State ex rel. Catherine Hanaway, Relator, vs. The Honorable Craig Hellmann, Respondent.

STATE EX REL. CATHERINE HANAWAY,

Relator,

v.

THE HONORABLE CRAIG HELLMANN,

Respondent. ) ) ) ) ) ) ) ) ) ) ) Opinion issued January 13, 2026, and modified on the Court's own motion February 24, 2026 No. SC101132

ORIGINAL PROCEEDING IN PROHIBITION The State of Missouri ("State") brought three moving violation charges against Richard James Johnson, including a class E felony charge for driving while intoxicated ("DWI") as a persistent offender. The circuit court dismissed the class E felony charge on the basis it violated Johnson's Fifth and Sixth Amendment rights. The State now seeks a permanent writ of prohibition ordering the circuit court to set aside its order dismissing the charge. Because section 577.023.2 1 is not facially unconstitutional, the circuit court lacked

1 Unless otherwise noted, all statutory citations are to RSMo 2016.

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authority to dismiss the charge against Johnson. This Court makes permanent its preliminary writ of prohibition. Background Johnson is alleged to have operated a motor vehicle while under the influence of drugs on October 9, 2023, in Franklin County. The State brought three charges against him. In addition to two misdemeanors, the State alleged Johnson committed a class E felony of DWI as a persistent offender. 2 The State alleged Johnson had previously been convicted of DWI on two prior occasions, January 12, 2010, and June 2, 2021. Johnson moved to dismiss his felony DWI charge, arguing Erlinger v. United States, 602 U.S. 821 (2024), required a jury to find beyond a reasonable doubt his prior convictions had occurred on different occasions before sentencing him as a persistent offender. He asserted the procedures established in section 577.023.2, by which the circuit court, not the jury, finds the prior violations occurred on "separate occasions" facially violates the Fifth and Sixth Amendments of the United States Constitution. See U.S. Const. amends. V, VI. The circuit court sustained Johnson's motion to dismiss the felony DWI charge and remanded the remaining misdemeanor charges to the associate circuit division. The State sought a writ of prohibition from the court of appeals, asking the court to order the circuit court to set aside its order of dismissal of the felony charge. The court of appeals denied

2 The State also charged Johnson with a class D misdemeanor of driving while revoked/suspended and a class C misdemeanor of failing to stop for a red signal. These charges are not relevant to this writ proceeding.

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the writ petition. This Court subsequently issued a preliminary writ of prohibition, which the State seeks to be made permanent. Standard of Review This Court has the authority to issue and determine original remedial writs. Mo. Const. art. V, sec. 4. A writ of prohibition is discretionary and is appropriate: (1) to avert the usurpation of power when a lower court lacks authority or jurisdiction; (2) to remedy an excess of authority or jurisdiction or abuse of discretion by a lower court; and (3) to prevent a party from suffering irreparable harm. State ex rel. Bailey v. Sengheiser, 692 S.W.3d 20, 22 (Mo. banc 2024). A writ of prohibition is an extraordinary remedy and must be used with caution. State ex rel. Zahnd v. Van Amburg, 533 S.W.3d 227, 229 (Mo. banc 2017). The issuance of a writ in this case requires the Court to interpret section 577.023. This Court reviews de novo constitutional challenges to a statute. Salamun v. Camden Cnty. Clerk, 694 S.W.3d 424, 428 (Mo. banc 2024). A statute is presumed valid, and the proponent bears the burden to show the statute "clearly contravenes a constitutional provision." Id. When raising a facial challenge, the proponent must establish there is no set of circumstances under which the statute would be valid. Donaldson v. Mo. State Bd. of Registration for the Healing Arts, 615 S.W.3d 57, 66 (Mo. banc 2020). "It is not enough to show that, under some conceivable circumstances, the statute might operate unconstitutionally." Id. (internal quotations omitted). If the State can show any set of circumstances under which the statute is constitutional, the proponent's challenge fails. United States v. Rahimi, 602 U.S. 680, 693 (2024).

