author: WILLIAM RAY PRICE, JR., Chief Justice.

text:
    Charles W. RENTSCHLER, et al., Appellants, v. Jeremiah NIXON, et al., Respondents. James Laney, Appellant, v. Jeremiah Nixon, et al., Respondents.
    Nos. SC 90285, SC 90418.
    Supreme Court of Missouri, En Banc.
    April 6, 2010.
    As Modified on Denial of Rehearing May 11, 2010.

      Charles W. Rentschler, pro se.
    Caleb M. Lewis, Attorney General Office, Jefferson City, for Appellant in SC 90285.
    James Laney, pro se.
    Andrew W. Hassell, Attorney General Office, Jefferson City, for Appellant in SC 90418.

      . Originally, Rentschler brought suit against Gov. Matt Blunt, then governor of Missouri.
      The party has been changed to reflect the current governor. Rule 52.13(d).

   WILLIAM RAY PRICE, JR., Chief Justice.

I. Introduction

Appellants in both cases are groups of inmates claiming that a legislative amendment removing conditional release eligibility for inmates convicted of certain violent felonies violated the Missouri and federal constitutions. The inmates claim that the law violates the ex post facto clause, substantive due process and the Missouri prohibition of laws with retrospective operation and that the bills were passed with constitutionally deficient procedure. Both trial court decisions upheld the statute as constitutional and dismissed the appellants’ claims. Both judgments are affirmed.

II. Facts

The facts are not in dispute. A jury convicted Charles Rentschler, Kenneth G. Charron and Roger Nolan (collectively “Rentschler”) various violent felonies and each was sentenced to life in prison. James Laney (“Laney”) was convicted of aggravated rape and sentenced as a persistent offender to 30 years without the possibility of probation or parole.

When all were sentenced, the conditional release statute, section 558.011, RSMo 1978, was silent regarding whether violent felons were eligible for conditional release. In 1990, well after all appellants were convicted, the legislature amended section 558.011 making conditional release inapplicable to those convicted of “dangerous felonies as defined in section 556.061.” Sec. 558.011, RSMo Supp. 1990. Section 556.061 includes the felonies applicable to Rentschler’s group and “forcible rape,” which applies to Laney. Section 556.061.8, RSMo Supp. 2008. Both Laney and Rentschler argue that this amendment violates various constitutional provisions.

First, both argue that the amendment violates substantive due process under the 14th amendment of the United States Constitution by “adding additional time of incarceration.” Second, Rentschler argues that the amendment changed the subject matter of section 558.011 and also contains multiple subjects in violation of article III, sections 21 and 23 of the Missouri Constitution. Third, Laney argues that the amendment is an ex post facto law violating the federal and Missouri constitutions. Fourth, and finally, both argue that the amendment -violates the prohibition on laws retrospective in operation under article I, section 13 of the Missouri Constitution.

The trial court granted judgment on the pleadings in favor of the state in both cases, finding section 558.011 valid under the United States and Missouri constitutions. Both judgments are affirmed.

III. Analysis

A.Standard of Review

This Court has exclusive appellate jurisdiction over challenges to the validity of a state statute. Mo. Const, art. V, sec. 3. Constitutional challenges to a statute are reviewed de novo. Franklin County ex rel. Parks v. Franklin County Comm’n, 269 S.W.3d 26, 29 (Mo. banc 2008). A statute is presumed valid and will not be held unconstitutional unless it clearly contravenes a constitutional provision. Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006). The person challenging the validity of the statute has the burden of proving the act clearly and undoubtedly violates the constitutional limitations. Trout v. State, 231 S.W.3d 140, 144 (Mo. banc 2007).

B.Substantive Due Process

First, Laney and Rentschler argue that the retroactive application of the conditional release modification violates substantive due process.

“There is no constitutional or inherent right to early release from prison.” State ex rel. Cavallaro v. Groose, 908 S.W.2d 133, 134 (Mo.1995) citing Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Conditional release is unknown to the common law; it derives solely from the statutory authority that created it. “[Wjhere the right exists only by state law, it is not protected by substantive due process and ‘may constitutionally be rescinded so long as the elements of procedural due process are observed.’ ” State ex rel. Cavallaro v. Groose, 908 S.W.2d 133, 135,136 (Mo. banc 1995) citing McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. banc 1994) (emphasis added). Point denied.

C.Original Subject and Multiple Subjects

Second, Rentschler argues that House Bill 974, the 1990 bill that amended section 558.011, changed the “original purpose” of that section because it amended a “sentencing” statute, changing it to a “procedural” statute in violation of article III, section 21 of the Missouri Constitution (Point III). He also alleges that House Bill 974 contained multiple subjects violating of article III, section 23 because it deals with both sentencing and conditional release (Point IV).

“The use of these procedural limitations [secs. 21 through 23] to attack the constitutionality of statutes is not favored.” Stroh Brewery Co. v. State, 954 S.W.2d 323, 326 (Mo. banc 1997). “This Court will resolve doubts in favor of the procedural and substantive validity of an act of the legislature.” Hammerschmidt v. Boone County, 877 S.W.2d 98, 102 (Mo. banc 1994).

As Judge Holstein observed in Ham-merschmidt’s concurrence, there is necessarily a time limitation for these constitutional challenges to “strike a balance between the citizen’s right to insist that the legislature comply with constitutional procedural safeguards ... and the strong presumption of regularity of legislative proceedings that promotes stability and finality of legislative enactments.” Hammerschmidt, 877 S.W.2d at 105 (Holstein, J. concurring).

A claim must be “raised not later than the adjournment of the next full regular legislative session following any person being aggrieved.” Id. “In no event could such claims be raised later than ten years after the bill complained of becomes effective.” Id. citing sec. 516.110(3), RSMo 1986. Here, Rentschler complains about House Bill 974, a 1990 legislative enactment, well outside any reasonable time to bring these claims. His claim is time-barred equitably. However, even if this Court were to reach the substantive merits of his claims, Rentschler articulates no cognizable claim to relief.

Rentschler’s argument under article III, section 21 misconstrues the nature of that constitutional provision. That provision provides that “no bill shall be so amended in its passage through either house as to change its original purpose.” Mo. Const, art. Ill, sec. 21. A proper claim requires comparison between the purpose of the bill as introduced and the bill as actually passed. Lincoln Credit Co. v. Peach, 686 S.W.2d 31, 38 (Mo. banc 1982). Rentschler makes no such comparison. Instead, he claims that House Bill 974 changed the purpose of the enacted 1978 version of section 568.011. This claim is without merit.

Section 23 mandates that “no bill shall contain more than one subject.” Mo. Const, art. Ill, sec. 23. “The test to determine if a bill contains more than one subject is whether all provisions of the bill fairly relate to the same subject, have a natural connection therewith or are incidents or means to accomplish its purpose.” Stroh Brewery, 954 S.W.2d at 327; Hammerschmidt, 877 S.W.2d at 102; Akin v. Director of Revenue, 934 S.W.2d 295, 301 (Mo. banc 1996). To determine the purpose, the Court looks first to the title of the bill. Stroh Brewery, 954 S.W.2d at 327; Carmack v. Director, Missouri Dept, of Agriculture, 945 S.W.2d 956, 959 (Mo. banc 1997). The title gives a sequence of statutes being repealed and replaced, all “relating to the department of corrections.” 1990 Mo. Laws 749.

Rentschler argues that because the bill deals with both sentencing terms and conditional release terms, the bill contains multiple subjects. This is not so. Both conditional release and sentencing are subjects “relating to the department of corrections,” the overall purpose and subject matter of the bill. H.B. 974 does not violate section 23 of article III.

Rentschler fails to timely assert his claim and fails to meet his burden overcoming the presumption that H.B. 974 followed constitutionally proper procedure. Both points are denied.

D. Ex Post Facto Laws

Third, Laney argues that the amendment to section 558.011 is an ex post facto law. The federal and Missouri constitutions prohibit ex post facto laws. U.S. Const, art. I, sec. 10, cl. 1; Mo. Const, art I, sec. 13. However, ex post facto laws only affect criminal matters — in this case, the sentence that appellants received. See Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954); See Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549 (1924). Section 558.011 specifically bifurcates a conviction into “a sentence term” (which would be germane to an ex post facto consideration) and “a conditional release term” (which is not germane).

Any modification of the conditional term cannot affect the sentence term originally imposed against Laney and Rentsch-ler. Rentschler’s sentence term before and after the 1990 amendment was life in prison. Laney’s sentence term before and after the 1990 amendment was 30 years in prison. Nothing in the amendment to section 558.011 changes those sentence terms, so there can be no violation of the ex post facto clause. Point denied.

E. Retrospective Operation

Laney and Rentschler both argue that the amended section 558.011 violates Missouri’s prohibition on retrospective laws. Mo. Const. Art. I, sec. 13. The Missouri prohibition on retrospective laws is broader than the federal proscription of ex post facto laws. The section prohibits a law that “creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.” F.R. v. St. Charles County Sheriff’s Dept., 301 S.W.3d 56, 61 (Mo. banc 2010); Squaw Creek Drainage Dist. v. Turney, 235 Mo. 80, 138 S.W. 12, 16 (Mo.1911). It also prohibits a law that impairs a vested right. Id.

The board of probation and parole has plenary discretion in granting conditional release. Subsection 5 of both iterations of the statute clearly state that “[t]he date of conditional release from the prison term may be extended up to a maximum of the entire sentence of imprisonment by the board of probation and parole.” Section 558.011, RSMo Supp.1990 and RSMo 1978. There are no limitations, conditions or carve outs.

