                     In the Missouri Court of Appeals
                             Eastern District
                                      DIVISION THREE

STATE OF MISSOURI,                               )       No. ED103341
                                                 )
       Respondent,                               )       Appeal from the Circuit Court
                                                 )       of the City of St. Louis
vs.                                              )
                                                 )
DEON A. WILLIAMS,                                )       Honorable Timothy J. Wilson
                                                 )
       Appellant.                                )       Filed: November 1, 2016

                                           OPINION

       Deon A. Williams (“Williams”) appeals the circuit court’s judgment convicting him of

attempted forcible rape, two counts of sodomy in the first degree, two counts of attempted sodomy

in the first degree, and two counts of incest, and sentencing him to eighteen years’ incarceration.

We correct a clerical error in the judgment, which incorrectly classified Williams as a prior and

persistent offender, and we affirm the sentence and judgment as modified.

                     FACTUAL AND PROCEDURAL BACKGROUND

       The facts established at trial and viewed in the light most favorable to the judgment are as

follows: Williams sexually abused his biological daughter, G.W., multiple times when she was

twelve or thirteen years old. The abuse started after G.W. moved out of her mother’s home and

went to live with Williams at a house on Plover. Williams lived on Plover with his two daughters,

G.W. and D.W., and his mother, the girls’ grandmother.



                                                1
        At trial, the evidence established four separate incidents of inappropriate touching by

Williams. The first incident occurred when G.W. was in bed trying to go to sleep because she had

school in the morning. Williams came into the room and told G.W. to turn around. When she

turned around, Williams’ exposed penis was in her face. He then grabbed her head, forced his

penis into her mouth, and made her perform oral sex on him. Williams then climbed on top of

G.W., started taking her nightgown off, and tried to put his penis inside her vagina. Williams’

penis touched her thighs, but he was unable to penetrate her. G.W. tried to stop her father by

kicking him, but he did not stop until he heard the grandmother knock on the door. As Williams

left the room, he told G.W., “Don’t tell nobody.”

        The second incident occurred later that year when G.W. was still twelve or thirteen years

old. G.W. was again in bed one night, and Williams put his fingers inside her vagina. In order to

get away, G.W. got up and went to the bathroom. She then went to sleep with her grandmother

instead of returning to her bed. There was evidence that this was not the first time Williams put

his fingers in his daughter’s vagina. G.W. testified this happened about “half the time I was living

with him until I said something about it.”

        After these initial incidents of abuse, Williams and his daughters moved in with his

girlfriend. 1 They lived there until Williams and his girlfriend got into a fight, and Williams put his

girlfriend’s head in the toilet. Thereafter, Williams and his daughters moved back to the house on

Plover. About two weeks after that, Williams tried to put his fingers in G.W.’s vagina (“third

incident”). It is unclear whether he was successful. Then, the next day, Williams tried to put his

fingers in her vagina again, but she stopped him (“fourth incident”).




1
 Williams also abused G.W. while they were living with his girlfriend. This abuse is not at issue because the house
was located outside City of St. Louis jurisdiction.

                                                         2
           After the fourth incident, G.W. told her sister, D.W., about the abuse. D.W. encouraged

her to tell their grandmother. The grandmother said she would watch Williams more carefully to

see if anything was happening, but she did not call the police or tell the girls’ mother about the

abuse.

           Eventually, D.W. called their mother and told her about the abuse. The mother immediately

intervened, and the police got involved. G.W. was taken to the hospital where she was examined

and interviewed by a social worker. G.W. was also taken to the Children’s Advocacy Center where

she was interviewed by a forensic interview specialist who specialized in childhood sexual abuse.

           G.W. did not report the abuse earlier because Williams told her not to tell anyone, and she

was scared of him. Williams also threatened to kill G.W.’s mother if G.W. ever told her about the

abuse. G.W. believed her father’s threats because “[h]e would just be crazy every time he was

drunk, [he would] hit us and stuff [and] take out all his anger on us for no reason.” Williams often

beat his daughters when he drank.

           Williams was arrested and indicted on seven felony counts: Count I, attempted forcible

rape, in violation of section 566.030; 2 Counts II and V, statutory sodomy in the first degree for

penis-to-mouth contact, in violation of section 566.062; Counts III and VI, statutory sodomy for

hands-to-genitals contact, in violation of section 566.062; and Counts IV and VII, incest, in

violation of section 558.011. The State filed a Substitute Information in Lieu of Indictment

(“Substitute Information”), adding the phrase “a second time” at the end of Counts V, VI, and VII

to indicate they were based on separate incidents from Counts II, III, and IV. Prior to trial, the

court discussed these changes, noting “the State has slightly adjusted some of the wording” in the

Substitute Information. The court stated, “I don’t believe this changes anything as far as what the



2
    All statutory references are to RSMo (2000) unless otherwise indicated.

                                                           3
defendant was on notice of what he was facing [sic].” Defense counsel agreed with the court and

made no objection. Williams never requested a bill of particulars.

       Williams waived his right to a jury trial, and the case proceeded to trial before the court.

The State presented the testimony of G.W., D.W., and five other witnesses. The prosecution argued

that G.W. was credible, her testimony was consistent, and it proved that Williams was guilty

beyond a reasonable doubt. Williams argued there was insufficient evidence to convict because

G.W.’s testimony was not corroborated, that G.W. was a liar inventing “incredible stories with a

lot of inconsistencies” that could not possibly be true, and that G.W. was actually abused by

another man she lived with previously, but accusing her father instead to get out of living with

him. Williams did not testify.

       During trial, Williams moved for a judgment of acquittal at the close of the State’s

evidence, and renewed this motion at the close of all the evidence. His sole argument in both

motions was that the evidence was insufficient to convict him of the charges.

       The court found G.W. credibly testified to four separate incidents of abuse. The first

incident, Williams put his penis in G.W.’s mouth and then attempted to rape her. The second

incident, Williams put his fingers in G.W.’s vagina. The third and fourth incidents, Williams

attempted to put his fingers in G.W.’s vagina after they returned to the house on Plover. The court

convicted Williams of Counts I, II, III, IV, and VII as charged, and convicted Williams on Counts

V and VI of the lesser-included offense of attempted sodomy. Williams filed a motion for new

trial, arguing only that the court erred in denying the earlier motions for acquittal. The court denied

the motion.

       The Substitute Information classified Williams as a prior and persistent offender, listing

seven prior felony convictions. The State failed to introduce evidence of these prior convictions



                                                  4
during the trial. The trial court did not make findings that Williams was a prior and persistent

offender.

         Prior to sentencing, the court ordered a Sentencing Assessment Report (“SAR”), 3 which

detailed Williams’ criminal history, including the seven prior felonies identified by the State in the

Substitute Information. The court made the SAR available to the parties. Defense counsel asked

the court to follow the SAR’s recommendation and impose a sentence of “somewhere around

fifteen years,” arguing that “due to the nature of the charges and [Williams’] background, fifteen

years would be a reasonable sentence.”

         The Court sentenced Williams to the following terms of imprisonment: Count I (attempted

forcible rape), fourteen years; Counts II and III (statutory sodomy), fourteen years on each count;

Count IV (incest), four years; Counts V and VI (attempted statutory sodomy), fourteen years on

each count; Count VII (incest), four years. All sentences were concurrent except for Count IV,

which was consecutive, making the aggregate sentence eighteen years. On the judgment form, the

court checked the boxes indicating that Williams was found guilty as a prior and persistent

offender, in violation of section 558.016. This appeal follows.

                                            POINTS ON APPEAL

         Williams raises four points on appeal. In point one, Williams argues that the trial court

erred in finding him guilty on Counts V (attempted sodomy), VI (attempted sodomy), and VII

(incest) because the Substitute Information did not contain sufficient detail to put him on notice of

the charges against him, which violated his right to due process. In points two and three, Williams




3
 Under Rule 29.07, the probation officer is required to conduct a pre-sentencing investigation in all felony cases and
submit a Sentencing Assessment Report to the court prior to sentencing. See State v. Sanchez, 217 S.W.3d 923, 925
(Mo. App. S.D. 2007).

All rule references are to Missouri Supreme Court Rules (2015) unless otherwise indicated.

                                                          5
argues that the trial court erred in admitting evidence of uncharged misconduct involving D.W.

and Williams’ girlfriend. In point four, Williams argues that the trial court plainly erred in

classifying him as a prior and persistent offender in the absence of sufficient evidence or findings

of fact to support this classification. As to points one, two, and three, we affirm. As to point four,

the State concedes this was a clerical error and we agree.

