Khiry Devon Summers won a small victory at the state appeals court Tuesday morning, when a three-judge panel ordered Cole County Presiding Circuit Judge Pat Joyce to re-sentence Summers on his armed criminal action conviction.
But Joyce's final decision ultimately could mean no change for Summers current prison sentences.
Summers, now 22, is the youngest of three men convicted for an April 22, 2012, robbery on Buena Vista Street that ended in the death of Keith Mosely, 34, Columbia.
Although Summers didn't fire the fatal shot, his sentence of 23 years in prison was the longest issued among the three men - all convicted of second-degree murder, first-degree robbery and armed criminal action.
A Cole County grand jury indicted Summers, Tracy Session and Brandon Chase in 2012 on the identical charges in Mosely's murder. Prosecutors accused Chase of masterminding a robbery to steal marijuana, instead of paying for it.
But, during that robbery, Session fired a shot from outside the apartment that hit Mosely in the chest, and he died several hours later at University Hospital, Columbia.
Session pleaded guilty to the charges on Nov. 7, 2012, and Joyce sentenced him to a total of 20 years in prison - 20 years each on the murder and robbery charges, and five years on the armed criminal action charge, all to be served at the same time.
After a mistrial, a second jury in June 2013 convicted Chase of the three charges, and Circuit Judge Dan Green in July 2013 sentenced him to 10 years each in prison on the murder and robbery charges, with three years on the armed criminal action charge to be consecutive to the other sentences - for a total of 13 years.
A seven-man, five-woman jury deliberated just 70 minutes in July 2013 before finding Summers guilty of the three charges.
Joyce sentenced him on Sept. 25, 2013, to 20 years each on the murder and robbery charges, with the sentences to be served at the same time - plus three years for the armed criminal action conviction, to be served after Summers completed the other sentences.
In his appeal, Summers' public defender - Damien DeLoyola of Kansas City - challenged the "consecutive" sentence, noting Joyce had said during the sentencing: "I think the armed criminal action has to run consecutive."
In a 10-page opinion written by Judge James Edward Welsh, the appeals court panel noted that Joyce and other judges have interpreted the armed criminal action law incorrectly.
"Armed criminal action" is a separate crime under a state law that states: "any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the department of corrections (for) a term of not less than three years.
"The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the (main) crime committed" with the dangerous or deadly weapon.
The law requires a minimum three-year prison sentence for an armed criminal action conviction.
But, the judges said Missouri's Supreme Court already has ruled that "the statute does not mandate that a sentence for armed criminal action be consecutive to a sentence for the underlying conviction."
Joyce's decision to impose the three-year sentence consecutively should not have been automatic, the appeals judges said, sending the case back so Joyce can "exercise judicial discretion on whether that sentence should be imposed concurrently or consecutively."
Summers also argued prosecutors failed to produce sufficient evidence that he had "used force or the threat of force to effectuate a stealing."
The judges rejected that argument, noting the state law definition says "a person "forcibly steals,' and thereby commits robbery, when, in the course ... he uses or threatens the immediate use of physical force upon another person."
They appeals court said prosecutors presented plenty of evidence connecting Summers to the robbery, including his being "armed with a deadly weapon."