The conditional release statute vests a right in the board of probation and parole to use the conditional release program as a way to manage the department of corrections’ prison populations. The inmates have no right of conditional release until the board actually issues a date for conditional release. Cooper v. Holden, 189 S.W.3d 614 (Mo.App.2006). Because none of the claimants in either ease had been issued such a date by the board, their claim to a vested right fails as a matter of law.

Likewise, the law does not create a new disability. The board always has retained plenary discretion as to whether to issue a conditional release date. The board’s consideration of granting conditional release to any of the inmates was a mere possibility, nothing more. It is insufficient to support a claim for the creation of a disability. Section 558.011 does not offend section 18 of article I. Point denied.

IV. Conclusion

Claimants have not met their burden of establishing section 558.011 as unconstitutional. Both trial court judgments are affirmed.

All concur.

      . Although titled as such, Judge Holstein's concurrence was joined by a majority of his colleagues. However, it was dicta, because the reasoning was not necessary to Hammer-schmidt’s holding.

      . Our legislature adopted Judge Holstein’s concurrence in sec. 516.500, RSMo 2000, as a statute of limitation. As the statute of limitations is an affirmative defense, the State’s failure to plead it precludes its use. Lynch v. Lynch, 260 S.W.3d 834 (Mo. banc 2008). Although the legal bar of the statute may not be raised procedurally, the doctrine of laches may still operate to bar such unreasonably tardy claims as is the case presently. " ‘Lach-es’ is neglect for unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done.” Hagely v. Board of Educ. of Webster Groves School Dist. 841 S.W.2d 663, 669 (Mo. banc 1992). "Laches in equity is a doctrine which partakes in nature of the legal statutory limitation, but is not governed as to time by such statute.” Tokash v. Workmen's Compensation Com’n, 346 Mo. 100, 139 S.W.2d 978, 984 (1940).

      .This use of laches to bar untimely constitutional challenges to an enactment’s procedure has found support in many jurisdictions. See e.g. Schulz v. State, 81 N.Y.2d 336, 599 N.Y.S.2d 469, 615 N.E.2d 953, 958 (1993); Stilp v. Hafer, 553 Pa. 128, 718 A.2d 290, 292-93 (1998); Cole v. State ex rel. Brown, 308 Mont. 265, 42 P.3d 760, 763 (2002); Franklin County v. Burdick, 103 N.C.App. 496, 405 S.E.2d 783, 785 (1991).


source: Caselaw Access Project

license: Public Domain

text:
    WESTERN BLUE PRINT CO., Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. SC 90172.
    Supreme Court of Missouri, En Banc.
    April 20, 2010.
    James R. Layton, Attorney General’s Office, Jefferson City, for appellant.
    William E. Quirk, Thomas W. Gray and Anthony W. Bonuchi, Polsinelli Shughart P.C., Kansas City, for respondent.
   WILLIAM RAY PRICE, JR., Chief Justice.

Because the “true object” of Western Blue Print’s business was the conversion of paper documents into electronic format and not the sale of compact disks (“CDs”), the CDs it provided its customers were merely incidental to a non taxable service. This Court affirms the decision of the Administrative Hearing Commission.

Factual and Procedural Background

Western Blue Print (“WBP”) is a limited liability company with its principal office in Kansas City, Missouri. It is a professional printing and copying company. At issue in this case is its business of document automation. Document automation is the electronic scanning of paper documents onto CDs.

According to the parties’ stipulation, WBP’s business can be described most easily as follows: WBP’s customers bring in hard copies of important documents they would like converted into electronic format. WBP scans images of those documents onto CDs. WBP then returns the original documents and the CDs to the customer. Under the terms of most customers’ contracts, WBP also keeps a copy of the CDs. WBP charges its customers a fee-per-page for the documents it scans and an additional $15 for each CD it distributes. Before purchasing these services, customers sign detailed contracts that explain the price break-down. WBP’s customers also are given the option of requesting additional services, such as indexing of the CDs’ contents into folders, conversion of the scanned documents to PDF files, or labeling of the documents to facilitate the search functions in Acrobat Reader or Windows Explorer.

In February 2006, the director of revenue (“the director”) initiated an audit of WBP’s sales, use, and withholding tax records for the previous three years. At the conclusion of the audit, the director assessed WBP $41,414.29 in unpaid sales tax. The amount included $35,971.62 in unpaid sales tax for the CDs WBP sold to its customers plus $5,442.67 in statutory interest for the time period in question.

In January 2007, WBP challenged the director’s assessment before the Administrative Hearing Commission (“the commission”). WBP made two arguments to the commission. First, WBP argued that the “true object” of its sales was a non-taxable service, not a tangible finished product, so the CDs it provided its customers did not transform its transactions into taxable sales of personal property. Second, WBP argued that even if provision of the CDs did render its transactions taxable retail sales, they are tax-exempt “computer output” under section 144.010(10), RSMo. The commission ruled in favor of WBP on both points.

The director makes two arguments on appeal. First, the director argues that the commission erred in finding that WBP’s transactions were non-taxable services because the CDs, which were tangible personal property, were the “true object” of WBP’s sales. Second, the director argues that the commission erred in finding that WBP’s sales were exempt from taxation because the CDs did not constitute “computer output” under the statute. Analysis of the first issue is dispositive of the case.

Jurisdiction

This Court has exclusive appellate jurisdiction over all cases involving the construction of the revenue laws of the state. Mo. Const, art. V, sec. 3.

Analysis

Standard of Review

This Court reviews agency determinations of tax law de novo. DST Sys., Inc. v. Dir. of Revenue, 43 S.W.3d 799, 800 (Mo. banc 2001). Determinations of fact will be upheld if, after considering the entire record, they are supported by substantial evidence. Id. WBP has the burden of proving that its sales are nontaxable. Branson Props. USA, L.P. v. Dir. of Revenue, 110 S.W.3d 824, 825 (Mo. banc 2003).

Applicable Statutes

Section 144.020.1(1) imposes a sales tax on “every retail sale in this state of tangible personal property.” A retail sale is “any transfer made by any person engaged in business as defined herein of the ownership of, or title to, tangible personal property to the purchaser.” Section 144.010.1(10) RSMo. This text has never been modified, despite a technological revolution in the way we conduct business in Missouri and across our nation. As Chief Justice Blackmar noted in Bridge Data Company, this Court must work with the “imperfect mold” of section 144.010. Bridge Data Company v. Director of Revenue, 794 S.W.2d 204, 205 (Mo. banc 1990). The question before the Court is what the terms “retail sale” and “tangible personal property’ mean as set out in sections 144.010.1(10) and 144.020.1(1).

This Court’s Precedent

Over the past 20 years, this Court has dealt with the scope of section 144.010.1(10) many times. The Court has developed the “true object” test to determine which types of “mixed” transactions are taxable under sections 144.010.1(1) and 144.020.1(1). This Court has held that to determine the “true object” of a transaction that involves both non-taxable services and taxable retail sales, the Court looks to the “real object the buyer seeks.” Sneary v. Director of Revenue, 865 S.W.2d 342, 345 (Mo. banc 1993).

This Court has recognized a class of transactions in which tangible personal property “serves only as the medium of transmission for an intangible product or service.” Id. at 349. If the tangible personal property is “merely incidental” to a non-taxable service, its existence will not transform the entire transaction into a taxable retail sale. Id.

The Court first discussed the “true object test” in James v. TRES Computer Systems, Inc., 642 S.W.2d 347 (Mo. banc 1982). TRES Computer Systems, Inc., (“TRES”) was a Texas-based corporation that sold computer software to a Missouri customer. TRES delivered software to its customers via magnetic tapes. The director argued that the transfer of the tapes, which, admittedly, were tangible personal property, rendered the transactions taxable retail sales. This Court, however, concluded that the tapes were not the “ultimate object of the sale” for two reasons. First, the customers were really buying an intangible service from TRES, not tangible personal property. Even though they were provided with tapes, after the customers “translated and introduced the information into the computer ... what actually remain[ed] in the computer [wa]s intangible knowledge.” Id. at 349. That is, what TRES’s customers were truly seeking was the electronic data the tapes contained, not the tapes themselves. Therefore, “the tapes themselves were not the ultimate object of the sale.” Id. Second, the existence of the tapes did not transform the transactions into taxable retail sales because the tapes themselves were not necessary to the transactions. Instead, the data and information on the tapes “could have been sent to the customers through electronic communications.” Id.

In K & A Litho Process, Inc. v. Director of Revenue, 653 S.W.2d 195 (Mo. banc 1983), a lithography company received film transparencies from a third party, then separated the colors onto a sheet of film and prepared something called a color key. The color key and film were then sold to printers who created plates from them that the printers used to make photographs. Those color photographs were sold to the printers’ customers, and the color key and separated film could be discarded. The director argued that K & A Litho’s transactions amounted to taxable retail sales because the company sold tangible personal property (the color keys and film sheets). This Court, however, following TRES, held that the items of tangible personal property were not the “true object” K & A Litho’s customers were seeking. Instead, what they were buying were the company’s skill and experience in producing the color keys and separated films. The tangible items were merely a “segment of a larger production operation” that did not render the transactions taxable “retail sales.” K & A Litho, 653 S.W.2d at 196.

TRES and K & A Litho are controlling here. WBP’s business was the conversion of paper documents into electronic format — it scanned its customers’ documents, burned the documents onto CDs, and delivered the CDs to the customers. These are non-taxable services under settled Missouri law. The CDs WBP used to transfer the data to its customers were “merely the medium of transmission.” TRES, 642 S.W.2d at 349. That WBP used CDs as a delivery vehicle for its customers’ electronic data was incidental to the services WBP provided. The fact that WBP used CDs instead of delivering its customers’ data via the Internet or some other means did not render its business transactions “retail sales” subject to sales tax.