                                            DISCUSSION

         Williams concedes that he did not raise the issues in points two, three, and four to the trial

court, and requests plain error review. Additionally, we find that Williams failed to raise the issue

in point one to the trial court. Therefore, none of Williams’ points have been preserved for appeal,

and our review is limited to plain error review.

                                         Standard of Review

         To preserve a constitutional issue for appellate review, it must be raised at the earliest

opportunity consistent with good pleading and orderly procedure, and must be properly preserved

throughout the proceeding, or this court’s analysis is limited to plain error review. State v.

Wickizer, 583 S.W.2d 519, 523 (Mo. banc 1979); State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc

2006).

         Plain error review under Rule 30.20 is discretionary and involves a two-step process. State

v. Stallings, 158 S.W.3d 310, 315–16 (Mo. App. W.D. 2005). First, we determine whether the

claim of error facially establishes substantial grounds for believing that manifest injustice or a

miscarriage of justice has resulted. Id. Unless the error is obvious, evident, and clear from the face

of the claim, the appellate court should exercise its discretion and decline to review the claim. Id.

If plain error is found, then the appellate court may proceed to the second step, whether the error

actually resulted in manifest injustice or a miscarriage of justice. Id. In order to demonstrate that a



                                                   6
manifest injustice has affected his or her substantial rights, the appellant “must go beyond a mere

showing of demonstrable prejudice.” State v. Parker, 856 S.W.2d 331, 332 (Mo. banc 1993). The

plain error rule should be used sparingly and will not justify review of every point that has not

been preserved for appellate review. State v. Tokar, 918 S.W.2d 753, 769 (Mo. banc 1996).

I.     Point One – Due Process Right to Sufficient Notice of the Charges

       In his first point, Williams argues for the first time on appeal that the trial court erred in

convicting him of Counts V, VI, and VII because these counts accused him of the same behavior

as Counts II, III, and IV, only adding the phrase “a second time” to distinguish the charges, which

violated his right to due process. We disagree.

       Due process protects a criminal defendant from being convicted of an offense that he was

not expressly charged with in the information or indictment. State v. Collins, 154 S.W.3d 486, 494

(Mo. App. W.D. 2005) (citing State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999)). This right is

guaranteed both by the Sixth Amendment of the U.S. Constitution as applied to the states through

the Due Process Clause of the Fourteenth Amendment, and by Article I, section 18(a) of the

Missouri Constitution. Id. The purpose of an indictment or information is to place the defendant

on notice of the charges against him so that he may prepare an adequate defense, prevent retrial on

the same charges in the event of acquittal, and allow the trial court to determine whether sufficient

facts are alleged to support the conviction. Williams v. State, 205 S.W.3d 300, 306 (Mo. App. W.D.

2006). Pursuant to Rule 23.01(b)(2), “[t]he indictment or information shall . . . state plainly,

concisely, and definitely the essential facts constituting the elements of the offense charged,

including facts necessary for any enhanced punishment.” Accordingly, the charging document is

legally sufficient if it alleges facts establishing all the elements of the charged offense, fairly




                                                  7
informs the defendant of the charges, and enables the defendant to plead double jeopardy to prevent

future prosecution for the same offense. State v. Love, 88 S.W.3d 511, 515 (Mo. App. S.D. 2002).

         In this case, Williams did not file a pre-trial motion challenging the sufficiency of the

information as required by Rule 24.04(b). 4 Nor did he file a motion for a bill of particulars seeking

more information about the charges against him, as allowed under Rule 23.04. 5 Thus, we are bound

by the Supreme Court of Missouri’s holding in State v. Parkhurst, where the Court held:

         When [an objection to the sufficiency of the charges] is raised for the first time after
         verdict, the indictment or information will be deemed insufficient only if it is so
         defective that (1) it does not by any reasonable construction charge the offense of
         which the defendant was convicted or (2) the substantial rights of the defendant to
         prepare a defense and plead former jeopardy in the event of acquittal are prejudiced.
         In either event, a defendant will not be entitled to relief based on a post-verdict
         claim that the information or indictment is insufficient unless the defendant
         demonstrates actual prejudice.

