STATE v. RUSSELL II (2023)

ORDER

Earl Harrison Russell, II (“Russell”) appeals his conviction of the class E felony of driving while intoxicated (“DWI”), claiming the trial court plainly erred in sentencing him as a persistent offender in violation of § 577.023 and his right to due process under the Fourteenth Amendment to the United States Constitution and Article 1, § 10 of the Missouri Constitution.¹ In particular, Russell argues the trial court failed to make a finding that he was a persistent DWI offender prior to the submission of the case to the jury. We affirm. Because a published opinion would have no precedential value, we have provided an unpublished memorandum to the parties which sets forth the reasons for this order. Rule 30.25(b).²

FOOTNOTES

1.   “ ‘The version of the statute effective on the date of the DWI offense is the applicable statute.’ ” State v. Wheeler, 439 S.W.3d 241, 242 n.1 (Mo. App. W.D. 2014) (quoting State v. Collins, 328 S.W.3d 705, 706 n.1 (Mo. banc 2011)). Russell committed the DWI offense “on or about December 30, 2019[.]” Accordingly, all statutory citations are to RSMo 2017, as updated through the 2018 Cumulative Supplement, unless otherwise noted.

2.   All rule references are to Missouri Supreme Court Rules (2022).

PER CURIAM: