STATE v. COOK (2026)

Derick Jay Cook (“Defendant”) challenges the trial court's finding that he is a prior and persistent offender under § 558.016.¹ In his sole point on appeal, Defendant claims the trial court plainly erred in determining he is a prior and persistent offender without submitting the issue to the jury, violating his Fifth and Sixth Amendment rights. Finding Defendant has not facially established substantial grounds that manifest injustice or a miscarriage of justice resulted, we affirm.

Factual Background and Procedural History

Defendant and Victim were in an off-and-on relationship for about seven or eight years. On March 14, 2024, Defendant was at Victim's house and broke the back window of her friend's (“M.S.”) car that was parked in the driveway. M.S. was in the car at the time and saw Defendant flee the scene in his vehicle. Victim and M.S. drove their respective vehicles into town to look for Defendant.

Victim saw a vehicle with its lights flashing behind her and pulled her truck into a driveway believing M.S. was behind her. The tailing vehicle was actually being driven by Defendant, who pulled into the driveway behind Victim and blocked her with his vehicle. Defendant exited his vehicle and started kicking the side door of Victim's truck. Victim exited the driveway and drove to a gas station. Defendant followed her to the gas station and struck Victim's truck twice with his car. Victim's truck sustained a damaged grille and bumper and had blood on the side door where Defendant kicked it.

Defendant was charged with one count of second-degree assault (§ 565.052); one count of resisting arrest for a felony (§ 575.150); and one count of first-degree property damage (§ 569.100). At a pre-trial hearing, the trial court took judicial notice, without objection from Defendant, of two prior criminal cases in which Defendant pled guilty to second-degree domestic assault and possession of a controlled substance. When asked if Defendant had any evidence to offer with respect to his status as a prior offender, Defendant's trial counsel stated “no.” The trial court proceeded to find Defendant to be a prior assault offender ² and a prior and persistent offender under § 558.016 beyond a reasonable doubt.

Following a jury trial, Defendant was convicted of class E felony of first-degree property damage and acquitted of the remaining charges. Due to Defendant being a prior and persistent offender, Defendant's authorized term of imprisonment was enhanced from a class E felony (with a maximum of four years imprisonment) to a class D felony (with a maximum of seven years imprisonment). § 558.011.1(4)-(5); § 558.016.7.³ The trial court ultimately sentenced Defendant to serve two years in prison consecutive to other sentences Defendant was already serving. This appeal followed.

Standard of Review

Defendant concedes that he did not object to the trial court making the determination that he is a prior and persistent offender and requests plain error review. While appellate courts generally do not review unpreserved issues on appeal, Rule 30.20 ⁴ permits that “plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” State v. Burkett, 725 S.W.3d 565, 571 (Mo. banc 2025). Plain errors are errors that are “facially evident, obvious and clear” such that the circuit court should have recognized them. State v. Jones, 725 S.W.3d 577, 583 (Mo. banc 2025) (citing State v. Snyder, 592 S.W.3d 375, 380 (Mo. App. S.D. 2019)). “Generally, the existence of manifest injustice or miscarriage of justice depends on the strength of the evidence leading to conviction and whether the error was outcome determinative.” Id. (citing Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002)) (internal quotations omitted).

Under the plain error framework, “manifest injustice is not presumed.” State v. Otis, 738 S.W.3d 87, 91 (Mo. banc 2026). The appellant bears the burden of establishing facially substantial grounds that manifest injustice or a miscarriage of justice resulted from the alleged error. Jones, 725 S.W.3d at 583. “[M]ere prejudice alone fails to demonstrate manifest injustice or a miscarriage of justice.” Id. (citing State v. Johnson, 524 S.W.3d 505, 513 (Mo. banc 2017)). “[Defendant's] substantive rights must suffer so substantially from the error that a miscarriage of justice or manifest injustice will occur if left uncorrected.” Id.

