State of Missouri v. Arizona Hall, Jr. , 472 S.W.3d 207 ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISON FOUR
STATE OF MISSOURI, ) No. ED100830-01
)
Respondent, ) Appeal from the Circuit Court of
) the City of St. Louis
vs. )
)
ARIZONA HALL, JR., ) Honorable Michael K. Mullen
)
Appellant. ) Filed: September 8, 2015
Introduction
Defendant Arizona Hall appeals pro se from a judgment entered by the Circuit Court of
the City of St. Louis entered after a bench trial convicting him of four counts of unlawful
possession of a firearm by a convicted felon. Defendant claims the trial court erred in: (1)
finding him guilty under Section 571.070, RSMo 2000, because the federal Gun Control Act
(GCA) preempts state law; and (2) sentencing him as a prior offender. We affirm the
convictions and remand for resentencing.1
Factual and Procedural Background
On September 17, 2010, Officers Justin Ries and Marcus Alston drove to Defendant’s
house to execute a warrant for Defendant’s arrest. Defendant answered the door, but he refused
to step outside the door or allow the officers to enter. Defendant’s guest allowed the officers
1
Defendant’s “Second Motion Challenging the Jurisdiction of This Court Under Rules 30.20 and
84.13(c),” which was taken with the case, is denied.
entry to the house and, while they were searching for Defendant, the officers discovered two
twelve-gauge shotguns, a 22-caliber rifle, and a 243-caliber rifle.
The State of Missouri charged Movant with four counts of unlawful possession of a
firearm. The indictment alleged that, in November 1987, Defendant “was convicted of the
felony of Assault in the 1st Degree and Armed Criminal Action” and that, on September 17,
2010, he knowingly possessed four firearms in violation of Section 571.070.2 The indictment
did not allege that Defendant was a persistent offender.
Prior to trial, defense counsel filed motions to dismiss and to suppress, and Defendant
filed numerous pro se motions, including a “motion of objection for lack of jurisdiction and
motion to dismiss.” In this motion, Defendant argued that the State improperly based the felon-
in-possession charges upon his November 1987 conviction because he was “released from
confinement in the year 2000, and completed successfully a term of parole where he was given a
certified certificate from the Missouri Board of Probation and Parole restoring all his rights.”
Defendant also filed a pro se “motion to dismiss all charges and indictments,” arguing that, at the
time of his 1987 conviction, Section 571.070 did not prohibit him from owning a firearm and
“retroactive application of said law repealed in 2008 . . . violates the ex post facto clause of the
United States Constitution . . . .”3
2
“A person commits the crime of unlawful possession of a firearm if such person knowingly has
any firearm in his or her possession and [s]uch person has been convicted of a felony under the
laws of this state . . . .” Mo. Rev. Stat. § 571.070.1(1).
3
Section 571.070 in effect at the time made it a crime for a person convicted of a “dangerous
felony” to possess a concealable firearm. State v. Honeycutt, 421 S.W.3d 410, 413 (Mo. banc
2013). “The legislature amended § 571.070 in 2008 to make it a crime for a person convicted of
any felony to possess any firearm.” Id. (emphasis omitted). In Honeycutt, the Supreme Court
held that Section 571.070 violates neither the ex post facto law provision of the Missouri
Constitution nor the constitutional prohibition against laws “retrospective in their operation.” Id.
at 426.
2
On December 2, 2013, the trial court heard arguments on Defendant’s motions to dismiss
and to suppress evidence and conducted a bench trial on the four counts of unlawful possession
of a firearm. During trial, Defendant stipulated to his status as a prior and persistent offender.
The trial court denied Defendant’s pretrial motions, found Defendant guilty of all four counts,
and proceeded to sentencing.
The trial court sentenced Defendant to concurrent terms of ten years’ imprisonment on
each count. After the trial court announced Defendant’s sentence, Defendant asked, “You refer
to ten years. And the maximum on the [felony] C is one to seven; correct?” The trial court
explained:
[Y]ou were found to be a prior and persistent so that changed the range of
punishment that was available to me, so it was – the top end goes up to the be
similar to a B offense. So it changes the top end of what was a Class C felony
to that of a B felony, which is 5 to 15; do you understand that?
Defendant affirmed his understanding that his prior convictions subjected him to longer terms of
imprisonment. Defendant appeals.
Discussion
Defendant argues for the first time on appeal that the Supremacy Clause of the United
States Constitution requires that the GCA preempts Section 570.070. More specifically, Movant
contends that 18 U.S.C. § 921(a)(20) of the GCA “supersedes” Section 571.070 and exempts
him from the prohibition on possessing firearms because Missouri had restored his civil rights.
The State counters that “the felon in possession statute has no applicability to Defendant’s case,
and the record does not show that Defendant’s civil rights were restored so as to permit him to
possess a firearm.”
To preserve a constitutional question for review, a defendant must raise the issue at the
first opportunity and specifically identify the sections of the Constitution allegedly violated.
3
State ex rel. Nixon v. McClure, 969 S.W.2d 801, 803 (Mo. banc 1998). Based on our review of
the record, Defendant neither referred to the concept of preemption nor directed the trial court’s
attention to the federal statute. Because Defendant did not raise this issue before the trial court,
it is not preserved.
