STATE OF MISSOURI,                         )
                                           )
                     Respondent,           )
                                           )
       vs.                                 ) No. SD36153
                                           )
GEORGE M. RICHEY,                          ) FILED: June 30, 2020
                                           )
                     Appellant.            )

         APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY
                        Honorable Jerry J. Rellihan, Judge
AFFIRMED AND REMANDED WITH INSTRUCTIONS
       George Richey appeals from misdemeanor trespass and assault convictions,
primarily alleging retaliatory sentencing. 1
                                   Background
       In July 2017, Richey pleaded guilty to supplying liquor to a minor and was
sentenced to 180 days in jail. Although Richey recently had served 2015 and 2016
jail stints further discussed below, the court suspended execution of this new
sentence and granted Richey unsupervised probation upon his signed agreement
to obey all laws.
       At the same hearing, Richey pleaded guilty to third-degree assault in a
separate case. The court sentenced him to 15 days in jail, but again suspended
execution and granted Richey unsupervised probation.


1As a separate uncontested matter, we agree with both parties that we should remand for
nunc pro tunc correction of a clerical error in the judgment.
       Just five weeks later, Richey committed and later pleaded guilty to peace
disturbance, second offense.       Despite this crime and resulting one-year jail
sentence, the court did not revoke Richey’s other probations. Instead, the court
again suspended execution of the new sentence and left Richey free on
unsupervised probation on further special conditions, again signed by Richey, to
avoid alcohol and timely complete alcohol-treatment and anger-management
programs.
       In March 2018, Richey moved to re-tax costs assessed for his previously
noted 2015 and 2016 jailings. He lost in the trial court, but eventually prevailed in
State v. Richey, 569 S.W.3d 420 (Mo. banc 2019). 2
       Meanwhile Richey committed the September 2018 offenses now appealed
from. He got drunk and went to the Scribners’ home, yelling that he would “beat
[their] ass and f*ck [them] up.” He left when Mrs. Scribner threatened to call
police, then returned, shouting for Mr. Scribner to come out. When Richey would
not leave, Mrs. Scribner called police. The responding officer, who knew Richey
from multiple encounters over the years, told him to leave and “if he stayed away
and I didn’t have to come back, we’d just let it go.” The officer left but soon was
called back for “the same thing.” Richey admitted returning and “screaming
obscenities at the Scribners.” He was arrested, was violent during transport to the
jail, and upon arriving there, threatened to kill the arresting officer and his family.
       The state charged Richey with class A, B, and C misdemeanors and moved
to revoke his probation. Richey waived jury trial. Without objection, the court
heard evidence on the probation violations and new charges together. Although
Richey called no witnesses and offered no evidence in his own defense, the court
acquitted him of the class A offense, convicted him on only the two lesser charges,
sentenced him to 180 and 15 days respectively, and revoked his probation,
observing



2Richey acknowledged his statutory responsibility for the costs of his imprisonment. Id.
at 424 (citing RSMo § 221.070.1). But our supreme court agreed that no statute authorized
taxing those as court costs; ordered the trial court to adjust Richey’s court costs
accordingly; and denied Richey’s refund claim because he still owed on his lawful board
bill. Id. at 424-26.
                                           2
          that Mr. Richey has, in fact, violated each -- many of the terms
          of his probation. And as I look back and look at the sentences
          that he agreed -- he agreed to in exchange for the opportunity to
          receive probation and be an active member of the community,
          the Court is going to revoke his probation.