The CDs WBP used, like the tapes TRES used, were mere conduits for the data. The CDs WBP used, like the tapes TRES used, can be discarded after the data is transmitted to the customers’ computers. Similar to TRES, what WBP’s customers really were buying was the conversion of their paper documents into electronic format. “[Tjransfer of tangible personal property under these circumstances is merely incidental to the purchase of the intangible ... information stored on the [media].” TRES, 642 S.W.2d at 349. The intangible services provided by WBP were the “essence of the transaction[s].” Sneary, 865 S.W.2d at 342. And, like in K & A Litho, the physical CDs provided by WBP were only a “segment of a larger production operation.” Id. at 196.

The Director’s Argument

The director argues that the deliberate choice on the part of WBP’s clients to receive their documents on CDs transforms WBP’s transactions into taxable retail sales. The director relies on two primary cases in which this Court held that the “mixed” transactions at issue were in fact taxable retail sales. Neither case is persuasive on the facts here.

The first case is a 1990 case in which a company produced television commercials and videotapes for a variety of purposes, including accident reconstruction, depositions, and instructional seminars. The company argued that its services were not taxable retail sales. Gammaitoni v. Director of Revenue, 786 S.W.2d 126 (Mo. banc 1990). The Court explained that the transactions at issue were taxable sales of tangible personal property because the finished videotapes themselves were the objects of the transactions. Id. at 129. The facts of Gammaitoni are the exact inverse of the facts before us today. In Gammai-toni it was the services rendered by the company (manufacturing the videotapes) that were incidental to the sale of tangible personal property (the physical videotapes). Id. at 130. In this case, by contrast, the physical CDs provided to WBP’s customers were incidental to the non-taxable services for which the customers were contracting.

The second case is Universal Images v. Department of Revenue, 608 S.W.2d 417 (Mo. banc 1980). In Universal Images, a Missouri corporation (“Universal”) produced short advertisements that movie theaters ran as previews. Businesses wishing to create an advertisement for this purpose contracted with Universal for the use of its moving picture film and sound accompaniment. This Court held that Universal’s transactions were taxable retail sales of personal property because its clients were purchasing the films themselves, which were “finished products.” TRES, 642 S.W.2d at 350 (discussing Universal Images). In contrast, WBP’s customers were not buying the physical CDs as “finished products.” They were buying the conversion of their data into electronic format. As discussed, the CDs provided by WBP were the medium of transmission incidental to the purchase of that service.

Conclusion:

This Court affirms the decision of the Administrative Hearing Commission.

All concur.

      . The $15 fee actually encompasses both the CD given to the customer and the duplicate stored by WBP.

      . All references are to RSMo 2000, as amended, unless otherwise noted.

      . The current language is identical to the original language. This statute first was enacted during the fiscal crisis of 1933-1934.1933-1934 ex. session Mo. Laws 156.

      . TRES was decided under section 144.610, RSMo 1978, but the operative phrase, "tangible personal property,” has not changed.

      . The director did not argue that the physical CDs themselves were taxable, so that issue is not before this Court.


author: ZEL M. FISCHER, Judge.

text:
    Michael STRUP, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. SC 90403.
    Supreme Court of Missouri, En Banc.
    April 20, 2010.

      James R. Layton, Attorney General’s Office, Jefferson City, for appellant.
    Lauri J. Laughland, Law Office of Lauri J. Laughland, Grandview, for respondent.
   ZEL M. FISCHER, Judge.

I. Introduction

The director of revenue appeals the circuit court’s judgment ordering the director to reinstate Michael Strap’s commercial driving privilege. The director disqualified Strap’s commercial driving privilege for one year because Strap was arrested upon probable cause to believe that he was driving while intoxicated with a blood alcohol content of .08% or more. Strap filed a petition for review, and, after a hearing, the circuit court ordered the director to reinstate Strap’s commercial driving privilege, finding that Strap’s due process rights were violated because he did not receive a pre-disqualification hearing and because there was no legal basis to sustain the disqualification.

On appeal, the director argues: (1) Strup’s due process rights were not violated because he received a post-disqualification hearing and (2) the suspension of Strup’s base driving privilege supports the disqualification of his commercial driving privilege. This Court determines that Strup’s post-disqualification hearing satisfies due process and that the director did not err in disqualifying Strup’s commercial driving privilege because Strap was arrested upon probable cause to believe that he was driving while intoxicated with a blood alcohol concentration level of .08% or more, which constitutes a “conviction” for the purposes of disqualification under the Missouri commercial driver’s license act. The circuit court’s judgment ordering reinstatement of Strup’s commercial driving privilege is reversed.

II. Facts

The parties agree that the facts of this case are not in dispute. In June 2006, Strap had a base driving privilege and a commercial driving privilege. On July 22, 2006, Strap was arrested for driving while intoxicated. The criminal charges against Strap were eventually dropped.

On August 23, 2006, the director notified Strap that his commercial driving privilege would be disqualified for one year because of his arrest for driving while intoxicated. On September 21, 2006, Strap filed a petition in circuit court requesting review, under section 302.311, RSMo 2000, of the disqualification of his commercial driving privilege, complaining that the disqualification was made without a hearing or the opportunity to present or cross-examine witnesses.

Strap also timely requested an administrative hearing regarding the suspension of his base driving privilege. The hearing regarding Strup’s base driving privilege was held September 27, 2006. The next day, the hearing officer sustained the suspension of Strup’s base driving privilege. Also on September 28, 2006, the director notified Strap that, as a result of the administrative suspension of his base driving privilege, his commercial driving privilege would be disqualified for one year.

On October 13, 2006, Strap timely filed a petition in circuit court requesting de novo review of the suspension of his base driving privilege. On October 27, 2006, Strap filed a second petition in circuit court requesting review under section 302.311 of the disqualification of his commercial driving privilege. These petitions were consolidated, and, on November 9, 2007, the circuit court held a hearing regarding all pending matters.

After the consolidated hearing, the circuit court entered judgment for the director determining Strup’s base driving privilege was properly suspended because he was arrested upon probable cause to believe that he was driving with a blood alcohol concentration of .08% or more. Concerning Strup’s commercial driving privilege, the circuit court ordered the director to remove the disqualification concluding that Strap’s due process rights were violated in that he had no opportunity to present evidence and that the director’s decision to disqualify his base driving privilege was contrary to chapter 302.

Strap did not appeal the judgment affirming the suspension of his base driving privilege. The director timely appealed the judgment reversing the disqualification of Strup’s commercial driving privilege.

III. Point One: Strap’s due process rights were not violated because he received a full post-disqualification hearing

The director claims the circuit court erred in concluding Strap’s due process rights were violated because Strap’s due process right was satisfied when he received a full post-disqualification hearing.

Standard of Review

In reviewing a decision of a trial court, the trial court’s ruling must be upheld unless it is unsupported by substantial evidence, is against the weight of evidence, or misstates or misapplies the law. Fick v. Dir. of Revenue, 240 S.W.3d 688, 690 (Mo. banc 2007). This Court will not affirm a circuit court judgment that erroneously declares or applies the law. Id. Moreover, “[t]his Court’s review must begin with the recognition that laws enacted by the legislature and approved by the governor have a strong presumption of constitutionality.” Jackson County Sports Complex Authority v. State, 226 S.W.3d 156, 160 (Mo. banc 2007). The burden of proof rests on a statute’s challenger to demonstrate otherwise. Id.

Analysis

Due process applies to the suspension/revocation of driver’s licenses by the state. Jarvis v. Dir. of Revenue, 804 S.W.2d 22, 24 (Mo. banc 1991) (citing Dixon v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977)). Generally speaking, due process requires notice and the opportunity to be heard. Conseco Fin. Servicing Corp. v. Missouri Dep’t of Revenue, 195 S.W.3d 410, 415 (Mo. banc 2006). In Dixon, the United States Supreme Court, held that due process does not always require an opportunity to be heard before a state suspends/revokes a person’s driver’s license based on objective statutory criteria involving public safety, so long as a full post-suspension/revoeation hearing is available to challenge the suspension/revocation. Dixon, 431 U.S. at 115, 97 S.Ct. 1723.

The circuit court reversed the disqualification of Strap’s commercial driving privilege because Strup did not receive a hearing before the director disqualified his privilege:

[Because] the September 28, 2006[,] ‘final decision’ of the [d]irector ... appealed from herein was rendered without any hearing, evidence, or opportunity to present evidence, the decision was ... a denial of due process.

As noted above, in a driver’s license suspension/revocation case, due process does not require the opportunity to be heard before a suspension/revocation so long as a full post-suspension/revocation hearing is available. Id. That due process analysis logically applies to the disqualification of commercial driving privileges. Strup received a full post-disqualification hearing in circuit court in November 2007; therefore, his due process rights were not violated.

IV. Point Two: Strap’s commercial driver’s privilege was properly disqualified

The director contends the trial court erred in ordering the removal of the disqualification of Strap’s commercial driving privilege because the suspension of his base driving privilege constitutes a “conviction” for the purposes of Missouri’s Commercial Driver’s License Act (“CDLA”), which permits the director to disqualify a driver’s commercial privilege if he or she is “convicted” of a qualifying first violation.

Standard of Review

In reviewing a decision of a trial court, the trial court’s ruling must be upheld unless it is unsupported by substantial evidence, is against the weight of evidence, or misstates or misapplies the law. Fick, 240 S.W.3d at 690. This Court will not affirm a circuit court judgment that erroneously declares or applies the law. Id.

