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State v. Russell

Court of Appeals of Missouri, Eastern District, Third Division

April 23, 2019

STATE OF MISSOURI, Respondent,
v.
JASON RUSSELL, Appellant.

          Appeal from the Circuit Court of Lincoln County Honorable James D. Beck

          LAWRENCE E. MOONEY, JUDGE

         We are 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.[1] 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.

         Factual and Procedural Background

         The 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.

         Nearly 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.

         The 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 2016).[2]

         Over a 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.

         Defendant 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, misdemeanor stealing.

         Discussion

         This 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.

         Direct Appeal or PCR Proceeding?

         The 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.

         No 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 ...


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