                 IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT
In re: FREDERICK W. THORNTON,       )
III,                                )
                        Petitioner, )
                                    )
v.                                  )              WD77276
                                    )
LARRY DENNEY, Warden,               )              FILED: March 17, 2015
                      Respondent. )

                 Original Proceeding on Petition for Writ of Habeas Corpus

 Before Writ Division: Alok Ahuja, C.J., and Joseph M. Ellis and Thomas H. Newton, JJ.

       Frederick W. Thornton III pleaded guilty in October 2007 to driving while intoxicated (or

“DWI”). The circuit court found Thornton to be a persistent offender because he had two prior

convictions for driving while intoxicated. By finding that Thornton was a “persistent offender”

with two prior DWI convictions, rather than a “prior offender” with one previous conviction, the

circuit court enhanced Thornton’s current offense from a Class A misdemeanor to a Class D

felony. Thornton was given a sentence which exceeded the statutory punishment for a Class A

misdemeanor. Thornton filed a petition for writ of habeas corpus, arguing that, as a result of the

Missouri Supreme Court’s decision in Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), one of

the convictions on which the circuit court relied to find him to be a persistent offender could not

be used for enhancement purposes. We agree, and conclude that under Turner, Thornton could

be classified only as a prior, rather than a persistent, offender. We accordingly grant Thornton’s

petition for writ of habeas corpus, vacate his 2007 conviction of a felony offense, and order that
the record of Thornton’s 2007 conviction be amended to reflect a conviction of Class A

misdemeanor driving while intoxicated.

                                         Factual Background

        On October 2007, Thornton pleaded guilty in the Circuit Court of DeKalb County in

Case No. 07K4-CR00429 to the charge of driving while intoxicated under § 577.010,1 based on

an incident which occurred on August 19, 2007. The State charged Thornton as a persistent

offender, based on the fact that he had been convicted of driving while intoxicated on two prior

occasions. Thornton’s status as a persistent offender had the effect of enhancing the charge

from a misdemeanor to a Class D felony. See § 577.023. The court sentenced Thornton to four

years’ imprisonment. Following Thornton’s completion of an institutional treatment program,

the court entered a 120-Day Order of Probation in February 2008, which suspended the

execution of the balance of Thornton’s sentence, and placed him on probation for five years.

        On November 21, 2011, the court revoked Thornton’s probation for the 2007 offense and

executed his sentence, following his guilty plea to charges stemming from a January 28, 2011

accident in which another driver was killed. The court ordered that the sentences imposed in

connection with the 2011 accident be served consecutively to Thornton’s 2007 sentence.2

        On January 14, 2013, Thornton petitioned the DeKalb County Circuit Court for habeas

corpus relief with respect to his 2007 conviction, arguing that he did not qualify as a persistent

offender under the Missouri Supreme Court’s decision in Turner, because he had only one prior

conviction that would qualify for enhancement. In response, the State argued that Thornton’s

        1
                Unless otherwise indicated, statutory citations refer to the 2000 edition of the Revised
Statutes of Missouri, updated through the 2007 Cumulative Supplement.
        2
                 Thornton’s motion for post-conviction relief in relation to the 2011 guilty plea was
denied by the circuit court, and that ruling was affirmed by this Court. Thornton v. State, No. WD76734,
2014 WL 6781171 (Mo. App. W.D. Dec. 2, 2014), application for transfer filed Feb. 11, 2015, No.
SC94786.

                                                     2
failure to file a timely post-conviction relief motion under Supreme Court Rule 24.035 barred

him from seeking habeas relief. The circuit court denied Thornton’s petition.

       Thornton then filed a Petition for Writ of Habeas Corpus with this Court. We issued an

order to show cause, and thereafter received briefing and heard oral argument.3

                                              Analysis

       “‘Habeas corpus is the last judicial inquiry into the validity of a criminal conviction and

serves as “a bulwark against convictions that violate fundamental fairness.”’” State ex rel.

