Raymond Johnson, Appellant v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Raymond Johnson, Appellant v. State of Missouri, Respondent. Case Number: WD59539 Handdown Date: 05/21/2002 Appeal From: Circuit Court of Jackson County, Hon. William Stephen Nixon Counsel for Appellant: Andrew A. Schroeder Counsel for Respondent: Philip M. Koppe Opinion Summary: Raymond Johnson appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. He pleaded guilty to one count of sexual abuse, one count of kidnapping and two corresponding counts of armed criminal action. The court sentenced Johnson as a predatory sexual offender to life imprisonment with the possibility of parole after 15 years for the sexual abuse count, 15 years imprisonment for the kidnapping count, and 15 years imprisonment for each of the armed criminal action counts. The court ordered that the sentences run consecutively. On appeal, Johnson claims his plea counsel was ineffective for failing to file a motion to quash the state's amended information because he would not have pleaded guilty had he known he could challenge the constitutionality of the sexual predator statute. In his second point, Johnson claims that the motion court erred in denying his motion because the sentencing court allowed victim impact statements about crimes that did not result in a conviction, and the court sentenced him more harshly because of the victim impact statements. AFFIRMED. Division One holds: (1) Jurisdiction is proper in this court because Johnson's challenge to the constitutionality of section 558.018.5(2), RSMo 2000, is merely colorable, and he has failed to properly raise a claim that any other statute is unconstitutional. (2) The motion court did not err in denying, without an evidentiary hearing, Johnson's claim that his counsel was

ineffective for failing to challenge the constitutionality of section 558.018.5(2), RSMo 2000. His ineffective assistance of counsel claim is refuted by the record; he relies on law in court rulings subsequent to his guilty plea; and he fails to demonstrate prejudice, because the Supreme Court of Missouri, in State v. Gilyard, 979 S.W.2d 138 (Mo. banc 1998), held that section 558.018, RSMo 2000, is constitutional. (3) The motion court did not err in denying, without an evidentiary hearing, his claim that his constitutional rights were violated when the sentencing court considered the victim impact statements. Johnson did not raise a constitutional objection to the admission of the victim impact statements at the sentencing hearing; therefore, he did not preserve the issue for appellate review. In addition, the victim impact statements constituted evidence pertaining to the commission of the prior sexual offenses that enhanced his sentence under section 558.018, RSMo 2000. Therefore, it was not improper for the sentencing court to consider the circumstances of the offenses. Citation: Opinion Author: Patricia Breckenridge, Judge Opinion Vote: AFFIRMED. Ulrich, P.J., and Hardwick, J., concur. Opinion: Raymond Johnson appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Mr. Johnson pleaded guilty to one count of sexual abuse, section 566.100;(FN1) one count of kidnapping, section 565.110; and two corresponding counts of armed criminal action, section 571.015. The court sentenced Mr. Johnson as a predatory sexual offender to life imprisonment with the possibility of parole after fifteen years for the sexual abuse count, fifteen years imprisonment for the kidnapping count, and fifteen years imprisonment for each of the armed criminal action counts. The court ordered that the sentences run consecutively. Mr. Johnson filed a Rule 24.035 motion for post-conviction relief, which the motion court denied without holding an evidentiary hearing. On appeal, Mr. Johnson claims his plea counsel was ineffective for failing to file a motion to quash the State's amended information, in that Mr. Johnson would not have pleaded guilty had he known he could challenge the constitutionality of the sexual predator statute. In his second point, Mr. Johnson claims that the motion court erred in denying his motion because the sentencing court allowed victim impact statements about crimes that did not result in a conviction, and the court sentenced him more harshly because of the victim impact statements. The judgment of the motion court is affirmed. Factual and Procedural Background

