STATE v. VANDUNK (2026)

Demont M. Vandunk (“Vandunk”) appeals from a judgment convicting him of robbery in the first degree, armed criminal action, and aggravated fleeing a stop or detention. On appeal, Vandunk argues that the trial court committed structural constitutional error when it deviated from an agreed upon bifurcated procedure to have the jury determine facts related to his status as a persistent offender because the deviation deprived him of the right to jury sentencing. Because Vandunk's point on appeal is not preserved for appellate review and because we are not inclined to exercise our discretion to conduct plain error review in this case, the judgment is affirmed.

Factual and Procedural Background

Vandunk does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the verdict, the following evidence was adduced at trial.¹

On December 20, 2024, Andres Leon (“Leon”), a mobile detailer, went to Tanner's Customs and Collision (“Tanner's Customs”) in Kansas City to detail a blue Chevrolet Corvette that had recently been repaired. Because Tanner's Customs did not have room for Leon to detail the car on its premises, Justin Tanner (“Tanner”), the owner of Tanner's Customs, drove the Corvette from the shop to a nearby parking lot located under an overpass so that Leon had ample space to do his work. Leon parked the vehicle he uses to store detailing equipment, a Ford van, near the Corvette and began to work.

As Leon was detailing the exterior of the vehicle, he noticed a black Chevrolet Camaro with tinted windows driving around the parking lot before parking near the Corvette. Vandunk, the Camaro's driver, and a passenger exited the Camaro and walked toward Leon as he worked on the Corvette. The passenger pointed a handgun at Leon, and Vandunk restrained Leon's hands. Vandunk told Leon that if he did not cooperate, they would shoot him. After the passenger demanded that Leon turn over “everything,” Leon gave the men his phone and wallet, the Corvette's keys, the mobile detailing van's keys, and a controller for the van's equipment. The passenger fled the scene in the Corvette, and Vandunk followed the Corvette in the Camaro.

After putting his equipment back in the van, Leon ran toward Tanner's Customs and told Tanner that the Corvette had been stolen. Tanner immediately called 911, and after he was put on hold, he decided to call his uncle, a captain with the Kansas City Police Department, to report that the Corvette had been stolen. Then, Tanner called the owner of the Corvette. The Corvette's owner was able to use the car's tracking system to determine its location and relayed that information to Tanner. Meanwhile, Tanner's uncle called Sergeant Terry Grimmett of the Kansas City Police Department (“Sergeant Grimmett”) and asked him to call Tanner about a stolen vehicle. When Sergeant Grimmett called Tanner, he learned that the Corvette was taken in conjunction with an armed robbery. Tanner gave Sergeant Grimmett up-to-date tracking information about the Corvette's tracking data, which indicated that the vehicle was traveling southbound and eventually came to a stop at 6656 Monroe Avenue in Kansas City.

Both Tanner and Sergeant Grimmett went to the tracked location. Tanner arrived first and saw the Corvette and the Camaro parked outside a house. Sergeant Grimmett arrived shortly thereafter and observed the Camaro driving northbound. Sergeant Grimmett followed the Camaro and activated his police car's emergency lights. The Camaro fled, reaching speeds up to 90 to 100 miles per hour before crashing. Vandunk exited the Camaro from the driver's side door and ran. Sergeant Grimmett apprehended Vandunk after a foot chase and placed him under arrest. The passenger also ran after the crash and was apprehended in a nearby abandoned house.

The Camaro was towed to Kansas City Police Department's secure tow lot, where it was searched. A spring to a gun magazine and a live round of ammunition were found on the driver's seat, and a gun magazine was found in the car's center console. Additional rounds of ammunition were found on the passenger floorboard of the Camaro.

The State charged Vandunk as a persistent offender ² with robbery in the first degree (“Count I”), armed criminal action (“Count II”), and aggravated fleeing a stop or detention (“Count III”). The amended information alleged that Vandunk was a persistent offender pursuant to section 558.016 in that he had been found guilty of attempted first-degree burglary for events that occurred in January 2013 and found guilty of second-degree burglary for events that occurred in October 2012.³

During a pretrial hearing on May 22, 2025, the trial court instructed the parties that, because the State had charged Vandunk as a persistent offender, his jury trial would be bifurcated so that the jury could first assess Vandunk's guilt of the charged crimes before proceeding to an enhancement phase to consider requisite factual findings that establish whether Vandunk is a persistent offender pursuant to section 558.016. The bifurcated proceeding directed by the trial court was in response to Erlinger v. United States, 602 U.S. 821 (2024), where the United States Supreme Court held that “[v]irtually ‘any fact’ that ‘increase[s] 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 835 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).