Analysis

The director claims the circuit court erred in ordering her to remove the one-year disqualification of Strup’s commercial driving privilege because the requirements of chapter 302 were satisfied. The director contends the suspension of Strup’s base driving privilege based on his arrest upon probable cause that he was driving with a blood alcohol content of .08% or more constitutes a “conviction;” therefore, it is a first violation meriting disqualification of his commercial driving privilege pursuant to the CDLA for a period of not less than one year.

The facts here show that Strup received notice his base driving privilege was suspended and that Strup requested and received a hearing. The hearing officer subsequently sustained the suspension of Strup’s base driving privilege, finding that Strup was arrested upon probable cause that he was driving with a blood alcohol concentration of .08% or more. Strup then requested a trial de novo, after which the circuit court upheld the director’s decision to suspend Strup’s base driving privilege. Strup did not appeal the circuit court’s decision to uphold the suspension of his base driving privilege; therefore, that suspension is final.

Under the CDLA, a person is disqualified from driving a commercial motor vehicle for a period of not less than one year if “convicted ” of a first violation. Section 302.755.1, RSMo Supp.2005 (emphasis added). The CDLA defines “conviction” as “an unvacated adjudication of guilt, including pleas of guilt and nolo con-tendré, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative proceeding .... ” Section 302.700.2(8), RSMo Supp. 2005 (emphasis added).

One of the first violations that establishes a “conviction” and merits disqualification under the CDLA is “[djriving a motor vehicle under the influence of alcohol....” Section 302.755.1(1). “Driving under the influence of alcohol” is defined in the CDLA to include “[hjaving any state, county or municipal alcohol-related enforcement contact, as defined in subsection 3 of section 302.525.... ” Section 302.700.2(13)(e). “Alcohol-related enforcement contact” includes “any suspension or revocation under sections 302.500 to 302.540....” Section 302.525.3, RSMo Supp.2002.

The circuit court erred in reversing the disqualification of Strap’s commercial driving privilege because the suspension of Strap’s base driver’s license constitutes a conviction of driving under the influence of alcohol for the purposes of the CDLA, which is a first violation that merits disqualification of a person’s commercial driver’s privilege for a period of not less than one year.

V. Conclusion

The judgment of the circuit court is reversed and the disqualification of Strap’s commercial driving privilege is reinstated.

All concur.

      . Strap could not legally drive a commercial vehicle without his base privilege, but the continuing significance of his effort to affirm the trial court's judgment setting aside the disqualification of his commercial driving privilege is that if he receives another qualifying violation and a future disqualification of his commercial privilege, the disqualification would be for a minimum of ten years and possibly for life. Section 302.755.3, RSMo Supp.2009.

      . Section 302.505.1, RSMo Supp.2001, states that the department of revenue "shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight....” When a law enforcement officer arrests any person for driving while intoxicated, that officer "shall forward to the department a certified report of all information relevant to the enforcement action....” Section 302.510.1, RSMo Supp. 2005. When the department receives this report, it is required to make a determination whether to suspend or revoke that person's license on the basis of that report, and that determination is final unless an administrative hearing is requested and held. Section 302.505.2.

      . A person has 15 days to request an administrative hearing. Section 302.530.1, RSMo Supp.2005. When an administrative hearing is requested and held, the department reviews the matter and makes a final determination based on the evidence received at the hearing. Section 302.505.2. The sole issue at the administrative hearing is whether there is a preponderance of the evidence that the person was arrested on probable cause to believe he was driving with a blood, breath or urine alcohol concentration of .08% or more. Sections 302.530.4 and 302.505.1. If the department finds “the affirmative of this issue, the suspension or revocation order shall be sustained.” Section 302.530.4. A person who has participated in an administrative hearing is entitled to prompt notice of the post-hear- , ing decision. Section 302.530.6.

      .A person may challenge the department’s decision by requesting judicial review in the form of a trial de novo within 15 days from the date notice of the department’s decision was mailed. Section 302.530.6. If a person fails to request judicial review, the department's decision is final. Section 302.530.7.


author: RICHARD B. TEITELMAN, Judge.

text:
    STATE ex rel. Billie BARKER, Trustee of the Mary Almond Living Trust, Relator, v. The Honorable David B. TOBBEN, Respondent.
    No. SC 90407.
    Supreme Court of Missouri, En Banc.
    April 20, 2010.

      Stanley D. Schnaare, Steven A. Water-kotte, The Schnaare Law Firm P.C., Hills-boro, for relator.
    William L. Sauerwein, Sauerwein, Simon & Blanchard P.C., St. Louis, for Gloria Kappler.
   RICHARD B. TEITELMAN, Judge.

Billie Barker, as successor trustee of the Mary Almond Living Trust, has filed a petition for a writ of prohibition to prevent the trial court from denying her request for a jury trial in the underlying quiet title action. A preliminary writ was issued. The preliminary writ is made permanent.

FACTS

Gloria Kappler, as trustee of the Gloria J. Kappler Living Trust, filed suit against Barker to quiet title with respect to property titled to the Mary Almond Living Trust. Kappler’s quiet title action was premised on claims of adverse possession and boundary by acquiescence. Kappler requested relief in the form of a decree of ownership, a survey of the property and an order ejecting the record owners from the property.

Barker filed a counterclaim for quiet title, injunctive relief, ejectment, trespass, conversion and punitive damages. Barker requested a jury trial. Kappler objected to a jury trial on the ground that her quiet title action was equitable in nature. Kap-pler also waived her right to a jury trial and filed a motion to sever her quiet title action from Barker’s counterclaim for trespass.

The circuit court sustained Kappler’s objections to Barker’s request for a jury trial. The court entered an order severing Kappler’s quiet title claims from Barker’s counterclaims, but providing for a jury trial on the issue of damages in the event Barker prevailed.

Barker filed a petition for a writ of prohibition to prevent the court from enforcing the order denying her request for a jury trial on Kappler’s quiet title action. This Court entered a preliminary writ in prohibition instructing the trial court to refrain from further action until further notice. Barker argues that the circuit court’s order violates her state constitutional right to a jury trial on legal claims.

ANALYSIS

A writ of prohibition will issue to prevent “an abuse of judicial discretion, to avoid irreparable' harm to a party, or to prevent an abuse of extra-jurisdictional power.” State ex rel. Kinder v. McShane, 87 S.W.3d 256, 260 (Mo. banc 2002). A writ in prohibition is appropriate when a trial court improperly denies the right to a trial by jury. State ex rel. Leonardi v. Sherry, 137 S.W.3d 462, 473 (Mo. banc 2004).

The Missouri Constitution provides that “the right of trial by jury as heretofore enjoyed shall remain inviolate.” MO. CONST, art. I, section 22(a). The right to a jury trial in a civil action “exists in actions at law but not in actions at equity.” State ex rel. Diehl v. O’Malley, 95 S.W.3d 82, 85 (Mo. banc 2003). In State ex rel. Leonardi v. Sherry, 137 S.W.3d 462, 473 (Mo. banc 2004), this Court recognized that some cases present mixed issues of law and equity. In those cases, trials should be conducted to allow the legal claims to be tried to a jury, with the court reserving for its own determination only equitable claims and defenses, which it should decide consistently with the factual findings made by the jury. Under Diehl and Leonardi, the dispositive issue becomes whether Kappler’s action to quiet title via claims of adverse possession and boundary by acquiescence are legal or equitable in nature. If Kappler’s petition asserts legal claims against Barker, then Barker is entitled to a jury trial on those claims.

Section 527.150 governs actions to quiet title and authorizes relief under both legal and equitable principles. A quiet title action is generally considered legal in nature when parties seek only a determination of title and there is no specific request for equitable relief. Massachusetts General Life Ins. Co. v. Sellers, 835 S.W.2d 475, 482 (Mo.App.1992). In Sell ers, the plaintiff filed an action to quiet title under section 527.150, and the defendants counterclaimed for adverse possession. Id. at 476. The trial court entered a judgment quieting title in favor of the plaintiff. Id. at 477. On appeal, the defendants asserted that the judgment constituted equitable relief that was beyond the scope of the pleadings. Id. at 482. The court held that a quiet title judgment is a legal remedy when the judgment does not set aside any deed or instrument and the relief granted is “only a determination of the existing title as between litigants.” Id. at 483; see also Erwin v. City of Palmyra, 119 S.W.3d 582, 586-86 (Mo.App.2003)(a quiet title action is an action at law when there is no request for affirmative equitable relief and the issue is a determination of the existing title as between litigants).

Kappler’s claim for quiet title is based upon adverse possession and boundary by acquiescence and does not state a claim for equitable relief. Missouri courts have classified adverse possession claims as legal in nature. For instance, in Benoist v. Thomas, 121 Mo. 660, 27 S.W. 609 (1894), the plaintiff filed an action to partition a lot. The circuit court denied the defendant’s motion for a jury trial. Although the case was pleaded under a theory of partition, “[t]he issue of that trial depends upon controverted facts, or at least controverted inferences, touching the question of adverse possession.” Id. at 610. The court determined that the underlying title dispute was, in essence, a legal claim for adverse possession and that the disputed facts necessary to support that legal claim should be tried to a jury. Id. Therefore, the circuit court erred in denying the defendant a jury trial on plaintiffs claim for partition based upon adverse possession. Id.

Similarly, in Hatton v. City of St. Louis, 264 Mo. 634, 175 S.W. 888 (1915), the plaintiff sued to quiet title to certain streets and alleys in the city of St. Louis. The plaintiffs evidence “disclosed an adverse possession by him.” Id. at 890. The court recognized that the plaintiffs claim of title by adverse possession presented issues subject to a jury trial. Id.