On October 18, 1996, Mr. Johnson approached a young woman while on a jogging path. Mr. Johnson used a knife to force the woman into the woods nearby. He made the woman take off all her clothing, and then he cut her and fondled her breasts. After that, he tied her up and left her in the woods. A grand jury indicted Mr. Johnson for one count of sexual assault, one count of kidnapping, and two counts of armed criminal action. The State subsequently filed an information in lieu of indictment charging Mr. Johnson with one count of sexual abuse, as a predatory sexual offender; one count of kidnapping; and two counts of armed criminal action. The State charged Mr. Johnson as a predatory sexual offender based on two forcible sodomies that occurred in Johnson County, Kansas. In one of the two instances, Mr. Johnson hit a woman, who was exercising on a trail in Overland Park, over the head with a rock and then forcibly sodomized her. In the other, Mr. Johnson hit a woman, who was walking on an exercise path in Johnson County, in the face with a board, dragged her into the woods, and forcibly sodomized her.(FN2) Mr. Johnson agreed to plead guilty on all four counts charged in this case without a plea agreement. In March 1998, the trial court held a plea hearing. At the hearing, Mr. Johnson waived proof of facts as to the two Kansas forcible sodomies. On June 10, 1998, the court held a sentencing hearing. At the sentencing hearing, Mr. Johnson's counsel argued that the Missouri sexual predator law was unconstitutional, and he objected to the admission of the two victim impact statements relating to the Kansas forcible sodomies. The basis for Mr. Johnson's objection to the victim impact statements was that he waived proof of facts as to the Kansas incidents. The court overruled the objection and admitted the victim impact statements. The court found that Mr. Johnson was a predatory sexual offender and sentenced Mr. Johnson on the sexual abuse charge, as a predatory sexual offender, to life imprisonment with the possibility of parole in fifteen years. The trial court further sentenced Mr. Johnson to fifteen years imprisonment for kidnapping and fifteen years imprisonment for each of the two counts of armed criminal action. The court ordered that the sentences run consecutively. Mr. Johnson filed a Rule 24.035 motion for post-conviction relief. In his motion, he claimed ineffective assistance of trial counsel for his counsel's failure to file a motion to quash the information because section 558.018.5(2), the statute under which he was sentenced as a predatory sexual offender, was unconstitutional. He also claimed that the sentences imposed violated his due process rights because the trial court considered victim impact statements for the two Kansas forcible sodomies. The motion court denied Mr. Johnson's motion without holding an evidentiary hearing. This appeal followed.

Jurisdiction Proper Since Constitutional Claim is Merely Colorable Mr. Johnson argues in his first point that the motion court erred in denying his post-conviction claim that his trial counsel was ineffective for failing to raise the constitutionality of section 558.018.5(2). Generally, a challenge to the constitutionality of a statute would divest this court of jurisdiction. Mo. Const. art. V, section 3; Wright v. Mo. Dept. of Soc. Servs., Div. of Family Servs., 25 S.W.3d 525, 528 (Mo. App. 2000). Yet, "'the mere assertion that a statute is unconstitutional does not deprive the court of appeals of jurisdiction. The constitutional issue must be real and substantial; not merely colorable.'" Wright, 25 S.W.3d at 528 (quoting Schumann v. Mo. Highway and Transp. Comm'n, 912 S.W.2d 548, 551 (Mo. App. 1995)). A challenge may be deemed merely colorable if a "'preliminary inquiry discloses the contention is so obviously unsubstantial and insufficient, either in fact or law, as to be plainly without merit and a mere pretense.'" Id. (quoting Kansas City Star Co. v. Shields, 771 S.W.2d 101, 103 (Mo. App. 1989)). Because this court finds, in its resolution of Mr. Johnson's first point as set out hereafter, that Mr. Johnson's challenge to the constitutionality of section 558.018.5(2) is merely colorable, see id., and he has failed to properly raise a claim that any other statute was unconstitutional, Laubinger v. Laubinger, 5 S.W.3d 166, 173 (Mo. App. 1999), this court has jurisdiction to decide this case. Standard of Review Appellate review of the denial of a Rule 24.035 motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k). The findings and conclusions of the motion court are deemed clearly erroneous "if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made." State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). Denial of Claim that Counsel Ineffective Not Erroneous In his first point, Mr. Johnson claims that the trial court erred in denying, without an evidentiary hearing, his claim that his plea counsel was ineffective for failing to file a motion to quash the information in lieu of indictment charging Mr. Johnson as a predatory sexual offender. Mr. Johnson asserts that his counsel was ineffective in not filing the motion challenging the constitutionality of section 558.018.5(2) because his plea counsel believed that section 558.018.5(2) was unconstitutional. Mr. Johnson argues that his plea counsel's belief is known because his trial counsel "even voiced his belief several months later at sentencing that section 558.018.5(2) is unconstitutional on its face." Mr. Johnson claims that he was prejudiced because he would not have entered a guilty plea if he had known that he could challenge the constitutionality of section 558.018.5(2).

