Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of Lincoln County Honorable James Beck
T. QUIGLESS, J.
Hamilton ("Movant") appeals from the judgment of
the motion court, denying her Rule 24.035 post-conviction
relief motion. Movant claims her sentences for two counts of
felony stealing exceeded the maximum sentence authorized by
law, in that under the holding in State v. Bazell,
497 S.W.3d 263 (Mo. banc 2016), the sentences should not have
been enhanced to class C felonies but should have remained
class A misdemeanors. Likewise, the State maintains Movant
was sentenced in excess of the authorized range of punishment
because Movant was not sentenced, and thus her stealing
convictions were not final, until after Bazell was
decided. Consequently, the State argues Movant is entitled to
the forward application of Bazell, and requests that
this Court reverse the motion court's judgment and remand
for resentencing. We disagree with both Movant and the State,
and affirm the judgment of the motion court.
and Procedural Background
December 16, 2011, Movant was charged with two counts of the
class C felony of stealing a controlled substance, in
violation of Section 570.030 RSMo 2000 (Cum. Supp.
2009).On March 26, 2012, Movant pleaded guilty to
both charges, pursuant to a plea agreement in which the State
agreed to recommend Movant be placed in a drug court program.
Movant acknowledged she was charged with two counts of the
class C felony of stealing, and that the range of punishment
for each offense was up to seven years in
prison. The plea court accepted the State's
recommendation. On May 22, 2014, the trial court suspended
imposition of sentence and placed Movant on probation for
five years. On December 22, 2014, a probation violation
hearing was scheduled, but Movant failed to appear and a
warrant was issued for her arrest. On May 18, 2015, another
probation violation hearing was scheduled, and, again, Movant
failed to appear and an arrest warrant was issued. On May 28,
2015, the warrant was served, and Movant appeared at a
probation violation hearing and confessed to violating two
conditions of her probation. The court continued Movant's
probation. On December 19, 2016, another probation violation
hearing was held, and Movant confessed to violating four
conditions of her probation. On March 16, 2017, the court
terminated Movant's probation and sentenced her to
concurrent terms of five years' imprisonment on each
count of felony stealing. Movant did not file a direct
August 4, 2017, Movant timely filed a pro se Rule
24.035 post-conviction relief motion. On August 17, 2017, the
motion court appointed post-conviction counsel to represent
Movant. On September 10, 2017, post-conviction counsel
simultaneously entered his appearance and timely filed an
amended motion. Therein, Movant acknowledged she did not
request transcripts of the guilty plea and sentencing
hearings, stating: "Given the nature of the claim being
presented, and the time served already, movant is proceeding
without the transcript." Movant claimed she was denied
her right to due process of law because she was sentenced to
the enhanced class C felony of stealing under Section
570.030, which was only a class A misdemeanor offense under
the holding in State v. Bazell, 497 S.W.3d 263 (Mo.
banc 2016). As a result, Movant argued her five-year
sentences exceeded the maximum punishment authorized by law.
Movant also waived her right to an evidentiary hearing.
February 26, 2018, the motion court entered its findings of
fact, conclusions of law, and judgment, denying Movant's
post-conviction relief motion. The motion court found
Movant's claim was precluded by the holding in State
ex rel. Windeknecht v. Mesmer, 530 S.W.3d 500 (Mo. banc
2017), in which the Missouri Supreme Court held that the
Bazell holding only applies to cases moving forward,
except those cases pending on direct appeal. The motion court
concluded, "Since 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." Movant now appeals.
review the denial of a Rule 24.035 post-conviction relief
motion to determine whether the motion court's findings
and conclusions are clearly erroneous. Rule 24.035(k);
Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011).
Findings and conclusions are clearly erroneous if, after a
review of the entire record, we are left with the definite
and firm impression that a mistake has been made. Little
v. State, 427 S.W.3d 846, 850 (Mo. App. E.D. 2014).
sole point on appeal, Movant argues the motion court clearly
erred in denying her Rule 24.035 post-conviction relief
motion, in violation of her right to due process of law,
because her sentences for two counts of felony stealing
exceeded the maximum sentence authorized by law, in that
under the holding in Bazell, the sentences should
not have been enhanced to class C felonies but should have
remained class A misdemeanors. Therefore, Movant asks this
Court to reverse and remand for resentencing. We decline to
Bazell, the Missouri Supreme Court held that the
class A misdemeanor offense of stealing under Section 570.030
could not be enhanced to a class C felony because Section
570.030.3, the felony enhancement provision, only applies to
those offenses "in which the value of the property or
services is an element." Bazell, 497 S.W.3d at
266-67. The Court found the offense of stealing, as defined
in Section 570.030.1,  contained no such element. Id.;
see also State v. Smith, 522 S.W.3d 221, 229-30 (Mo.
banc 2017) (reaffirming Bazell and holding that
"Bazell draws no distinction among the numerous
subcategories enumerated within section 570.030.3"). One
year later, in State ex rel. Windeknecht v. Mesmer,
which involved a petition for habeas corpus,  the Court
concluded that Bazell's holding "only
applies forward, except those cases pending on direct
appeal." Windeknecht, 530 S.W.3d at 503.
Movant argues Windeknecht does not apply to a
timely-filed Rule 24.035 post-conviction relief motion
because the Missouri Supreme Court's holding "does
not specifically address claims for relief pursuant to Rule
24.035." In support of her argument, Movant relies on
State ex rel. Fite v. Johnson, 530 S.W.3d 508 (Mo.
banc 2017), in which the Missouri Supreme Court held that a
defendant could not rely on Bazell to withdraw a
guilty plea pursuant to Rule 29.07(d) because a "claim
that [a] sentence was in excess of the maximum authorized by
law [is] within the purview of Rule 24.035[.]"
Id. at 510. However, Movant's reliance on
State ex rel. Fite is misplaced because the Court
did not hold that a Bazell claim could be
successfully asserted pursuant to Rule 24.035.
See Watson v. State, 545 S.W.3d 909, 915 (Mo. App.
W.D. 2018). Indeed, Missouri courts have repeatedly rejected
the exact argument Movant raises on appeal. It is now
well-established that although "a Bazell claim
that a sentence has been unlawfully entered may be
procedurally cognizable under Rule 24.035 in a strictly
technical sense, a Bazell claim asserted pursuant to
Rule 24.035 is substantively without merit as a matter of
law." Id. (rejecting Movant's argument that
a Bazell claim can be successfully raised in
timely-filed post-conviction relief motions); see also
Bosworth v. State, 559 S.W.3d 5, 10 (Mo. App. E.D. 2018)
(finding argument erroneously conflates procedural
cognizability with substantive merit); Whittley v.
State, 559 S.W.3d 401, 403 (Mo. App. E.D. 2018);
Abrams v. State, 550 S.W.3d 557, 558 (Mo. App. S.D.
2018). In accordance with these cases, we find Movant's
argument fails because her Bazell challenge cannot
be successfully raised in a Rule 24.035 post-conviction
relief motion following a guilty plea. See Bosworth,
559 S.W.3d at 10 (citing Watson, 545 S.W.3d at 915,
and Abrams, 550 S.W.3d at 558).
in support of Movant's appeal, the State argues
Windeknecht is inapplicable to the present case
because Movant was not sentenced, and therefore her stealing
convictions were not final, until after Bazell was
decided. Accordingly, the State maintains this case involves
the forward application, rather ...