Vandunk's trial began five days later. Before voir dire, the trial court addressed Vandunk's status as a persistent offender. The State offered Exhibits 98 and 99, certified copies of Vandunk's previous felony convictions, into evidence. Vandunk did not object to the entry of the exhibits into evidence but objected to the bifurcated procedure the trial court intended to use to assist in determining whether Vandunk was a persistent offender. Vandunk argued that, because of Erlinger, Missouri's statutory procedure for determining whether a criminal defendant is a persistent offender is unconstitutional, and that as a result, Missouri has no authorized procedure for making that determination, so that enhancement for persistent status is unauthorized as a matter of law.

The trial court noted Vandunk's objection and then stated:

Based on my receipt of State's Exhibits 98 and 99, I do find that there is sufficient evidence to present the issue to the jury, if necessary, of whether or not Mr. Vandunk is a prior and persistent felony offender according to Missouri statutes defining that phrase. If necessary, and pursuant to appropriate 405 series instructions 4 in a bifurcated proceeding, we will present those issues to the jury for final determination.

Vandunk filed a written brief the next day in which he again argued that a bifurcated proceeding where an “enhancement phase” occurs after the jury's determination of guilt is not authorized by Missouri law, citing sections 558.016 and 558.021.

After hearing evidence over the course of two days, the jury found Vandunk guilty of robbery in the first degree, armed criminal action, and aggravated fleeing a stop or detention, as charged. The trial court took a short recess to confer with the parties about the enhancement phase. Vandunk reiterated his position that a bifurcated enhancement phase to determine facts necessary to expose him to enhanced sentencing as a persistent offender was not authorized by Missouri law. Specifically, Vandunk argued:

[W]e would ask that the court not allow the jury to make the findings of prior offenses and that at this point it's too late under the statutes, so the court can't do that either, and then beyond that, I do think that this case then goes to a traditional phase two, a regular jury sentencing.

The trial court asked Vandunk to confirm that Erlinger did not preclude the trial court from determining that Vandunk was a prior offender ⁵ (as opposed to a persistent offender) and enhancing his sentence accordingly without additional jury findings. Vandunk agreed with this interpretation of Erlinger, consistent with Erlinger's holding which recognized, based on prior precedent,⁶ that a trial judge may find “the fact of a prior conviction,” meaning “what crime, with what elements, [a] defendant was [previously] convicted of,” but cannot determine any other facts about the prior conviction or convictions that would be necessary to support exposing a defendant to an enhanced range of sentencing. 602 U.S. at 838. That includes whether prior convictions occurred on separate occasions, the very issue in Erlinger, 602 U.S. at 835, and the essential “fact” which differentiates a prior offender from a persistent offender for purposes of sentencing enhancement pursuant to section 558.016.

Though Vandunk agreed with the trial court's interpretation of Erlinger, he nonetheless objected to the trial court being able to sentence him as a prior offender because “I don't believe that the court made the finding prior to submission of the case to the jury” as required by Missouri statute. Vandunk thus continued to insist that an enhancement phase was not permitted by Missouri law and correspondingly asked the trial court to simply proceed to jury sentencing without an enhancement phase. The trial court overruled Vandunk's objection.

The trial court proceeded with the enhancement phase, during which the State submitted Exhibits 98 and 99 to the jury. The jury was then instructed to answer four questions:

One, whether [Vandunk] was found guilty in case number 1316-CR00335-01 of attempted burglary in the first degree on June 25, 2013, for events occurring on January 28, 2013, in the Circuit Court of Jackson County, Missouri;

Two, whether [Vandunk] was found guilty in case number 1516-CR02030-01 of burglary in the second degree on March 12, 2018, for events occurring on or between October 27, 2012, and October 28, 2012, in the Circuit Court of Jackson County, Missouri;

Three, whether the offenses in case numbers 1316-CR00335-01 and 1516-CR02030-01 were committed on different occasions; and,

Four, whether the findings of guilt for 1316-CR00335-01 and 1516-CR02030-01 occurred prior to December 20, 2024.7

During his argument to the jury, Vandunk emphasized that the State had submitted no evidence that he was the same person as the defendant named in Exhibits 98 and 99.