To prevail on a claim of ineffective assistance of counsel, the movant must show that counsel failed to exercise the customary skill and diligence of a reasonably competent attorney in similar circumstances, and that he was prejudiced by this failure. State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). An attorney's effectiveness will be "'measured against the backdrop of the law' at the time of the guilty plea." Laney v. State, 783 S.W.2d 425, 427 (Mo. App. 1989) (quoting Young v. State, 770 S.W.2d 243, 244-45 (Mo. banc 1989)). To demonstrate "prejudice in a guilty plea case, a defendant must prove that, but for the errors of counsel, he would not have pled guilty and would have demanded [a] trial." Roll, 942 S.W.2d at 375. After a guilty plea has been entered, "the issue of effectiveness of counsel is material only to the extent it affects the voluntariness and understanding with which the plea was made." Winegar v. State, 967 S.W.2d 265, 267 (Mo. App. 1998). Mr. Johnson claims that he pleaded facts that warrant an evidentiary hearing. To be entitled to an evidentiary hearing on a Rule 24.035 claim, "'(1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant.'" Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997) (quoting State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993)). "All three of these prongs must be present, otherwise the motion court may deny an evidentiary hearing." Edwards v. State, 954 S.W.2d 403, 408 (Mo. App. 1997). Mr. Johnson is not entitled to an evidentiary hearing because he fails to prove all of the necessary prongs. His claim of ineffectiveness of plea counsel is refuted by the record, he relies on law in court rulings subsequent to his guilty plea, and he does not demonstrate prejudice. With regard to his claim being refuted by the record, Mr. Johnson includes in his statement of facts on appeal the fact that his plea counsel told the trial court at sentencing that Mr. Johnson was "objecting on constitutional grounds to any finding that he is a predatory sexual offender," and, thereafter, "[t]he constitutional grounds were overruled." His claim of ineffectiveness is that his plea counsel did not file a motion to quash the information in lieu of indictment setting out detailed arguments to support his constitutional challenge. Mr. Johnson then claims that he would not have pled guilty if he was aware that he could challenge the constitutionality of section 558.018.5(2). Yet, Mr. Johnson was present in court when his plea counsel orally challenged the constitutionality of that statute. His presence at that time should have put him on notice that the constitutionality of the statute could be challenged. Nevertheless, when the trial court questioned him as to his satisfaction with his plea counsel, Mr. Johnson indicated that he was satisfied with the services of the attorney who represented him at the time he entered his plea. With regard to the state of the law at the time of his guilty plea and whether Mr. Johnson was prejudiced, Mr.