Finally, in McDaniels v. Cutburth, 270 S.W. 353 (Mo.1925), the plaintiff filed a petition to eject the defendant from occupying a strip of land. The defendants asserted title to the property via adverse possession. The jury returned a verdict for the defendants. Id. at 357. In stating the appropriate standard of review for a jury verdict, the court noted that “it is scarcely necessary for us to remark that this is an action at law, and it necessarily follows that the issue of defendants’ adverse possession of the land in controversy for more than 10 years was properly triable by, and for the sole determination of, the jury.” Id. Together, Benoist, Hatton and McDaniels stand for the proposition that an action to quiet title via adverse possession is a legal claim subject to the state constitutional right to a jury trial.

According to the pleadings in this case, both parties request that the circuit court determine which party has title to the disputed property. To the extent the pleadings seek only a determination of title, the quiet title action in this case, like the actions in Sellers, Benoist, Hatton and McDaniels, properly is characterized as legal and not equitable. Consequently, article I, section 22(a) of the Missouri Constitution demands a jury trial on all claims pertaining to the determination of title to the disputed property.

It must be noted that Barker’s counterclaim included a request for injunc-tive relief. Injunctive relief is equitable in nature. State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372, 374 (Mo. banc 1953); Supermarket Merck & Supply, Inc. v. Marschuetz, 196 S.W.3d 581, 585 (Mo.App.2006). Although Barker is entitled to a jury trial on Kappler’s quiet title claims as well as her own counterclaim for trespass, the trial court, if necessary, may elect to hold a separate proceeding on Barker’s request for injunctive relief. However, the resolution of that claim must be consistent with the jury’s factual findings. Leonardi, 137 S.W.3d at 473. The preliminary writ of prohibition is made permanent.

All concur.

      . The trial court sustained Kappler’s motion to dismiss the conversion claim.

      . The right to jury trial has existed in what is now Missouri since the United States acquired jurisdiction over the Louisiana Territory. Diehl, 95 S.W.3d at 85. The common law right to a jury trial could be invoked upon the request of either party. Id. The state constitutional right to a jury trial carried forward the common law rights. Accordingly, Barker can assert her right to a jury trial on any legal claim pleaded by Kappler.

      .Kappler relies on Wolfersberger v. Hoppenjon, 334 Mo. 817, 68 S.W.2d 814 (1933), to argue that a quiet title action is equitable in nature. Wolfersberger is distinguishable because the defendants in that case claimed title based on deeds that the plaintiff alleged were void and without effect. Id. at 816. Therefore, the petition in Wolfersberger sought to "set aside deeds and remove a cloud on [plaintiff’s] title — a matter of equitable cognizance.” Id. at 818. Conversely, the pleadings in this case, as in Benoist, Hatton and McDaniels, are premised on adverse possession, not a determination of the priority of allegedly valid deeds or titles. Wolfersberger does not support Kappler's position.

      .Kappler’s request for a survey and ejectment do not change the analysis. In the event Kappler prevails, a survey would do nothing more than confirm the accuracy of the quiet title decree. Ejectment is a legal remedy. State ex rel. Dowd v. Turpin, 576 S.W.2d 754, 755 (Mo.App.1979).

      . As noted in Leonardi, special interrogatories to the jury may be used. 137 S.W.3d at 473 n. 14. See also Jeffrey A. Burns, Methods of Practice, 2 Missouri Practice section 10.1, at 344 (2002).


text:
    Damon FELDHAUS, Appellant, v. STATE of Missouri, Respondent.
    No. SC 90585.
    Supreme Court of Missouri, En Banc.
    April 20, 2010.

      Gwenda R. Robinson, Public Defender’s Office, St. Louis, for appellant.
    Robert J. Bartholomew, Shaun J. Mack-elprang, Attorney General’s Office, Jefferson City, for respondent.
   ZEL M. FISCHER, Judge.

Introduction

Damon Feldhaus challenges the validity of § 577.023, RSMo Supp.2008. Feldhaus asserts that the statute violates the void for vagueness doctrine, and, therefore, he was denied due process of law. This Court has exclusive appellate jurisdiction over cases involving the validity of a statute. Mo. Const, art. V, § 3.

Facts

Damon Feldhaus was stopped June 10, 2007, for driving while intoxicated. Fel-dhaus was stopped again November 27, 2007, for driving under the influence of marijuana. The State charged Feldhaus with one count of the class B felony of driving while intoxicated for the June 10 incident and with one count of the class B felony of driving under the influence of a drug or drugs for the November 27 incident. In each case, the State charged Feldhaus as a chronic offender because he had previously pleaded guilty in circuit court to four or more intoxication-related traffic offenses. Feldhaus pleaded guilty to both counts pursuant to an agreement with the State in which the State agreed to recommend two concurrent terms of eight years imprisonment in accord with the plea agreement.

The trial court found that there was a factual basis to support Feldhaus’ guilty pleas, found that the pleas were knowingly and voluntarily given, accepted the pleas, and found Feldhaus guilty beyond a reasonable doubt. The court further found that Feldhaus was a chronic offender under §§ 558.011, 560.011, RSMo 2000, and 577.023 by having pleaded guilty to or been found guilty of four intoxication-related traffic offenses. The court sentenced Feldhaus to two concurrent terms of eight years imprisonment.

On October 31, 2008, Feldhaus timely filed a pro se motion for post-conviction relief pursuant to Rule 24.035. An amended motion was filed February 9, 2009, in which Feldhaus alleged that he was denied due process of law because § 577.023, which defines “aggravated offender,” “chronic offender” and “persistent offender,” violated the void for vagueness doctrine. During his guilty plea and sentencing hearings, Feldhaus did not raise any constitutional claims.

On April 10, 2009, the motion court overruled Feldhaus’ amended motion for post-conviction relief without an evidentiary hearing and issued findings of fact and conclusions of law as required by Rule 24.035(j). The motion court found that the facts were not in dispute and that the sole issue was whether, as a matter of law, Feldhaus was denied due process because § 577.023 was void for vagueness. The motion court concluded that § 577.023 was not void for vagueness. Feldhaus appeals.

Standard of Review

The review of the overruling of a Rule 24.035 motion is limited to determining whether the trial court’s findings and conclusions are clearly erroneous. Rule 24.035. Additionally, “[t]he general rule in Missouri is that a guilty plea waives all nonjurisdictional defects, including statutory and constitutional guaranties. The failure to challenge the constitutionality of a statute at the earliest opportunity waives the issue.” State v. Sexton, 75 S.W.3d 304, 309 (Mo.App.2002) (internal citations omitted).

Analysis

The State argues that this Court should decline to review Feldhaus’ due process claim because it is a nonjurisdic-tional claim that Feldhaus failed to raise at the earliest opportunity and it was waived by his guilty pleas.

The general rule in Missouri is that a guilty plea waives all nonjurisdictional defects, including statutory and constitutional guaranties. The failure to challenge the constitutionality of a statute at the earliest opportunity waives the issue. The proper time to raise such issues must be done on motion before trial. If Defendant wanted to challenge the constitutionality of this statute, he must have done so before pleading guilty.

Sexton, 75 S.W.3d at 309 (internal citations omitted); Moore v. State, 288 S.W.3d 810, 812 (Mo.App.2009) (internal citations omitted).

In Sexton, the court held that the mov-ant who pleaded guilty to first degree assault had waived his constitutional due process claim that § 565.050, RSMo 1994, permitted arbitrary and discriminatory enforcement of the charge of first degree assault because it was not raised until his 24.035 motion. 75 S.W.3d at 309.

In Moore, the court held that the mov-ant who alleged that the “or more” language of § 577.023.1 was unconstitutional because it could be arbitrarily applied and, therefore, was void for vagueness had waived this claim by pleading guilty. 288 S.W.3d at 812. The court addressed the issue of whether a constitutional claim based on due process and the void for vagueness doctrine constituted a jurisdictional defect and determined that, “[n]ot-withstanding dicta in Dorsey v. State, 115 S.W.3d 842, 844 n. 2 (Mo. banc 2003), the instant claim is not jurisdictional.” Id. at 812. This Court agrees that a claim of unconstitutional vagueness is not jurisdictional. See J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009) (indicating that prior cases describing mere error as “jurisdictional” no longer should be followed).

“The general rule in Missouri is ‘that a plea of guilty voluntarily and understandably made waives all non-jurisdictional defects and defenses.’ ” Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992) (quoting State v. Cody, 525 S.W.2d 333, 335 (Mo. banc 1975)), both cases overruled on other grounds by State v. Heslop, 842 S.W.2d 72 (Mo. banc 1992); see also United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (“[T]he inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.”). “An exception to this general rule of waiver, however, exists where it can be determined on the face of the record that the court had no power to enter the conviction or impose the sentence.” Hagan, 836 S.W.2d at 461 (citing Broce, 488 U.S. at 569, 109 S.Ct. 757).

The cases in which this Court has recognized the exception to the general rule of waiver deal with double jeopardy, which is somewhat of an anomaly. See State v. Neher, 213 S.W.3d 44, 48 (Mo. banc 2007); State ex rel. Green v. Moore, 131 S.W.3d 803, 805 (Mo. banc 2004); Hagan, 836 S.W.2d at 461; Cody, 525 S.W.2d at 335. Feldhaus relies on double jeopardy cases to support his argument that all constitutional claims are jurisdictional and, therefore, cannot be waived. His reliance on such cases is misplaced. Except for certain double jeopardy claims not relevant to this case, constitutional claims raised after a plea of guilty are nonjurisdictional.

Feldhaus did not raise the claim of void for vagueness until his motion for post-conviction relief. Because the issue was not raised at the earliest opportunity and prior to his plea of guilty, it was waived.