Taylor v. Steele, 341 S.W.3d 634, 639 (Mo. banc 2011) (quoting Amrine v. Roper, 102 S.W.3d

541, 545 (Mo. banc 2003) (in turn quoting Engle v. Isaac, 456 U.S. 107, 126 (1982))). In

determining whether or not to grant habeas relief, we are “limited to determining the facial

validity of confinement, which is based on the record of the proceeding that resulted in the

confinement.” State ex rel. Zinna v. Steele, 301 S.W.3d 510, 513 (Mo. banc 2010), quoting State

ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001).

       In 2007, the circuit court found Thornton to be a persistent offender based, in part, on his

guilty plea on August 22, 2000 to driving while intoxicated in the Cameron Municipal Division

of the Circuit Court of Clinton County.4 It is undisputed that Thornton received a suspended

imposition of sentence (or “SIS”) in the 2000 case.

       On March 4, 2008, the Missouri Supreme Court decided Turner v. State, 245 S.W.3d 826

(Mo. banc 2008), which held that “the use of prior municipal offenses resulting in an SIS cannot

be used to enhance punishment under section 577.023.” Id. at 829.


       3
               The Court expresses its appreciation to attorney Sean D. O’Brien, who accepted this
Court’s appointment and represented Thornton on a pro bono basis.
       4
                This guilty plea was identified in the charging document as occurring on August 22,
2002. The parties do not dispute that the charging document was intended to refer to Thornton’s August
2000 guilty plea.

                                                   3
       The State does not dispute that, if Turner is applicable to Thornton’s 2007 conviction,

there was no basis to find Thornton to be a persistent offender, and he should not have been

convicted of a Class D felony. The State argues, however, that Thornton is not entitled to habeas

corpus relief for two reasons: first, because he should have raised the Turner issue in a motion

for post-conviction relief under Supreme Court Rule 24.035, which was required to be filed no

later than May 2008; and second, because Turner should not be applied “retroactively” to

Thornton’s 2007 conviction, which is now final. We reject both of the State’s arguments.

                                                  I.

       Thornton could have raised his current claim in a motion for post-conviction relief under

Rule 24.035. Turner was decided before the time for Thornton to file a post-conviction relief

motion expired, and he therefore could have relied on that decision in a timely Rule 24.035

motion. We must first decide whether Thornton may raise his claim in this habeas corpus

proceeding, despite his failure to raise it earlier in a timely-filed post-conviction relief motion.

       Normally, a petitioner’s failure to raise a claim in a direct appeal or in a post-conviction

relief motion bars the petitioner from subsequently raising the claim in a petition for writ of

habeas corpus. State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516 (Mo. banc 2010).

               A defendant who fails to raise a challenge to his conviction on direct
       appeal or in a timely post-conviction proceeding is said to have procedurally
       defaulted on those claims. Procedurally defaulted claims cannot be raised in a
       petition for writ of habeas corpus unless: (1) the claim relates to a jurisdictional
       issue; or (2) the petitioner establishes a showing by the preponderance of the
       evidence of actual innocence, that would meet the manifest injustice standard for
       habeas relief under Missouri law, (a “gateway of innocence claim”); or (3) the
       petitioner establishes cause for failing to raise the claim in a timely manner and
       prejudice from the constitutional error asserted, (a “gateway cause and prejudice
       claim”).

Ferguson v. Dormire, 413 S.W.3d 40, 52-53 (Mo. App. W.D. 2013) (citations and internal

quotation marks omitted).


                                                   4
        “Cases in which a person received a sentence greater than that permitted by law

traditionally have been analyzed under the [‘jurisdictional defect’] exception[ ].” Zinna, 310

S.W.3d at 517. Following the decision in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249

(Mo. banc 2009), it is a misnomer to describe such unauthorized sentences as involving a

“jurisdictional defect.” Zinna, 310 S.W.3d at 517. Zinna emphasized, however, that “[w]hatever

label is applied, . . . it is settled that the imposition of a sentence beyond that permitted by the

applicable statute or rule may be raised by way of a writ of habeas corpus.” Id.; see also State ex

rel. Koster v. Jackson, 301 S.W.3d 586, 590 (Mo. App. W.D. 2010) (“Even if a habeas petitioner

has failed to timely raise a claim in a Rule 24.035 motion, it is settled that the imposition of a

sentence beyond that permitted by the applicable statute or rule may be raised by way of a writ of

habeas corpus.”; citing Zinna and Merriweather v. Grandison, 904 S.W.2d 485, 486 (Mo. App.