Johnson's claim of ineffectiveness in failing to file a motion challenging the constitutionality of section 558.018.5(2) has merit only if his counsel did not meet the standard of law in existence at the time of his guilty plea, and section 558.018.5(2) is, in fact, unconstitutional. The provision that Mr. Johnson claims is unconstitutional is the portion of section 558.018.5(2) that states that "a 'predatory sexual offender' is a person who: Has previously committed an act which would constitute an offense listed in subsection 4 of this section, whether or not the act resulted in a conviction." When he entered his plea of guilty, section 558.018.5(2) was presumed constitutional, and Mr. Johnson's plea counsel is held only to the state of the law at the time of the guilty plea. State v. Burns, 978 S.W.2d 759, 760 (Mo. banc 1998) (statutes are presumed to be constitutional); Laney, 783 S.W.2d at 427 (an attorney's effectiveness will be measured against the state of the law at the time of the guilty plea). After Mr. Johnson's guilty plea and sentencing, the Missouri Supreme Court held that section 558.018 was constitutional in State v. Gilyard, 979 S.W.2d 138 (Mo. banc 1998). In that case, Mr. Gilyard was convicted of forcible rape and false imprisonment. The trial court sentenced him as a predatory sexual offender based upon a prior uncharged sexual assault. Id. at 138. On appeal, Mr. Gilyard claimed that section 558.018 was unconstitutional because he was being punished for a prior uncharged sexual assault for which he did not receive a jury trial. Id. at 142. The Supreme Court held that section 558.018 was constitutional because Mr. Gilyard was not being punished for prior uncharged sexual assault; the prior assault was being considered only for sentencing, which was permissible. Id. at 142-43. Mr. Johnson recognizes that Gilyard denied a similar challenge to section 558.018.5(2). But he claims that the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed.2d 435 (2000), decided after Gilyard, renders section 558.018.5(2) unconstitutional. The ruling of the Supreme Court in Apprendi does not aid Mr. Johnson because the effectiveness of Mr. Johnson's counsel is judged according to the law at the time of the guilty plea. Laney, 783 S.W.2d at 427. Apprendi was decided over two years after Mr. Johnson entered his guilty plea.(FN3) His counsel cannot be found ineffective for failing to predict the ruling of Apprendi. In addition, in Apprendi, the Court considered "whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt." 530 U.S. at 469, 120 S.Ct. at 2351. The Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. at 2362-63. The U.S. Supreme Court in Apprendi did not hold, as Mr. Johnson argues, that it is unconstitutional to enhance punishment for prior acts for which a defendant has not been convicted. The provision in section 558.018.5(2)

that is challenged by Mr. Johnson is the definition of a 'predatory sexual offender' as a person who has previously committed an act designated in subsection 4 of section 558.018, whether or not the act resulted in a conviction. Because Apprendi does not prohibit the enhancement of punishment on the basis of an act for which a defendant has not been convicted, section 558.018.5(2) does not conflict with the Apprendi decision. The crux of the U.S. Supreme Court's ruling in Apprendi was that a defendant is entitled to a jury determination that there is proof beyond a reasonable doubt that the defendant committed any act for which he has not previously been convicted. Section 558.021, rather than section 558.018, establishes the procedures for sentencing as a predatory sexual offender as defined in section 558.018. Section 558.021.1(3) states that, "The court shall find the defendant to be a . . . predatory sexual offender if: . . . (3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a . . . predatory sexual offender." There is no provision in this statute that a defendant charged as a predatory sexual offender has a right to have a jury determine whether there is proof beyond a reasonable doubt that the defendant committed prior acts for which the defendant has not been convicted. Therefore, section 558.021 may conflict with the Apprendi decision, in that it allows the court, and not a jury, to find the facts that are the basis for the defendant's status as a predatory sexual offender. Nevertheless, resolution of that issue will be left to another day because the constitutionality of section 558.021 is not at issue in this proceeding. Mr. Johnson did not claim in his post-conviction motion that his attorney was ineffective for failing to challenging the constitutionality of section 558.021. He only claimed that his attorney should have challenged the constitutionality of section 558.018.5(2). Specifically, Mr. Johnson alleged: Plea counsel, Jarrett Johnson, was constitutionally ineffective for failing to file a motion to quash the State's information in lieu of indictment, which both charged Movant as a predatory sexual offender under Section 558.018.5(2), RSMo Cum. Supp. 1996, and subjected Movant "to an extended term of imprisonment." Plea counsel should have challenged the predatory sexual offender statute on the basis that it is unconstitutional on its face, in that it violates due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution, by authorizing the trial court to punish a defendant for acts which would constitute a specified crime, but for which no conviction has been obtained, without affording the defendant the protections afforded by the guarantee of a jury determination of criminal responsibility. . . . . Plea counsel should have filed a motion to quash the State's information in lieu of indictment, which charged Movant as a predatory sexual offender, based on the "legal[ ] object[ion]" that counsel inexplicably omitted to advance until sentencing; namely, that Section 558.018.5(2), RSMo Cum. Supp. 1996, violates due process of law and is thus unconsitutional on its face. Plea counsel should have claimed that the predatory sexual offender statue is unconstitutional, because it requires the trial court to punish a defendant for acts for which he has not been convicted . . . . "The only grounds for relief that may be considered on appeal are those that were before the motion court." Lawrence v.