The jury returned a verdict that answered “no” to questions one and two and “yes” to questions three and four. As a result, there was no jury finding that Vandunk had any prior convictions.

Vandunk then asked for a bench conference during which he argued:

I think this is probably clear from what I told the court earlier, but I think at this point, before you discharge the jury, I need to make my official request that the court keep the jury here and proceed with ․ jury sentencing, pursuant to the brief I filed․ Judge, according to [section] 558.021, there's a timing requirement [for finding a criminal defendant is a prior offender]. That requirement is that the court has to make a finding that [the] defendant has a prior felony conviction prior to submission to the jury. My notes and my memory say that that did not happen. In addition, now we have the jury's finding that the State has not proven that the defendant is a prior offender. In both circumstances, ․ I think that the statutory requirements for the State removing jury sentencing from a defendant have not been met here, both in terms of the substance--that is whether the defendant is a prior offender--and in terms of the procedure and timing requirement of [section] 558.021․ [T]he defendant is entitled to jury sentencing under section 557.036, and we'd ask that the court keep the jury here and proceed to what is a traditional phase two, punishment phase ․

The trial court overruled the objection, explaining:

I think my recollection is that prior to the beginning of the case, I received Exhibits 98 and 99. I think I made a record that there was sufficient evidence to go forward with the jury's determination of the defendant's persistent offender status. I'm not sure what the record reflects in terms of what words I used to say that I was finding that he was a prior offender under the statute; the record will be what it is and if you're right, it's too late for me to say it now, but I think my belief at the time was that the only issue that would be necessarily required to be submitted to the jury was the issue of whether or not he was a persistent offender. Implicit in that finding would be that he is a prior offender, so if I'm wrong about either the record or my interpretation of the law on that issue, then we'll come back here and do it again at some time point down the road ․

The trial court then dismissed the jury.

Vandunk filed a motion for new trial in which he argued that the trial court committed prejudicial error in “overruling [Vandunk's] objections to the [c]ourt discharging the jury and sentencing [Vandunk] by way of judge sentencing.” The State filed a response in which it argued that the right to jury sentencing is a statutory right, and not a constitutional right, and that deprivation of the right is not grounds for a new trial in the absence of demonstrated prejudice, which Vandunk had not shown. At the outset of a scheduled sentencing hearing, the trial court addressed Vandunk's motion for new trial and stated the following:

Mr. Vandunk, through counsel, made a timely request that the court allow the jury to sentence him, and I believe in looking at the authority and looking at the court's record on the proceedings that occurred in terms of the State's presentation of evidence regarding Mr. Vandunk's prior offender status, I believe that it's ․ at least arguable, if not a good argument, that the court did not make the required finding as it relates to his prior offender status. I think that the law requires not only that evidence be presented to the court that would allow the court to find beyond a reasonable doubt that Mr. Vandunk was a prior offender for purposes of determining whether the jury or the court would impose the appropriate sentence were he to be found guilty; I did not do that․ I never made a specific finding beyond a reasonable doubt that he in fact was a prior offender for purposes of that statute․

Despite finding that it had committed “arguable error” because the requisite prior offender finding had not been made prior to submission of the case to the jury, the trial court denied Vandunk's motion for new trial because Vandunk had not demonstrated prejudice. The trial court supported its conclusion by citing to State v. Johnston, 698 S.W.3d 871 (Mo. App. E.D. 2024).

The trial court then proceeded with sentencing. After receiving evidence and hearing arguments from the parties, the trial court sentenced Vandunk to twenty years’ incarceration on Count I (the class A felony of robbery in the first degree), five years’ incarceration on Count II (the unclassified felony of armed criminal action), and seven years’ incarceration on Count III (the class D felony of aggravated fleeing a stop or detention). The trial court ordered the sentences for Counts I and II to run consecutively with one another and ordered the sentence for Count III to run concurrently with the sentences for Counts I and II. The imposed sentences were not enhanced.⁸ The trial court entered a written judgment memorializing the jury's verdicts and the sentences imposed (“Judgment”).

Vandunk appeals.

Analysis

Vandunk presents a single point on appeal. He argues that the trial court committed error when it denied his request for jury sentencing after the jury found during the Erlinger enhancement phase agreed upon by the parties that the State had not established that Vandunk had prior convictions. Vandunk claims that deprivation of his right to jury sentencing as provided in section 557.036 was structural error that is presumptively prejudicial because the trial court abandoned the procedure committed to by the parties in violation of his right to due process.

