              IN THE MISSOURI COURT OF APPEALS
                      WESTERN DISTRICT
 IN RE: CHRISTOPHER CULP,         )
                      Petitioner, )
                                  )
 v.                               )              WD80220
                                  )
 SCOTT LAWRENCE, WARDEN,          )              FILED: January 10, 2017
                    Respondent. )

                         On Petition for Writ of Habeas Corpus

       Before Writ Division: James E. Welsh, P.J., and Lisa White Hardwick
                               and Alok Ahuja, JJ.
       Christopher Culp pleaded guilty in the Circuit Court of St. Louis County to

stealing property having a value of more than $500, in violation of § 570.030,1 based

on an incident which occurred on January 9, 2011. The circuit court classified

Culp’s offense as a class C felony and on October 19, 2011, it sentenced him to four

years’ imprisonment.

       Culp was released on parole on September 28, 2012, almost a year after he

began serving his sentence. Culp violated the conditions of his parole by failing to

report to his parole officer. He was arrested on April 10, 2016, and returned to the

Department of Corrections. Based on its refusal to credit Culp for the time he spent

on parole while in absconder status, the Department currently calculates Culp’s

sentence as ending in October 2017.



      1       Statutory citations refer to the 2000 edition of the Revised Statutes of
Missouri, as updated through the 2010 Cumulative Supplement.
      On September 13, 2016, Culp filed a Petition for Writ of Habeas Corpus in

the Circuit Court of Cole County. In his Petition, Culp argued that his conviction

for stealing should have been classified as a class A misdemeanor, not as a class C

felony, in light of the interpretation of § 570.030 in State v. Bazell, 497 S.W.3d 263

(Mo. banc 2016). Culp argued that he had already served more than the one-year

maximum authorized sentence for a class A misdemeanor conviction, and that he

was accordingly entitled to immediate release.

      The circuit court denied Culp’s Petition on November 7, 2016. He filed a

similar Petition in this Court on November 18, 2016. We issued an Order to Show

Cause on the same day, directing Respondent Scott Lawrence, the Warden of the

Algoa Correctional Center, to file an answer to the Petition.

      Having received Warden Lawrence’s response to the Petition, and Culp’s

reply suggestions, we now issue a writ of habeas corpus directing that Culp’s

conviction of the class C felony of stealing be vacated, and that the record of his

conviction be amended to reflect conviction of the class A misdemeanor of stealing.

We order that Culp be released from State custody upon issuance of our mandate.

                                       Discussion
      “‘[A] writ of habeas corpus may be issued when a person is restrained of his
or her liberty in violation of the constitution or laws of the state or federal

government.’” State ex rel. Clemons v. Larkins, 475 S.W.3d 60, 76 (Mo. banc 2015)

(quoting State ex rel. Woodworth v. Denney, 396 S.W.3d 330, 337 (Mo. banc 2013)).

Culp’s habeas petition contends that he was erroneously convicted of, and sentenced

for, a class C felony, when he was guilty only of a class A misdemeanor. Culp did

not challenge his conviction and sentencing in an appeal from his conviction, or in a

post-conviction relief motion under Supreme Court Rule 24.035. Generally, an

inmate cannot use a habeas petition to raise a claim which could have been asserted
on direct appeal or in a post-conviction relief proceeding. Id. “[I]t is settled,”


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however, “that the imposition of a sentence beyond that permitted by the applicable

statute or rule may be raised by way of a writ of habeas corpus” despite the

petitioner’s failure to raise the issue in earlier proceedings. State ex rel. Thornton

v. Denney, 467 S.W.3d 292, 295-96 (Mo. App. W.D. 2015) (citing State ex rel. Zinna
v. Steele, 301 S.W.3d 510, 517 (Mo. banc 2010); State ex rel. Koster v. Jackson, 301
S.W.3d 586, 590 (Mo. App. W.D. 2010)). Under this principle, Culp is entitled to

raise his claim that his conviction and sentence were unauthorized in a habeas

petition. We note that Warden Lawrence has not argued that Culp’s habeas

petition is procedurally barred.

                                            I.
      At the time of Culp’s underlying offense, § 570.030 provided in relevant part

as follows:

            1.    A person commits the crime of stealing if he or she
      appropriates property or services of another with the purpose to
      deprive him or her thereof, either without his or her consent or by
      means of deceit or coercion.
              ...
             3.    Notwithstanding any other provision of law, any offense
      in which the value of property or services is an element is a class C
      felony if:
                      (1)  The value of the property or services appropriated
              is five hundred dollars or more but less than twenty-five
              thousand dollars . . . .
                    ...
                    (3)    The property appropriated consists of:
                    ...
                           (d)     Any firearms . . . .
              ...
             8.     Any violation of this section for which no other penalty is
      specified in this section is a class A misdemeanor.