W.D. 1995)).

        We recently suggested that, because the unauthorized sentences subject to review in

habeas corpus proceedings do not implicate the subject-matter jurisdiction of the sentencing

court, such unauthorized sentences are more properly referred to as “sentencing defects,” rather

than “jurisdictional defects.” Branch v. Cassady, No.WD77788, 2015 WL 160718, at *2 n.2

(Mo. App. W.D. Jan. 13, 2015). We use that terminology here.

        In State ex rel. Koster v. Jackson we held that the exact same claim raised by Thornton in

this case – that he did not qualify as a “persistent offender” in light of Turner – was a

“sentencing defect” claim which could properly be raised in a habeas corpus proceeding, despite

the petitioner’s failure to raise the claim in a motion for post-conviction relief:

                In this case, Mitchell [(the habeas petitioner)] was sentenced as a
        persistent offender, supported, in part, by a guilty plea to a municipal charge of
        driving while intoxicated for which Mitchell received a suspended imposition of
        sentence. Following the interpretation of Section 577.023 provided in Turner,

                                                   5
         which held that a prior municipal offense resulting in a suspended imposition of
         sentence could not be used to enhance punishment, the State failed to demonstrate
         Mitchell was a persistent offender. Thus, the sentencing court exceeded its
         authority in sentencing Mitchell to five years of imprisonment as a persistent
         offender because the factual predicate necessary to place Mitchell in this
         enhanced statutory range of punishment was lacking.

Jackson, 301 S.W.3d at 590.

         The State argues that Jackson is distinguishable, because Turner was decided after the

time had expired for the habeas petitioner in Jackson to file a motion for post-conviction relief.

Thus, the petitioner in Jackson could not have raised the Turner issue in a timely post-conviction

relief motion. In this case, by contrast, Thornton had approximately two months following the

decision in Turner within which to file a timely post-conviction relief motion raising the Turner

issue.

         The State’s attempt to distinguish Jackson is unpersuasive. Under Zinna, a habeas corpus

petitioner is entitled to raise a sentencing defect in a habeas corpus proceeding despite the fact

that the petitioner could have raised the issue in a post-conviction relief motion; a petitioner

raising a sentencing defect need not show that he had “cause” for failing to raise the issue at an

earlier time. Indeed, in Zinna, the petitioner plainly could have raised his habeas claim in a

timely direct appeal or post-conviction relief motion. The petitioner in Zinna argued that his

sentence was unauthorized because the court’s written judgment, which stated that his sentences

would run consecutively, was inconsistent with the oral pronouncement of his sentences, which

would be interpreted to impose concurrent sentences by virtue of Supreme Court Rule 29.09.

The petitioner’s argument in Zinna was based on Rule 29.09 (which has been in existence

without amendment since 1980), and on caselaw which predated his conviction. In Zinna,

therefore, the sentencing argument was available to the petitioner at a time when he could have

appealed from the trial court’s written judgment, or filed a timely post-conviction relief motion.


                                                  6
Yet the Supreme Court held that the claim could properly be raised in a habeas proceeding.

Therefore, whether or not Thornton had the ability to raise the Turner issue in a timely post-

conviction relief motion is irrelevant. Jackson’s holding that a claim like Thornton’s involves a

“sentencing defect” excuses Thornton’s failure to raise the claim earlier.