State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992) (emphasis added); see also Rule 23.11

(“An indictment or information shall not be invalid, nor shall the trial, judgment, or other

proceedings on the indictment or information be stayed, because of any defect that does not

prejudice the substantial rights of the defendant.”).

         Notably, Williams does not argue that the information was insufficient because it failed to

reasonably charge the offenses of which he was convicted. We find that the information

sufficiently identifies the offenses and states specific factual allegations constituting the elements

of each offense, as required by Rule 23.01(b)(2). Thus, Williams is only entitled to relief under

Parkhurst if he can prove that the failure to provide more details concerning the charges actually



4
  Under Rule 24.04(b), any objection based on a defect in the indictment or information, except for a claim that it
fails to establish the court’s jurisdiction, “must be raised” by motion before trial, or it is waived. Rule 24.04(b)(2)
(emphasis added); see also State v. Parkhurst, 845 S.W.2d 31, 33 (Mo. banc 1992).
5
  Under Rule 23.04, when an indictment or information is legally sufficient but fails to contain sufficient detail to
allow the defendant to prepare his defense, the defendant may file a motion requesting a bill of particulars to set
forth the details of the offense, which generally must be filed within ten days of the arraignment. Rule 23.04; see
also State v. Celis-Garcia, 420 S.W.3d 723, 727 (Mo. App. W.D. 2014).

                                                            8
prejudiced his ability to prepare a defense or plead former jeopardy in the event of acquittal. See

id.

       First, it is clear from the record that Williams was aware of the charges against him and

that the Substitute Information was not so defective that it prejudiced his ability to prepare a

defense. Williams’ defense at trial was a general denial of all culpability. He attacked the victim’s

credibility by arguing that she was lying about everything and merely making up these allegations

to get out of living with him. This defense was not undermined by Williams’ contention that the

information charged multiple offenses within the same period of time without alleging any specific

fact to distinguish one offense from the other. Williams’ argument that G.W. invented the

allegations would have been equally effective whether or not the State alleged more details to

distinguish the separate offenses. See State v. Price, 940 S.W.2d 534, 537 (Mo. App. E.D. 1997)

(where the defendant argued that he was not involved in the offense at all, there was no prejudice

from the fact that the indictment charged attempted rape while his conviction was for the

completed crime because his defense was equally effective against either offense) (distinguished

on unrelated grounds by State v. Paro, 952 S.W.2d 339, 343 (Mo. App. E.D. 1997)).

       Second, the Substitute Information does not prevent Williams from pleading double

jeopardy in the event the State attempts to prosecute him again for these same offenses. The

information states specific offenses, a particular victim, a precise address, and a definite period of

time, merely alleging that three of the offenses occurred “a second time” within the specified

period of time. The fact that an information charges multiple counts using identical language does

not invalidate the charges so long as the record as a whole is sufficient to clarify what conduct is

the basis of each charge. See, e.g., State v. Martin, 852 S.W.2d 844, 856 (Mo. App. W.D. 1992)

(identical language used in multiple counts of the same information does not invalidate either



                                                  9
count); State v. Riggs, 770 S.W.2d 361, 362 (Mo. App. E.D. 1989) (affirming a conviction where

the indictment used identical language in multiple counts because “[t]his record protects defendant

[sic] from prejudice because it adequately clarified the charges to prevent any possible ‘double

jeopardy’ issue which could arise in the future”).

       In addition, the trial court’s findings and judgment provide substantial additional details

that allow Williams to establish which specific incidents of sodomy and incest are the basis of his

convictions. The court clearly identified four very specific incidents where Williams sexually

abused G.W. The first and second incidents occurred after G.W. initially moved into the house on

Plover and before relocating to the girlfriend’s house. The third and fourth incidents occurred

within two weeks after G.W. moved back into the house on Plover. These details are sufficient to

clarify what the charges were referring to by the statement “a second time.” Therefore, we find the

Substitute Information was sufficient, and Williams suffered no actual prejudice concerning his

ability to plead double jeopardy.