                                             3
      The Missouri Supreme Court construed the felony enhancement provisions

contained in § 570.030.3 in State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016). Bazell

involved a prosecution for theft of a firearm. The Court held that § 570.030.3’s

enhancement provisions do not apply to the offense of stealing defined in

§ 570.030.1. It explained:

      The felony enhancement provision, by its own terms, only applies if the
      offense is one “in which the value of the property or services is an
      element.” Stealing is defined in section 570.030.1 as “appropriat[ing]
      property or services of another with the purpose to deprive him or her
      thereof, either without his consent or by means of deceit or coercion.”
      The value of the property or services appropriated is not an element of
      the offense of stealing.
497 S.W.3d at 266.

      Warden Lawrence argues that Bazell is inapplicable here for two separate

reasons. First, he argues that Bazell only interpreted the enhancement provision

for theft of a firearm found in § 570.030.3(3)(d). According to Warden Lawrence,

Bazell should not be applied to the separate enhancement provision in
§ 570.030.3(1), which addresses offenses where “[t]he value of the property or

services appropriated is five hundred dollars or more.” Culp’s stealing offense was

enhanced to a class C felony based on § 570.030.3(1), not based on the enhancement

for theft of a firearm found in § 570.030.3(3)(d).
      Bazell is fully applicable to stealing convictions which were enhanced to a
felony based on the value of the appropriated property. Both the firearm-specific

provision at issue in Bazell, and the value-based enhancement provision found in

§ 570.030.3(1), are subject to the same introductory language of § 570.030.3. That

introductory language states that the enhancements which follow apply only to

“offense[s] in which the value of property or services is an element.” Bazell holds

that stealing is not an “offense in which the value of property or services is an




                                            4
element,” and therefore none of the enhancements listed in § 570.030.3 apply to the

offense of stealing.

         We rejected the argument made by Warden Lawrence in State v. McMillian,

No. WD 79440, 2016 WL 6081923 (Mo. App. W.D. Oct. 18, 2016), in which we

explained:

         Bazell made no distinction between the various ways the enhancement
         provision could be triggered. Bazell found that the statute under
         which McMillian was charged, section 570.030.1, does not contain as
         an element “the value of property or services.” Therefore, section
         570.030.3, which only applies where “the value of property or services”
         is an element of the offense, is inapplicable. The specific character of
         the enhancement sought under section 570.030.3 is irrelevant because
         the enhancement simply does not apply to section 570.030.1.
2016 WL 6081923, at *2. The Southern District recently followed McMillian in

State v. Turrentine, No. SD34257, 2016 WL 6818938, at *2 (Mo. App. S.D. Nov. 18,
2016); see also State v. Metternich, No. WD79253, 2016 WL 7439121, at *2 (Mo.

App. W.D. Dec. 27, 2016) (relying on Bazell to reverse stealing conviction which was

enhanced to a felony by operation of § 570.030.3(1)). McMillian, Turrentine and

Metternich each hold that Bazell applies to stealing convictions which were
enhanced to a felony based on the value of the stolen property. Although these

decisions are not currently final, we believe that they correctly interpret the
Supreme Court’s decision in Bazell, and we reach the same result.

         Warden Lawrence also argues that, even if Bazell is otherwise applicable, it

should not apply retroactively to Culp’s stealing conviction, because his conviction

was final before Bazell was decided. We reject this argument for the reasons fully

explained in State ex rel. Thornton v. Denney, 467 S.W.3d 292 (Mo. App. W.D.

2015).

         Thornton followed and applied Turner v. State, 245 S.W.3d 826 (Mo. banc
2008). Turner interpreted § 577.023, RSMo 2000, and held that “the use of prior
municipal offenses resulting in an SIS [(i.e., suspended imposition of sentence)]


                                            5
cannot be used to enhance punishment [for driving while intoxicated] under section

577.023.” 245 S.W.3d at 829. Thornton’s conviction for driving while intoxicated

had been enhanced from a misdemeanor to a Class D felony based, in part, on a

conviction in a municipal court for which he received a suspended imposition of

sentence (or “SIS”). 467 S.W.3d at 294-95. Under Turner’s interpretation of

§ 577.023, Thornton’s earlier municipal offense should not have been used to

enhance the punishment for his later driving while intoxicated conviction. After

pleading guilty to felony driving while intoxicated, however, Thornton did not

challenge the enhancement of his driving while intoxicated conviction in an appeal

or post-conviction relief motion. Instead – as here – Thornton raised the issue in a

habeas corpus petition. Like here, the State argued that the Turner decision could

not be “retroactively” applied to Thornton’s conviction. We rejected the State’s

argument, and explained:

             Thornton is not seeking the “retroactive” application of Turner.
      Instead, Thornton’s argument is that under § 577.023 (as interpreted in
      Turner), the State failed to prove the requisite number of prior convictions
      necessary to support a finding that Thornton was a “persistent offender.”
      Section 577.023 was in effect at the time of Thornton’s guilty plea – it is not
      being applied retroactively. Moreover, the Missouri Supreme Court has held
      that “[i]n Turner, this Court made no new law; it merely clarified the
      language of an existing statute.” State v. Severe, 307 S.W.3d 640, 642–43
      (Mo. banc 2010). The Court held that – even before the Turner decision –
      “[t]he state was on notice by the plain language of section 577.023.16 that a
      guilty plea followed by a suspended imposition of sentence in ‘municipal
      court’ was not to be treated as a prior conviction.” Id. at 644. . . .