Defendant requests plain error review pursuant to Rule 30.20, which provides: “Whether
briefed or not, plain 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.” Rule 30.20. Plain error review involves a two-step process in which we first
examine the record to determine “whether the trial court committed plain error, which is error
that is evident, obvious, and clear.” State v. Floyd, 347 S.W.3d 115, 123-24 (Mo.App.E.D.
2011) (quotation omitted). “If we so conclude, we may then proceed to the second step of the
analysis to consider whether manifest injustice or a miscarriage of justice actually resulted from
the error.” Id. (quotation omitted).
“In determining if a federal statute preempts a state cause of action, the purpose of
Congress in enacting the federal statute is the ultimate touchstone.” State v. Diaz-Rey, 397
S.W.3d 5, 8 (Mo.App.E.D. 2013) (quoting Connelly v. Iolab Corp., 927 S.W.2d 848, 851 (Mo.
banc 1996)). “A federal law will preempt state law only when it is the clear and manifest
purpose of Congress to do so.” Id. (quoting State ex rel. Proctor v. Messina, 320 S.W.3d 145,
148 (Mo. banc 2010)). “To determine whether state law is preempted by a federal statute, we
examine the text and structure of the federal statute.” Id.
Defendant asserts that Sections 922(g) and 921(a)(2) of the GCA preempt Section
571.070. Section 922(g)(1) prohibits from possessing a firearm any person “who has been
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convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”
18 U.S.C. 922(g)(1). In its definition of “conviction,” the GCA provides:
What constitutes a conviction of such a crime shall be determined in
accordance with the law of the jurisdiction in which the proceedings were held.
Any conviction which has been expunged, or set aside or for which a person
has been pardoned or has had civil rights restored shall not be considered a
conviction for purposes of this chapter, unless such pardon, expungement, or
restoration of civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms.
18 U.S.C.A. § 921(a)(20) (emphasis added). The GCA limits the preemptive effect of its
provisions to situations of “direct and positive conflict between such provision and the law of the
State so that the two cannot be reconciled or consistently stand together.” 18 U.S.C. § 927.
The State charged Defendant with four counts of violating Section 571.070.1(1), which
“provides that a person commits the crime of unlawful possession of a firearm if such person
knowingly has any firearm in his or her possession and that person has been convicted of any
felony under the laws of this state.” State v. Honeycutt, 421 S.W.3d 410, 413 (Mo. banc 2013).
Unlike the GCA, Section 571.070 does not exempt those convicted of felonies whose civil rights
have been restored.
Defendant cited no authority in support of the proposition that Congress intended the
GCA to preempt state felon-in-possession laws. Furthermore, Defendant failed to demonstrate
that his 1987 conviction would qualify for the “civil rights restored” exemption of 18 U.S.C. §
921(a)(20). Defendant neither presented evidence that Missouri substantially restored his civil
rights nor identified a statute that permitted him to possess firearms.4 Based on our review, we
conclude that the record reveals no evident, obvious, and clear error.
4
In support of his claim that Missouri restored his civil rights, Defendant presented a notice of
election. Missouri automatically restores a convicted individual’s right to vote upon his or her
release from confinement. Mo. Rev. Stat. § 561.026(1). Restoration of the right to vote does not
5
Having found no evident, obvious, and clear error, the first prong of Defendant’s plain
error claim fails, and our inquiry ends. State v. Lane, 415 S.W.3d 740, 757 (Mo.App.S.D. 2013).
The trial court did not plainly err in entering judgments of conviction on the charges of unlawful
possession of a firearm. Point denied.
Defendant also argues in his brief that “he did not receive notice by indictment according
to Rule 23.01(b)(2) that he is a persistent offender and the trial judge had no authority to
sentence him to ten years as a persistent offender.” The State concedes that, because it did not
charge Defendant as a persistent offender, “the trial court erred in sentencing him as a persistent
offender.”
Where the State files an indictment that fails to charge a defendant as a persistent
offender, the trial court may not enhance the sentence. State v. Nesbitt, 299 S.W.3d 26, 28
(Mo.App.E.D. 2009). Unlawful possession of a firearm is a class C felony. Mo. Rev. Stat. §
571.070.2. The authorized term of imprisonment for unlawful possession of a firearm is not to
exceed seven years. Mo Rev. Stat. § 558.011.1(3). Here, the trial court applied the persistent-
offender enhancement and sentenced Defendant to concurrent terms of ten years’ imprisonment.
Because the trial court improperly sentenced Defendant to a greater term of imprisonment as a
persistent offender, Defendant suffered a manifest injustice. See e.g., Nesbitt, 299 S.W.3d at 29-
30. We therefore reverse the judgment as to Defendant’s sentence on all four counts and
remand for sentencing by the trial court within the range of punishment for the class C felony of
unlawful possession of a firearm, without the sentence enhancement for a persistent offender.
demonstrate that Missouri substantially restored Defendant’s civil rights. See, e.g., Presley v.
United States, 851 F.2d 1052, 1053 (8th Cir. 1988).
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Conclusion
The judgment as to Defendant’s sentences is vacated, and we remand the case for
resentencing.
Patricia L. Cohen, Judge
Sherri B. Sullivan, P.J., and
Kurt S. Odenwald, J., concur.
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