Opinion
ED111409
04-16-2024
STATE OF MISSOURI, Plaintiff/Respondent, v. DOMINIC S. YOCCO, Defendant/Appellant.
Appeal from the Circuit Court) of St. Louis County) No. 19SL-CR04093-01)) Honorable Ellen H. Ribaudo
OPINION
Angela T. Quigless, J.
Defendant, Dominic S. Yocco, appeals the judgment and sentence entered by the Circuit Court of St. Louis County following his conviction by a jury of 16 counts of sexual offenses involving eight victims: five counts of first-degree rape in violation of section 566.030 RSMo. (2016); four counts of second-degree rape in violation of section 566.031; one count of first-degree sodomy in violation of section 566.060; five counts of second-degree sodomy in violation of section 566.061; and one count of attempted second-degree sodomy in violation of section 566.061. The jury further found Defendant to be a predatory sexual offender, as charged, pursuant to section 566.125.5(3). The trial court sentenced Defendant to 16 consecutive terms of life imprisonment with eligibility for parole after 83 years.
Statutory references, except as otherwise indicated, are to RSMo. (2016). Statutory references to sections 558.011.1 and 558.026.1 are to RSMo. (2016 & Supp. 2023).
Defendant raises 42 points on appeal. We affirm the trial court's judgment on 32 of these points, and find that an opinion reciting the detailed facts and restating the principles of law would have no precedential value. Rule 30.25(b). The parties have been provided with a memorandum, for their information only, setting forth the reasons for our decision with respect to those 32 points.
Defendant's Points 17 through 26, however, require our consideration in a published opinion. As to these points, as conceded by the State, we find the trial court plainly erred in sentencing Defendant to a term of life imprisonment as a predatory sexual offender for each of the following ten counts: four convictions for the class D felony of second-degree rape (counts 8, 14, 15, and 17); five convictions for the class D felony of second-degree sodomy (counts 3, 9, 10, 11, and 12); and one conviction for the class E felony of attempted second-degree sodomy (count 18). The sentence of life imprisonment imposed for each of those ten counts exceeded the maximum sentence for the respective offense. As a result, we set aside Defendant's life sentences for counts 3, 8, 9, 10, 11, 12, 14, 15, 17, and 18, and remand the cause to the trial court for resentencing on those counts only, in accordance with this opinion.
Factual and Procedural Background
A detailed recitation of the evidence is not necessary for resolution of Defendant's Points 17 through 26; therefore, we set forth a limited overview of the facts. The State charged Defendant with numerous counts of first- and second-degree rape, first- and second-degree sodomy, and attempted second-degree sodomy or in the alternative second-degree sexual abuse. The charged offenses involved nine different victims, and were alleged to have occurred between 2016 and 2018. Most of the victims did not know one another, and most were teenagers at the time of the offenses. The parties proceeded to trial on 19 counts. Nine victims testified for the State, along with three lay witnesses, a forensic interviewer with the Child Advocacy Center, and a detective with the St. Louis County Police Department. Defendant exercised his right not to testify, and presented no evidence other than through cross-examination.
The jury convicted Defendant of 16 counts and acquitted him of two counts. The 16 guilty verdicts involved eight victims and encompassed five counts of first-degree rape, four counts of second-degree rape, one count of first-degree sodomy, five counts of second-degree sodomy, and one count of attempted second-degree sodomy. The jury further found Defendant to be a predatory sexual offender beyond a reasonable doubt for committing enumerated sexual offenses against multiple victims. The trial court sentenced Defendant to 16 consecutive terms of life imprisonment with eligibility for parole after 83 years. Defendant appeals.
The jury acquitted Defendant of two counts of second-degree rape.
Discussion
In Points 17 through 26, Defendant claims the trial court plainly erred in sentencing him to a life sentence for each charge of second-degree rape, second-degree sodomy, and attempted second-degree sodomy for which the jury had found him guilty. Defendant argues that second-degree sodomy (counts 3, 9, 10, 11, and 12), second-degree rape (counts 8, 14, 15, and 17), and attempted second-degree sodomy (count 18) are not subject to a mandatory life sentence under section 566.125, the statute defining "persistent" and "predatory" sexual offenders and providing for enhanced penalties for each. Defendant contends that the life sentence imposed for the offenses in each of the listed counts exceeds the statutory maximum and constitutes plain error. The State concedes that the trial court erred in this respect.
