STATE OF MISSOURI, Plaintiff-Respondent v. JERRY GAGE, Defendant-Appellant

1

STATE OF MISSOURI, Plaintiff-Respondent, v. JERRY GAGE, Defendant-Appellant.

No. SD38490

APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY Honorable Robert N. Mayer, Judge AFFIRMED IN PART; REMANDED IN PART WITH INSTRUCTIONS Appellant Jerry Gage ("Gage") appeals the Circuit Court of Dunklin County, Missouri's ("trial court's"), Corrected Judgment ("Judgment") convicting him of statutory sodomy in the first degree and child molestation in the second degree following a bench trial. See sections 566.062 and 566.068, respectively. 1 The trial court found Gage

1 All references to statutes are to RSMo 2016, including changes effective January 1, 2017, unless otherwise specified.

In Division

2

guilty of both offenses and orally sentenced Gage to life imprisonment for statutory sodomy in the first degree and 15 years' imprisonment for child molestation in the second degree, each sentence to run concurrently to the other. In its Judgment, however, the trial court also noted that Gage "shall not be eligible for parole for thirty (30) years." In two points on appeal, Gage claims the trial court erred in executing the Judgment "by denoting a minimum number of years before [] Gage is eligible for parole" because (1) the trial court's oral pronouncement of sentence controls over its Judgment and the oral sentence had no such limitation and (2) the 30-year limitation materially differs from the eligibility provided by law for a life sentence. Because we determine, and the State agrees, that the Judgment does not conform with the trial court's oral pronouncement of sentence and therefore contains a clerical error that can be corrected by order nunc pro tunc, we remand this case to the trial court for the sole purpose of correcting the Judgment nunc pro tunc to delete any notation that Gage is required to serve a minimum number of years before he is eligible for parole. The Judgment is affirmed in all other respects. Factual Background and Procedural History On February 16, 2024, Gage was charged by Amended Information with statutory sodomy in the first degree and child molestation in the second degree for certain sexual acts with his step-granddaughter ("Victim") that occurred on or between August 18, 2017, and August 4, 2021. On March 16, 2023, Gage pleaded guilty to child molestation in the second degree, but at the sentencing hearing on September 21, 2023, Gage requested and the trial court permitted him to withdraw the guilty plea. Four days later on

3

September 25, 2023, Gage waived his right to jury trial. The case proceeded to a bench trial on February 20, 2024. The trial court found Gage guilty of both charges. At the sentencing hearing on April 18, 2024, the trial court orally sentenced Gage to life imprisonment for sodomy in the first degree and 15 years' imprisonment for child molestation in the second degree, and ordered those sentences to be served concurrently: Well, the Court having examined the Sentencing Assessment Report filed, considering the testimony of the witness who came forth in the Sentencing Hearing today makes the following Judgment and Sentence in regards to Count I the felony of Statutory Sodomy in the First Degree it's the Judgment and Order of this Court that [Gage] be sentenced to a lifetime sentence in the Missouri Department of Corrections. As to Count II, the Class B felony of Child Molestation in the Second Degree, it's the Judgment and Order of this Court that you be sentenced to a fifteen-year term in the Missouri Department of Corrections, those sentences will run concurrent to each other.

The trial court did not mention Gage's parole eligibility at this time. The trial court executed its first written judgment that same day which reflected the trial court's oral pronouncement of sentence, but the docket entry that date reflected that Gage's life sentence for statutory sodomy in the first degree is to be served without eligibility for parole for 30 years. On May 14, 2024, the trial court executed the Judgment, which matched its April 18, 2024 docket entry memorializing those sentences and additionally stating that Gage's life sentence for statutory sodomy in the first degree is to be served without eligibility for parole for 30 years. As to Count I specifically, the trial court's Judgment provides in pertinent part:

