                                MISSOURI COURT OF APPEALS
                                    WESTERN DISTRICT

    DAQUETTA D. DAVIS,                                      )
                                                            )   WD78534
                            Appellant,                      )
        v.                                                  )   OPINION FILED:
                                                            )
    STATE OF MISSOURI,                                      )   January 17, 2017
                                                            )
                             Respondent.                    )


                 Appeal from the Circuit Court of Jackson County, Missouri
                         Honorable Robert Michael Schieber, Judge

                         Before Division One: Thomas H. Newton, P.J.,
                        Cynthia L. Martin, and Edward R. Ardini, Jr., JJ.

             Ms. Daquetta Davis appeals the circuit court decision to deny a Rule 24.035

post-conviction motion. Ms. Davis had been charged and sentenced as a prior and

persistent offender under section 558.016. 1 The plea and sentencing court neglected to

make statutory findings that Ms. Davis was a prior or persistent offender before the

sentencing. Ms. Davis asserts that the omission of these required statutory findings

invalidates the sentence. We affirm.

             Ms. Davis pleaded guilty to two counts of the class C felony of perjury on May

23, 2013. Ms. Davis had been charged by way of indictment as a prior and persistent

offender, under section 558.016.




1
    Statutory references are to RSMo (2000), as supplemented, unless otherwise indicated.
      At the plea hearing, Ms. Davis admitted that she provided false testimony under

oath in February 2013.     Ms. Davis also admitted that she had two prior felony

convictions. Ms. Davis acknowledged that she understood that the plea agreement

limited the maximum range of punishment that the plea court could impose to a ten-

year sentence. The plea court accepted the guilty plea.

      At the July 2013 sentencing hearing, the sentencing court imposed concurrent

ten-year sentences for both counts of perjury. During the hearing, the sentencing court

did not explicitly state that it was sentencing Ms. Davis as a persistent offender. The

original sentence and judgment also omitted the persistent offender finding. In August

2013, the sentencing court issued an amended judgment that included the persistent

offender finding.

      In October 2013, Ms. Davis filed a pro se motion to vacate, set aside, or correct

the judgment or sentence under Rule 24.035. Counsel timely filed an amended motion,

raising two claims and incorporating Ms. Davis’s pro se claims.

      An evidentiary hearing was held in December 2014, and the motion court entered

findings of fact and conclusions of law denying Ms. Davis’s motion in March 2015.

Ms. Davis filed a timely notice of appeal in April 2015. This appeal follows.

                                    Legal Analysis

             “This Court’s review of the denial of a post-conviction motion
      under Rule 24.035 is limited to a determination of whether the motion
      court’s findings of fact and conclusions of law are clearly erroneous.”
      Cooper v. State, 356 S.W.3d 148, 152 (Mo. banc 2011). “The motion
      court’s findings and conclusions are clearly erroneous only if, after
      review of the record, the appellate court is left with the definite and firm
      impression that a mistake has been made.” Id. “Movant has the burden
      to show by a preponderance of the evidence that the motion court clearly
      erred in its ruling.” Id.



                                           2
      Garris v. State, 389 S.W.3d 648, 650-51 (Mo. banc 2012), cert. denied,
      134 S. ct. 113 (2013); Rule 24.035(k).

      Ms. Davis argues that the motion court erred in overruling her Rule 24.035

motion because she established that the sentencing court sentenced her outside the

applicable range of punishment. Ms. Davis asserts that the sentencing court incorrectly

sentenced her because it failed to make the required statutory findings about her

persistent offender status until after she was sentenced in violation of sections 558.016

and 558.021. We disagree.

      Section 558.016.3 defines a persistent offender as “one who… has been found

guilty of two or more felonies committed at different times.” A person who is found

to be a persistent offender and is found guilty of a class C felony is subject to “any

sentence authorized for a class B felony.” §558.016.7.

      The specific procedure for determining whether a defendant is a persistent

offender is outlined in section 558.021. The statute requires that the indictment or

information plead the essential facts warranting such a fin ding, evidence is introduced

to establish the pleaded facts beyond a reasonable doubt, and the court makes findings

of fact reflecting that the defendant is a persistent offender beyond a reasonable doubt.

Id. “In a trial without a jury or upon a plea of guilty, the court may defer the proof and

findings of such facts to a later time, but prior to sentencing.” Id.     The statute also

states that “[t]he defendant may waive proof of the facts alleged.” Id.

      “The State has the burden of proving beyond a reasonable doubt that a defendant

has the requisite prior convictions to subject the defendant to enhanced sentencing as

a persistent offender.” State v. Schnelle, 398 S.W.3d 37, 46 (Mo. App. W.D. 2013).

