                           In the Missouri Court of Appeals
                                   Eastern District
                                                  DIVISION TWO


    STATE OF MISSOURI,                                          )   No. ED105698
                                                                )
             Respondent,                                        )   Appeal from the Circuit Court of
                                                                )   St. Francois County
    vs.                                                         )
                                                                )   Honorable Sandra Martinez
    CHRISTINA HALTER,                                           )
                                                                )
             Appellant.                                         )   Filed: February 13, 2019


Before Philip M. Hess, P.J., Robert G. Dowd, Jr., J. and Mary K. Hoff, J.

PER CURIAM

                                                     Introduction

           Defendant/Appellant Christina Halter (“Halter”) appeals judgment entered upon her

conviction of financial exploitation of a disabled person and Medicaid fraud.1 Halter raises six (6)

points on appeal. Points I, II, and III raise allegations of instructional error and Points V and VI

raise allegations of unauthorized civil penalties or restitution to the State. On these points, no

jurisprudential purpose would be served by written opinion; accordingly, these points have been

disposed of by summary order under Rule 30.25.2




1
    Halter does not raise any points on appeal related to her simultaneous conviction for tax fraud.
2
    All rule citations are to the Missouri Supreme Court Rules (2011) unless otherwise indicated.
        On Point IV, Halter argues the trial court erred in sentencing her to concurrent terms of

imprisonment for thirty years on two counts of financial exploitation of a disabled person and

exceeded its authority in also ordering her to pay restitution to the Victim.

        On Point IV, we agree with Halter the trial court erred in entering an unauthorized

disposition sentencing her to imprisonment and restitution, and remand for resentencing. The

judgment is affirmed in all other respects under Rule 30.25, with a separate written memorandum

accompanying this order only for the use of the parties setting forth the reasons for the decision on

the Points I, II, III, V, and VI.

                                       Factual Background

        At all relevant times from 2011 to 2013, Halter owned and managed Park Hills Manor

LLC, a residential care facility caring for mentally disabled individuals. One such resident

individual, J.B., was a veteran diagnosed with schizoaffective and bipolar disorders. On September

18, 2012, Halter agreed to be appointed fiduciary of J.B.'s Veterans Administration funds. Halter

affirmed she would, among other things: maintain a client trust account; deposit the individual's

funds in a separate account; not commingle funds; disburse rent or mortgage money on a monthly

basis; and disburse only for just expenses, including pocket money.

        Around November 16, 2012, J.B. approached a volunteer worker for Park Hills Manor and

indicated he was to receive a large sum, $209,000, from the V.A. and wanted to pay for his rent in

advance out of fear of becoming homeless. Around this time, Halter deposited the $209,000 to an

operating account for her business rather than to a client trust account. She did not report the

transaction. On November 19, 2012 and again on December 5, 2012, Halter signed contracts with

J.B. for non-refundable year-long rental contracts totaling $115,000. She did not report the

transactions. Halter purchased three vehicles with the V.A. funds – one jointly titled to Halter and




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J.B., and the other two solely titled to Halter and her husband. By January 15, 2013, every dollar

of the $209,000 fund had been spent.

         For the two transactions for the pre-payment of rent, the State charged Halter with two

counts of financial exploitation of a disabled person, under section 570.145 RSMo3, class A

felonies. The jury found Halter guilty on these charges and recommended terms of imprisonment

for thirty (30) years for each of the financial exploitation charges.

         At her sentencing hearing, the trial court ordered her thirty year sentences on the financial

exploitation convictions to run concurrently without possibility of probation. The State asked the

trial court to order $115,000 in restitution to J.B., the victim. Halter’s trial counsel did not

specifically object to imposition of the term of imprisonment and the restitution but called the

felonies “probationable offenses” with “no provision for restitution.”

                                  Preservation and Standard of Review

         Halter argues the trial court was constrained by then-applicable statutes and plainly erred

when it exceeded its authority sentencing her to concurrent sentences of imprisonment for thirty

years on two counts of financial exploitation of a disabled person, without possibility of probation,

and also ordering her to pay $115,000 in restitution.4 The State opposes review procedurally by

this Court on what it describes as invited error. The State also contends Section 557.011.5 RSMo

permits a court to make any appropriate order exercising the authority conferred by law to decree,

as part of a sentence, a forfeiture of property or impose any other civil penalty. The State argues

this would necessarily include restitution, even under then-applicable Section 557.011 RSMo.




3
  All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013 Cumulative Supplement,
unless otherwise indicated.
4
  In 2012, Sections 559.021 and 559.100.2 RSMo authorized restitution as conditions of probation and parole
respectively.


