 

In the Missouri Court of Appeals
Easter District

DIVISION THREE
STATE OF MISSOURI, } No. ED106570
)
Respondent, ) Appeal from the Circuit Court
) of Lincoin County
v. )
J Honorable James D. Beck
JASON RUSSELL, )
)
Appellant. )
) Filed: April 23, 2019

We are presented today with another Bazel/-related decision, this one a bit procedurally
different from the decisions to date, in that Bazell was decided while defendant was serving
probation, on a suspended imposition of sentence after his plea of guilty.! The circuit court,
after revoking defendant Jason Russell’s probation, entered judgment for felony stealing and
sentenced defendant to a felony term of seven years’ imprisonment. Defendant now directly
appeals, contending that due to the Baze// decision, he can only be convicted of, and sentenced
for, misdemeanor stealing. We first hold that the greater weight of authority counsels that
defendant should bring this action via a Rule 24.035 post-conviction proceeding. Second,
even if defendant’s claim was cognizable on direct appeal, Baze// relief does not lie here, and
thus the circuit court did not err in entering judgment for felony stealing and in sentencing

defendant accordingly.

 

1 We draw the reader’s attention to Hamilton v. State, ED106540, (Mo. App. E.D., March 26, 2019), a recent decision from
this Court that also dealt with a Baze// claim for a defendant who likewise was on a suspended imposition of sentence when
Bazelt was decided.
Factual and Procedural Background

The State charged defendant with the class C felony of stealing by deceit, Section
570,030 RSMo. The State alleged that between March 26, 2011, and October 29, 2011,
defendant appropriated at least $500 from the State of Missouri, by deceit, and with the
purpose to deprive the State, when he falsely claimed that he was unemployed. Defendant,
pursuant to a plea agreement with the State, pleaded guilty to the offense on October 21, 2013.
The circuit court accepted defendant’s plea, and in accordance with the plea agreement,
suspended imposition of sentence and placed defendant on probation for four years.

Nearly two years later, on June 6, 2015, the State moved to revoke defendant’s
probation. The circuit court, per the State’s request, suspended defendant’s probation.

The following year, on August 23, 2016, while defendant’s probation revocation was
still pending in the circuit court, the Supreme Court of Missouri decided State v, Bazell,
holding that a stealing offense under Section 570.030.1 could not be enhanced to a felony by
operation of subsection 570.030.3(1) based on the value of the property at issue. Svate v.
Bazell, 497 S.W.3d 263 (Mo. banc 2016).

Over a year later, on October 10, 2017, defendant confessed that he had violated his
probation. Citing Bazell, he objected to being sentenced to a felony. The circuit court
overruled that objection, and on December 7, 2017, revoked defendant’s probation and
sentenced defendant to seven years of imprisonment.

Defendant brings this direct appeal, contending that the circuit court erred in entering
judgment for felony stealing and in sentencing him to a felony term of seven years’
imprisonment. He contends that due to the Bazelf decision, he can only be convicted of, and

sentenced for, misdemeanor stealing.

 

* Following the Bazeff decision, the Missouri General Assembly amended Section 570.030, Effective January
1, 2017, the statute no longer contains the same language addressed in Bazelf.

 
Discussion

This case presents two overarching issues: first, whether defendant’s claim is
cognizable on direct appeal or whether he must proceed via a Rule 24.035 post-conviction
proceeding; and second, whether defendant is entitled to relief. We address each in turn.
Direct Appeal or PCR Proceeding?

The parties dispute whether defendant may make his challenge on direct appeal. The
State contends that defendant must bring his claim pursuant to a post-conviction action under
Rule 24.035. Defendant argues that he may proceed via direct appeal. Each argument has
its merits and its flaws.

No right of an appeal exists without statutory authority. State v. Craig, 287 S.W.3d
676, 679 (Mo. banc 2009). In criminal cases that authority is conferred in Section 547.070,
which provides that an appeal to the proper appellate court shall be allowed to the defendant
in all cases of final judgment rendered upon any indictment or information. /¢.; Section
547.070; accord Rule 30.01(a)(providing that every party shall be entitled to any appeal
permitted by law after the rendition of final judgment in a criminal case).*

In the context of a guilty plea, however, this right to a direct appeal conferred by
Section 547.070 and Rule 30.01(a) is limited. State v. Hopkins, 432 $.W.3d 208, 211 (Mo.