State, 831 S.W.2d 772, 773 (Mo. App. 1992). The only claim of ineffectiveness of plea counsel in Mr. Johnson's post-conviction motion was based on plea counsel's failure to challenge the constitutionality of section 558.018.5(2). Because this claim was refuted by the record, his counsel met the standards of the law that existed at the time of his guilty plea, and Mr. Johnson was not prejudiced by any failure to challenge the constitutionality of section 558.018.5(2), the motion court did not clearly err in denying Mr. Johnson's motion without holding an evidentiary hearing. Mr. Johnson's first point is denied. No Error in Admission of Victim Impact Statements In his second point, Mr. Johnson contends that the motion court clearly erred in denying his 24.035 motion without an evidentiary hearing because his constitutional rights were violated when the sentencing court considered victim impact statements stemming from prior forcible sodomies for which he had not been convicted. He alleges that he was "punished" for these acts, even though he had not been convicted. Mr. Johnson asks this court to remand for an evidentiary hearing because he claims that he pleaded facts, which if true, warrant relief and are not refuted by the record. As discussed above, for a movant to be entitled to an evidentiary hearing on a Rule 24.035 claim, "'(1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant.'" Coates, 939 S.W.2d at 914 (quoting Starks, 856 S.W.2d at 336). "All three of these prongs must be present, otherwise the motion court may deny an evidentiary hearing." Edwards, 954 S.W.2d at 408. At Mr. Johnson's guilty plea hearing, he waived the requirement that the State prove that he had committed prior acts to establish his status as a predatory sexual offender. By that waiver, the factual basis supporting his status as a predatory sexual offender was established and the sentencing judge had no discretion under section 558.018.6 but to sentence Mr. Johnson to life imprisonment on the count of sexual assault. The sentencing court was required to exercise its discretion, however, in determining the number of years, within the statutory range of five to fifteen years, that Mr. Johnson was ineligible for parole. See section 558.018.7(5). Before imposing the sentence, the judge acknowledged that the victim impact statements influenced him. The judge noted that there had been three incidents and "[t]hey seem to be escalating." The judge further stated, "The tragic thing about these crimes is that you effectively, essentially, harmed three people's lives for the rest of their life. They will never forget this, they will probably have to always have it in the back of their mind." The judge then imposed the maximum sentence. Mr. Johnson claims that it violated his due process rights for the sentencing judge to punish him for prior bad acts for which he has not been convicted. At the sentencing hearing, Mr. Johnson's counsel objected to the State reading victim impact statements to the

court on behalf of the two Kansas victims. Specifically, counsel stated, "I'll renew the objection I made in chambers concerning this." That was the only objection made, and there is no transcript in the record on appeal concerning the basis of defendant's objection in chambers to the admission of the Kansas victims' statements. Furthermore, Mr. Johnson did not receive a ruling on his objection. Subsequently, during the sentencing hearing, the State offered into evidence pictures of the injuries to the Kansas victims. Defense counsel objected to the relevancy of these exhibits and then argued to the court that Mr. Johnson's waiver of proof of the prior acts that established his status as a predatory sexual offender precluded the admission of this evidence. Even at this time, defense counsel did not object on the grounds that the admission violated Mr. Johnson's constitutional due process rights. To preserve a claim of error based upon the admission of evidence, the objection must be specific. State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998). "[T]he allegations of error made to the trial court must be 'sufficiently definite to direct the court's attention to the particular acts or rulings asserted to be erroneous' in order to preserve the error for appellate review." State v. Santillan, 1 S.W.3d 572, 577 (Mo. App. 1999) (citation omitted). In State v. Skillicorn, 944 S.W.2d 877, 888 n.4 (Mo. banc 1997), the