above and beyond that required by Alleyne."

Although the circuit judge improperly determined Johnson to be a predatory sex offender after the jury trial, rather than before as the statute requires, Fischer said there had been no manifest injustice. Even if Johnson had not been deemed a predatory sex offender, the statutory rape and statutory sodomy convictions still carried possible sentences of life in prison (though with much lower minimum sentences.) Because Johnson had agreed to let the judge sentence him, rather than the jury, "Johnson received the same sentence he would have received" had the judge not initially made "a mistaken reading of the statute," Fischer wrote.

The majority also agreed with Prebil's eventual determination that the predatory sex offender statute was not ambiguous and that the additional offenses need not have occurred separately from the acts that are the bases for the current charges.

In a concurring opinion, Judge Patricia Breckenridge took issue with Fischer's finding that the statute was facially constitutional. If the defendant's status as a predatory sex offender depended on prior acts or uncharged allegations, she said, it would pass muster because those facts wouldn't have been submitted to a jury. But, she said, it was unconstitutional for a judge to pre-determine the defendant's status based on facts the jury had not yet found.

"That the jury may later find the defendant guilty of committing the same acts the circuit court found prior to submission may be relevant to whether the defendant was prejudiced, but it does not render the statute constitutional," Breckenridge wrote. She chided the majority for allowing the trial judge to make that determination post-trial, a move she said "will only invite and encourage courts to violate the procedural mandates of this and other statutes to correct perceived errors in legislative enactments."

Nonetheless, Breckenridge affirmed Johnson's conviction, noting that a jury ultimately did find all the necessary facts as Alleyne requires, so the judge's timing error was harmless.

In a dissent, Judge Laura Denvir Stith, joined by Judge George W. Draper III, was less forgiving. Stith argued that the trial judge had "turned the statute on its head" by making the requisite findings after the jury had already had its say, and that statute was facially unconstitutional "because it unequivocally would permit what Alleyne prohibits - using a trial judge's findings to increase the mandatory minimum."

Stith also said it made no sense to hold that the statutory enhancement applied to multiple-victim cases. If the judge made a pre-trial determination in such a case that the defendant wasn't a predatory sex offender, then the defendant would have to be acquitted because there would be no basis to submit the charges to a jury. But if such a determination is made and the jury convicts, then the defendant automatically would be subject to the enhanced sentence.

"The one thing that will never happen is for the defendant to receive the sentence actually prescribed by the statute based on the jury's verdict," she wrote. "This cannot be what the legislature intended."

Johnson's case was argued in May 2016. The delay appears to stem in part from a disagreement within the court over the statute's constitutionality. The court's newest member, Judge W. Brent Powell, was not on the court when the case was argued but was added to the case in June, according to court records. He joined Fischer and Judges Paul C. Wilson and Mary R. Russell to find the statute was constitutional. Without his vote, Breckenridge's concurrence and Stith and Draper's dissent would have created a 3-3 split on that issue.

The case is State v. Angelo Johnson, SC95481.

Published: Thu, Aug 31, 2017

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