App. W.D. 2014). “‘A plea of guilty and the ensuing conviction comprehend all of the

 

3 A judgment in a criminal case becomes final, for purposes of appeal, when the trial court imposes a sentence.
State ex rel. Zahnd y. Van Amburg, 533 S.W.3d 227, 230 (Mo. bane 2017). No final, appealable judgment
exists when the trial court suspends imposition of a sentence, as was initially done in this case. Sf Louis
County v. Hooper, 84 §.W.3d 492, 493 (Mo. App. E.D. 2002). Thus, defendant had no right to appeal in this
case until] December 7, 2017, when the circuit court revoked his probation and imposed sentence. A difference
exists between a suspended imposition of sentence (“SIS”), which defendant received, and a suspended
execution of sentence (“SES”). An SIS is not a final judgment. Rather, an SIS defers the sentencing as well
as the entry of a conviction on an offender’s record. See Hoskins y. State, 329 S.W.3d 695, 698 n.3 (Mo. banc
2010). When an offender is on probation with an SIS, the court may revoke probation and impose any sentence
within the limit set by law for the offense, at which time the judgment becomes final. However, an offender
with an SIS who successfully completes probation does not have a criminal conviction on his or her record. fd.
By contrast, an SES is a final judgment. Taylor v. State, 25 8.W.3d 632, 633 (Mo. App. E.D. 2000). When
an offender reccives an SES, a sentence has been assessed, but the court suspends the execution of the sentence
and places the offender on probation. Hoskins, 329 S.W.3d at 698 n.3.__ If the offender violates probation, the
court may execute the suspended sentence. However, even if probation is successfully completed, the offender
still has a criminal conviction on his or her record. fd.

 
factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful
sentence.’” State v. Rohra, 545 S.W.3d 344, 347 (Mo. banc 2018)(quoting U.S. v. Brace,
488 U.S. 563, 569 (1989)). “By entering a plea of guilty, the accused is not simply stating
that he did the discrete acts described in the indictment; he is admitting guilt of a substantive
crime.” Jd. Consistent with these principles, the general rule in Missouri ts that a
knowing and voluntary plea of guilty waives all non-jurisdictional defects and defenses,
including statutory and constitutional guarantees. Rohra, 545 S.W.3d at 347; Feldhaus v.
State, 311 S.W.3d 802, 805 (Mo. banc 2010). Thus, on direct appeal following a guilty
plea, a defendant is limited to claims involving the jurisdiction of the trial court and claims
challenging the sufficiency of the information or indictment charging the offense. Rehra,
545 S.W.3d at 347. However, as we will see, exceptions to these general rules exist.
Defendant challenges the sufficiency of the information. He contends that the
information only charged a misdemeanor, and not a felony, because as held in Bazell, a
stealing offense charged under Section 570.030 cannot be enhanced to a felony by operation
of subsection 570.030.3(1} based on the value of the property at issue. Defendant’s attempt
to bring his claim within this exception is not persuasive. His challenge is based on a
change in the law after his arraignment on the charge stated in the information. The purpose
of an indictment or information is to inform the accused of charges against him so that he
may prepare an adequate defense and to prevent retrial on the same charges in case of an
acquittal. Rohra, 545 S.W.3d at 347. A challenge to the sufficiency of a charging
document tests whether that document alleges the essential elements of the offense charged
as set out in the statute and whether it fairly informs a defendant of the facts constituting the
offense. Jd. “As a general rule, it is enough to charge the offense in the language of the
statute alleged to be violated if the statute states all the constituent elements of the offense.”

Id. When a defendant challenges the sufficiency of an information for the first time
following a guilty plea, the information will be held to be sufficient unless (1) it does not by
any reasonable construction charge the offense to which the defendant pleaded guilty, and (2)
the defendant demonstrates actual prejudice as a result of the insufficiency. State v. Sparks,
916 S.W.2d 234, 237 (Mo. App. S.D. 1995). The information here mirrored the language of
the Section 570.030 as of the time defendant committed the offense and pleaded guilty to the
crime. And that statutory section stated all the elements of the offense. The information
also contained the facts constituting the offense, a matter that defendant does not dispute.
Defendant also did not advance any argument that he was not informed of the charges against
him such that he could not adequately prepare a defense. The information here was
sufficient. See also, Rule 23.01(b)(setting out the form and requirements for an information,
all of which were included in the information here).

