              SUPREME COURT OF MISSOURI
                                        en banc
HEATHER HAMILTON,                          )     Opinion issued April 28, 2020
                                           )
         Appellant,                        )
                                           )
v.                                         )     No. SC97881
                                           )
STATE OF MISSOURI,                         )
                                           )
         Respondent.                       )

                      Appeal from the Circuit Court of Lincoln County
                            The Honorable James Beck, Judge

         Heather Hamilton appeals the circuit court’s judgment overruling her Rule 24.035

motion for postconviction relief from the two five-year sentences imposed on her for class

C felony stealing under section 570.030. 1 Ms. Hamilton alleges the sentences the circuit

court imposed exceeded the sentences authorized by law because the sentences were

imposed after this Court held in State v. Bazell, 497 S.W.3d 263, 269 (Mo. banc 2016), that

stealing in violation of section 570.030 is a class A misdemeanor that cannot be enhanced

to a class C felony. This Court agrees. Because Ms. Hamilton’s judgment of conviction

was not yet final when this Court decided Bazell, and because in State ex rel. Windeknecht




1
    All statutory references are to RSMo Supp. 2009 unless otherwise noted.
v. Mesmer, 530 S.W.3d 500, 503 (Mo. banc 2017), this Court held the rule announced in

Bazell would apply going forward, Ms. Hamilton is correct that she was entitled to have

Bazell applied to her sentencing. The circuit court, therefore, erred in entering judgments

of conviction against Ms. Hamilton and sentencing her as if her crimes were class C

felonies. Ms. Hamilton’s crimes were class A misdemeanors under Bazell, and she should

have been sentenced accordingly. The judgment is reversed, and the case is remanded.

I.     FACTUAL AND PROCEDURAL BACKGROUND

       In 2011, Ms. Hamilton was charged with two counts of the class C felony of stealing

a controlled substance in violation of section 570.030. 2 In March 2012, she pleaded guilty

to both felony counts after the State agreed to recommend she be ordered to take part in a

drug court program. Ms. Hamilton’s involvement in the drug court program was not

entirely successful, and, in May 2014, the circuit court suspended imposition of her

sentence and placed her on probation for five years. She was still serving her probation in

2016 when this Court handed down its decision in Bazell, holding the misdemeanor offense

of stealing in section 570.030.1 could not be enhanced to a felony because “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” and “[t]he value of the property or services

appropriated is not an element of the offense of stealing.” Bazell, 497 S.W.3d at 266. In

State v. Smith, 522 S.W.3d 221, 230 (Mo. banc 2017), this Court held Bazell’s analysis




2
  Effective January 1, 2017, section 570.030 no longer contains the same language
addressed in Bazell. See § 570.030, RSMo 2016.
                                          2
applied to all of the sentence-enhancing provisions in section 570.030.3 because those

enhancements could be applied only if the value of property or services were an element

of the underlying offense. 3 In Windeknecht, this Court declined to make the holdings in

Bazell and Smith retroactive to cases on collateral review. 530 S.W.3d at 503. Windeknecht

affirmatively held, however, that it would apply Bazell to cases that were “pending on

direct appeal” as well as to cases going “forward.” Id. In other words, as this Court

reaffirmed in Fite v. Johnson, 530 S.W.3d 508, 511 (Mo. banc 2017), Bazell would be

applied prospectively to proceedings in cases not yet final at the time Bazell was decided,

including those pending on direct appeal.

         Ms. Hamilton was on probation and had not yet been sentenced at the time Bazell

was decided. Nonetheless, when the circuit court revoked Ms. Hamilton’s probation on

March 16, 2017, neither the court nor counsel considered the effect of Bazell’s holding that

the crime to which she had pleaded guilty was a class A misdemeanor that could not be

enhanced to a class C felony, and she was sentenced to concurrent five-year terms of

imprisonment for each count of felony stealing.




3
    In Smith, 522 S.W.3d at 230, this Court explained:

         Bazell’s analysis regarding the applicability of section 570.030.3 to the
         offense of stealing does not depend on which particular enhancement
         provision is at issue. 497 S.W.3d at 266-67. Instead, Bazell looked at the
         definition of the offense of stealing in section 570.030.1 and held that,
         because the definition does not contain as an element “the value of property
         or services,” “section 570.030.3 does not apply here.” Id. at 267. Bazell
         draws no distinction among the numerous subcategories enumerated within
         section 570.030.3.
                                              3
       Ms. Hamilton filed a timely postconviction motion, pursuant to Rule 24.035,

challenging the legality of her sentences in light of Bazell. The circuit court overruled the

Rule 24.035 motion. Interpreting Windeknecht to hold that Bazell applied only to pending

appeals, not prospectively to ongoing proceedings in circuit court cases in which a final

judgment had not been entered when Bazell was decided, the court stated, “[s]ince the

Movant’s motion is not a direct appeal, and the Movant received a sentence that was

authorized by a different interpretation of section 570.030 without objection, the Movant’s

request for relief is hereby denied.” Ms. Hamilton timely appealed. After opinion by the

court of appeals, this Court granted transfer. Mo. Const. art. V, § 10.

