Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of Lincoln County Honorable James D.
LAWRENCE E. MOONEY, JUDGE
presented today with another Bazell-related decision, this
one a bit procedurally different from the decisions to date,
in that Bazell was decided while defendant was
serving probation, on a suspended imposition of sentence
after his plea of guilty. The circuit court, after revoking
defendant Jason Russell's probation, entered judgment for
felony stealing and sentenced defendant to a felony term of
seven years' imprisonment. Defendant now directly
appeals, contending that due to the Bazell decision,
he can only be convicted of, and sentenced for, misdemeanor
stealing. We first hold that the greater weight of authority
counsels that defendant should bring this action via a Rule
24.035 post-conviction proceeding. Second, even if
defendant's claim was cognizable on direct appeal,
Bazell relief does not lie here, and thus the
circuit court did not err in entering judgment for felony
stealing and in sentencing defendant accordingly.
and Procedural Background
State charged defendant with the class C felony of stealing
by deceit, Section 570.030 RSMo. The State alleged that
between March 26, 2011, and October 29, 2011, defendant
appropriated at least $500 from the State of Missouri, by
deceit, and with the purpose to deprive the State, when he
falsely claimed that he was unemployed. Defendant, pursuant
to a plea agreement with the State, pleaded guilty to the
offense on October 21, 2013. The circuit court accepted
defendant's plea, and in accordance with the plea
agreement, suspended imposition of sentence and placed
defendant on probation for four years.
two years later, on June 6, 2015, the State moved to revoke
defendant's probation. The circuit court, per the
State's request, suspended defendant's probation.
following year, on August 23, 2016, while defendant's
probation revocation was still pending in the circuit court,
the Supreme Court of Missouri decided State v.
Bazell, holding that a stealing offense under Section
570.030.1 could not be enhanced to a felony by operation of
subsection 570.030.3(1) based on the value of the property at
issue. State v. Bazell, 497 S.W.3d 263 (Mo. banc
year later, on October 10, 2017, defendant confessed that he
had violated his probation. Citing Bazell, he
objected to being sentenced to a felony. The circuit court
overruled that objection, and on December 7, 2017, revoked
defendant's probation and sentenced defendant to seven
years of imprisonment.
brings this direct appeal, contending that the circuit court
erred in entering judgment for felony stealing and in
sentencing him to a felony term of seven years'
imprisonment. He contends that due to the Bazell
decision, he can only be convicted of, and sentenced for,
case presents two overarching issues: first, whether
defendant's claim is cognizable on direct appeal or
whether he must proceed via a Rule 24.035 post-conviction
proceeding; and second, whether defendant is entitled to
relief. We address each in turn.
Appeal or PCR Proceeding?
parties dispute whether defendant may make his challenge on
direct appeal. The State contends that defendant must bring
his claim pursuant to a post-conviction action under Rule
24.035. Defendant argues that he may proceed via direct
appeal. Each argument has its merits and its flaws.
right of an appeal exists without statutory authority.
State v. Craig,287 S.W.3d 676, 679 (Mo. banc 2009).
In criminal cases that authority is conferred in Section
547.070, which provides that an appeal to the proper
appellate court shall be allowed to the defendant in all
cases of final judgment rendered upon any indictment or
information. Id.; Section 547.070; accord
Rule 30.01(a)(providing that every ...