Standard of Review
Defendant acknowledges that his claims of error in Points 17 through 26 are not preserved, and he requests plain-error review. Rule 30.20. This Court can review claims of error that are not properly preserved only for plain error. Id. "[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Id. We exercise our discretion to review for plain error only when the defendant establishes facially substantial grounds to believe that the trial court committed evident, obvious, and clear error that resulted in manifest injustice or a miscarriage of justice. State v. Boston, 530 S.W.3d 588, 590 (Mo. App. E.D. 2017). "We have found manifest injustice and granted plain-error relief when a trial court imposed a sentence that exceeded the maximum penalty permitted by law." State v. Boesing, 307 S.W.3d 218, 219 (Mo. App. E.D. 2010).
Defendant's challenge also requires us to interpret section 566.125. Statutory interpretation is a question of law that we review de novo. State v. Johnson, 524 S.W.3d 505, 510 (Mo. banc 2017). When interpreting a statute, we must ascertain the intent of the legislature from the language used, and if possible, give effect to that intent. Id. We give the language used in the statute its plain and ordinary meaning. Id. "We resort to statutory construction only when statutory language is ambiguous; otherwise, we must give effect to the statute as written." State v. Haynes, 564 S.W.3d 780, 784 (Mo. App. E.D. 2018).
Analysis
The jury found Defendant to be a predatory sexual offender pursuant to section 566.125.As relevant here, section 566.125 provides:
Effective January 1, 2017, the legislature transferred section 558.018 RSMo. (Supp. 2014) regarding repeat sexual offenders to the current section 566.125. S.B. 491, 97th Gen. Assem., 2d Reg. Sess. (Mo. 2014).
1. The court shall sentence a person to an extended term of imprisonment if it finds the defendant is a persistent sexual offender and has been found guilty of attempting to commit or committing the following offenses:
(1) Statutory rape in the first degree or statutory sodomy in the first degree;
(2) Rape in the first degree or sodomy in the first degree;
(3) Forcible rape;
(4) Forcible sodomy;
(5) Rape;
(6) Sodomy. ***
4. The court shall sentence a person to an extended term of imprisonment as provided for in this section if it finds the defendant is a predatory sexual offender and has been found guilty of committing or attempting to commit any of the offenses listed in subsection 1 of this section or committing child molestation in the first or second degree or sexual abuse when classified as a class B felony.
5. For purposes of this section, a "predatory sexual offender" is a person who: ***
(3) Has committed an act or acts against more than one victim which would constitute an offense or offenses listed in subsection 4 of this section, whether or not the defendant was charged with an additional offense or offenses as a result of such act or acts.
6. A person found to be a predatory sexual offender shall be imprisoned for life with eligibility for parole ....(Emphases added). Thus, under the plain and ordinary meaning of the statute, the sentencing enhancement under section 566.125.6, as relevant here, applies only to acts listed in subsection 1 of section 566.125, namely: (1) statutory rape in the first degree or statutory sodomy in the first degree; (2) rape in the first degree or sodomy in the first degree; (3) forcible rape; (4) forcible sodomy; (5) rape; and (6) sodomy.
Although not pertinent in this case, section 566.125.4 also provides for sentence enhancement for those found to have committed child molestation in the first or second degree or sexual abuse when classified as a class B felony.
We look to the history of the statute in ascertaining the legislative intent. Rape and sodomy in the first degree require that the victim be subjected to forcible compulsion or incapacitated, incapable of consent, or lacking the capacity to consent. Sections 566.030 and 566.060. Forcible rape and forcible sodomy, the respective predecessors to first-degree rape and first-degree sodomy in Missouri's criminal code, likewise required the use of forcible compulsion. See, e.g., sections 566.030 and 566.060 RSMo. (1994). Before 1980, the offenses of "rape," in violation of section 566.030 RSMo. (1978), and "sodomy," in violation of section 566.060 RSMo. (1978), both required the use of forcible compulsion when the victim was age 14 or older. The statutory scheme in place before 1980 contained no other categories or levels of either rape or sodomy. See generally Chapter 566 RSMo. (1978). Second-degree rape, pursuant to section 566.031, and second-degree sodomy, pursuant to section 566.061, do not include the use of forcible compulsion as an element of either offense, which distinguishes these second-degree offenses from those listed in section 566.125.1(2) through (6).
In addition, the legislature transferred section 558.018 RSMo. (Supp. 2014) to section 566.125, effective January 1, 2017. Before that date, section 558.018.1 RSMo. (Supp. 2014) provided as follows:
1. The court shall sentence a person to an extended term of imprisonment if it finds the defendant is a persistent sexual offender and has been found guilty of attempting to commit or committing the following offenses:
(1) Statutory rape in the first degree or statutory sodomy in the first degree;
(2) Rape in the first degree or sodomy in the first degree attempted or committed on or after August 28, 2013;
(3) Forcible rape committed or attempted any time during the period of August 13, 1980 to August 27, 2013;
(4) Forcible sodomy committed or attempted any time during the period of January 1, 1995 to August 27, 2013;
(5) Rape committed or attempted before August 13, 1980;
(6) Sodomy committed or attempted before January 1, 1995.(Emphases added). The legislature amended the statute to remove the date limits set forth in what are now sections 566.125.1(2) through (6). S.B. 491, 97th Gen. Assem., 2d Reg. Sess. (Mo. 2014). The phrase "committed or attempted before August 13, 1980" set forth in paragraph (5) for the offense of rape was deleted, and the phrase "committed or attempted before January 1, 1995" set forth in paragraph (6) for the offense of sodomy was likewise deleted. Id. The plain language of section 558.018.1 RSMo. (Supp. 2014) did not encompass second-degree rape or second-degree sodomy-which do not require the use of forcible compulsion-before the legislature transferred the statutory provision to section 566.125.1 and amended its language effective January 1, 2017.
We must give effect to the statute as written. The history of section 566.125 and its immediate predecessor along with the rules of statutory interpretation lead to the result that second-degree rape, second-degree sodomy, and attempted second-degree sodomy are not offenses covered under this section. See Johnson, 524 S.W.3d at 508 n.2 (noting that second-degree statutory rape was not used as predicate offense for purpose of finding defendant to be predatory sexual offender); State v. Green, 597 S.W.3d 229, 239-240 (Mo. App. W.D. 2019) (holding that where trial court expressed mistaken belief about sentencing requirements, appellate Court would vacate consecutive sentence imposed by trial court for second-degree sodomy and remand for resentencing).
As such, the trial court improperly sentenced Defendant to life with parole for each count of second-degree sodomy, second-degree rape, and attempted second-degree sodomy of which the jury had found him guilty. The offenses of second-degree rape and second-degree sodomy are class D felonies. Sections 566.031 and 566.061. The authorized term of imprisonment for a class D felony is not to exceed seven years. Section 558.011.1(4). Unless otherwise provided in the statute creating the offense, an attempted offense is classified one step lower than the completed offense. Section 562.012.3. As a result, attempted second-degree sodomy is a class E felony, and the authorized term of imprisonment is not to exceed four years. Section 558.011.1(5).
"Being sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." State v. Yount, 642 S.W.3d 298, 300 (Mo. banc 2022). We find the trial court plainly erred in sentencing Defendant to a term of life imprisonment as a predatory sexual offender for each of the following ten counts: four convictions for the class D felony of second-degree rape (counts 8, 14, 15, and 17); five convictions for the class D felony of second-degree sodomy (counts 3, 9, 10, 11, and 12); and one conviction for the class E felony of attempted second-degree sodomy (count 18). The sentence of life imprisonment imposed for each of those ten counts exceeds the statutory maximum penalty for the respective offense. [
Defendant's sentences of life imprisonment on counts 1, 2, 4, 5, and 6 for first-degree rape, and count 13 for first-degree sodomy are affirmed. The parties have been provided with a memorandum, for their information only, setting forth the reasons for our decision with respect to those counts. Rule 30.25(b).
Conclusion
We grant Points 17 through 26. We set aside Defendant's life sentences for counts 3, 8, 9, 10, 11, 12, 14, 15, 17, and 18, and remand the cause to the trial court for resentencing on those counts only, in accordance with this opinion. In all other respects, we affirm the trial court's judgment.
At resentencing, the trial court has discretion to impose the sentences for counts 8, 9, 10, 11, 12, 14, 15, 17, and 18 either consecutively or concurrently to one another and to all other sentences. Section 558.026.1; State v. Contreras-Cornejo, 526 S.W.3d. 146, 153 (Mo. App. W.D. 2017). Consecutive sentencing is required, however, when multiple sentences are imposed "for any offense committed during or at the same time as" the listed sexual offenses, which listed sexual offenses include first-degree rape and first-degree sodomy. Section 558.026.1; Contreras-Cornejo, 526 S.W.3d. at 153. Because count 3 (second-degree sodomy) was committed at the same time as the first-degree rape charged in count 1, the sentence for count 1 must run consecutively to the sentence imposed for count 3. Section 558.026.1; Contreras-Cornejo, 526 S.W.3d. at 153.
Lisa P. Page, P.J. and Gary M. Gaertner, Jr., J., concur.