This burden is relieved, however, “when a defendant admits on the record that he

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committed previous felony crimes.” State v. Gibbs, 306 S.W.3d 178, 183 (Mo. App.

E.D. 2010).     See O’Haren v. State, 927 S.W.2d 447, 451 (Mo. App. W.D. 1996)

(“Movant waived the requirement that the state prove the two prior convictions beyond

a reasonable doubt when he pleaded guilty.”); Schnelle, 398 S.W.3d at 46-47 (“By

stating that he had no objection to being sentenced by the court due to his status as a

persistent offender, and that he had no objection to the court’s entry of the proposed

findings proffered by the State, [the defendant] waived proof of his three prior felony

convictions, and cannot now complain that the record contains insufficient evidence to

establish those convictions.”).

       Ms. Davis contends that she was incorrectly sentenced because the trial court

failed to make the required findings prior to her sentencing. An error of this type is

considered a procedural deficiency which does not affect the judgment validity.

O’Haren, 927 S.W.2d at 451 (After questioning a movant specifically about two prior

convictions, the trial court failed to make specific findings concerning the nature and

dates of the movant’s two prior convictions. The appellate court found the trial court’s

findings unreviewable under Rule 24.035 and stated that an error of this type, if

reviewable, would constitute a procedural deficiency with no effect on the judgment.);

see Hight v. State, 841 S.W.2d 278, 282 (Mo. App. S.D. 1992).

       Here, the record provides sufficient evidence to establish that Ms. Davis was a

persistent offender. Initially, Ms. Davis was charged as a persistent offender for two

prior convictions for felonies committed at different times. 2 During the development


2
  Ms. Davis was convicted as a persistent offender on the basis of two felonies with different case
numbers, Distribution, Delivery, Manufacture of a Control Substance and Possession of a Controlled
Substance, #04CR20346301 and Robbery in the First Degree, #0516 -CR05035-01.


                                                4
of the factual basis for the guilty plea, Ms. Davis admitted to committing the two prior

felonies. 3 In addition, Ms. Davis was advised that under her plea agreement, the plea

court could sentence her to as much as ten years in prison on each count. 4 At the

conclusion of Ms. Davis’s plea hearing, the plea court stated that “The Court finds

beyond a reasonable doubt that the defendant is guilty of the crime s to which she has

pled guilty. A factual basis has been established for those crimes by virtue of her

testimony here this afternoon.” Thus, it is clear that the plea court knew and accepted

that Ms. Davis had committed two felonies at separate times prior to sentencing .

Finally, at Ms. Davis’s sentencing, the State briefly outlined Ms. Davis’s prior

convictions stating:

                But this defendant knows all about second chances, because she has
       had them right here in these same courtrooms that she came in and perverted.
       In this courthouse she has received drug court, which is the best treatment
       we have to offer, and we willingly gave her that choice, to enter into drug
       court and get ahold of her problem. Only when she was in drug court she
       picked up another case, a robbery in the first degree.

Though Ms. Davis correctly contends that the trial court failed to make the required

statutory findings prior to her sentencing, an error of this type has been determined to

be a mere procedural deficiency that does not affect the validity of the judgment so

long as the record reflects the presence of sufficient evidence to have permitted the

finding prior to sentencing. Hight v. State, 841 S.W.2d at 282 (“[S]o long as there is

evidence to support findings of fact required to meet the present definition of persistent




3
  Because Ms. Davis admitted to committing these crimes on the record, the State was relieved of its burden to prove
the requisite prior convictions beyond a reasonable doubt. State v. Schnelle, 398 S.W.3d 37, 46 (Mo. App. W.D.
2013).
4
 The arranged sentence exceeds the maximum sentence for a Class C felony, meaning it was only by virtue of the
persistent offender allegations that a ten year sentence was possible. See §558.011.1(3).

                                                         5
offender, the failure of the trial court to make specific findings has be en labeled a

‘procedural deficiency.’”). After review of the record, it is plain that the trial court

could have found that Ms. Davis is a persistent offender under the statute. Point denied.


                                      Conclusion

      Because the circuit court’s omission of specific findings regarding Ms. Davis’s

status as a persistent offender is procedural in nature, we do not have a firm impressio n

that a mistake has been made. Therefore, we affirm the circuit court’s judgment.


                                                /s/ THOMAS H. NEWTON
                                                Thomas H. Newton, Presiding Judge


Martin and Ardini, JJ. concur.




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