The court ordered all sentences to run consecutively, stating again that Richey “had
many, many, many opportunities to become an active and good member of this
community and he’s chosen not to.”
                       Richey’s Complaint and Analysis
       Richey does not deny guilt on any charge, contest any individual sentence,
or dispute the propriety of revoking his probation. He questions only the court’s
decision to run all sentences consecutively.
       As a general proposition, consecutive sentencing falls within a trial court’s
discretionary authority. Mosby v. State, 236 S.W.3d 670, 679 (Mo.App. 2007).
As Richey acknowledges, we will reverse only for abuse of that discretion; i.e.,
judicial action so unreasonable, arbitrary, and ill-considered that it shocks the
sense of justice. State v. Fields, 480 S.W.3d 446, 453 (Mo.App. 2016). It is
Richey’s burden to prove such abuse. State v. Sykes, 579 S.W.3d 231, 233
(Mo.App. 2019).
       Richey claims to carry that burden by (1) showing the trial court ignored
relevant sentencing considerations, and (2) suggesting that consecutive sentences
were in retaliation for Richey winning his supreme court case.
                   Failure to Consider Relevant Circumstances
       Richey’s impassioned complaints here fail for two fundamental reasons.
       First, he did not raise these or any other sentencing arguments in the trial
court, even by post-trial motion. It may be true, as Richey states, that Rule 29.11(e)
preserves his claim without any post-trial motion, yet preserving a claim falls short
of carrying one’s burden to prove it. It is particularly difficult to show how any
court unreasonably, arbitrarily, and shockingly abused its discretion because it did
not credit arguments it never heard, given “the principle of law that an appellate
court will not convict a trial court of an error not put before it to decide.” State v.
Tilley, 104 S.W.3d 814, 820 (Mo.App. 2003).


                                          3
       Second, Richey’s arguments stray from the record. 83% of Richey’s Rule
84.04(h) appendix (40 of 48 pages) is non-record matter that he repeatedly cites
but this court cannot consider:
              It has long been held that brief attachments which are not
           part of the appellate record will not be considered on appeal.
           Merely including matter in a brief's appendix does not make it
           part of the record. We do not consider documents in an
           appendix that are not in the record on appeal.
State v. Lewis, 388 S.W.3d 252, 256 n.4 (Mo.App. 2012).
                                      Retaliation
       Richey also claims “circumstances suggest [he] was punished for exercising
his constitutional rights.” If proved, such retaliation calls for relief despite Richey’s
failings above. See Taylor v. State, 392 S.W.3d 477, 488 (Mo.App. 2012)(relief
lies if court actually factored defendant’s exercise of constitutional right into
sentencing decision, even if other factors could have supported same sentence).
       Yet to read Taylor’s exposition of relevant case law, 392 S.W.3d at 488-91,
is to understand why Richey fails to prove this claim. The Taylor court carefully
analyzed various appellate decisions – with special focus on three that found
retaliatory sentencing and three that did not – to draw the following conclusions:
           •   A record indicating the trial court enhanced the sentence in part
               based on a defendant’s exercise of a constitutional right justifies
               relief. Id. at 488.
                  o So if that court actually considered a defendant’s exercise of
                    a constitutional right in imposing sentencing, “then the
                    exercise of the right was a ‘determinative factor’ in
                    sentencing, and retaliation has been demonstrated, even if
                    other factors could have been relied on by the trial court to
                    support the same sentence.” Id.
           •   However, “something beyond the bare possibility that retaliation
               could have been a factor in sentencing must be shown.” Id.
           •   Comparing the cases finding improper retaliation with those that
               did not, the difference was trial-court words or statements that
               “directly connected” the enhanced sentencing with the exercise of a
               constitutional right. Id. at 490.
           •   By contrast, where the record establishes that the court considered
               other appropriate factors in imposing sentence, “a generalized

                                           4
               comment on the assertion of a constitutional right is not a
               determinative factor in imposing sentence.” Id. at 491.
       Applying Taylor’s observations here:
           •   The trial judge did not directly, or even indirectly, link Richey’s
               sentencing to any constitutional, statutory, or other right Richey
               had asserted or exercised, or to Richey’s supreme court case.
           •   There was not even a generalized comment to any such effect.
           •   The court merely mentioned, twice, Richey’s many missed
               opportunities to become a good and active community member.
       We agree with the state that Taylor, on this record, forecloses Richey’s
retaliation claim, and with it, all of Richey’s consecutive-sentencing challenges. 3
                                     Conclusion
       We affirm the judgment and remand solely for the trial court to enter a
judgment nunc pro tunc correctly identifying Richey’s Count III conviction as one
for assault in the fourth (not third) degree.

DANIEL E. SCOTT, P.J. – OPINION AUTHOR
JEFFREY W. BATES, C.J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS




3Richey was entitled to reply to the state’s arguments. Rule 84.04(g). He asked this court
to grant him more time than usual to do so, which we did, but he never filed anything.
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