Academic journal article Missouri Law Review

Uncorrected Injustice: Plain Error Review of Misapplied Sentencing Law

Academic journal article Missouri Law Review

Uncorrected Injustice: Plain Error Review of Misapplied Sentencing Law

Article excerpt


Criminal convictions often result in a restriction on the defendant's freedom and a deprivation of the defendant's liberty. Given the gravity of these consequences, there are multiple procedures the court must follow not only in determining guilt but also in imposing a sentence. Sentencing ranges are an essential component of criminal law. In Missouri, sentencing ranges are found in statutes, (1) and these statutes help trial judges determine what sentence to impose. Unfortunately, these guidelines can be incorrectly applied. If these errors are not addressed at the trial level, the appellate process can provide relief. However, interesting questions arise when the error is not preserved and courts are required to apply plain error review instead of the abuse of discretion standard.

In State v. Perry, (2) the Supreme Court of Missouri conducted plain error review of the application of an incorrect sentencing range. The court held that, in order to prevail under plain error review, the defendant must prove the sentence was based on a mistaken belief about the sentencing range. (3) The court affirmed Perry's sentence, (4) even though the sentencing judge, the prosecutor, and Perry's own counsel agreed upon the incorrect sentencing range. (5) This Note analyzes the Supreme Court of Missouri's reasoning in Perry and considers the limited ability of defendants to obtain relief, both on direct appeal and in seeking postconviction relief, when the incorrect sentencing range is used but the error is not preserved for appellate review. This Note argues the Supreme Court of Missouri should have created a rebuttable presumption of prejudice when an incorrect sentencing range is applied. Finally, this Note posits that judicial integrity, as well as public confidence in the judiciary, is undermined due to the result and implications of Perry.


Joseph Perry was charged with possession of a controlled substance with the intent to distribute. (6) This charge was based on Perry's conversation with, and attempted escape from, a police officer. (7) The officer noticed Perry backing out of his driveway and started following him. (8) The police officer believed Perry's license was suspended, but she was unable to verify this information as she followed him. (9) Perry then reached his fiance's house and pulled into the driveway. (10) The officer stopped, approached Perry, and asked to speak with him. (11) Perry obliged, and the officer asked to see his license. (12) After obtaining Perry's license, the officer attempted to verify it was valid but could not do so because her radio was not functioning properly. (13) During this time period, Perry began acting suspiciously. (14) He reached into his pocket and took out what appeared to be a plastic bag. (15) The officer asked Perry to come over to her. (16) Instead, Perry took a bike out of the back of his truck and walked to the front of the vehicle, all while keeping the bag clenched in his fist. (17) The officer followed Perry to the front of the vehicle, where he quickly threw down the bike and began running. (18) Perry briefly hesitated when he came to a fence but then climbed over. (19) Eventually, he surrendered, and a plastic bag of methamphetamine was found in the fence Perry scaled. (20)

The prosecutor charged Perry with one count of possession of a controlled substance with intent to distribute. (21) Perry filed a motion to suppress the methamphetamine, arguing it was unlawfully seized because the police officer requested his driver's license without a reasonable suspicion Perry was engaged in criminal activity, but his motion was denied. (22) A jury found Perry guilty of the lesser included offense of possession of a controlled substance. (23) During sentencing, the prosecutor stated the sentencing range was five to fifteen years' imprisonment in the Department of Corrections and recommended an eight-year sentence. (24) The prosecutor noted Perry was not convicted of the charged crime but instead possession of a controlled substance, (25) which is a class C felony carrying a sentencing range of one year in the county jail to seven years in the Department of Corrections. …

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