Before addressing the merits of Vandunk's point on appeal, we must first address the State's argument that Vandunk's point on appeal is not preserved for our review because it varies from the objection he consistently lodged at trial. The State notes that Vandunk never agreed at trial to the bifurcation procedure he now claims was an agreed upon procedure from which the trial court deviated. And, the State argues that Vandunk's insistence at trial on jury sentencing was predicated on the fact that the trial court had not found him to be a prior offender before his case was submitted to the jury, and not (as Vandunk now argues) on the fact that the jury made binding findings during the enhancement phase that he had no prior convictions.

We agree that Vandunk's objections at trial included fundamental and consistent opposition to use of a bifurcation procedure to determine whether he qualified as a persistent offender, as it was his position this procedure was not authorized by Missouri law. We therefore agree with the State that Vandunk's current contention that his due process rights were violated because the trial court varied from a bifurcated Erlinger procedure agreed to by the parties is not preserved and is in fact readily dispelled by the record. Vandunk has likely “abandoned” the abject opposition to a bifurcated process he asserted at trial because the Missouri Supreme Court has now effectively endorsed the bifurcated process employed by the trial court to permit a jury to make the requisite persistent offender finding that prior convictions were committed on separate occasions.⁹ See State ex rel. Hanaway v. Hellmann, 728 S.W.3d 410 (Mo. banc 2026); State v. Otis, 738 S.W.3d 87 (Mo. banc 2026). Though intervening law has dispelled the merit of Vandunk's objection at trial, he is not permitted on appeal to shift his argument to claim a due process violation because the bifurcation procedure was “agreed upon by the parties” and then deviated from by the trial court.

We also agree with the State that once the enhancement phase was over, Vandunk's primary objection was that he could not be subject to an enhanced sentence even as a prior offender because the trial court failed to make a timely finding that he was a prior offender before his case was submitted. But a fair reading of the transcript establishes that Vandunk also argued that because the jury was asked whether he had any prior convictions and found that he did not, the jury should have been asked to determine his sentence. In other words, even though Vandunk consistently objected to use of a bifurcated process, once that process yielded jury findings that favored him, he asked for jury sentencing. That “request” was denied by the trial judge, who believed at that time that he had made the requisite section 558.021.2 finding that Vandunk was a prior offender. The trial court thus dismissed the jury believing the trial court had the statutory authority to proceed with sentencing Vandunk as a prior offender. Vandunk's motion for new trial mirrored his position at trial, as Vandunk argued that once the jury returned with findings that Vandunk had no prior convictions, Vandunk could not be sentenced as even a prior offender because neither the jury nor the trial court had made a proper prior offender finding. Vandunk's motion for new trial thus argued that it was error to deprive him of jury sentencing, and that the denial of jury sentencing “substantially” prejudiced him.

The problem, however, is that Vandunk's point on appeal does not claim error in the deprivation of jury sentencing because the trial court was mistaken at the time it dismissed the jury that it had made a timely finding that Vandunk was a prior offender. Vandunk's point on appeal claims that the trial court deviated from an agreed upon procedure once the jury concluded during the enhancement phase that Vandunk had not been shown to have prior convictions, and that this deviation resulted in structural error manifested by the denial of jury sentencing. This is not the position Vandunk took at trial. And it is certainly not the position Vandunk took in his motion for new trial.

“To preserve an issue for review, the appellant is required to raise that issue with the trial court below to give it an opportunity to take remedial action.” State v. Roth, 734 S.W.3d 343, 359 (Mo. App. W.D. 2026) (emphasis omitted) (quoting State v. West, 548 S.W.3d 406, 413 (Mo. App. W.D. 2018). This includes an obligation to raise the issue during trial and then again in a motion for new trial. State v. Minor, 648 S.W.3d 721, 729 (Mo. banc 2022) (“For an allegation of error to be considered preserved and to receive more than plain error review, it must be objected to during the trial and presented to the [trial] court in a motion for new trial.”) (quoting State v. Loper, 609 S.W.3d 725, 732 (Mo. banc 2020)). An appellant is bound to the position he took before the trial court so that a point on appeal that broadens or alters the position he took at trial is unpreserved for appellate review. State v. Eagleton, 733 S.W.3d 530, 535 (Mo. App. E.D. 2026); State v. Lechner, 711 S.W.3d 438, 455 n.5 (Mo. App. S.D. 2025). This is particularly so when, as here, the claim on appeal constitutes a “claim of constitutional error[, which] must be raised at the first opportunity and with citation to specific constitutional objections.” Minor, 648 S.W.3d at 729.