        The State also argues that Thornton is precluded from seeking habeas review under the

Missouri Supreme Court’s decision in State ex rel. Simmons v. White, 866 S.W.2d 443 (Mo. banc

1993). In Simmons, the petitioner sought to challenge a similar persistent offender finding, based

on State v. Stewart, 832 S.W.2d 911 (Mo. banc 1992), which clarified the number of prior

convictions necessary to establish “persistent offender” status. In Simmons, the petitioner

initially pled guilty and admitted his status as a “persistent offender” under a charging document

which alleged an insufficient number of prior convictions in light of the Stewart decision.

Simmons, 866 S.W.2d at 444. (Stewart was decided ten days prior to Simmons’ initial plea. Id.)

The State later realized that the initial charging document was insufficient to establish “persistent

offender” status under Stewart, and attempted to amend the charging document to allege

additional prior convictions. Id. The sentencing court set aside the previous conviction and

sentencing, and Simmons pleaded guilty to the amended charges, and received the same sentence

as before. Id. at at 444-45.

        Simmons later petitioned for habeas relief, alleging that his second guilty plea was

invalid, and that the factual basis underlying his initial guilty plea failed to sufficiently establish

“persistent offender” status under Stewart. 866 S.W.2d at 446. The Missouri Supreme Court

determined that Simmons’ second plea and sentencing were void. It held, however, that

Simmons was not entitled to challenge his first conviction and sentence in a habeas corpus

proceeding. The Court held that “[h]abeas corpus may be used to challenge a final judgment



                                                   7
after an individual’s failure to pursue appellate and post-conviction remedies only to raise

jurisdictional issues or in circumstances so rare and exceptional that a manifest injustice results.”

Id. The Court held that Simmons had failed to satisfy this standard.

       We are convinced that petitioner's procedural defaults stemmed not from
       unawareness, but from a calculated, strategic decision to forego both appeal and
       post-conviction motions in the hope of receiving probation within 120 days. . . .
       [¶] . . . By deliberately bypassing appellate and post-conviction remedies in an
       attempt to gain a more favorable consideration of his request for probation,
       Simmons waived his rights to those remedies.

Id. at 446, 447.

       Simmons does not control this case. First, to the extent Simmons suggests that proof of an

insufficient number of prior convictions to support enhanced sentencing is not a “sentencing

defect” reviewable in a habeas corpus proceeding, the decision has been superseded by Zinna.

Zinna holds that “the imposition of a sentence beyond that permitted by the applicable statute or

rule may be raised by way of a writ of habeas corpus.” Zinna, 310 S.W.3d at 517. As we

recognized in Jackson, in Zinna the trial court had the statutory authority to impose consecutive

sentencing on the petitioner, but the trial court did so in a procedurally improper way – by

referencing consecutive sentencing only in its written judgment, but not in its earlier oral

pronouncement of sentence. Jackson, 301 S.W.3d at 590 n.5; see also Taylor, 341 S.W.3d at

639, and State v. Whitfield, 107 S.W.3d 253, 269 n.19 (Mo. banc 2003) (both cases holding that a

defendant presented a “sentencing defect” claim reviewable in a habeas proceeding, where the

defendant claimed that it was unconstitutional for a judge, rather than a jury, to decide whether

statutory factors justified imposition of the death penalty). Jackson followed Zinna and held that

the very same sentencing error alleged by Thornton in this case constitutes a “sentencing defect”

subject to correction in a habeas corpus proceeding. To the extent Simmons applied a narrower




                                                  8
understanding of the types of “sentencing defects” subject to review in a habeas corpus

proceeding, it no longer accurately states the law.

        More importantly, Simmons’ refusal to allow the petitioner to pursue a habeas remedy

was based on the fact that the petitioner in that case chose to plead guilty a second time, after the

Stewart issue had become apparent. According to the Court, the petitioner’s actions reflected “a

calculated, strategic decision to forego both appeal and post-conviction motions,” a “deliberate[]

bypassing” of appellate and post-conviction remedies. Simmons, 866 S.W.2d at 447.5 There is

no evidence of such a “calculated, strategic decision,” or “deliberate bypass,” by Thornton in this

case.