             In these circumstances, where Thornton’s petition relies on a judicial
      opinion interpreting a statute which was in effect at the time of his
      conviction, and that judicial opinion “created no new law,” no retroactivity
      issue arises.

Thornton, 467 S.W.3d at 298.
      Culp seeks to rely on a later judicial interpretation of a statute which was in
effect at the time of his offense and conviction. Like the Turner decision at issue in


                                           6
Thornton, the Missouri Supreme Court’s decision in Bazell did not create a new rule
of law – it merely interpreted and applied the plain meaning of § 570.030.3. The

Court stated that “there is no need to resort to tools of interpretation because the

language of section 570.030.3 is clear”; it also held that “the legislature clearly and

unambiguously” specified that the enhancement provisions contained in § 570.030.3

did not apply to the offense of stealing. 497 S.W.3d at 266, 267. Because Bazell

merely clarified the interpretation of a pre-existing statute, it did not create “new

law” which would be subject to retroactivity analysis. We reject Warden Lawrence’s

argument that Bazell’s interpretation of § 570.030.3 cannot be applied to Culp’s

conviction.

                                           II.
       Warden Lawrence also argues that Culp forfeited his right to relief under the

“escape rule,” because he absconded from parole by failing to report to his parole

officer.

             The escape rule is a judicially-created doctrine that operates to
       deny the right of appeal to a criminal defendant who escapes justice.
       The escape rule is applicable to both direct appeals on the merits and
       from motions for post-conviction relief under Rules 29.15 and 24.035.
       However, the escape rule only applies to errors that occurred prior to
       and up to the time of escape. Determining whether to invoke the
       escape rule is left to the sound discretion of the appellate court. In
       applying the escape rule, the relevant inquiry is whether the escape
       adversely affected the criminal justice system.
State ex rel. Koster v. Oxenhandler, 491 S.W.3d 576, 604 (Mo. App. W.D. 2016)
(citations and internal quotation marks omitted).

       We refuse to apply the “escape rule” to deny Culp habeas corpus relief. As

emphasized in Oxenhandler, the escape rule generally “operates to deny the right of

appeal.” Id. (citation and internal quotation marks omitted) (emphasis added).
“Even if the escape rule is presumed available to dismiss a petition for writ of
habeas corpus, application of the rule is subject to the exercise of discretion.” Id.



                                           7
We refuse to exercise our discretion to apply the “escape rule” in this case. Warden

Lawrence has provided us with no information concerning the nature of Culp’s

purported “escape”; the record does not reflect the length of Culp’s failure to report

to his parole officer, or the surrounding circumstances. Moreover, at the time of his

offense, the maximum sentence for a class A misdemeanor was “a term not to

exceed one year.” § 558.011.1(6). Culp began serving his sentence on October 19,

2011, and was originally released on parole on September 28, 2012 – just three

weeks short of a full year. Although the record does not reflect when Culp first

absconded from parole by failing to report, he was not arrested for this parole

violation until April 10, 2016 – well after any term of imprisonment or supervised

release would have expired on a class A misdemeanor conviction. And because Culp

has been incarcerated since his arrest on April 10, 2016, he has now served a term

of imprisonment significantly longer than the maximum sentence authorized for a

class A misdemeanor. In these circumstances, we will not apply the “escape rule” to

permit the State to continue to detain Culp, so far beyond the time during which he

was properly subject to punishment.

                                      Conclusion
      Culp’s Petition for a Writ of Habeas Corpus is granted. Culp’s conviction of
the class C felony of stealing in the Circuit Court of St. Louis County, Case No.

11SL-CR00525-01, is vacated, and Culp’s record of conviction in Case No. 11SL-

CR00525-01 is amended to reflect a conviction of the class A misdemeanor of

stealing. Respondent is prohibited from further confinement of Culp with respect to

the vacated felony conviction, and is ordered to amend the Department of

Corrections’ records to reflect the vacation of this felony conviction. Because Culp

has served more time than the maximum authorized sentence for misdemeanor

stealing, and because it does not appear that any other basis exists to confine him,




                                           8
we order that Culp be unconditionally released from the State’s custody upon

issuance of our mandate.



                                            __________________________________
                                            Alok Ahuja, Judge
All concur.




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