At no time during trial or in his motion for new trial has Vandunk claimed that he agreed to a bifurcation process that the trial court deviated from, or that the trial court deviated from an agreed upon process, or that this deviation resulted in a due process violation that was structural constitutional error (where prejudice is presumed) because he was deprived of jury sentencing. We agree with the State that Vandunk's point on appeal is not preserved for our review.

While we generally refuse to review unpreserved points on appeal, Rule 30.20 ¹⁰ gives us the discretion to review “plain errors affecting substantial rights” if “manifest injustice or miscarriage of justice has resulted therefrom.” Here, Vandunk has not asked us to engage in plain error review, though that alone does not prohibit our exercise of discretion to review for plain error. See State v. Sinor, 593 S.W.3d 113, 116 n.2 (Mo. App. S.D. 2020). Whether or not requested, we sparingly engage in plain error review, and we may not use Rule 30.20 to justify appellate review of every unpreserved error. State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020).

We discern no basis to exercise our discretion to engage in plain error review in this case, even if we look only at the issue plainly raised at trial and in Vandunk's motion for new trial. The right to jury sentencing is statutory in origin pursuant to section 557.036. It is not a constitutional right. Erlinger, 602 U.S. at 830-32 (acknowledging that there is no Sixth Amendment right to jury sentencing); State v. Collins, 290 S.W.3d 736, 744 (Mo. App. E.D. 2009) (“While there is no constitutional right to jury sentencing, Missouri provides a statutory right to jury sentencing unless ․ the State pleads and proves the defendant is a prior or persistent offender.”). It is axiomatic that Vandunk's claim that he was deprived of jury sentencing cannot be a structural constitutional violation when the right itself is not of constitutional origin. Even if depriving Vandunk of jury sentencing under the unique facts of this case is viewed as an Erlinger violation, our Supreme Court held in Otis that “Erlinger violations are not structural and, instead, are subject to harmless error review.” 738 S.W.3d at 91. On appeal, Vandunk does not argue that the jury's findings that the State failed to prove that he had been convicted of prior felonies should have preclusive effect, or that double-jeopardy principles prevented the trial court from making a contrary finding.¹¹

At best for Vandunk, the trial court committed error when it dismissed the jury with the intent to proceed to sentencing by the court based on a mistaken belief that it had made a sufficient pre-submission finding that Vandunk was a prior offender. The trial court acknowledged this possible error in addressing Vandunk's motion for new trial. But the trial court also concluded at that time, in reliance on State v. Johnston, 698 S.W.3d 871 (Mo. App. E.D. 2024), that Vandunk had not established prejudicial error by virtue of being deprived of the statutory right to jury sentencing. The trial court denied the motion for new trial accordingly.

This was not error. Vandunk's motion for new trial only summarily argued that Vandunk had been “substantially” prejudiced by the trial court's decision not to proceed with jury sentencing. Because the right to jury sentencing is statutory, not constitutional, “the mere deprivation of the right itself is not a basis for reversal.” Johnston, 698 S.W.3d at 877. Instead, Vandunk was required to demonstrate that “the denial of the statutory right to jury sentencing [became] prejudicial [because it] impact[ed] the fairness of [his] trial.” Id. (emphasis omitted). Vandunk did not sustain this burden in his motion for new trial.

Nor has he done so on appeal, where Vandunk has made no effort to argue that the denial of his statutory right to jury sentencing impacted the fairness of his trial. Even had Vandunk made an attempt to argue prejudice pursuant to this standard on appeal, he would have faced significant hurdles.

First, there is the obvious point that Vandunk was sentenced within the authorized ranges of punishment on each of his three convictions without enhancement. Second, though the sentences imposed for armed criminal action and aggravated fleeing a stop or detention were the maximum permitted within the authorized ranges of punishment, the sentence imposed for robbery in the first-degree was twenty years, well within the authorized range of not less than ten years and not to exceed thirty years, or life imprisonment made applicable to class A felonies under section 558.011.1(1).