Defendant also lodged a jurisdictional-type challenge, contending that the circuit
court was “without power” to enter a judgment for felony stealing because the offense was
really a misdemeanor. Again, defendant’s challenge is based on a change in the law after
his commission of the crime, his arraignment, and his plea of guilty. Furthermore, as our
colleagues in the Western District recently noted, in light of MWyciskalla, the entry of a
criminal sentence in excess of that authorized by law is no longer properly characterized as a
“jurisdictional defect” following Wyciskalla. State v. Baker, 551 8.W.3d 68, 70 (Mo. App.
W.D. 2018)(citing CW. ex rel, Webb v. Wyciskalla, 275 S.W.3d 249, 253-54 (Mo, banc
2009). Our Supreme Court’s decision in Wyciskalfa had the “salutary effect of confining
the use of ‘jurisdiction’ to its constitutional context.” Hoskins v. State, 329 S.W.3d 695, 697
n.2 (Mo. bane 2010). This action was in circuit court, and as Wyciskalla counseled, the
circuit court has original jurisdiction over all criminal cases. Wyciskalla, 275 S.W.3d at

2533.

 
The State contends that defendant’s exclusive remedy is a Rule 24.035
post-conviction proceeding. Rule 24.035 creates an exception to the general rule that a plea
of guilty waives the right to challenge alleged errors relating to the plea and sentence. The
rule provides in pertinent part:

A person convicted of a felony in a plea of guilty and delivered to the custody

of the department of corrections who claims that the conviction or sentence

imposed violates the constitution and laws of this state or the constitution of

the United States, including claims ... that the sentence imposed was in excess

of the maximum sentence authorized by law may seek relief in the sentencing

court pursuant to the provisions of this Rule 24.035. This Rule 24.035

provides the exclusive procedure by which such person may seek relief in the

sentencing court for the claims enumerated....
(Emphasis added).

The rule establishes the exclusive procedure by which one may seek relief for certain
enumerated claims. Well-established precedent holds that claims concerning a sentence
imposed following a guilty plea must be made pursuant to a Rule 24.035 proceeding, not on
direct appeal. Hopkins, 432 S.W.3d at 211-12 (holding alleged error at sentencing hearing
not cognizable on direct appeal following guilty plea); State v. Brooks, 394 S.W.3d 454, 456
(Mo. App. E.D. 2013)(holding challenge to evidentiary ruling made during sentencing
hearing not cognizable on direct appeal after guilty plea); Stare v. Klaus, 91 S.W.3d 706 (Mo.
App. E.D. 2002)(holding claim that trial court erred in failing to consider probation not
cognizable on direct appeal after guilty plea); State v. Carter, 62 S.W.3d 569 (Mo. App. 8.D.

2001)(holding Rule 24.035 the exclusive remedy for claim that errors in pre-sentencing

report resulted in a harsher sentence than should have received); State v. Sharp, 39 S.W.3d

 

4 in full, the version of Rule 24.035(a) in effect on December 7, 2017, provided:

Nature of Remedy--Rules of Civil Procedure Apply. A person convicted of a felony on a plea
of guilty and delivered to the custody of the department of corrections who claims that the
conviction or sentence imposed violates the constitution and laws of this state or the
constitution of the United States, including claims of ineffective assistance of trial and
appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or
that the sentence imposed was in excess of the maximum sentence authorized by law may
seek relief in the sentencing court pursuant to the provisions of this Rule 24.035. This Rule
24.035 provides the exclusive procedure by which such person may seck relief in the
sentencing court for the claims enumerated. The procedure to be followed for motions filed
pursuant to this Rute 24,035 is governed by the rules of civil procedure insofar as applicable.

 
70, 72 (Mo. App. E.D. 2001)(helding claimed error in being sentenced as a prior and
persistent offender not cognizable on direct appeal; Rule 24.035 the exclusive procedure for
such a challenge). Defendant not only claims that he was sentenced in excess of the
statutory maximum, but also claims that his felony conviction and sentence violate the
constitution and laws of this state, as well as the U.S, Constitution. These claims fall within
the claims enumerated in Rule 24.035. Thus, given the nature of defendant’s claims, which
do not readily fall within the jurisdictional or sufficiency claims that can be brought on direct
appeal, and given the language of Rule 24.035, the law seemingly holds that defendant
should bring his claim pursuant to a Rule 24.035 proceeding.

Defendant nevertheless argues that courts have addressed a claim of excessive
sentence on direct appeal after a guilty plea. Defendant is correct in his assertion.

