Background
On June 3, 2022, Desmond Harris and two accomplices robbed a victim at gunpoint outside his St. Louis home, taking his wallet, car keys, and a bag containing a handgun. Harris and one accomplice then shot the victim more than a dozen times. The victim survived after five surgeries and identified Harris in a lineup. Harris was charged with first-degree robbery, first-degree assault, two counts of armed criminal action, second-degree burglary, and stealing. The circuit court granted a judgment of acquittal on the burglary and stealing counts, and the jury convicted Harris on the four remaining charges.
At sentencing, the circuit court received the sentencing assessment report (SAR), which reflected Harris’s prior felony conviction for tampering with a motor vehicle — for which he received probation — and noted he had been arrested twice within two months of beginning that probation term, once for the current case and once for an unrelated carjacking. The SAR did not include the disposition of the carjacking charges. During the sentencing colloquy, the circuit court asked the prosecutor about the prior carjacking case and learned that Harris had been acquitted by a jury of the charges the state had not previously dismissed.
After hearing mitigation arguments from defense counsel — including Harris’s fatherless upbringing and stated commitment to rehabilitation — the circuit court imposed consecutive sentences totaling 50 years, exceeding the state’s recommendation. Defense counsel did not object to the court’s reference to the acquitted carjacking charges. On appeal, Harris argued for the first time that the circuit court plainly erred by sentencing him based on conduct underlying charges he had been acquitted of, without any proof by a preponderance of the evidence that he committed that conduct.
The Court’s Holding
The Supreme Court of Missouri, en banc, affirmed the conviction and sentence, rejecting Harris’s unpreserved claim under the plain error framework of Rule 30.20. The court held that Harris’s claim failed on at least three of the four available grounds for rejecting plain error review: he could not show evident, obvious, and clear error; he could not show manifest injustice; and the court declined to exercise its discretion to review the claim.
On the merits, the court declined to apply United States v. Watts, 519 U.S. 148 (1997), State v. Clark, 197 S.W.3d 598 (Mo. 2006), or State v. Fassero, 256 S.W.3d 109 (Mo. 2008) to judge-sentencing proceedings. The court held that Watts addressed only the federal sentencing guidelines and that Clark and Fassero applied only to jury sentencing. The court further stated that to the extent prior Missouri decisions had extended Clark and Fassero to judge sentencing, such an expansion was unwarranted and those cases should no longer be followed in that context.
The court also found no manifest injustice because the circuit court’s brief remarks were most naturally read as rebutting defense counsel’s rehabilitation argument by pointing to Harris’s pattern of arrests — a purpose the SAR amply supported. Judges are presumed to know what evidence suffices to establish sentencing facts and to disregard improper considerations, and Harris provided no basis to overcome that presumption. The court further declined discretionary plain error review, reasoning that had defense counsel objected at sentencing, the circuit court could have immediately clarified its intentions, and that permitting plain error review on such a thin record would invite future claims based on bare speculation about a judge’s sentencing rationale.
Key Takeaways
- In Missouri judge-sentencing proceedings, the preponderance-of-the-evidence standard for acquitted conduct established in Watts, Clark, and Fassero does not apply; those cases are limited to federal guideline calculations and jury-sentencing contexts, respectively.
- A circuit court imposing sentence has broad discretion under § 557.036.1, RSMo 2016, to consider the defendant’s history and character, including the fact of prior arrests and charges, without being bound by the evidentiary standard applicable in jury-sentencing penalty phases.
- Failure to object at sentencing forces a defendant onto the difficult plain error standard under Rule 30.20, and a plain error claim based solely on ambiguous judicial remarks — without a preserved record of the court’s actual reasoning — is unlikely to succeed.
- Defense counsel confronted with potentially improper sentencing remarks should immediately ask the circuit court to clarify its intentions, both to create a record and to give the court an opportunity to correct course.
Why It Matters
This decision draws a sharp line between Missouri’s jury-sentencing and judge-sentencing frameworks when it comes to acquitted conduct. By expressly limiting Clark and Fassero to jury sentencing and rejecting Watts as inapplicable to state judge-sentencing, the court signals that Missouri circuit judges retain wide latitude to consider a defendant’s criminal history — including arrests and charges that resulted in acquittals — without satisfying any particular evidentiary threshold, so long as the sentence itself does not reflect an abuse of discretion amounting to partiality, prejudice, or oppression.
For criminal defense practitioners, the decision is a practical reminder that sentencing is not a passive proceeding. Where a judge’s remarks suggest reliance on acquitted or uncharged conduct, an immediate, on-the-record objection and request for clarification is essential. Silence not only forfeits the issue for appeal but, as this decision demonstrates, also strips the appellate court of the record it would need to grant relief even under discretionary plain error review.