                                         In the
                        Missouri Court of Appeals
                                 Western District
STATE OF MISSOURI,                           )
                                             )
                Respondent,                  )   WD76819
                                             )
v.                                           )   OPINION FILED: June 24, 2014
                                             )
JEREL T. JACKSON,                            )
                                             )
                Appellant.                   )

             Appeal from the Circuit Court of Jackson County, Missouri
                       The Honorable John M. Torrence, Judge

 Before Division Three: Thomas H. Newton, Presiding Judge, Mark D. Pfeiffer, Judge
                           and Cynthia L. Martin, Judge

       Jerel Jackson ("Jackson") appeals from the trial court's judgment convicting him

of two counts of murder in the second degree, one count of assault in the first degree, and

three counts of armed criminal action, and sentencing him to a total of twenty years

imprisonment.     Jackson asserts that the trial court committed plain error when it

proceeded with a sentencing without first determining that Jackson knowingly,
voluntarily, and intelligently waived his right under section 557.036 1 to have a jury

recommend the sentences to be imposed. We affirm.

                                Factual and Procedural Background

      Following a jury trial, the trial court entered a judgment convicting Jackson of two

counts of murder in the second degree, one count of assault in the first degree, and three

counts of armed criminal action.                The trial court sentenced Jackson to concurrent

sentences of twenty-two years for each murder count, twenty-two years for the assault

count, and three years for each count of armed criminal action. Jackson appealed, and we

affirmed the judgment in part, vacated the judgment in part, and remanded to the trial

court for jury-recommended sentencing. State v. Jackson, 385 S.W.3d 437 (Mo. App.

W.D. 2012).

      On remand, Jackson, through his counsel, filed a written request for the court to

assess punishment without a jury recommendation. At a hearing, the trial court asked

whether Jackson wished "to waive his right to have a jury hear the sentencing issue."

Jackson's counsel answered in the affirmative, and Jackson remained silent. The trial

court proceeded with a bench trial to determine Jackson's sentencing. Following the

bench trial, the trial court entered a judgment that concurrently sentenced Jackson to

twenty years for each murder count, twenty years for the assault count, and three years

for each count of armed criminal action.

      Jackson appeals.



      1
          All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

                                                        2
                                   Standard of Review

       Jackson concedes that he did not object when the trial court proceeded with the

sentencing trial without a jury. Thus, Jackson seeks plain error review pursuant to Rule

30.20. "[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." Rule 30.20. Plain error review requires a two-step process. State v. Rios,

314 S.W.3d 414, 422 (Mo. App. W.D. 2010). First, we must determine whether the

claimed error "facially establishes substantial grounds for believing that manifest

injustice or miscarriage of justice has resulted." Id. (internal quotation marks omitted).

In other words, the error must be "evident, obvious, and clear." Id. If we find that an

error was established on the face of the claim, we may proceed to the second step:

whether manifest injustice or miscarriage of justice will occur if the error is left

uncorrected. Id.

                                         Analysis

       Jackson argues that the trial court committed plain error in conducting a

sentencing trial without a jury because it failed to determine first that Jackson's waiver of

jury sentencing was knowing, intelligent, and voluntary. Jackson points out that pursuant

to section 557.036, he had a right to jury sentencing. Jackson contends that because the

record does not demonstrate a knowing, intelligent, and voluntary waiver of this right, he

was denied due process, a manifest injustice requiring reversal and remand.

       Section 557.036 creates a statutory right to jury-recommended sentencing. It

provides, in relevant part:

                                             3
       2. Where an offense is submitted to the jury, the trial shall proceed in two
       stages. At the first stage, the jury shall decide only whether the defendant
       is guilty or not guilty of any submitted offense. The issue of punishment
       shall not be submitted to the jury at the first stage.

       3. If the jury at the first stage of a trial finds the defendant guilty of the
       submitted offense, the second stage of the trial shall proceed. The issue at
       the second stage of the trial shall be the punishment to be assessed and
       declared. . . .

The statutory right to jury-recommended sentencing may be waived upon written request

filed with the trial court before voir dire begins. Section 557.036.4.

       Here, Jackson's counsel filed a written request for the trial court to assess

punishment. The request stated, in its entirety:

       COMES NOW Defendant, Jerel T. Jackson, by and through counsel,
       Steven Willibey, and, pursuant to Section 557.036 RSMo 2004, hereby
       requests that the Court assess punishment in this case.

This written request constituted a valid waiver of jury-recommended sentencing. We

cannot convict a trial court of committing plain error when it has followed the letter of

the law.

       Jackson argues that although the written waiver may have satisfied the

requirements of section 557.036.4, in the absence of specific inquiry of Jackson on the

subject, the trial court could not assess whether the waiver was knowing, intelligent, and

voluntary in denial of his due process rights. Jackson cites no authority in support of this

proposition. Moreover, Jackson's argument fails to apprehend that the right to jury

sentencing is statutory, not constitutional, in its origin. State v. Emery, 95 S.W.3d 98,

102 (Mo. banc 2003). Jackson is entitled to nothing more than the statute requires insofar

as waiver of the right to jury-recommended sentencing is concerned. Jackson's written

                                             4
request that sentencing be determined by the court effectively waived his rights under

section 557.036.

       Moreover, "[a] defendant waives his right to a jury at the punishment stage of trial

when he allows the judge to determine his sentence without invoking his statutory right."

State v. Weaver, 178 S.W.3d 545, 547 (Mo. App. W.D. 2005). In both Emery and

Weaver, the defendants allowed the trial courts to determine their sentences without

raising their statutory right for a jury-recommended sentence. Both judgments, insofar as

they related to sentencing by the trial court, were affirmed. Here, Jackson stood idly by

when the trial court asked about, and his trial counsel confirmed, Jackson's intention to

waive his statutory right to jury-recommended sentencing.

       The record reflects that Jackson waived his statutory right to a jury-recommended

sentence. The facts in this case are materially indistinguishable from those in State v.

Price, No. WD76385, 2014 WL 2478695 (Mo. App. W.D. June 3, 2014), where we

recently rejected an identical claim that due process rights are implicated unless a trial

court conducts specific inquiry on the record of a defendant who has waived in writing,

and by silent acquiescence, his statutory right to jury-recommended sentencing.

       The trial court did not commit error, plain or otherwise. Jackson's point on appeal

is denied.

                                       Conclusion

       We affirm.

                                          __________________________________
                                          Cynthia L. Martin, Judge
All concur

                                            5