II.    STANDARD OF REVIEW

       A judgment denying postconviction relief will be affirmed unless its findings and

conclusions are clearly erroneous. Meiners v. State, 540 S.W.3d 832, 836 (Mo. banc 2018);

Rule 29.15(k). “Findings and conclusions are clearly erroneous only when this Court is

left with a ‘definite and firm impression that a mistake has been made.’” Hounihan v.

State, 592 S.W.3d 343, 347 (Mo. banc 2019), quoting, Mallow v. State, 439 S.W.3d 764,

768 (Mo. banc 2014). This Court determines questions of law de novo. State v. Pierce,

548 S.W.3d 900, 902 (Mo. banc 2018).

III.   Bazell Applies Because This Case Was Not Yet Final When Bazell Was Decided

       Ms. Hamilton seeks relief under Rule 24.035, which expressly provides, “A person

convicted of a felony on a plea of guilty claiming that … the sentence imposed was in

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


                                             4
pursuant to the provisions of this Rule 24.035.” She notes that “[a] criminal judgment

becomes final when a sentence is entered.” Fite, 530 S.W.3d at 510. Her sentence was not

final when Bazell was decided because she had received a suspended imposition of

sentence. While imposition of sentence is suspended, a conviction has not been entered

and there is no final judgment. State v. Gordon, 344 S.W.2d 69, 71 (Mo. 1961); Yale v.

City of Indep., 846 S.W.2d 193, 194-95 (Mo. banc 1993).

       Applying these principles here, Ms. Hamilton notes that only once her probation

was revoked and the court entered sentence against her was a judgment of conviction

entered in her case. Gordon, 344 S.W.2d at 71; Yale, 846 S.W.2d at 194-95. By that point,

Bazell already had been decided and, pursuant to Windeknecht, was required to apply going

forward, that is, prospectively to proceedings in cases not yet final when Bazell was

decided. This necessarily included, Ms. Hamilton argues, the sentencing proceedings in

her case, as those did not take place until the year following the decision in Bazell. In

support, Ms. Hamilton cites Windeknecht’s statement that Bazell “applies forward” and to

cases “pending on direct appeal.” 530 S.W.3d at 503.

       The State counters that, because Windeknecht used the word “pending” only in

relation to the word “appeal,” it must have meant that Bazell would apply only to pending

appeals and to cases filed or tried in the future. Windeknecht did not, the State argues,

intend Bazell to apply to future proceedings in cases then pending in the circuit court.

       The State gives inadequate attention to Windeknecht’s mandate that Bazell “applies

forward.” The Court did not limit that mandate to new cases filed after Bazell or to new


                                             5
trials held after Bazell or to guilty pleas entered after Bazell. Rather, Windeknecht held

that Bazell would apply “forward,” without limitation. It expressly noted this would

include cases then pending on appeal, to clarify that, even though sentence had been entered

in such cases, because the appeals were not yet final, they would receive the benefit of

Bazell. While Windeknecht’s language was somewhat terse, it explicitly did not limit

Bazell’s application to only cases then pending on appeal; to the contrary, it specified that

Bazell “applies forward.” In Fite, this Court reiterated that “Bazell applies prospectively

only, except in those cases pending on direct appeal.” 530 S.W.3d at 511. To the extent

the language in these cases could somehow have been unclear, however, the Court

reiterates that, in stating Bazell applies forward, it meant that Bazell applies to all cases

that were not yet final when Bazell was announced, even if already filed, tried, or subject

to a plea, so long as sentence had not been entered when Bazell was decided, as well as to

cases on direct appeal.

       To accept the State’s contrary argument would mean there is a “donut hole” in

Bazell’s application – that Windeknecht meant Bazell to apply at one end of the timeline to

new cases filed or in which a plea or guilty verdict were entered after Bazell, and at the

other end of the timeline to cases in which a conviction already had been entered but that

were still pending on appeal at the time of Bazell, but not to the cases in the middle of this

timeline in which a plea had been entered or a guilty verdict rendered but as to which a

sentence had not yet been imposed. In other words, it would apply to all pending cases




                                              6
except this one and a very few like it. See State v. Russell, No. SC97916, __ S.W.3d __

(Mo. banc April 24, 2020) (suspended imposition of sentence following guilty plea).

       This reading of Bazell and Windeknecht is inconsistent with the overall rulings of

the Court. Windeknecht did not create such a procedural absurdity. Whether pending in

the circuit court or on direct appeal, any case not yet final at the time of Bazell is entitled

to the benefit of Bazell’s rule. Ms. Hamilton received a suspended imposition of sentence,

and her probation was not revoked and a sentence was not imposed, until after this Court

decided Bazell. Ms. Hamilton’s case, therefore, was not final when Bazell was announced.

For that reason, she was entitled to the benefit of Bazell’s rule going forward in her case,

which meant she was entitled to its application at the time sentence was imposed.

IV.    CONCLUSION

       The judgment is reversed. Ms. Hamilton’s convictions for felony stealing are

reversed, and the case is remanded for resentencing as class A misdemeanors pursuant to

sections 570.030.1 and 558.011.




                                                   _____________________________
                                                     LAURA DENVIR STITH, JUDGE

All concur.




                                              7
