Judge Jerry Harmison's handling of Carol's sentence in "assault" case means she was (unlawfully) found guilty, but she is not "convicted" of any criminal offense

Jerry Harmison Jr.

My wife, Carol, unlawfully has been found guilty of "assault on a law enforcement officer" in Missouri, but she has not been convicted,  under state law. If that causes you to scratch your head, join the crowd.

It all flows from Judge Jerry Harmison Jr.'s decision to give Carol a suspended imposition of sentence (SIS), with two years of unsupervised probation and a $10 payment to a crime victims' fund. (Do you see irony in Carol being forced to pay into a crime victims' fund, when she was the victim here -- brutalized by Greene County deputies during an unlawful eviction in September 2015 and left with an arm broken so badly that it required trauma surgery and roughly six months of physical therapy?) The idea behind an SIS is that the case will be removed from the record if Carol abides by terms of her probation.

But Harmison's introduction of an SIS into the 21-month clown car of a case against Carol complicates matters. The case already includes the alleged "victim," Officer Jeremy Lynn, admitting both in a written incident report and on the stand at trial that he initiated physical contact with Carol by grabbing her as he burst into our apartment. That means Carol could not have committed the offense, as described under Missouri statute. Harmison's judgment includes Lynn's statement at trial, reflecting Carol's innocence, but this is a judge --appointed by Eric Greitens, the governor who was forced from office under a cloud of scandal -- who does not let facts and the law influence his thinking. (Judgment is embedded at the end of this post.) Harmison found Carol guilty while never once mentioning the definition of the offense, found at the controlling statute, RSMo 565.083.

What about those complications we mentioned? For one, there is no final judgment in Carol's case, which means there is nothing to appeal -- and since there is no punishment, beyond what amounts to a $10 fine, this case is pretty much a nothing-burger, a "brilliant" use of taxpayer resources. But now we learn Carol is not even convicted, which makes Harmison's actions look even more goofy.

That comes from a case styled Yale v. City of Independence 846 S.W. 2d 193 (1993) The holding:

The City contends that these repeated legislative efforts indicate that in all cases the term "conviction" should now include guilty pleas and findings of guilt regardless of the disposition of the case. We disagree. These statutes represent an awareness by the general assembly that the term "conviction," standing alone, does not include a plea or finding of guilt where imposition of sentence is suspended and that such a disposition is not one to which collateral consequences attach. These statutes apply only in certain specific instances. Had the legislature intended to define "conviction" to include the disposition of suspended imposition of sentence in all cases, it would have done so.

By "collateral consequences," the court appears to be referring to the small matter of punishment for those who violate terms of their probation. The Supreme Court of Missouri is saying such consequences do not "attach" when an SIS is involved. That means Carol is on probation, but she cannot lawfully be punished for violating it.

I told you this situation was goofy.

This outcome also throws a wrench into the apparent plans of Missouri law thugs to "preclude" Carol's upcoming federal civil-rights lawsuit, which also will include claims from yours truly. Preclusion in civil rights cases under 42 U.S.C.1983 can only apply to final state judgments -- and there has been no such judgment in Carol's case. Preclusion also can apply only where a party had a "full and fair" opportunity to litigate at the state level, with the party being convicted in the matter. Well, Carol had no opportunity (much less a "full and fair" one) to litigate many of the issues that will appear in our civil-rights case -- and Carol, as a matter of Missouri law, was not convicted, even though the court docket shows a guilty finding. No kidding. (See Motion for Acquittal and Motion to Set Aside or Vacate Judgment, which are embedded at the end of this post.)

The Yale case launched when a city firefighter, Ronald Yale, pleaded guilty to a felony charge and wound up losing his job because the city personnel manual authorized termination for "conviction" of a criminal offense. Yale appealed, arguing that his termination was unlawful because he received an SIS, and thus, was not convicted under state law. The Supreme Court of Missouri agreed with him. From the opinion:

Ronald Yale appeals an order of summary judgment dismissing his wrongful discharge action. We granted transfer to consider whether a plea of guilty to a felony charge followed by a disposition of "suspended imposition of sentence" constitutes a "conviction" under the City of Independence personnel manual, the provisions of which authorize termination of employees convicted of a felony. The judgment is reversed and remanded.

On November 4, 1988, Yale pleaded guilty to one count of sodomy, a class B felony. The court suspended the imposition of sentence and placed Yale on probation for five years. Shortly thereafter, the City of Independence dismissed Yale without pay from his position as a firefighter, subject to further termination proceedings. The city personnel board, following a hearing, recommended that Yale's termination be upheld pursuant to the City's personnel manual, which authorized termination for the "conviction of a felony, criminal offense, or crime of moral turpitude." The manual did not define the term "conviction."

The high court found that a conviction does not include a case where an SIS is applied:

The precise issue of whether the disposition of suspended imposition of sentence constitutes a conviction apparently has never been addressed by this Court. This question has been discussed, however, in several appellate court decisions, most notably, Meyer v. Missouri Real Estate Comm'n, 238 Mo.App. 476, 183 S.W.2d 342 (1944). In that case, the Missouri Real Estate Commission sought to revoke the license of a broker who had pleaded nolo contendere to seven charges of embezzlement and who subsequently received a suspended imposition of sentence along with a three-year term of probation. The Meyer court noted that the term "conviction" is subject to more than one meaning depending upon the context in which it is used. . . .  For example, where the term is used in its common law sense to designate a particular stage of a criminal prosecution triable by a jury, the term "conviction" may merely include "the confession of the accused in open court, or the verdict returned against him by the jury."

However, when the term refers to a determination of guilt from a prior proceeding, and bears directly upon the status or rights of an individual in a subsequent case, there is a different meaning. In these situations in which collateral punitive consequences may attach, a "conviction" is not established, nor is a person deemed "convicted," unless it is shown that a judgment has been pronounced upon the verdict. 

The court found that, because of the SIS, no judgment was pronounced against Yale, and he therefore was not convicted. The same concept applies in Carol's case. The following passage from Yale has profound consequences for Carol's case:

It is well-settled that a suspended imposition of sentence is not a final judgment. State v. Lynch, 679 S.W.2d 858, 860 (Mo. banc 1984); Meyer, at 345. The word "sentence" in legal terms means "a judgment or final judgment." . . . Where imposition of sentence has been suspended, there can be no judgment.  See also State v. Bachman, 675 S.W.2d 41, 45 (Mo.App.1984).

Let that last highlighted sentence sink in. Not only is there no final judgment in Carol's case, there is no judgment at all. How does the scoreboard now read in State of Missouri v. Carol Tovich Shuler?

(1) The state got no final judgment;

(2) The state got no judgment at all;

(3) Carol is on probation, but she can't be punished for violating it;

(4) Carol's entire punishment amounts to a $10 fine, and that likely is not lawful;

(5) Carol was not convicted.

(6) The guilty finding against Carol, with no judgment and no conviction, can not preclude her federal civil-rights claims.

By my account, the state is trailing 0-6 on the scoreboard in this charade of a case.

The alert reader might check item No. 3 above and ask, "Is Carol's probation lawful? Is it valid if she can't be punished for violating it?"

Those are darned good questions, and our research led us to some stunning answers. Along the way, we dealt with a U.S. Supreme Court case that originated in Alabama. How's that for irony?


(To be continued)