Even if Feldhaus had preserved his constitutional challenge, his argument fails because § 577.023 is not unconstitutionally vague. Feldhaus contends that § 577.023 is unconstitutional in that it violates the void for vagueness doctrine because it provides insufficient guidance and standards and, consequently, permits arbitrary and discriminatory application. Specifically, Feldhaus argues that the “or more” language in subdivisions (l)(a), (2)(a) and (4)(a) of § 577.023.1 encourages discriminatory or selective enforcement on unjustifiable bases such as race, sex, wealth or other arbitrary classifications.

Section 577.023.1 states in pertinent part:

(1) An “aggravated offender” is a person who:
(a) Has pleaded guilty to or has been found guilty of three or more intoxication-related traffic offenses;
(2) A “chronic offender” is:
(a) A person who has pleaded guilty to or has been found guilty of four or more intoxication-related traffic offenses;
(4) A “persistent offender” is one of the following:
(a) A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses;

“The void for vagueness doctrine ensures that laws give fair and adequate notice of proscribed conduct and protects against arbitrary and discriminatory enforcement.” State ex rel. Nixon v. Peterson, 253 S.W.3d 77, 81 (Mo. banc 2008) (quoting Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 957 (Mo. banc 1999)). “The test in enforcing the doctrine is whether the language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Id.

The statute clearly defines a “chronic offender” and sets forth explicit standards necessary for the application of the enhanced penalty of a class B felony. The words “or more” are of common understanding that speak for themselves and provide a person of ordinary intelligence with sufficient notice of the prohibited conduct and the enhanced penalty. Section 577.023 does not leave a person of ordinary intelligence to guess at its meaning. Under § 577.023, it is clear that a person who has four or more intoxication-related offenses may be convicted of a class B felony.

Moreover, the statute is not vague when applied to the facts of this case. In reviewing vagueness challenges, the language is evaluated by applying it to the facts at hand. State v. Brown, 140 S.W.3d 51, 55 (Mo. banc 2004) (citing Cocktail Fortune, 994 S.W.2d at 958). Further, “it is inappropriate to project the challenge to factual situations not presented here in which the language used, as applied, might indeed be vague and confusing.” Id.

Under the facts at hand, the State used Feldhaus’ four prior convictions to enhance his penalty up to that of a class B felony. Section 577.023.5. Feldhaus was given ample notice by the clear language of § 577.023 that having four or more intoxication-related offenses was proscribed conduct subjecting him to this enhanced penalty. Feldhaus does not plead any facts indicating that the State actually applied the statute in an arbitrary or discriminatory manner.

Conclusion

For the foregoing reasons, the judgment is affirmed.

All concur.

      . All citations are to RSMo Supp.2008 unless otherwise indicated.

      . As discussed below, the dicta in Dorsey cites to Hagan v. State, 836 S.W.2d 459, (Mo. banc 1992), overruled, on other grounds by State v. Heslop, 842 S.W.2d 72 (Mo. banc 1992), which was a claim based on the double jeopardy clause of the Fifth Amendment, which is a unique exception to the general rule of waiver.

      . Even double jeopardy claims may be waived in some instances. The Supreme Court in Broce noted, "We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.” 488 U.S. at 575, 109 S.Ct. 757 (citing Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975)).


text:
    STATE of Missouri, Appellant, v. Gail L. DAWS, Respondent.
    No. SC 90444.
    Supreme Court of Missouri, En Banc.
    May 25, 2010.

      Jayne T. Woods, Atty’s Gen. Office, Jefferson City, for appellant.
    Rosalynn Koch, Public Defender’s Office, Columbia, for respondent.
   RICHARD B. TEITELMAN, Judge.

Gail L. Daws failed to yield to police officers who attempted to execute a traffic stop. Daws pleaded guilty to charges of failure to yield to an emergency vehicle in violation of section 304.022, RSMo 2000. Following the guilty plea, the state charged Daws with the class D felony of resisting arrest in violation of section 575.150. The circuit court dismissed the charge for resisting arrest on grounds that the successive prosecution violated Daws’ right to be free from double jeopardy. The judgment is reversed, and the case is remanded.

FACTS

On January 20, 2008, two police officers activated emergency sirens and signaled Daws to stop her vehicle. Daws did not stop. Instead, Daws fled, driving in excess of 100 miles per hour and disregarding traffic signals along the way. When Daws finally stopped, she was issued a citation for failing to yield to an emergency vehicle in violation of section 304.022. On March 5, 2008, Daws pleaded guilty to the class A misdemeanor of failure to yield to an emergency vehicle.

On April 3, 2008, the state charged Daws with felony resisting arrest and driving with a revoked license, section 575.150, and driving on a revoked license, section 302.321. Daws filed a motion to dismiss the resisting arrest charge on grounds that it violated her right to be free from double jeopardy. Daws asserted that her previous conviction for failure to yield to an emergency vehicle is a lesser-included offense with respect to the resisting arrest charge. The trial court sustained Daws’ motion and dismissed the resisting arrest charge. The state appeals.

ANALYSIS

The double jeopardy clause of the Fifth Amendment guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb.” U.S. Const, amend. V. The double jeopardy clause “contains two distinct protections for criminal defendants: (a) protection from successive prosecutions for the same offense after either an acquittal or a conviction and (b) protection from multiple punishments for the same offense.” State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998). Appellate review of double jeopardy claims is de novo. State v. Kamaka, 277 S.W.3d 807, 810 (Mo.App. 2009).

The proper test for assessing whether successive prosecutions violate double jeopardy is the Blockburger test, also known as the “same-elements” test. United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The Blockburger same-elements test asks “whether each offense contains an element not contained in the other; if not, the Double Jeopardy Clause bars a successive prosecution.” State v. Burns, 877 S.W.2d 111, 112 (Mo. banc 1994). Given this formulation of the same-elements test, it follows that double jeopardy applies to lesser-included offenses and generally bars successive prosecutions involving lesser-included offenses. See Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); section 556.041.1. The focus is on the elements of the offenses at issue, not the underlying conduct that resulted in the defendant being charged. Dixon at 704,113 S.Ct. 2849.

The crux of this case is whether Daws’ failure to yield to an emergency vehicle in violation of section 304.022 is a lesser-included offense of resisting arrest in violation of section 575.150. In pertinent part, section 556.046 provides that an offense is a lesser-included offense when:

(1) It is established by proof of the same or less than' all the facts required to establish the commission of the offense charged....

Section 304.022 provides that the crime of failure to yield contains three elements: 1) immediate approach of an emergency vehicle, 2) use of audible siren and lights visible in normal atmospheric conditions from a distance of 500 feet, and 3) the driver fails to yield the right of way to the emergency vehicle. In contrast, section 575.150 defines the crime of resisting or interfering with arrest as a felony when the following five elements are present: 1) a law enforcement officer is making or attempting to make a lawful arrest or stop, 2) the defendant knew or reasonably should have known of the law enforcement officer’s attempt to arrest or stop, 8) the defendant resists arrest by fleeing; 4) the defendant resisted for the purpose of thwarting the law enforcement officer’s attempt to arrest or stop by using or threatening the use of violence or physical force or by fleeing, and 5) the defendant fled in a manner that created a substantial risk of serious physical injury or death to another.

A comparison of the elements of the two crimes demonstrates that failure to yield is not a lesser-included offense of resisting arrest. The crime of failure to yield is premised on the failure to heed the approach of an emergency vehicle that is utilizing audible sirens and lights. The elements of the crime of resisting arrest make no mention of emergency vehicles, lights or sirens. Instead, the resisting arrest statute is premised on resistance to a lawful arrest or stop, whether that stop is executed on foot, from a vehicle or in any manner whatsoever. Committing the crime of resisting arrest does not necessarily mean that one also committed the crime of failure to yield. In other words, each offense contains elements that the other does not. Consequently, double jeopardy does not apply, and Daws may be prosecuted for resisting arrest even though she previously pleaded guilty to the charge of failure to yield to an emergency vehicle.

To avoid this conclusion, Daws argues that the two offenses are “functionally similar” in their provisions. Daws notes that in State v. Clark, 263 S.W.3d 666 (Mo.App.2008), the court held that a subsequent prosecution for resisting arrest following a guilty plea to a municipal ordinance for failure to yield violated the double jeopardy clause. Id. at 673-674. The Clark court noted that the resisting arrest statute establishes a presumption that a person is fleeing a vehicle stop “if that person continues to operate a motor vehicle after that person has seen or should have seen clearly visible emergency lights or has heard or should have heard an audible signal emanating from the law enforcement vehicle pursuing that person.” Section 575.150.3. According to Clark, this presumption effectively incorporates the defendant’s failure to yield as elements of the offense of resisting arrest. Therefore, the elements of failure to yield are the first two elements of resisting a stop, and it becomes a lesser-included offense of resisting arrest. Clark, 263 S.W.3d at 673-74.

This argument is without merit. The presumption of flight is not an element of the offense. The presumption is simply an evidentiary rule to assist the state in proving the elements of the defendant’s knowledge that a law enforcement officer is attempting to stop the individual and the defendant’s intent to evade that law enforcement officer. It is an evidentiary presumption that, like any other presumption, can be rebutted by evidence. The presumption is not an element of the offense of resisting arrest. Therefore, Daws, as well as the court in Clark, is incorrect to conclude that the evidentiary presumption in section 575.150 supports a double jeopardy claim.

The judgment is reversed, and the case is remanded.

All concur.

      . All statutory citations are to RSMo 2000, unless otherwise noted.

      . Daws pleaded guilty to driving while her license was revoked. The trial court entered judgment and sentenced her to one year imprisonment.

      . Section 556.046.1 is effectively a codification of the Blockburger same-elements test. Bums, 877 S.W.2d at 112.


author: PATRICIA L. COHEN, Judge.

text:
    Sherman BURNETT, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. ED 92543.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 22, 2009.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 25, 2010.
    Application for Transfer Denied June 29, 2010.