       Williams cites Rule 23.01(b)(3) for the proposition that when “multiple counts [of an

indictment or information] charge the same offense on the same date or during the same time

period, additional facts or details to distinguish the counts shall be stated.” Williams argues that

merely adding the phrase “a second time” to Counts V, VI, and VII was insufficient to satisfy the

requirements of Rule 23.01(b)(3). This argument fails, however, because it is a statutory challenge

to the sufficiency of the information, which was waived when Williams failed to file a motion

either challenging the sufficiency of the charges under Rule 24.04(b) or requesting a bill of

particulars under Rule 23.04. See Parkhurst, 845 S.W.2d at 35; see also State v. Cunningham, 863

S.W.2d 914, 919 (Mo. App. E.D. 1993). Williams’ failure to file either motion constituted a waiver

of all arguments attacking the sufficiency of the charges unless he establishes that the charges were



                                                 10
so defective that they actually prejudiced his ability to prepare a defense or plead former jeopardy,

and prevent subsequent prosecution for the same offense. Id. As explained above, Williams failed

to show he suffered any actual prejudice. Therefore, under Parkhurst, Williams would not be

entitled to relief even if the charges lacked sufficient detail to comply with the requirements of

Rule 23.01(b)(3). Id.

       Moreover, Williams expressly agreed that he was on notice of the charges against him. On

the morning of trial, the trial court addressed the sufficiency of the Substitute Information by

calling Williams’ attention to the fact that “the State has slightly adjusted some of the wording”

by adding the phrase “a second time” to the end of Counts V, VI, and VII to distinguish them from

Counts II, III, and IV. The court then stated, “I don’t believe this changes anything as far as what

the defendant was on notice of what he was facing [sic].” Williams’ defense counsel stated he had

received a copy of the Substitute Information, and he agreed with the judge that this wording did

not deprive Williams of notice of the charges against him. Williams then proceeded to trial without

requesting a bill of particulars or objecting to the sufficiency of the charges.

       We find that the trial court did not plainly err because Counts V, VI, and VII in the

Substitute Information provide sufficient notice of the charges to comport with the requirements

of due process because all the essential elements of each offense charged were clearly set out in

the Substitute Information. We find that the charges contained sufficient detail to allow Williams

to prepare his defense and plead double jeopardy to prevent retrial on the same offense. Therefore,

Williams has failed to meet his burden of showing that he suffered a manifest injustice or

miscarriage of justice. Point one is denied.




                                                  11
II.    Points Two and Three – Admissibility of Evidence of Williams’ Uncharged
       Misconduct

       In his second and third points on appeal, Williams argues that the trial court plainly erred

by admitting evidence of uncharged misconduct involving D.W. and Williams’ girlfriend because

it was inadmissible. We disagree.

       The standard of review for the admission of evidence is abuse of discretion. State v. Primm,

347 S.W.3d 66, 70 (Mo. banc 2011). However, Williams concedes that points two and three were

not preserved, thus we review only for plain error.

       To be admissible, evidence must be both logically and legally relevant. State v. Sanders,

481 S.W.3d 907, 914 (Mo. App. E.D. 2016). Evidence is logically relevant if it tends to make the

existence of a material fact more or less probable than it would be without that evidence. Id.

Evidence is legally relevant if its probative value outweighs the risk of unfair prejudice, confusing

of the issues, misleading the jury, undue delay, waste of time, or cumulativeness. Id.

       It is a well-established general rule that evidence concerning a defendant’s commission of

crimes separate and distinct from the charged offenses is not admissible “unless such proof has

some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is

on trial.” State v. Primm, 347 S.W.3d 66, 70 (Mo. banc 2011) (quoting State v. Vorhees, 248

S.W.3d 585, 587 (Mo. banc 2008)). Evidence of uncharged misconduct is absolutely inadmissible

if offered solely for the purpose of showing that the defendant has a propensity to commit the

crime charged because this would violate the defendant’s right to be tried only for the crimes

charged under Article I, sections 17 and 18(a) of the Missouri Constitution. State v. Ellison, 239

S.W.3d 603, 606, 608 (Mo. banc 2007).

       However, such evidence may be admissible if offered for another purpose, including but

not limited several established exceptions.

                                                 12
         Such evidence may be admissible if it tends to establish (1) motive; (2) intent; (3)
         the absence of mistake or accident; (4) a common scheme or plan embracing the
         commission of two or more crimes so related to each other that proof of one tends
         to establish the other; or (5) the identity of the person charged with commission of
         the crime on trial. In addition, evidence of uncharged crimes that are part of the
         circumstances or the sequence of events surrounding the offense charged may be
         admissible to present a complete and coherent picture of the events that transpired.