Finally, jury sentencing as contemplated by section 557.036 is no more than a recommendation, as the trial court retains the authority to impose sentence, limited only by the fact that the trial court cannot impose a sentence that exceeds the term declared by the jury. Section 557.036.5; State v. Cooper, 16 S.W.3d 680, 682 (Mo. App. E.D. 2000) (holding that the jury's function in sentencing is to set the ceiling on the sentence a defendant will receive so that if the jury's recommended sentence is within the authorized range of punishment, “it constitutes the maximum sentence a court can impose”). We cannot speculate that a jury “would have given [Vandunk] a lesser sentence than did the trial court when presented with the identical range of punishment.” Johnston, 698 S.W.3d at 878. “The burden to prove actual prejudice may be insurmountable under the present facts, where the trial court did not elicit a sentencing recommendation from the jury to facilitate a differential comparison to the court-imposed sentence. But the alternative is to have this Court make a ruling of prejudice based upon rank speculation--which we will not do.” Id. at 877.

Under these circumstances, we decline to exercise our discretion to engage in plain error review of Vandunk's unpreserved and/or unasserted claims of error regarding the trial court's decision to deprive Vandunk of jury sentencing.

Vandunk's point on appeal is denied.

Conclusion

The Judgment is affirmed.

FOOTNOTES

1.   When reviewing an appeal from a conviction following a jury trial, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict. State v. Brown, 733 S.W.3d 488, 492 n.3 (Mo. App. W.D. 2026).

2.   A persistent offender is a person “who has been found guilty of two or more felonies committed at different times, or one who has been previously found guilty of a dangerous felony as defined in subdivision (19) of section 556.061.” Section 558.016.3.All statutory references are to RSMo 2016 as supplemented through December 20, 2024, unless otherwise indicated.

3.   Exhibits 98 and 99, certified copies of Vandunk's prior convictions, suggest that Vandunk pleaded guilty to both prior offenses.

4.   The phrase “405 series instructions” refers to the Missouri Approved Criminal Jury Instructions that are to be used in a second stage of a criminal jury trial to permit a jury to determine whether specific facts supporting an enhanced range of punishment have been established beyond a reasonable doubt.

5.   A prior offender is a person “who has been found guilty of one felony.” Section 558.016.2.

6.   This prior precedent includes Almendarez-Torres v. United States, 523 U.S. 224 (1998); Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 99 (2013); and Mathis v. United States, 579 U.S. 500 (2016).

7.   Though Erlinger recognized that a trial court has the narrow right to determine without a jury finding that a defendant has prior convictions, limited in scope to a finding about what crime, with what elements, a defendant has been previously convicted, paragraphs one and two of this instruction tendered the bare fact of conviction for both of Vandunk's prior offenses to the jury to be determined. We agree that the date of Vandunk's prior convictions and the timeframe during which the offenses giving rise to the convictions were committed are not “facts” that Erlinger permits a trial court to find. However, the bare fact of conviction was not required to be submitted to the jury under Erlinger.

8.   Vandunk does not claim on appeal that he was subjected to an enhanced range of punishment. In fact, even had Vandunk been found to be a persistent offender, his sentences for the class A felony offense of robbery in the first-degree and for the unclassified felony of armed criminal action could not have been enhanced. See State v. Williamson, 729 S.W.3d 762, 771 (Mo. App. W.D. 2026) (observing that section 558.016.7 requires a court to sentence a defendant found to be a persistent offender to “the authorized term of imprisonment for the offense that is one class higher than the offense for which the person is found guilty,” if the defendant is “found guilty of a class B, C, D, or E felony”). Here, the only charge as to which Vandunk could have been subjected to an enhanced punishment as a persistent offender was the class D felony of aggravated fleeing a stop or detention. The authorized range of punishment for a class D felony is “a term of years not to exceed seven years.” Section 558.011.1(4). Vandunk was sentenced within this range.

9.   See supra note 7 (addressing why the bare fact of conviction is not a fact question that needs to be submitted to the jury).

10.   All Rule references are to Missouri Supreme Court Rules, Volume 1-State, 2026, unless otherwise noted.

11.   Decisional law suggests that the jury's finding in the sentencing phase does not prevent reconsideration of the issue based on double jeopardy principles. See Monge v. California, 524 U.S. 721 (1998); State v. Cobb, 875 S.W.2d 533, 534 (Mo. banc 1994), People v. Gregg, 576 P.3d 725, 733-34 (Colo. 2025).

Cynthia L. Martin, Judge

All concur