      Timothy J. Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Sherman Burnett (Movant) appeals from the judgment of the Circuit Court of St. Louis County denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant asserts that the motion court clearly erred in denying his claims that: (1) the sentence imposed by the plea court violated the constitutional prohibition of “cruel and unusual punishment” and was arbitrary and capricious; and (2) plea counsel provided ineffective assistance by coercing him to plead guilty. We affirm.

Factual and Procedural Background

Movant was fifteen years old on August 10, 2007, when he pleaded guilty to child kidnapping, forcible sodomy, first-degree assault, and attempted forcible rape, which he committed at the age of thirteen. At the plea hearing, the State recited the charges against Movant and stated that the range of punishment for child kidnapping and first-degree assault was ten to thirty years, or life, and the range of punishment for forcible sodomy and attempted forcible rape was five years to life.

Movant testified that he was pleading guilty freely and voluntarily; no one forced him to enter a plea of guilty to any of the charges; he did, in fact, commit the crimes with which he was charged; he was satisfied with his representation; he had sufficient time to discuss the matter with his attorney and anyone else with whom he wished to speak; and neither his plea counsel nor anyone else had pressured or forced him to enter pleas of guilty to any of the charges. The plea court then confirmed that Movant was not pleading pursuant to a plea agreement, and Movant stated that he understood that the court was therefore “free to consider the full range of punishment.” The plea court went on to ensure that Movant understood the rights attendant to trial that he was forfeiting by pleading guilty.

At the plea court’s request, the State clarified the factual bases for Movant’s guilty plea. The prosecutor stated that, were the case tried, the State would present evidence that on November 11, 2005, Movant, then thirteen years of age, removed Victim, six years of age, from her home without her parents’ consent and took her to some nearby railroad tracks. There, Movant removed Victim’s clothes, beat her severely, and inserted his fingers into her vagina. Movant also rubbed his penis on Victim’s vagina and choked her, leaving visible marks on her neck. Victim sustained serious injuries, including skull fractures, a lost tooth, a torn ear, a lacerated liver, a swollen duodenum, and “bruises from her head down to her thighs.” Victim also suffered hypothermia as a result of being outside all night.

After the prosecutor recited the evidence, Movant again testified that he did, in fact, “do those things.” The plea court found that Movant “freely, voluntarily and knowingly entered his pleas of guilty” and accepted Movant’s plea. The plea court ordered the State Board of Probation and Parole to conduct a pre-sentence investigation, and, due to Movant’s age, directed the State Board to consider the feasibility of dual jurisdiction.

At Movant’s sentencing hearing, the plea court stated that it had received the presentence investigation, as well as a report from the Missouri Division of Youth Services (DYS), letters written on Mov-ant’s behalf, and victim impact statements written by Victim and Victim’s mother. Movant offered the testimony of Brent Buerck, the DYS senior program administrator who had assessed Movant and determined that DYS would accept Movant into its dual-jurisdiction program. On cross-examination, Mr. Buerck testified that, during his assessment, Movant had stated that “he had a temper” and the reasons he beat Victim so severely were “so she wouldn’t remember anything” and “he wanted to make it look like somebody else did it.” Mr. Buerck also acknowledged that Movant attempted to mitigate responsibility for his crimes by telling him that Victim had thrown a rock at him, an allegation Movant first made during his interview with DYS.

The plea court declined defense counsel’s request that it impose sentence pursuant to the dual-jurisdiction program, explaining:

The Court has considered the evidence and the reports that have been submitted to it, and in light of the severity of the assault and what appears to be the threat of the Defendant to the community, the Court finds he is not an appropriate person for placement in the Dual Jurisdiction program.

The plea court then announced Movant’s sentence, stating:

The Court has reviewed a number of documents and has had a great deal of difficulty trying to figure out what an appropriate sentence would be in this particular case. However, the victim in her impact statement has given me some guidance. And she has said, I want for him to go away for sixty years, and that’s what the sentence is going to be.

Thereafter, the plea court sentenced Mov-ant to consecutive prison terms of twenty years for child kidnapping, twenty years for first-degree assault, ten years for forcible sodomy, and ten years for attempted forcible rape, for a total sentence of sixty years.

The plea court then asked Movant questions related to the effectiveness of his plea counsel. Movant testified that he would have liked “a little bit” more time to talk to plea counsel, but plea counsel had done what he asked, had not made any threats or promises to induce Movant to plead guilty, and had not suggested that he give any false answers to questions asked at the plea or sentencing hearings. Movant acknowledged that he did not plead guilty pursuant to a plea agreement and stated that no one had promised him what the sentence was going to be before he entered his plea of guilty. Finally, Movant testified that he was not “in any way unhappy with the way [his] lawyer represented [him].” The plea court found no cause to believe counsel provided ineffective assistance.

Movant filed a Rule 24.035 motion for post-conviction relief, which counsel later amended. In his motion, Movant claimed that his sixty-year sentence constituted an unconstitutional and excessive punishment for a thirteen-year-old and that plea counsel was ineffective for pressuring Movant to plead guilty. The motion court found that Movant’s claims were refuted by the record and denied Movant’s motion without an evidentiary hearing. Movant appeals.

Standard of Review

Our review of the motion court’s denial of post-conviction relief pursuant to Rule 24.085 is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. Missouri Supreme Court Rule 24.035(k). As the motion court’s findings and conclusions are presumed to be correct, they will be deemed clearly erroneous only if, upon a review of the record, we are left with the firm impression that a mistake has been made. State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997).

Discussion

1. Cruel and Unusual Punishment

In his first point on appeal, Movant claims that the motion court clearly erred in denying his Rule 24.035 motion because the plea court’s imposition of a sixty-year prison sentence was excessive and in violation of the Eighth Amendment of the United States Constitution and Article I, Section 21 of the Missouri Constitution. Specifically, Movant argues that the sentence was improper because the plea court did not apply the factors set forth in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Movant further contends that the sentence was not proportionate to the offense, or the offender, and was arbitrary because it ignored DYS’s recommendation and was based upon the eight-year-old Victim’s impact statement. We disagree.

“[T]he Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions.” Roper, 543 U.S. at 560, 125 S.Ct. 1183. “The right flows from the basic precept of justice that punishment should be graduated and proportioned to the offense.” Id. (quoting Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)). A sentence for a term of years will be deemed cruel and unusual only if it is “grossly disproportionate” to the crime committed. Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); State v. Pribble, 285 S.W.3d 310, 314 (Mo. banc 2009) (“[Rjeviewing courts are to determine, as a threshold matter, whether a sentence is ‘grossly disproportionate.’ ”). To determine whether a sentence is grossly disproportionate, we compare the gravity of the offense to the harshness of the penalty. Ewing v. California, 538 U.S. 11, 28, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003); Pribble, 285 S.W.3d at 314. Gross disproportionality will be found only in “exceedingly rare” and “extreme” cases. Lockyer, 538 U.S. at 73,123 S.Ct. 1166 (quotation omitted).

Section 557.036.1 directs courts to “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 and the history and character of the defendant and render judgment accordingly.” Mo.Rev.Stat. § 557.036.1 (2000). In other words, it is the sentencing court’s duty “to impose a sentence on a case-by-case basis, and to fashion the punishment to both the crime and the criminal.” State v. Collins, 290 S.W.3d 736, 746 (Mo.App. E.D.2009). When the sentence imposed is within the range prescribed by statute, the sentence generally will not be found excessive, or grossly disproportionate, to the crime committed. State v. Mubarak, 163 S.W.3d 624, 631 (Mo.App. S.D.2005).

The record establishes that the plea court properly considered Movant’s crimes and Movant himself. See State v. Lindsey, 996 S.W.2d 577, 579 (Mo.App. W.D.1999). After Movant pleaded guilty, the plea court ordered a pre-sentence investigation and specifically instructed the State Board of Probation and Parole to “consider the feasibility of dual jurisdiction.” At the sentencing hearing, the plea court stated that it would consider the presentence investigation, DYS’s report regarding Mov-ant’s eligibility for the dual-jurisdiction program, and the victim impact statements of Victim and her mother. The plea court then heard Mr. Buerck’s testimony and plea counsel’s argument, in which she requested Movant be sentenced pursuant to the dual-jurisdiction law. The plea court stated that it had considered the evidence and the reports before it, and found that “in light of the severity of the assault and what appears to be the threat of [Movant] to the community,” Movant was not an appropriate candidate for the dual-jurisdiction program. The plea court therefore sentenced Movant to a term of imprisonment totaling sixty years and remanded Movant’s custody to the Missouri Department of Corrections.

“A punishment is not cruel and unusual because of its duration unless so disproportionate to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” State v. Mubarak, 163 S.W.3d at 631 (quoting State v. Brownridge, 353 S.W.2d 715, 718 (Mo. 1962)). In this case, Movant told the plea court that he kidnapped a six-year-old child, sexually assaulted her, and beat her so severely that she suffered serious and extensive injuries. Even when we take into consideration Movant’s age at the time of the crimes, we cannot say that a sixty-year sentence for this crime shocks the “moral sense of all reasonable” people.

Further, Movant’s sentence was within the statutory range of punishment for the crimes to which he pleaded guilty. As previously mentioned, a sentence within the range prescribed by statute generally will not be found excessive, or grossly disproportionate, to the crime committed. State v. Mubarak, 163 S.W.3d at 631. This is because we owe substantial deference to the legislature’s determination of proper punishment. Pribble, 285 S.W.3d at 314. Here, Movant pleaded guilty to child kidnapping and first-degree assault, both Class A felonies punishable by ten to thirty years’ imprisonment, or life, and the unclassified felonies of forcible sodomy and attempted forcible rape, both punishable by five years to life. As such, the maximum sentence to which Movant was subject was four consecutive life sentences. We note that the plea court did not impose the maximum sentence, but rather sentenced Movant to consecutive sentences of twenty years, twenty years, ten years, and ten years, respectively. We therefore find that Movant’s sentence was proportionate to the severity of the crimes and within the statutory range of punishment for those crimes.