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Analysis The issue in this case is whether there is any set of circumstances under which a defendant may be sentenced as a persistent offender pursuant to section 557.023.2 without violating a defendant's Fifth and Sixth Amendment rights. See U.S. Const. amend. V, amend. VI. The Supreme Court recently answered this question in Erlinger. 3 There, the defendant's sentence was enhanced under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. sec. 924(e). Erlinger, 602 U.S. at 825. The defendant was found to have violated 18 U.S.C. section 922(g)—being in unlawful possession of a firearm—and, because he had three prior convictions committed on different occasions, the defendant had to be sentenced to a minimum of 15 years imprisonment pursuant to the ACCA. Erlinger, 602 U.S. at 825. The defendant requested a jury determine whether his previous convictions were committed on different occasions, but the district court rejected his request. Id. at 827. The district court proceeded to find the defendant's prior convictions were on different occasions and increased his sentence accordingly. Id. The Supreme Court held the defendant was entitled—pursuant to the Fifth and Sixth Amendments—to have the jury unanimously determine beyond a reasonable doubt if his prior convictions occurred on different occasions. Id. at 835. "Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt." Id. at 834 (alteration and

3 The holding in Erlinger emanated from Alleyne v. United States, 570 U.S. 99, 103 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), in which the United States Supreme Court held any fact that enhances a criminal sentence is an element that must be submitted to the jury and found beyond a reasonable doubt.

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internal quotation omitted) (quoting Apprendi, 530 U.S. at 490). Because the district court found the defendant's prior convictions occurred on different occasions, his sentence would be longer, and the jury should have been allowed to make that finding. Id. at 835. Here, a "persistent offender," in relevant part, is someone who has been found guilty of "[t]wo or more intoxication-related traffic offenses committed on separate occasions." Section 577.001(18)(a), RSMo Supp. 2020 (emphasis added). An intoxication-related traffic offense ("IRTO") includes a DWI. Section 577.001(15), RSMo Supp. 2020. A person found to be a persistent offender is subject to sentencing enhancements. Pursuant to section 577.010.2(3)(a), RSMo Supp. 2017, a persistent offender who commits two IRTO offenses is charged with a class E felony. A person without this status is charged with a class B misdemeanor. 4 Section 577.010.2(1), RSMo Supp. 2017. Section 577.023.2 governs the process by which a defendant is found to be a persistent offender. "In a jury trial, the defendant's status as a ... persistent offender ... shall be found prior to submission to the jury outside of its hearing." Id. If the circuit court finds a defendant to be a persistent offender, "the court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilt, to assess and declare the punishment as part of its verdict." Section 577.023.7. In order to charge Johnson as a persistent offender and increase the range of his sentence, the circuit court must find, before

4 A defendant's "persistent offender" status also restricts the circuit court's discretion in sentencing. A person found to be a persistent offender "shall not be granted a suspended imposition of sentence or be sentenced to pay a fine in lieu of a term of imprisonment." Section 577.010.6(1), RSMo Supp. 2017. Moreover, a persistent offender will not be "eligible for parole or probation until he or she has served a minimum of thirty days imprisonment." Section 577.010.6(3), RSMo Supp. 2017.

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submission to the jury, and outside of the jury's hearing, he was convicted of two or more IRTOs on separate occasions. If the circuit court does so, it shall not instruct or allow the jury to assess and declare punishment. The procedure used in Erlinger is strikingly similar to the procedure prescribed in section 577.023.2, which requires the circuit court to determine whether the defendant's prior IRTOs were on "separate occasions." The "separate occasions" requirement, pursuant to section 577.001(18), RSMo Supp. 2020, is substantially the same as the "on occasions different from one another" requirement under the ACCA. Both statutes require an evaluation of the dates of the prior convictions and potentially increase a defendant's range of punishment. Accordingly, the State concedes that, pursuant to Erlinger, Johnson "appears to be entitled to have the constitutional right to have a jury determine whether his prior IRTOs were committed on separate occasions." Johnson argues, however, the statute contains no method of permitting the jury to find the IRTOs were committed on separate occasions. According to Johnson, the language of section 577.023 is clear. The circuit court is required to find persistent offender status prior to submission to the jury. If the circuit court does so, it "shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilt, to assess and declare the punishment as part of its verdict." Section 577.023.7. Johnson concludes the required pre-submission finding unequivocally makes the statute facially unconstitutional. The State contends State v. Johnson, 524 S.W.3d 505 (Mo. banc 2017), is particularly instructive to answer this argument. In State v. Johnson, this Court considered whether a similar sentence enhancement statute was facially unconstitutional. Id. at 508.