Supreme Court stated, "Although defendant points to a continuing objection made in chambers, that objection is not clear concerning what defense counsel is objecting to and upon what basis the objection is made." This is a similar situation. Mr. Johnson "renewed" the objection he made in chambers, but he did not make a record as to his basis for the objection. Furthermore, "'[t]o preserve appellate review, constitutional claims must be made at the first opportunity, with citations to specific constitutional sections.'" State v. Hall, 982 S.W.2d 675, 682 (Mo. banc 1998) (quoting State v. Chambers, 891 S.W.2d 93, 103-04 (Mo. banc 1994)). Because Mr. Johnson did not properly object to the admission of the victim impact statements at the sentencing hearing, he did not preserve the issue for appellate review. In addition, as a general rule, a sentencing court may admit "'whatever evidence it deems helpful . . . in assessing punishment.'" State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999) (citation omitted). This includes evidence of a defendant's prior unadjudicated criminal conduct. Id. The Missouri Supreme Court, in a case tried by a jury, held that it is desirable that the sentencer have as much information as possible before imposing a sentence. State v. Malone, 694 S.W.2d 723, 727 (Mo. banc 1985). The Court stated in Malone: Under opinions of the United States Supreme Court as well as this Court, the sentencer is to receive as much information as possible in the interest of individualized sentencing. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). The trial court has discretion during this stage of trial to admit any evidence it deems helpful to the jury in fixing punishment. State v. Bannister, 680 S.W.2d 141 (Mo. banc 1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 S.Ct. 170 (1985). Evidence of prior offenses, including details that reflect their seriousness, is relevant and not inadmissible because it arguably prejudices the

defendant. See Gilmore, 661 S.W.2d at 523-524; Smith v. State, 683 S.W.2d 393 (Tex.Cr.App.1984). But cf. West v. State, 463 So.2d 1048 (Miss.1985). 694 S.W.2d at 727. Under the common law rule, which has not been restricted or modified by statute, "'[a] judge may appropriately conduct an inquiry, broad in scope, largely unlimited in nature either as to the kind of information he may consider, or the source from which it comes.'" Sharp v. State, 908 S.W.2d 752, 756 (Mo. App. 1995) (quoting Figgins v. State, 858 S.W.2d 853, 856 (Mo. App. 1993). "In Figgins, the court held it was not error to permit a representative of Mothers Against Drunk Driving to testify at the sentencing hearing even though the testimony included a specific recommendation that the defendant receive the maximum sentence." Id. (citing Figgins, 858 S.W.2d at 855-56). In this case, because Mr. Johnson was charged as a sexual predator, his prior unadjudicated criminal conduct was already before the court. Mr. Johnson's argument of unconstitutional sentencing is not that the court was aware of his prior acts but, rather, that because he waived proof of the prior acts, the State was precluded from presenting any additional evidence of the circumstances of and harm from the acts. He does not cite any authority to support this argument. The evidence which Mr. Johnson claims should not have been considered was evidence pertaining to the commission of the prior sexual offenses that enhanced his sentence under section 558.018. Therefore, it was not improper for the court to consider the circumstances of the offenses. Because Mr. Johnson's motion did not allege facts entitling him to relief, he was not entitled to an evidentiary hearing. Mr. Johnson's second point is denied. The judgment of the motion court is affirmed. All concur. Footnotes: FN1.All statutory references are to Revised Statutes of Missouri 2000. FN2.As late as June 22, 2001, Mr. Johnson had not been convicted of either of the two Johnson County offenses. FN3.In Apprendi, the Supreme Court noted that it had previously, in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 331 (1999), "expressed serious doubt concerning the constitutionality of allowing penalty- enhancing findings to be determined by a judge by a preponderance of the evidence." Apprendi, 530 U.S. at 472-73, 120 S.Ct. at 2353. The Jones decision was after Mr. Johnson's guilty plea and sentencing. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.