State v. Russell
| Decision Date | 23 April 2019 |
| Docket Number | No. ED106570,ED106570 |
| Parties | STATE OF MISSOURI, Respondent, v. JASON RUSSELL, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Lincoln County
Honorable James D. Beck
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 party shall be entitled to any appeal permitted by law after the rendition of final judgment in a criminal case).3
In the context of a guilty plea, however, this right to a direct appeal conferred by Section 547.070 and Rule 30.01(a) is limited. State v. Hopkins, 432 S.W.3d 208, 211 (Mo. App. W.D. 2014). "'A plea of guilty and the ensuing conviction comprehend all of thefactual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.'" State v. Rohra, 545 S.W.3d 344, 347 (Mo. banc 2018)(quoting U.S. v. Broce, 488 U.S. 563, 569 (1989)). "'By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime.'" Id. Consistent with these principles, the general rule in Missouri is that a knowing and voluntary plea of guilty waives all non-jurisdictional defects and defenses, including statutory and constitutional guarantees. Rohra, 545 S.W.3d at 347; Feldhaus v. State, 311 S.W.3d 802, 805 (Mo. banc 2010). Thus, on direct appeal following a guilty plea, a defendant is limited to claims involving the jurisdiction of the trial court and claims challenging the sufficiency of the information or indictment charging the offense. Rohra, 545 S.W.3d at 347. However, as we will see, exceptions to these general rules exist.
Defendant challenges the sufficiency of the information. He contends that the information only charged a misdemeanor, and not a felony, because as held in Bazell, a stealing offense charged under Section 570.030 cannot be enhanced to a felony by operation of subsection 570.030.3(1) based on the value of the property at issue. Defendant's attempt to bring his claim within this exception is not persuasive. His challenge is based on a change in the law after his arraignment on the charge stated in the information. The purpose of an indictment or information is to inform the accused of charges against him so that he may prepare an adequate defense and to prevent retrial on the same charges in case of an acquittal. Rohra, 545 S.W.3d at 347. A challenge to the sufficiency of a charging document tests whether that document alleges the essential elements of the offense charged as set out in the statute and whether it fairly informs a defendant of the facts constituting the offense. Id. "As a general rule, it is enough to charge the offense in the language of the statute alleged to be violated if the statute states all the constituent elements of the offense." Id. When a defendant challenges the sufficiency of an information for the first timefollowing a guilty plea, the information will be held to be sufficient unless (1) it does not by any reasonable construction charge the offense to which the defendant pleaded guilty, and (2) the defendant demonstrates actual prejudice as a result of the insufficiency. State v. Sparks, 916 S.W.2d 234, 237 (Mo. App. S.D. 1995). The information here mirrored the language of the Section 570.030 as of the time defendant committed the offense and pleaded guilty to the crime. And that statutory section stated all the elements of the offense. The information also contained the facts constituting the offense, a matter that defendant does not dispute. Defendant also did not advance any argument that he was not informed of the charges against him such that he could not adequately prepare a defense. The information here was sufficient. See also, Rule 23.01(b)(setting out the form and requirements for an information, all of which were included in the information here).
Defendant also lodged a jurisdictional-type challenge, contending that the circuit court was "without power" to enter a judgment for felony stealing because the offense was really a misdemeanor. Again, defendant's challenge is based on a change in the law after his commission of the crime, his arraignment, and his plea of guilty. Furthermore, as our colleagues in the Western District recently noted, in light of Wyciskalla, the entry of a criminal sentence in excess of that authorized by law is no longer properly characterized as a "jurisdictional defect" following Wyciskalla. State v. Baker, 551 S.W.3d 68, 70 (Mo. App. W.D. 2018)(citing J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253-54 (Mo, banc 2009). Our Supreme Court's decision in Wyciskalla had the "salutary effect of confining the use of 'jurisdiction' to its constitutional context." Hoskins v. State, 329 S.W.3d 695, 697 n.2 (Mo. banc 2010). This action was in circuit court, and as Wyciskalla counseled, the circuit court has original jurisdiction over all criminal cases. Wyciskalla, 275 S.W.3d at 2533.
The State contends that defendant's exclusive remedy is a Rule 24.035 post-conviction proceeding. Rule 24.035 creates an exception to the general rule that a plea of guilty waives the right to challenge alleged errors relating to the plea and sentence. The rule provides in pertinent part:
A person convicted of a felony in a plea of guilty and delivered to the custody of the department of collections who claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims ... that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this Rule 24.035. This Rule 24.035 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated....
(Emphasis added).4
The rule establishes the exclusive procedure by which one may seek relief for certain enumerated claims. Well-established precedent holds that claims concerning a sentence imposed following a guilty plea must be made pursuant to a Rule 24.035 proceeding, not on direct appeal. Hopkins, 432 S.W.3d at 211-12 (); State v. Brooks, 394 S.W.3d...
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