Primm, 347 S.W.3d at 70 (citations and internal quotations omitted); see also State v. Miller, 372

S.W.3d 455, 474 (Mo. banc 2012). In addition to these established exceptions, evidence of

uncharged misconduct may also be admissible if otherwise “logically and legally relevant.” State

v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). Courts have found evidence of a defendant’s

other crimes to be admissible when offered to corroborate the testimony of a minor victim in

prosecutions involving crimes of a sexual nature to explain why the victim did not report the crime

earlier. Miller, 372 S.W.3d at 474.

         In this case, Williams challenges the admission of evidence that he beat D.W. and put his

girlfriend’s head in a toilet during a fight. This is classic evidence of uncharged misconduct, which

would be inadmissible if offered solely for the purpose of proving that Williams has a criminal

propensity. Primm, 347 S.W.3d at 70.

         However, Williams waived his right to a jury trial, and instead chose to have a bench trial.

Therefore, we start our analysis with the presumption that the trial judge was not confused or

misled by any allegedly irrelevant or inadmissible evidence unless the record clearly demonstrates

that the trial court considered and relied upon the inadmissible evidence. State v. Girardier, 484

S.W.3d 356, 364–65 (Mo. App. E.D. 2015); State v. Ernst, 164 S.W.3d 70, 74–75 (Mo. App. S.D.

2005).

         At trial, there was substantial evidence that Williams was violent and abusive towards

D.W. During the State’s case-in-chief, the prosecutor asked G.W., “Did you have any problems

with your dad?” She responded, “Well, every time when he was getting drunk, he used to hit my
                                                 13
sister.” The prosecutor then explored this topic at some length. In response to Williams’ questions,

G.W. testified to further details, including the fact that Williams sometimes beat D.W. so hard it

caused “bleeding bruises.” Later D.W. herself testified about her father’s drinking, how it caused

him to become violent and abusive towards her, and how he sometimes used a belt when he beat

her. There was also evidence that Williams acted violently towards his girlfriend by putting her

head in a toilet during an argument.

       We need not address the admissibility of this evidence because we find there is no evidence

that the court relied on the evidence in reaching its judgment. See Girardier, 484 S.W.3d at 365

(holding that “regardless of the admissibility of [the evidence],” appellant could not show any

prejudice because he failed to show the trial court relied on the allegedly inadmissible evidence in

finding him guilty). Even if this evidence was inadmissible, Williams has the burden of

establishing that the trial court improperly used the evidence and relied on it when reaching its

judgment, which he has failed to do. See id. Williams has not identified any instance in the record

where the court relied on or even mentioned any of Williams’ uncharged misconduct in reaching

its decision, and we have found none.

       Therefore, we find the trial court did not plainly err because there is no evidence that the

trial court improperly relied upon Williams’ uncharged misconduct in reaching its judgment.

Points two and three are denied.

III.   Point Four – Insufficient Evidence of Prior and Persistent Offender Classification

       In his fourth point, Williams concedes his argument was not preserved for appeal and

requests plain error review. Wickizer, 583 S.W.2d at 523; Baxter, 204 S.W.3d at 652. Williams

argues that the trial court plainly erred by classifying him as a prior and persistent offender because

the State failed to introduce evidence of these prior convictions at trial. Williams asks that the



                                                  14
judgment be corrected and that the case be remanded for resentencing. The State concedes it failed

to introduce any evidence of these conviction as required by section 558.021, but argues that

resentencing is not necessary because this error did not affect the sentencing.

       The parties concede, and we agree, that the trial court plainly erred in classifying Williams

as a prior and persistent offender. Improperly sentencing a defendant as a prior or persistent

offender is a manifest injustice that warrants reversal on plain error review. See State v. Morris,

285 S.W.3d 407, 414 (Mo. App. E.D. 2009) (“An unauthorized sentence affects substantial rights

and results in manifest injustice.”); State v. Dixon, 24 S.W.3d 247, 250 (Mo. App. E.D. 2000).

       Under Rule 30.23, the appellate court may correct clerical errors in a judgment and finally

dispose of a case without remanding the case “[u]nless justice otherwise requires.” Rule 30.23.

