Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County Honorable Michael
B. SULLIVAN, P.J.
Brooks (Movant) appeals from the denial of his Amended Motion
to Vacate, Set Aside, or Correct Judgment and Sentence
(amended motion). We affirm.
2015, the State of Missouri (State) charged Movant under
Section 570.040 with stealing, third offense. The State
alleged that Movant had entered a CVS pharmacy on January 27,
2015, and took assorted merchandise. The State also alleged
Movant had been found guilty of two other stealing-related
charges: in July 2008, Movant pleaded guilty in the City of
St. Louis to misdemeanor stealing; that same month and year,
Movant also pleaded guilty in the City of St. Louis to felony
April 11, 2016, Movant pleaded guilty to the charge of
stealing, third offense. In doing so, Movant admitted to
entering the CVS pharmacy and taking assorted merchandise,
and doing so without consent with the purpose to deprive CVS
of the property. Movant also admitted to having pleaded
guilty to the two previous stealing-related offenses as
alleged by the State. The court accepted Movant's plea
and sentenced him to three years' imprisonment.
September 6, 2016, Movant timely filed a pro se
Motion to Vacate, Set Aside, or Correct Judgment and Sentence
pursuant to Rule 24.035. On October 7, 2016, the motion court
ordered counsel appointed for Movant, and counsel entered her
appearance on behalf of Movant on October 19, 2016. The
motion court then granted a 30-day extension to file an
December 30, 2016, Movant timely filed his amended motion.
Movant's amended motion alleged the plea court erred in
sentencing him under Section 570.040 to three years'
imprisonment as it was without authority to do so under
State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016). The
motion court denied Movant's amended motion without an
evidentiary hearing, finding Bazell inapplicable to
Movant's case. Movant appeals from this judgment.
attempts to apply Bazell to his guilty plea in two
ways: First, Movant claims Bazell held a conviction
under Section 570.040 cannot be a felony because the value of
the goods or services appropriated is not an element of the
offense. His second claim is that his guilty plea must be
vacated, because one of the predicate stealing offenses in
the City of St. Louis upon which his conviction is based was
an offense to which the Bazell holding applies.
review the motion court's findings of fact and
conclusions of law for clear error. Rule 24.035(k);
Flores v. State, 186 S.W.3d 398, 399 (Mo. App. E.D.
2006). We will reverse only if, on review of the entire
record, we are left with a definite and firm impression a
mistake has been made. Reid v. State, 192 S.W.3d
727, 731 (Mo. App. E.D. 2006).