                                                   II.

        Having established that this Court has the authority to hear Thornton’s claim in this

habeas corpus proceeding, we now turn to the State’s alternative argument: that Turner should

not be applied “retroactively” to Thornton’s case.

        Thornton is not seeking the “retroactive” application of Turner. Instead, Thornton’s

argument is that under § 577.023 (as interpreted in Turner), the State failed to prove the requisite

number of prior convictions necessary to support a finding that Thornton was a “persistent

offender.” Section 577.023 was in effect at the time of Thornton’s guilty plea – it is not being

applied retroactively. Moreover, the Missouri Supreme Court has held that “[i]n Turner, this



        5
                Simmons’ reference to the petitioner’s “deliberate bypass” of post-conviction remedies
harkens back to the standard applied to procedural defaults in federal habeas proceedings by Fay v. Noia,
372 U.S. 391, 439 (1963) (overruled by Coleman v. Thompson, 501 U.S. 722 (1991)). This “deliberate
bypass” standard required the petitioner to engage in “an intentional relinquishment or abandonment of a
known right or privilege,” reflecting “the considered choice of the petitioner.” Fay, 372 U.S. at 439; see
also, e.g. Humphrey v. Cady, 405 U.S. 504, 517 (1972) (stating that “deliberate bypass” standard requires
“an understanding and knowing decision [to forego review] by the petitioner himself”; the petitioner must
make “a deliberate strategic waiver of his claim”).



                                                    9
Court made no new law; it merely clarified the language of an existing statute.” State v. Severe,

307 S.W.3d 640, 642-43 (Mo. banc 2010). The Court held that – even before the Turner

decision – “[t]he state was on notice by the plain language of section 577.023.16 that a guilty

plea followed by a suspended imposition of sentence in ‘municipal court’ was not to be treated as

a prior conviction.” Id. at 644. The State itself argues in its Brief that “Severe makes plain that

the Turner decision was based on statutory construction and not a new rule of law.” State Br. at

19.

       In these circumstances, where Thornton’s petition relies on a judicial opinion interpreting

a statute which was in effect at the time of his conviction, and that judicial opinion “created no

new law,” no retroactivity issue arises. Indeed, if the State were correct that Turner’s

construction of § 577.023 cannot be applied “retroactively” to convictions which were final at

the time Turner was decided, that would have prevented relief in Turner itself, since Turner was

decided on a motion for post-conviction relief.

       The Supreme Court of the United States has addressed a virtually identical issue, and

held that no issue of “retroactivity” is presented where a later judicial decision interprets the

meaning of a pre-existing statute. In Fiore v. White, 531 U.S. 225 (2001), the defendant Fiore

was convicted of violating a Pennsylvania criminal statute. Although Fiore argued that the

statute should not be interpreted to apply to his conduct, this argument was rejected by the

intermediate Pennsylvania appellate courts, and the Pennsylvania Supreme Court refused to

review his case. Id. at 227. After Fiore’s conviction became final, the Pennsylvania Supreme

Court determined – in a case involving Fiore’s co-defendant Scarpone – that the criminal statute

at issue could not be interpreted to apply to conduct like Fiore’s. Id.




                                                  10
          Fiore filed a petition for a writ of habeas corpus in the federal courts. In response to a

certified question from the Supreme Court of the United States, the Pennsylvania Supreme Court

explained that its decision in Scarpone “did not announce a new rule of law,” but “merely

clarified the plain language of the statute.” Id. at 228. Given that the Pennsylvania Supreme

Court’s decision in Scarpone was merely intended to clarify the meaning of a pre-existing

statute, the United States Supreme Court held that no retroactivity issue was presented by Fiore’s

request that Scarpone’s interpretation of the relevant statute be applied to his conviction:

                   The Pennsylvania Supreme Court’s reply [to the certified question]
          specifies that the interpretation of § 6018.401(a) set out in Scarpone “merely
          clarified” the statute and was the law of Pennsylvania – as properly interpreted –
          at the time of Fiore’s conviction. Because Scarpone was not new law, this case
          presents no issue of retroactivity. Rather, the question is simply whether
          Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore
          for conduct that its criminal statute, as properly interpreted, does not prohibit.

