STATE EX REL. OSOWSKI v. PURKETT

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Docket Number

No. 77918

Attorney(S)

Terrence Sexton, Kansas City, for Petitioner. Jeremiah W. "Jay" Nixon, Attorney General, Stephen D. Hawke, Assistant Attorney General, Jefferson City, for Respondent.

Judges

PER CURIAM

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Smart Summary

Factual and Procedural Background

Jeffery Osowski pled guilty on May 21, 1987, to attempted sodomy under Missouri Revised Statutes § 564.011.1. The charging information erroneously classified attempted sodomy as a class B felony, leading the trial court to impose a fifteen-year sentence, the maximum for a class B felony. However, under Missouri law, attempted sodomy is a class C felony, for which the maximum authorized imprisonment is seven years. Osowski has served seven years in prison and subsequently filed a petition for a writ of habeas corpus challenging the legality of his sentence.

Legal Issues Presented

Whether a sentence that exceeds the maximum term authorized by law can be challenged by habeas corpus despite the petitioner’s failure to raise the issue in post-conviction motions.
The proper remedy when a petitioner has served the maximum lawful sentence but was originally sentenced in excess of the statutory maximum.

Arguments of the Parties

State's Arguments

The state contends that Osowski waived any objection to the propriety of his sentence by failing to raise the issue within the time limits for post-conviction relief.
The state argues that waivers regarding ineffective assistance of counsel and voluntariness of the plea may apply, but these waivers do not extend to objections that the sentence exceeds the maximum authorized by law.

Petitioner's Arguments

Osowski asserts that the sentence imposed exceeded the statutory maximum for the offense of attempted sodomy, rendering the sentence illegal and subject to challenge through habeas corpus.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State ex rel. Dutton v. Sevier, 83 S.W.2d 581 (Mo. banc 1935)	Habeas corpus is a proper remedy when a sentence exceeds the maximum authorized by law; remand for further proceedings is appropriate.	The court recognized Dutton’s principle but distinguished the present case because the petitioner had already served the maximum lawful sentence.
Merriweather v. Grandison, 904 S.W.2d 485 (Mo. App. 1995)	When a sentence exceeds statutory limits, the prisoner should be returned to the sentencing court for resentencing within lawful limits.	The court noted Merriweather’s holding but found it inapplicable here because the petitioner had already served the maximum lawful sentence, making resentencing unnecessary.

Court's Reasoning and Analysis

The court analyzed the statutory classification of attempted sodomy and found that it is a class C felony, limiting imprisonment to seven years. The charging information incorrectly stated it was a class B felony, resulting in an excessive fifteen-year sentence. Although the petitioner failed to timely raise this issue in post-conviction motions, the court held that objections to a sentence exceeding the statutory maximum are not waived by procedural default. The court distinguished prior cases that required remand for resentencing because those involved sentences still being served within lawful limits. Here, since Osowski had already served the maximum lawful term, remanding for resentencing would serve no purpose. Consequently, the court treated the portion of the sentence exceeding the statutory maximum as void and ordered the petitioner discharged.

Holding and Implications

Holding: The court ordered the petitioner discharged because the sentence imposed exceeded the maximum authorized by law and he had already served the lawful maximum term.

Implications: This decision directly results in Osowski's release and clarifies that habeas corpus remains an available remedy to challenge sentences that exceed statutory limits, regardless of procedural default on other issues. The court did not establish new precedent beyond reaffirming existing principles and applying them to the unique circumstance of a petitioner having served the lawful maximum sentence.

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STATE EX REL. JEFFERY OSOWSKI, PETITIONER, v. JAMES PURKETT, SUPT., F.C.C., RESPONDENT.

PER CURIAM

On May 21, 1987, Jeffery Osowski pled guilty to the crime of attempted sodomy in violation of § 564.011.1, RSMo. Because § 566.060 (4) makes the crime of sodomy a class B felony, attempted sodomy is thus a class C felony under § 564.011.3 (2). Osowski was sentenced to fifteen years in prison. However, for a class C felony, the authorized term of imprisonment cannot exceed seven years. § 558.011.1 (3).

Since petitioner was charged and sentenced under the statute in effect in 1986, all statutory references are to RSMo 1986 unless otherwise noted.

The body of the information charging Osowski erroneously stated that attempted sodomy was a class B felony. Pursuant to a plea agreement, Osowski pled guilty to attempted sodomy. Relying on the error in the information, the trial judge sentenced Osowski to fifteen years, the maximum sentence for a class B felony under § 558.011.1 (2). The record shows on its face that the trial court only had authority to sentence Osowski to a term of imprisonment of seven years. Giving credit for all jail time, Osowski has now served seven years imprisonment. He seeks relief by petition for writ of habeas corpus.

Here the state claims that the defendant has waived any objection as to the propriety of his sentence because he did not raise this issue within the time provided under our rules for filing his post-conviction motions. It may be true that his objections as to the effective representation of his trial counsel are waived; it may also be true that his complaints as to the voluntariness of his guilty plea are waived. However, those waivers do not affect his objection that the sentence exceeds the maximum allowed by law.

If a court imposes a sentence that is in excess of that authorized by law, habeas corpus is a proper remedy. State ex rel. Dutton v. Sevier , 83 S.W.2d 581, 582-83 (Mo. banc 1935). Dutton suggests that in that circumstance, the proper procedure is to remand the accused to the sheriff of the county where the case was pending for further proceedings upon the criminal charges. In the recent case of Merriweather v. Grandison , 904 S.W.2d 485 (Mo. App. 1995), it was also held that the prisoner should be returned to the sentencing court for resentencing within the limits authorized by law. 904 S.W.2d at 489. Neither of the above cases suggests the proper procedure where the defendant has served the maximum sentence authorized by law and, on that basis, are distinguishable. Where habeas corpus is sought because the sentence exceeds the maximum authorized by law and the petitioner waits until he has served the maximum authorized sentence, no purpose is served by remanding the case to the trial court. The judgment will be treated as void to the extent it exceeds the maximum authorized by law, and the defendant discharged.

Petitioner is ordered discharged.