4

"Length: LIFE IN PRISON[,] Start Date: 18-Apr-2024[,] Text: LIFETIME SENTENCE IN DOC, DEFENDANT SHALL NOT BE ELIGIBLE FOR PAROLE FOR THIRTY (30) YEARS." This timely appeal followed. Analysis In two points on appeal, Gage argues that the trial court erred in executing its Judgment because the parole eligibility determination in the Judgment "materially differs from the eligibility provided by law for a life sentence," and the oral pronouncement of sentence controls over the Judgment (Point I), and that Gage was not found to be a predatory sexual offender under section 566.125 so the trial court lacked authority to impose a minimum term of imprisonment before parole eligibility (Point II). The State agrees that both the law does not provide for a limitation on parole eligibility of 30 years in this circumstance and that the trial court did not mention any limitation on Gage's parole eligibility at the time it orally pronounced sentence. The State therefore agrees this matter should be remanded to the trial court for it to correct the Judgment by order nunc pro tunc. Because the same analysis applies to both points, we address them together. The Western District of this Court dealt with an identical issue in State v. Robinson, 685 S.W. 3d 32 (Mo. App. W.D. 2024): "[T]he written sentence and judgment of the trial court should reflect its oral pronouncement of sentence before the defendant." State ex rel. Zinna v. Steele, 301 S.W.3d 510, 514 (Mo. banc 2010) (internal quotes and citation omitted). "[I]f a material difference exists between the written judgment and oral pronouncement, the oral pronouncement controls." Id.

5

(internal quotes and citation omitted). The failure to accurately memorialize the decision of the trial court as it was announced in open court is a clerical mistake. State v. Davie, 638 S.W.3d 514, 524 (Mo. App. W.D. 2021). "Clerical errors in the sentence and judgment in a criminal case may be corrected by order nunc pro tunc if the written judgment does not reflect what was actually done." Id. (quoting State v. Knox, 604 S.W.3d 316, 325 (Mo. banc 2020) and citing Rule 29.12(c)).

Id. at 34. Section 566.062.2 provides, in pertinent part:

1. The offense of statutory sodomy in the first degree or an attempt to

commit statutory sodomy in the first degree is a felony for which the authorized term of imprisonment is life imprisonment or a term of years not less than five years, unless: (1) The offense is an aggravated sexual offense or the victim is less than twelve years of age, in which case the authorized term of imprisonment is life imprisonment or a term of years not less than ten years; or (2) The person is a persistent or predatory sexual offender as defined in section 566.125 and subjected to an extended term of imprisonment under said section.

Here, Victim was less than 12 years of age at the time of the offense. The trial court did not find Gage to be a persistent or predatory sexual offender under section 566.125. However, the offense of statutory sodomy in the first degree is a dangerous felony. Section 556.061(19). Section 558.019.3, provides in pertinent part: [A]ny offender who has been found guilty of a dangerous felony ... shall be required to serve a minimum prison term of eighty-five percent of the sentence imposed by the court or until the offender attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first.

"For the purpose of determining the minimum prison term to be served," a "sentence of life shall be calculated to be thirty years[.]" Section 558.019.4(1). Gage was 61 years old at the time of trial.

6

The trial court's Judgment sentencing Gage to life imprisonment on Count I and further imposing that Gage "shall not be eligible for parole for thirty (30) years" is neither an authorized sentence under sections 566.062 or 558.019.3 nor does it conform with the trial court's oral pronouncement of sentencing. See Robinson, 685 S.W.3d at 34- 35 ("The sentence of life imprisonment without the possibility of parole in the written judgment is not an authorized sentence under section 558.011 and is materially different from the trial court's oral pronouncement of life imprisonment at sentencing."). Gage will be statutorily eligible for parole before he serves 30 years in prison. As such, the trial court's Judgment contains a clerical error that the trial court may correct nunc pro tunc. Id. at 35; see also State v. Vignolo, No. SD38533, 2025 WL 3706267, *6 (Mo. App. S.D. Dec. 22, 2025) ("Errors of this nature are clerical and may be corrected nunc pro tunc."); State v. Bittick, No. SD38645, 2025 WL 3495934, *4 (Mo. App. S.D. Dec. 5, 2025) ("This Court may invoke the power to enter a nunc pro tunc order in criminal cases to correct clerical errors if the written judgment does not reflect what was actually done.") (internal quotations and citation omitted); State v. Creekmore, 721 S.W.3d 917, 928 (Mo. App. S.D. 2025) ("[B]ecause the written judgment does not reflect what the trial court actually pronounced at sentencing, it contains a clerical error that the trial court may correct nunc pro tunc."). We remand this case to the trial court for the sole purpose of entering a nunc pro tunc order correcting the Judgment to conform to the trial court's oral sentence, specifically to delete the limitation on Gage's eligibility for parole. The trial court's Judgment is affirmed in all other respects.

7

JENNIFER R. GROWCOCK, C.J. – OPINION AUTHOR BECKY J. WEST, J. – CONCURS MATTHEW P. HAMNER, J. – CONCURS