Id. at 228. The Court held that Pennsylvania could not constitutionally punish Fiore for conduct

which did not violate the relevant statute. Id. at 228-29. The Court applied the same analysis to

a later judicial interpretation of a pre-existing statute in Bunkley v. Florida, 538 U.S. 835, 839-41

(2003).

          In Severe, the Missouri Supreme Court characterized the decision in Turner in precisely

the same way that the Pennsylvania Supreme Court characterized its decision in Scarpone:

Severe holds that Turner “made no new law; it merely clarified the language of an existing

statute.” 307 S.W.3d at 642-43. Under Fiore and Bunkley, this case presents no “retroactivity”

issue which can prevent the application of Turner’s interpretation of § 577.023 to Thornton’s

2007 conviction.

                                                   III.

          As noted at the outset of our analysis, the State has conceded that, if Thornton is entitled

to raise his Turner claim in this habeas proceeding, and if we conclude that Turner applies to

                                                   11
Thornton’s 2007 conviction, then that conviction violates Turner, because the State failed to

prove that Thornton had two prior DWI convictions under § 577.023 as it existed at the time.

       Thornton concedes that the State proved that he had one previous DWI conviction, and

therefore that he qualified as a “prior offender” under § 577.023.1(6). Because Thornton was a

“prior offender,” under § 577.023.2 his violation of § 577.010 constituted a Class A

misdemeanor (rather than a Class D felony). Because he could only properly be found guilty of

a Class A misdemeanor, Thornton could be placed on probation for no more than two years.

§ 559.016.1(2).

       The circuit court revoked Thornton’s probation associated with the 2007 conviction in

November 2011, almost four years after Thornton was placed on probation. This was well

beyond the two-year maximum probationary period to which Thornton was subject on conviction

of a Class A misdemeanor. Once the probationary period has expired, a court does “not have

jurisdiction over [a probationer] ‘for any purpose, whether to cite him for probation violations,

revoke probation, or order execution of the sentence previously imposed.’” State ex rel. Limback

v. Gum, 895 S.W.2d 663, 664 (Mo. App. W.D. 1995) (quoting State ex rel. Musick v. Dickerson,

813 S.W.2d 75, 77 (Mo. App. W.D. 1991)); see also Roach v. State, 64 S.W.3d 884, 887 (Mo.

App. S.D. 2002). Therefore, the circuit court was without jurisdiction to revoke Thornton’s

probation with respect to his 2007 conviction in November 2011, or execute any sentence

previously imposed upon him.

                                           Conclusion

       The circuit court lacked the authority to sentence Thornton for Class D felony driving

while intoxicated in connection with his 2007 conviction, or to order the revocation of his

probation and the execution of his sentence for the 2007 conviction in November 2011. We

accordingly order that Thornton be discharged and relieved from his 2007 conviction of a Class
                                                12
D felony, and from the execution of any sentence associated with that conviction. With respect

to his 2007 DWI conviction, Thornton constituted a prior offender, not a persistent offender, and

could be convicted only of a Class A misdemeanor, not a Class D felony. We order that the

record of Thornton’s conviction in Case No. 07K4-CR00429 in the Circuit Court of DeKalb

County be amended to reflect Thornton’s conviction of driving while intoxicated as a prior

offender, a Class A misdemeanor.

       Thornton’s sentences for his separate 2011 convictions were ordered to run consecutively

to the sentence on his 2007 conviction. At the time of his 2011 sentencing, however, there was

no sentence associated with his 2007 conviction which could lawfully be executed. Therefore,

no sentence associated with his 2007 conviction could delay the running of the sentences

associated with Thornton’s 2011 convictions.




                                               __________________________________
                                               Alok Ahuja, Chief Judge
All concur.




                                               13
