Background
Johnathon Lee Gilman pleaded guilty to 35 charges involving sex crimes against children and child pornography. The plea court imposed consecutive ten-year sentences on five counts of first-degree statutory sodomy and two counts of first-degree statutory rape, totaling 70 years. It initially stated that the remaining sentences would run concurrently.
After the State said Gilman’s ten-year sentence for first-degree child molestation on Count VIII also had to run consecutively, the plea court revised the aggregate sentence to 80 years. Gilman’s counsel did not object or seek clarification. Gilman later sought relief under Missouri Rule 24.035, alleging ineffective assistance because child molestation is not among the offenses expressly enumerated in Missouri’s consecutive-sentencing statute. The motion court denied relief after an evidentiary hearing.
The Court’s Holding
The Court of Appeals affirmed. It held that section 558.026.1 requires a sentence for a non-enumerated offense to run consecutively when that offense was committed during or at the same time as any enumerated offense. Count VIII therefore did not need to have occurred during or at the same time as every offense charged in Counts I through VII. Once the sentence on Count VIII was required to be consecutive, it was consecutive to the other seven sentences that also had to be served consecutively, producing an aggregate term of 80 years.
Because the plea court properly applied the statute, an objection or request for clarification would not have changed Gilman’s sentence. Counsel was not ineffective for failing to make a non-meritorious objection, and Gilman established neither deficient performance nor prejudice.
The court also rejected Gilman’s contention that the consecutive sentence necessarily demonstrated a double-jeopardy violation involving Counts II and VIII. The post-conviction record did not establish that those counts rested on the same conduct, and a non-enumerated offense may occur “during” an enumerated offense without constituting the identical act. Moreover, any double-jeopardy problem would have arisen from the convictions themselves, not from the decision to impose consecutive sentences.
Key Takeaways
- Missouri section 558.026.1 requires consecutive sentencing for a non-enumerated offense committed during or at the same time as any enumerated sex offense.
- A required consecutive sentence remains consecutive to the other sentences that must also be served consecutively; Count VIII therefore increased Gilman’s aggregate term from 70 to 80 years.
- Counsel is not ineffective for omitting a legally meritless objection, and the imposition of consecutive sentences alone does not establish that two convictions arose from identical conduct for double-jeopardy purposes.
Why It Matters
The decision clarifies the reach of Missouri’s mandatory consecutive-sentencing statute when a defendant is convicted of both enumerated sex offenses and a related, non-enumerated offense. The non-enumerated offense need only have occurred during or at the same time as one enumerated offense—not every enumerated offense—to trigger mandatory consecutive treatment.
It also underscores a post-conviction movant’s burden to develop a record showing that the omitted objection was legally meritorious and would have produced a lower sentence. Speculation that two counts involved the same conduct is insufficient to establish either ineffective assistance or a double-jeopardy violation.