Our colleagues in the Western District, on direct appeal following a guilty plea,
addressed a claim that the plea court imposed a sentence exceeding the maximum allowed by
law. State v. Baker, 551 S.W.3d 68 (Mo. App. W.D. 2018). Mr. Baker entered a guilty
plea to misdemeanor endangering the welfare of a child. The plea court sentenced Mr.
Baker to twelve months in jail, suspended execution of that sentence, and placed Mr. Baker
on probation for two years. As a condition of probation, the plea court imposed 180 days of
detention as shock time. Mr. Baker filed a direct appeal, contending that the plea court
erred in imposing the shock time as a condition of his probation because, he argued, such a
sentence exceeded the statutory maximum. Jd. at 69. The appellate court acknowledged
that a plea of guilty generally waives all non-jurisdictional defects and defenses, but
nevertheless concluded that Mr. Baker had not waived his claim by his plea. /d. at 70. The
Court acknowledged that in light of Wyciskalla, the entry of a criminal sentence in excess of
that authorized by law is no longer properly characterized as a “jurisdictional defect”

following Wyciskalla. Jd. But the court noted that such claims and cases of excessive

 
sentences were traditionally viewed as raising “jurisdictional” issues. /d. (citing State ex rel,
Zinna v. Steele, 301 S.W.3d 510, 516-17 (Mo. bane 2010). Continuing, the court then relied
upon a long-recognized exception to the general rule of waiver, which holds that “no waiver
occurs in cases where if can be determined on the face of the record that the court had ne
power to enter the conviction or impose the sentence.” Baker, 551 8.W.3d at 70 (emphasis
added). The Court ultimately concluded that Mr. Baker had not waived his claim and
considered the merits of his claim on direct appeal. /d, In so doing, the appellate court
held that the plea court had indeed sentenced Mr. Baker to a punishment greater than the
maximum sentence allowed by law. The court thus granted relief and reversed the sentence.
Id.

Cases in which Missouri courts have recognized this exception deal with double
jeopardy, which is “somewhat of an anomaly.” Fe/dhaus, 311 S.W.3d at 805 (Mo, banc
2010). In recognizing the exception, our Supreme Court expressly stated that the Court was
not authorizing a general right to appeal from a plea of guilty, and that it was not disturbing
the rule in Missouri that a plea of guilty voluntarily and understandably made waives all
nonjurisdictional defects and defenses. State v. Cody, 525 8.W.2d 333, 335 (Mo. banc
1975); see also, Garris v. State, 389 S.W.3d 648, 651 1.4 (Mo. bane 2012)(noting that
“except for certain double jeopardy claims — constitutional claims raised after a plea of guilty
are nonjurisdictional,” and thus waived by the entry of a guilty plea). But the Court noted
the rather unique nature of the constitutional guarantee against double jeopardy, noting that a
claim of double jeopardy, “is an assertion of a constitutional grant of immunity,” and as such,
is “significantly different” from other constitutional guarantees, procedural in nature, that
govern the conduct of trial. Cody, 525 S.W.2d at 335; see also, Hagan v. State, 836 S.W.2d
459, 461 (Mo. banc 1992). The practical result of the right to be free from double jeopardy

“is to prevent a trial from taking place at all, rather than to prescribe procedural rules that
govern the conduct of trial.” Cody, 525 S.W.2d at 335. As our Supreme Court noted in
Hagan, the right to be free from double jeopardy is a constitutional right that goes “to the
very power of the State to bring the defendant into court to answer the charge brought against
him.” Hagan, 836 S.W.2d at 461; see also, e.g., Feldhaus, 311 $.W.3d at 805 n.3 (holding
that a plea of guilty to a charge does not waive a claim that—judged on its face—the charge
is one that the State may not constitutionally prosecute).

Baker extends the application of the exception beyond the context of double jeopardy.
Nonetheless, it was clear on the face of the record that the plea court had sentenced Mr.
Baker over the maximum allowed.? As discussed below — that is not the case here.
Though at first blush Baker appears to support defendant’s claim that he can proceed via
direct appeal, on closer examination, we question its application.

Defendant also cites Stricklin and Zahnd, in support of his contention that he may
proceed via a direct appeal. Kansas City vy. Stricklin, 428 S.\W.2d 721 (Mo. bane 1968);
State ex rel. Zahnd v. Van Amburg, 533 8.W.3d 227, 230 (Mo. banc 2017). Neither case is
of any assistance. Though Stricklin addressed an assertion of excessive sentence on direct
appeal following a guilty plea, the case was decided well before the inception of Rule 24.035,
And though Zahnd stated that a direct appeal was the appropriate remedy to address a
sentence that is contrary to law, the issue there was whether the sentence was erroneous or
yoid. The Court was not addressing the issue of waiver, or the issue of the proper avenue
for post-conviction claims.

In sum, the greater weight of authority counsels that defendant’s appropriate remedy
was a Rule 24.035 proceeding. But even if his claim was cognizable on direct appeal, we
would find no error on the part of the circuit court in entering judgment for felony stealing

and in sentencing defendant accordingly.

 

> We further note that Mr. Baker pleaded guilty to a misdemeanor, and thus a Rule 24.035 proceeding was not available to
him, as Rute 24.035 governs only felony convictions.