Movant claims that the sentence imposed by the plea court is unconstitutional because the the court failed to apply the factors outlined in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). In Roper, the United States Supreme Court held that the Eighth Amendment prohibits execution of offenders who were under eighteen years of age at the time of their capital crimes. Id. at 578, 125 S.Ct. 1183. In reaching this conclusion, the Court identified three differences between juveniles and adults that “demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.” Id. at 569, 125 S.Ct. 1183. The three differences are: (1) a general lack of maturity and undeveloped sense of responsibility; (2) a greater susceptibility to negative influences and outside pressures; and (3) a more transitory and less fixed character. Id. at 569-70, 125 S.Ct. 1183. The Court found that, in addition to diminishing the culpability of juvenile offenders, these differences weaken the pe-nological justifications for applying the death penalty to juveniles. Id. at 571, 125 S.Ct. 1183.

We decline to extend the reasoning of Roper to the instant case. We note initially that Roper operates only to prohibit the imposition of the death penalty on juvenile offenders. Id. at 578,125 S.Ct. 1183. It is quite clear that the Roper Court envisioned the possibility that serious crimes, such as this one, committed by a young offender might deserve a long prison sentence: “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life....” Id. at 574, 125 S.Ct. 1183. In fact, the Roper Court affirmed the Missouri Supreme Court’s decision, which re-sentenced the defendant to life imprisonment without eligibility for probation. Id. at 560, 125 S.Ct. 1183. Additionally, the United States Supreme Court has stated that decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of a prison sentence. Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Because Roper was based largely on the “special force” with which the Eighth Amendment applies to imposition of the death penalty, it does not compel us to consider the factors articulated therein in non-capital cases. See U.S. v. Salahuddin, 509 F.3d 858, 863 (7th Cir.2007) (holding that Roper does not prohibit basing an increased sentence on offenses the defendant committed as a juvenile); see also U.S. v. Feemster, 483 F.3d 583 (8th Cir. 2007) (same).

Movant also argues that the sixty-year sentence was arbitrary and capricious because the plea court declined to follow DYS’s recommendation of dual-jurisdiction placement. The decision of whether to place an offender in the dual-jurisdiction program is a matter within the plea court’s discretion. Mo.Rev.Stat. § 211.073.1. Additionally, in its Findings of Fact and Conclusions of Law denying Movant’s Rule 24.035 motion, the motion court found that the plea court’s decision was a “considered rejection” of the DYS recommendation. We find that the motion court did not clearly err in concluding that Movant’s crimes “reflect[ed] extremely violent conduct,” and therefore “support[ed] the trial court’s decision to sentence for a longer term as an extremely dangerous criminal.”

Finally, Movant claims that the sentence was arbitrary and capricious because the plea court “based its sentences only on the victim’s statement that she wanted [Movant] to receive sixty years.” When the plea court announced Movant’s sentence, it acknowledged the difficulty of determining a proper sentence and used as guidance Victim’s desire that Movant “go away for sixty years.” “While victims may assert a right to be heard at sentencing, the sentencing decision is wholly within the discretion of the judge.” Hutchison v. State, 150 S.W.3d 292, 300 (Mo. banc 2004). However, in exercising this discretion, the court may “receive any information from any source it deems relevant to the sentencing process, including [witnesses’] recommendations as to the appropriate sentence to be imposed.” Adams v. State, 951 S.W.2d 722, 725 (Mo.App. W.D.1997), abrogated on other grounds by Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002). We do not find that the plea court acted arbitrarily in allowing the victim impact statement to guide, in part, the sentencing decision. More importantly, it is clear from the record that the plea court did not rely solely on the victim impact statement, but carefully considered the facts admitted by Movant at the plea hearing and substantiated by the pre-sentence investigation. Point denied.

2. Ineffective Assistance of Counsel

In his second point on appeal, Mov-ant claims that the motion court clearly erred in denying without an evidentiary hearing his post-conviction claim that his plea counsel was ineffective. Specifically, Movant claims that his plea counsel was ineffective because she pressured him to plead guilty by assuring him he would receive dual jurisdiction, advising him not to go to trial, and urging Movant’s family to pressure him to accept a plea bargain.

To prevail on a claim of ineffective assistance of plea counsel, a movant must show that (1) counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and (2) counsel’s deficient performance prejudiced the movant. State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998). A movant establishes prejudice by demonstrating that but for counsel’s ineffectiveness, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Once a defendant enters a plea of guilty, ineffective assistance of counsel is relevant only to the extent it affected the voluntariness of the plea. Redeemer v. State, 979 S.W.2d 565, 569 (Mo.App. W.D.1998).

To show that he was entitled to an evidentiary hearing on his motion for post-conviction relief, a movant must show that he alleged facts, not conclusions, warranting relief that were not refuted by the files and record of his case. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). An evidentiary hearing is not required when the files and records of the case conclusively show that a movant is not entitled to relief. Missouri Supreme Court Rule 24.035(h); Mayes v. State, 950 S.W.2d 933, 935 (Mo.App. S.D.1997).

Movant claims that he did not understand the consequences of a blind plea and counsel told him that, if he pleaded guilty, he would be sentenced within the juvenile system under the dual-jurisdiction law. Movant’s claims were refuted by the record and, thus, properly denied without an evidentiary hearing.

At his sentencing hearing, Movant testified that he understood he was not pleading guilty pursuant to a plea agreement “so the Court [was] free to consider the full range of punishment” in his case. Movant also testified that neither his attorneys nor anyone else had “put any pressure on [him] or in any way forced [him] to enter pleas of guilty.” The plea court found that Movant entered his plea “freely, voluntarily, and knowingly,” and accepted the plea. After the plea court announced Movant’s sentence at the sentencing hearing three months later, Movant again testified that he had not pleaded guilty pursuant to a plea agreement, and he affirmed that no one had promised him what his sentence would be before he entered his plea. Movant also expressed satisfaction with plea counsel’s services.

Movant claims that the plea court’s inquiries were not sufficiently specific to conclusively refute his allegations of ineffective assistance of counsel. We disagree. The plea court asked numerous questions ensuring that Movant understood the proceedings and the consequences of a blind guilty plea. The court specifically asked Movant whether his lawyers or any other person had pressured him to plead guilty, and he answered in the negative. The court also asked Movant, after announcing the sentence, whether anyone had promised him what his sentence would be, and Movant answered “no.” The plea court’s questions were specific enough to elicit answers that directly refuted Movant’s claims that his counsel assured him he would be sentenced under the dual-jurisdiction law and that his counsel and, at counsel’s urging, Movant’s family, pressured Movant to plead guilty. See Yates v. State, 158 S.W.3d 798, 803 (Mo.App. E.D.2005). Furthermore, Movant had ample opportunity to complain about counsel, but instead stated unequivocally that he was satisfied with counsel’s performance and no one had pressured him to plead guilty. See Morrison v. State, 65 S.W.3d 561, 564 (Mo.App. W.D.2002).

Movant further claims that plea counsel advised him not to take his case to trial because “he had a chance of receiving a life sentence,” and she pressured Mov-ant’s parents to urge him to plead guilty. The mere prediction or advice of counsel relating to the probable outcome of a client’s case does not support a finding of coercion rendering a guilty plea involuntary. Meeks v. State, 876 S.W.2d 755, 756 (Mo.App. E.D.1994). Counsel had a duty to explain to Movant the range of punishment he could receive and to caution Mov-ant that he might receive a longer sentence if, instead of entering a plea of guilty, he insisted on going to trial. See Moore v. State, 207 S.W.3d 725, 730-31 (Mo.App. S.D.2006). Likewise, plea counsel accurately advised Movant that the plea court could sentence him under the dual-jurisdiction law. Mo.Rev.Stat. § 211.073. The fact that Movant received a longer sentence than he hoped for does not render his plea involuntary. See Cain v. State, 859 S.W.2d 715, 717 (Mo.App. E.D. 1993). Point denied.

Conclusion

The judgment of the motion court is affirmed.

SHERRI B. SULLIVAN, P.J., and ROBERT G. DOWD, JR., J„ Concur.

      . On January 11, 2006, the Juvenile Division of the Family Court certified Movant to stand trial as an adult.

      . Under Section 211.073, when an offender is under seventeen years of age and has been transferred to a court of general jurisdiction and pleads guilty, the court "is authorized to impose a juvenile disposition under this chapter and simultaneously impose an adult criminal sentence, the execution of which shall be suspended pursuant to the provisions of this section. Successful completion of the juvenile disposition ordered shall be a condition of the suspended adult criminal sentence.” Mo.Rev.Stat. § 211.073 (2000).

      . The Eighth Amendment of the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. XIII. Section 21 of the Missouri Constitution provides the same protection against cruel and unusual punish-mem. Mo. Const, art. I, § 21. We apply the same standard in determining whether a punishment violates the United States Constitution or Missouri Constitution. State v. Dillard, 158 S.W.3d 291, 305 (Mo.App. S.D. 2005).

      . The Court explained that the death penalty differs in kind from any sentence of imprisonment because of its irrevocability, complete "rejection of rehabilitation of the convict as a basic purpose of criminal justice," and "renunciation of all that is embodied in our concept of humanity.” Rummel, 445 U.S. at 272, 100 S.Ct. 1133 (quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 33 L.Ecl.2d 346 (1972)).