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        The State argues this Court need not address Halter’s concerns at all on the basis of invited

error. See State v. Nenninger, 188 S.W.2d 56 (Mo. 1945); State v. Johnson, 479 S.W.3d 762, 766

(Mo. App. E.D. 2016) (“If a party gets what he requests from the trial court, he should not be able

to convict it of error, plain or otherwise, for complying with his request.”). The State claims Halter

acquiesced to the allegedly improper sentence by requesting a term of years of imprisonment

which would allow her to pay restitution while still of a working age. A fair reading of the trial

transcript, however, confirms Halter refers to restitution only in the context of the possibility of

parole or probation. Halter never explicitly or implicitly expresses acquiescence to restitution in

any other context, but instead describes the “probationable offenses” as containing “no provision

for restitution.”

        We review for plain error. We review claims of plain error under a two-prong test. State v.

Robinson, 541 S.W.3d 21, 27 (Mo. App. E.D. 2018). In the first prong, we determine whether there

is, indeed, plain error, which is error that is evident, obvious, and clear.” Id. (internal citation

omitted). If we find an “evident, obvious, and clear” error, then we look to the second prong, where

we consider whether “manifest injustice or a miscarriage of justice has resulted from the trial court

error.” State v. Pierce, 548 S.W.3d 900, 904 (Mo. banc 2018). “Relief under the plain error rule is

granted only when the alleged error so substantially affects the rights of the accused that a manifest

injustice or miscarriage of justice inexorably results if left uncorrected.” Id. A sentence passed on

the basis of a materially false foundation lacks due process of law and entitles the defendant to a

reconsideration of the question of punishment in the light of the true facts, regardless of the

eventual outcome. Id. The Supreme Court of Missouri indicates the appropriate remedy when the

record shows the circuit court imposed sentence based on its mistaken belief is to vacate a sentence

and remand the case to the circuit court for resentencing. Id.




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        Halter complains Missouri does not permit a disposition of restitution alongside a sentence

of imprisonment under the plain language of the then-applicable authorized disposition statute,

Section 557.011 RSMo. Halter relies upon case law in Missouri to assert the trial court plainly

erred in ordering restitution alongside imprisonment. See State v. Roddy, 998 S.W.2d 562 (Mo.

App. S.D. 1999); State v. Schnelle, 398 S.W.3d 37, 47 (Mo. App. W.D. 2013) (citing Zarhouni v.

State, 313 S.W.3d 713, 715 (Mo. App. W.D. 2010); Bellamy v. State, 525 S.W.3d 166, 170 (Mo.

App. W.D. 2017).

        We agree. Our colleagues in both the Western and Southern Districts have long held a

sentence of imprisonment and restitution was not an authorized disposition of a criminal case under

Missouri law in 2012, absent statutory authorization. We see no reason to differ. When Halter

committed her crimes involving J.B., Sections 559.021 RSMo and 559.100.2 RSMo authorized

restitution only as conditions of probation and parole respectively. 5 The authorized disposition

statute, however, did not authorize a sentence of imprisonment alongside restitution without

specific statutory authorization. State v. Schnelle, 398 S.W.3d 37, 47 (Mo. App. W.D. 2013). 6

What is more, the trial court knew of this “prohibition against requiring a prisoner both to serve a

prison term and to pay restitution.” State ex rel. Strauser v. Martinez, 416 S.W.3d 798, 805 (Mo.

banc 2014) (Fischer, J., concurring).

        Accordingly, where the trial court sentenced Halter to punishment that included

imprisonment and restitution for her actions taken in 2012, the sentences were premised upon a

faulty foundation; prejudice is to be assumed and must be corrected. State v. Pierce, 548 S.W.3d


5
  The General Assembly amended Section 559.105.1 effective August 28, 2013. Section 559.105.1 now provides
“[a]ny person who has been found guilty of or has pled guilty to an offense may be ordered by the court to make
restitution.” The State does not assert this new statutory provision applies to Halter.
6
  See also Spier v. State, 174 S.W.3d 539, 542 (Mo. App. E.D. 2005) (holding General Assembly in amending criminal
code adopted Model Penal Code and its comments); cf. State v. Newman, 132 N.J. 159, 167, 623 A.2d 1355, 1359
(1993) (extended discussion of historical interaction between criminal and civil restitution, fines, adoption of the
Model Penal Code, and legislative intent).


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900, 904 (Mo. banc 2018). The Supreme Court of Missouri has indicated it is appropriate to require

resentencing rather than modification. State v. Pierce, 548 S.W.3d 900, 905 (Mo. banc 2018)

(citing Wraggs v. State, 549 S.W.2d 881, 884 (Mo. banc 1977)).

         Point IV is granted.

                                                 CONCLUSION

         We must vacate the sentences for the two counts of financial exploitation of a disabled

person and remand to the trial court for a resentencing on these counts7 consistent with our opinion.

The judgment is affirmed in all other respects.




7
  The parties’ briefs number these with reference to the verdict directors as Counts III and IV. For sake of clarity, we
identify them with reference to the indictment, written sentence, and judgment as Counts VIII and X.


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