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There, the State charged the defendant as a "predatory sexual offender" pursuant to section 558.018.5(3), RSMo Supp. 2013. 5 State v. Johnson, 524 S.W.3d at 508. The statute defined a predatory sexual offender as someone who "committed an act or acts against more than one victim." Id. at 509 (internal quotations omitted). The facts necessary to find a defendant to be a predatory sexual offender—that he committed acts against more than one victim—had to be "pleaded, established and found prior to submission to the jury outside of its hearing." Id. (internal quotations omitted). A defendant found to be a predatory sexual offender is subject to a mandatory minimum sentence of life imprisonment with the possibility of parole. Id. at 509-10. The defendant argued acts against more than one victim applied only to prior acts, and the circuit court could not consider the acts committed against victims of the current charges. Id. at 510. As an extension of his argument, the defendant contended that interpreting the statute to include the charged acts violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments. Id. The defendant based his argument on Alleyne, arguing the statute was facially unconstitutional because, in a jury trial, all facts that may increase a defendant's range of punishment must be found by a jury beyond a reasonable doubt. Id. at 511-12. According to the defendant, the statutory scheme required the circuit court, not the jury, to find the facts that would increase the mandatory minimum punishment. Id. at 512.

5 Since State v. Johnson was decided, the relevant predatory sexual offender statute has been moved to section 566.125.

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This Court held, "[e]ven if the circuit court would have ... determined prior to the submission of the charges to the jury that [defendant] was a [predatory sexual offender,] ... that pre-submission determination, by itself, would not have violated [defendant's] constitutional right." Id. (emphasis in original). The circuit court's pre-submission finding of predicate facts did not prevent the jury from subsequently finding the same predicate facts. Id. The statute was facially valid because, in the circumstance in which the jury also found the prerequisite facts to make the predatory offender finding, the statute complied with the constitution. Id. If the jury failed to make the required findings, however, the statute would be unconstitutional as applied to the defendant. Id. at 513. Similarly, a pre-submission determination by the circuit court that Johnson was a persistent offender, by itself, would not violate his Fifth and Sixth Amendments rights. Johnson's rights would be violated only if the jury was removed from its constitutionally mandated fact-finding role. If, after the circuit court has made its pre-submission finding Johnson is a persistent offender, the jury makes the requisite finding the convictions occurred on separate occasions, unanimously and beyond a reasonable doubt, Johnson's Fifth and Sixth Amendments rights remain inviolate. Johnson's facial challenge must fail because section 577.023.2 is constitutional under such a factual scenario. The circuit court is required to find Johnson is a persistent offender pursuant to section 577.023.2, but, to pass constitutional muster, it must also submit that question to the jury. Notably, there are rules of procedure already in place to ensure protection of a defendant's Fifth and Sixth Amendments rights. Second-stage proceedings to determine criminal sentencing and sentencing enhancement are commonplace and allow for such

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protection. "For second stage proceedings in non-death penalty cases when the jury will not assess and declare punishment but the state is required to prove an additional fact beyond a reasonable doubt, the order of those proceedings shall be in accordance with [the Missouri Approved Instructions-Criminal] MAI-CR 4th 405.01 through 405.08." Rule 27.02(s). MAI-CR 4th 405.01 outlines jury instructions when the jury is required to find specific additional facts to enhance punishment. MAI-CR 4th 405.08 provides the appropriate verdict form to use in such a scenario. After making its pre-submission finding, the circuit court must allow the jury to make a finding of guilt. Upon a guilty verdict, the parties can submit the additional sentence enhancing facts to the jury through jury instructions to determine if the defendant is a persistent offender. If the jury finds the required facts, then the defendant may be sentenced as a persistent offender. Complying with this procedure would secure Johnson's constitutional rights. Because section 577.023.2 is not facially unconstitutional if the jury finds both the requisite facts and that Johnson is a persistent offender, the circuit court lacked authority to dismiss the class E felony charge against him. 6

6 The parties dispute whether a writ is an appropriate remedy. Because the State does not have an adequate remedy on appeal, a writ is appropriate. See State v. Harris, 675 S.W.3d 202, 205-06 (Mo. banc 2023) (holding the State must have a final judgment to appeal and, when the circuit court dismisses some—but not all—counts in an information, there is no right to appeal making a writ the appropriate remedy).

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Conclusion This Court makes permanent its preliminary writ of prohibition. ______________________________

Mary R. Russell, Judge

All concur.