“We need not remand the case when we can appropriately correct the sentence.” State v. Morris,

285 S.W.3d 407, 414 (Mo. App. E.D. 2009) (citing Rule 30.23 for the authority to correct a

judgment to remove persistent offender classification without remanding the case; finding that the

error did not prejudice defendant because he was sentenced within the unenhanced range, and

affirming the judgment as modified).

       There is no basis in the record for finding that the erroneous prior and persistent offender

classification was anything other than a clerical error. “Generally, a mistake on the written

judgment and sentence form ‘involving the marking of boxes designated for memorializing a

finding of a defendant’s prior and persistent offender status is considered a clerical mistake.’”

Warren v. State, 429 S.W.3d 480, 481 (Mo. App. E.D. 2014) (citing State v. Gibbs, 306 S.W.3d

178, 183 (Mo. App. E.D. 2010)).

       When the trial court made its oral pronouncement that Williams was guilty, the court did

not classify Williams as a prior and persistent offender. Although the written sentencing form



                                                15
includes this classification, the oral pronouncement governs. State v. Johnson, 864 S.W.2d 449,

451 (Mo. App. W.D. 1993) (when an oral pronouncement conflicts with a written judgment, the

oral pronouncement controls and the written judgment is erroneous). While the record indicates

that the trial court was influenced by Williams’ criminal record, there is no indication that the court

gave Williams a more severe sentence due to the erroneous prior and persistent offender

classification. Williams received a sentence within the unenhanced sentencing range for his

convictions. See Morris, 285 S.W.3d at 414; see also State v. Clark, 197 S.W.3d 598, 601–02 (Mo.

banc 2006), cert. denied, 549 U.S. 1167 (2007) (proof of prior crimes need only be proven beyond

a reasonable doubt when they are used as a basis to enhance a sentence beyond the ordinary

sentencing range).

       We reject Williams’ argument that resentencing is required due to the trial court

referencing his criminal history at the sentencing hearing. The court was permitted to consider

Williams’ criminal history when sentencing him whether or not Williams was classified as a prior

and persistent offender. See State v. Sanchez, 217 S.W.3d 923, 925 (Mo. App. S.D. 2007). Prior to

sentencing, the court ordered a SAR, which detailed Williams’ criminal history. The SAR was

made available to the parties. Williams requested the court follow the SAR, arguing its

recommended sentence was reasonable “due to the nature of the charges and [Williams’]

background.” Rule 29.07 clearly provides “authority for the court to make use of the presentence

investigation [SAR] as discretion indicates.” Sanchez, 217 S.W.3d at 925 (quoting State v.

Maloney, 434 S.W.2d 487, 496 (Mo. 1968) (per curiam)). In fact, the court must consider the

defendant’s criminal history upon sentencing. See section 557.036.1 (“Upon a finding of guilt upon

verdict or plea, the court shall decide the extent or duration of sentence or other disposition to be

imposed under all the circumstances, having regard to the nature and circumstances of the offense



                                                  16
and the history and character of the defendant and render judgment accordingly.”) (emphasis

added).

          Therefore, we find reversal for resentencing is not required because Williams’ sentence

was not affected by this clerical error. Accordingly, we correct the judgment and sentence to

remove Williams’ classification as a prior and persistent offender. Point four is granted in part and

denied in part.

                                           CONCLUSION

          We hold that: (1) the trial court did not plainly err in convicting Williams of Counts V, VI,

and VII because the Substitute Information provided sufficient notice of the charges against

Williams, and Williams suffered no actual prejudice that prevented him from preparing a defense

or pleading former jeopardy in the event of acquittal; (2) the trial court did not plainly err because

there is no evidence the trial court relied upon Williams’ prior uncharged misconduct in reaching

its judgment; and (3) the trial court plainly erred by classifying Williams as a prior and persistent

offender; however, we correct the clerical error without remanding the case, finding no prejudice

because it did not affect Williams’ sentence.

          Accordingly, we order the July 9, 2015 Judgment and Sentence form corrected to reflect

that Williams was not found to be a prior and persistent offender. Williams’ sentence of eighteen

years’ incarceration is not otherwise amended or modified by this Opinion. We affirm the trial

court’s judgment of conviction and sentence as modified.



                                                              _______________________________
                                                               Angela T. Quigless, P.J.

Robert G. Dowd, Jr., J., and
Lisa S. Van Amburg, J., Concur.



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