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Brooks v. State

Court of Appeals of Missouri, Eastern District, Third Division

March 5, 2019

MARLON BROOKS, Movant/Appellant,
v.
STATE OF MISSOURI, Respondent/Respondent.

          Appeal from the Circuit Court of St. Louis County Honorable Michael T. Jamison.

          SHERRI B. SULLIVAN, P.J.

         Introduction

         Marlon Brooks (Movant) appeals from the denial of his Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence (amended motion). We affirm.

         Facts and Background

         In June 2015, the State of Missouri (State) charged Movant under Section 570.040[1] 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 stealing.

         On 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.

         On September 6, 2016, Movant timely filed a pro se Motion to Vacate, Set Aside, or Correct Judgment and Sentence pursuant to Rule 24.035[2]. 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 amended motion.

         On 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.

         Points Relied On

         Movant 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.

         Standard of Review

         We 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).

         Poin ...


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