 

 

 
Bazell Relief?

As a general proposition, a defendant is tried and sentenced for an offense according
to the law in effect at the time the offense was committed. Section 1.160. (Emphasis
supplied), And at the time defendant committed the stealing, the offense was classified as a
class C felony. Bazei/l, a change in the law that made his offense a misdemeanor, had yet to
be decided.

Further, defendant entered his plea as part of a plea agreement with the State.° As
evidenced by both his petition to enter a plea, and the colloquy at the plea hearing, defendant
understood that he was pleading guilty to, and being sentenced for a felony. Defendant
petitioned the circuit court to enter a plea of guilty. His petition was entitled “PETITION
TO ENTER PLEA OF GUILTY (FELONY),” in capitalized and bold font. Defendant
stated that he had read a copy of the information charging him. That information was
entitled “FELONY INFORMATION,” again in capitalized and bold font. The information
stated that defendant had committed the “class C felony of stealing by deceit.” Defendant
stated that he understood that he was being charged with stealing by deceit, and that he
understood that crime. He acknowledged that the range of punishment that the law provided
at that time was up to seven years in prison,’ At the plea hearing, the prosecutor informed
defendant and the court that the State had charged defendant with committing a felony.
Defendant stated he understood that he was pleading guilty to the charge as recited by
prosecutor, and that he had committed the offense. The prosecutor next stated that the range
of punishment for a class C felony was one day up to one year in jail, two to seven years’

imprisonment and/or a fine. Defendant stated he understood that range of penalty, as so

 

® The State and defendant agreed that if defendant entered a plea of guilty, the State would recommend SIS,
four years’ probation, and restitution of $3,946. The circuit court sentenced defendant in accordance with the
plea agreement.

? Defendant also stated that other than the plea agreement, no one made any threats or promises to him in
exchange for the guilty plea, that he had sufficient time to consult with counsel about the consequences of
pleading guilty, and that had been fully informed and advised of his rights under the Constitution and laws of
the United States and the State of Missouri, and that he understood those rights, and the fact that he was waiving
certain rights by pleading guilty.

ia

 
recited. As part of the plea agreement, defendant agreed to four years’ probation, which is
within the felony range of probation.

Defendant essentially seeks retroactive application of Baze/f, But our Supreme
Court has been very clear — Bazell does not apply retroactively. Rather, our Supreme Court
has mandated that Bazelf applies prospectively only, and to those cases pending on direct
appeal at the time Baze/l was issued. State ex ref, Windeknecht v. Mesmer, 530 8.W.3d 500,
503 (Mo, bane 2017). We acknowledge that the procedural posture of defendant’s case is
different from that of prior cases seeking retroactive application of Bazell for convictions that
were already final when Bazell was decided. See, ¢.g., Windeknecht, 530 S.W.3d at 501
n.2.8 Here, the judgment against defendant was not final until he was sentenced, which
occurred over a year after the Supreme Court of Missouri decided Bazell. Zahnd, 533
§.W.3d at 230 (noting that a judgment in a criminal case becomes final, for purposes of
appeal, when the trial court imposes a sentence). But we decline to create an exception that
would allow defendant to reap the benefit of the forward application of Baze// merely because
he was sentenced after Baze// was decided. See Hamilton vy. State, ED106540, (Mo. App.
E.D., March 26, 2019). Though defendant’s conviction was not final until after Bazell, this
does not negate the fact that defendant knowingly, intelligently, and voluntarily pleaded
guilty under a prior interpretation of Section 370.0390.

Conclusion
We hold that when the circuit court terminated defendant’s probation, the court

properly entered judgment for felony stealing and properly imposed a sentence of seven years

 

3 See also, Bosworth v. State, 559 S.W.3d 5, 6-7 (Mo. App. E.D. 2018)(movant pleaded guilty and was
sentenced in July 2016); IW/hittley v. State, 559 S.W.3d 401, 402 (Mo. App. E.D, 2018)(movant pleaded guilty in
August 2015, and the court sentenced movant to seven years’ imprisonment, suspended execution of the
sentence, and placed movant on probation for five years; in March 2017, the court revoked probation and
executed the previously-imposed sentence); Abrams v. State, 550 8.W.3d 557 n.2 (Mo. App. S.D. 2018)(movant
pleaded guilty in 2011, and his sentence was imposed in 2013).

1

 
for felony stealing, which was within the limit set by law for the offense at the time defendant

committed the crime. We affirm the circuit court’s judgment.

Vauem a Hoenuy

LAWRENCE E. MOONEY, soa

 

SHERRI B. SULLIVAN, P.J. and
JAMES M. DOWD, J., concur.

12

 