Analysis

Defendant asserts that the trial court plainly erred in making the finding that he is a prior and persistent offender, as opposed to submitting such question to the jury, because such procedure is in conflict with the United States Supreme Court's ruling in Erlinger v. United States, 602 U.S. 821 (2024). In Erlinger, the Supreme Court held that “[v]irtually 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 (internal quotations and citation omitted).

The Court of Appeals has recently addressed the same argument raised by Defendant here. See State v. El-Mumin, No. ED 112755, ––– S.W.3d. ––––, 2025 WL 2698537 (Mo. App. E.D. September 23, 2025); State v. Brewer, 731 S.W.3d 881, 885-86 (Mo. App. E.D. 2026); and State v. Brown, No. SD 39011, ––– S.W.3d ––––, 2026 WL 1194027 at *3 (Mo. App. S.D. May 1, 2026). In El-Mumin, the Court declined to exercise plain error review where the defendant not only failed to object to the evidence presented by the State concerning his status as a prior offender, but acknowledged the existence of his prior convictions as asserted. 2025 WL 2698537 at *8. The Court in El-Mumin held such admission was binding and negated the need for a jury determination. Id.

In Brewer, the Court similarly declined to exercise plain error review because the defendant did not challenge the admission of evidence related to his prior convictions, affirmatively asserting he had “no response” to such evidence, and raised no objection to the trial court resolving his status as a prior offender. 731 S.W.3d at 885-86. In Brown, the Court cited to El-Mumin, Brewer and State v. Anderson, 294 S.W.3d 96 (Mo. App. E.D. 2009) in declining to exercise plain error review because the defendant affirmatively stated he had no objection to the State's evidence of his prior convictions and raised no objection when the trial court made the finding that he was a prior and persistent offender. Brown, 2026 WL 1194027 at *3.

In the instant case, the trial court took judicial notice of Defendant's guilty pleas to two previous felony charges. Defendant stated he had “no objection” to the trial court taking notice of those convictions and affirmatively stated he had no evidence to submit regarding his status as a prior and persistent offender. Defendant also raised no objection when the trial court found him to be a prior and persistent offender. Thus, under the holdings in Brown, Brewer, El-Mumin and Anderson, the application of plain error review is not supported.

Further, Defendant has not facially established that a manifest injustice resulted from the trial court's alleged error. In Otis, the Supreme Court of Missouri held that to establish manifest injustice on an Erlinger basis a defendant “must demonstrate a jury would have made a different decision, i.e., that the error was outcome determinative.” 738 S.W.3d at 91. Because the defendant in Otis did not contend that the jury would have made a different determination regarding his persistent offender status, the Supreme Court concluded reversal was not warranted under the plain error standard of review. Id.

Here, like the defendant in Otis, Defendant presents no argument that the jury would have made a different finding on his sentence enhancement status. Given the evidence of Defendant's lack of objections to the admission of his prior guilty pleas to felony charges and the total absence of any counter evidence on the issue from Defendant, we are unpersuaded there are facially substantial grounds for believing that the jury would have come to a different conclusion than the trial court.

Finally, Defendant's two-year sentence was less than the maximum term of imprisonment available for an unenhanced class E felony. See § 558.011 (the authorized term of imprisonment for a class E felony is a maximum of four years). Thus, even if we were to conclude that a jury would have somehow reached a different sentence enhancement determination, Defendant cannot establish he was prejudiced because the sentence he received was not “enhanced” due to his status as a prior offender.

For these reasons, we decline to review Defendant's point for plain error.

Conclusion

The judgment of the trial court is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to RSMo (2016), as amended through July 24, 2024.

2.   As Defendant was acquitted of the assault charge, the trial court's finding that Defendant was a prior assault offender is not at issue on appeal.

3.   Under § 558.016.7, “[t]he court shall sentence a person, who has been found to be a persistent offender or a dangerous offender, and is found guilty of a class B, C, D, or E felony to the authorized term of imprisonment for the offense that is one class higher than the offense for which the person is found guilty.”

4.   All rule references are to Missouri Court Rules (2024).

MATTHEW P. HAMNER, J.

JEFFREY W. BATES, J. – CONCURS JACK A.L. GOODMAN, J. – CONCURS