State v. Russell

• Citation: 598 S.W.3d 133
• Decision Date: 28 April 2020
• Docket Number: No. SC 97916,SC 97916
• Parties: STATE of Missouri, Respondent, v. Jason RUSSELL, Appellant.
• Court: United States State Supreme Court of Missouri

598 S.W.3d 133

STATE of Missouri, Respondent,

v.Jason RUSSELL, Appellant.

No. SC 97916

Supreme Court of Missouri, en banc.

Opinion issued April 28, 2020

Laura Denvir Stith, Judge

Jason Russell appeals the circuit court's judgment sentencing him for felony stealing in violation of section 570.030.¹ For the reasons stated in Hamilton v. State, No. SC97881, 598 S.W.3d 607 (Mo. banc April 24, 2020) , decided concurrently herewith, and pursuant to State ex rel. Windeknecht v. Mesmer, 530 S.W.3d 500, 503 (Mo. banc 2017) , Mr. Russell was entitled to the benefit of State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016) , at his sentencing because Bazell was decided before his sentencing occurred. The circuit court erred in sentencing Mr. Russell for a class C felony when Bazell held that stealing under section 570.030.1 is a class A misdemeanor that cannot be enhanced to a class C felony. Bazell, 497 S.W.3d at 266-67.²

The fact that Mr. Russell pleaded guilty does not preclude him from raising his claim of an excessive sentence in this direct appeal of his conviction. The right to appeal is statutory. It is set out in section 547.070, which provides, "In all cases of final judgment rendered upon any indictment or information, an appeal to the proper appellate court shall be allowed to the defendant." As this statutory language does not restrict the right of appeal of a criminal defendant who pleads guilty, neither can this Court limit a defendant's statutory right to appeal by a rule. The Missouri Constitution grants this Court the authority to establish procedural rules, but those rules "shall not change substantive rights ... or the right of appeal." Mo. Const. art. V, § 5 . Nor does the language in Rule 24.035(a) relied on by the State even purport to do so. It simply provides Rule 24.035 is the exclusive procedure by which a person convicted of a felony following a guilty plea may seek relief in the sentencing court for the claims it enumerates, which includes a claim "the sentence imposed was in excess of the maximum sentence authorized by law." Rule 24.035(a). This language does not say – and this Court could not adopt a rule that says – the procedure in the rule supplants a criminal defendant's statutory right to raise a meritorious claim on direct appeal. Mo. Const. art. V, § 5 .

It is not surprising, therefore, that this Court expressly stated in Windeknecht that the omnipresent legal error in sentencing identified in Bazell can be raised on direct appeal. 530 S.W.3d at 503 . State ex rel. Zahnd v. Van Amburg specifically reaffirmed that holding, stating that, if a court imposes a sentence in violation of Bazell , "the appropriate remedy is a direct appeal. " 533 S.W.3d 227, 231 (Mo. banc 2017) (emphasis added).³

While this Court has recognized that the right to raise certain claims on appeal may be waived by a criminal defendant when entering a guilty plea, the record in this case shows that Mr. Russell did not waive his claim that he received an excessive sentence.⁴ And Mr. Russell preserved his claim. At the time he was sentenced, Mr. Russell objected to the circuit court sentencing him for a class C felony because, as a result of the Bazell decision clarifying section 570.030, he was guilty of only class A misdemeanor stealing. The court below erred in sentencing Mr. Russell for a class C felony. The judgment is reversed, and the case is remanded for resentencing for a class A misdemeanor.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2013, Jason Russell pleaded guilty to stealing in violation of section 570.030. The circuit court suspended the imposition of sentence and placed Mr. Russell on probation for four years. In 2016, this Court decided Bazell, holding that stealing in violation of section 570.030 is a class A misdemeanor that cannot be enhanced to a class C felony. 497 S.W.3d at 266-67 ; see also State v. Smith, 522 S.W.3d 221, 230 (Mo. banc 2017).⁵ When the circuit court revoked Mr. Russell's probation and entered sentence in 2017, the circuit court sentenced him to seven years for a class C felony despite his timely objection that Bazell required he be sentenced for a class A misdemeanor, not a class C felony. Mr. Russell timely appealed. After opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, § 10 .

II. STANDARD OF REVIEW

"A trial court's sentencing decision is reviewed for abuse of discretion." State v. Palmer, 193 S.W.3d 854, 857 (Mo. App. S.D. 2006), citing, State v. Burton, 355 Mo. 792, 198 S.W.2d 19, 22 (Mo. 1946). "An abuse of discretion occurs when the trial court's action is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful consideration." Id. at 857-58. "Being sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice."

State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010) ; see also Rule 30.20. Here, however, Mr. Russell raises an issue of law as to whether he was entitled to the benefit of Bazell at the time of his sentencing. This Court determines issues of law de novo. State v. Pierce, 548 S.W.3d 900, 902 (Mo. banc 2018) .

III. BAZELL ERRORS ARE NOT WAIVED BY A GUILTY PLEA AND MAY BE RAISED ON DIRECT APPEAL

"A judgment in a criminal case becomes final when a sentence is imposed." Zahnd, 533 S.W.3d at 230 ; see also State ex rel. Fite v. Johnson, 530 S.W.3d 508, 510 (Mo. banc 2017) (internal citations omitted). In Windeknecht and Fite, this Court declined to apply Bazell retroactively to cases already final at the time Bazell was decided. Windeknecht, 530 S.W.3d at 503 ; Fite, 530 S.W.3d at 511 . But as discussed in detail in Hamilton , also handed down this day, Bazell "applies forward" – that is, prospectively – to cases in which a guilty plea had been entered but a sentence had not yet been imposed and, therefore, were not final at the time Bazell was decided. Op. at 142–44 ; accord Windeknecht, 530 S.W.3d at 503 ( Bazell "applies forward" and to "cases pending on direct appeal."); Fite, 530 S.W.3d at 511 (" Bazell applies prospectively only, except in those cases pending on direct appeal"). Bazell , therefore, applies to Mr. Russell's case because a final judgment was not entered until after Bazell .

The State argues that, even were Bazell to apply to Mr. Russell, he has chosen the wrong procedural vehicle by which to raise his Bazell claim. It argues this Court should hold either that Mr. Russell has no right to appeal following his guilty plea or that, while he may appeal, his appeal may not raise the excessiveness of his sentence; instead, he must litigate that issue in a postconviction motion he can file at some future point.

The State is incorrect to the extent it argues there is no right to a direct appeal when a criminal defendant pleads guilty. "In criminal cases, § 547.070, RSMo 2000, allows appeals from final judgments, which occur when the court enters a judgment of guilt and sentence." State v. Craig, 287 S.W.3d 676, 679 (Mo. banc 2009), citing, State v. Larson, 79 S.W.3d 891, 893 (Mo. banc 2002). Section 547.070, RSMo 2000, provides, "In all cases of final judgment rendered upon any indictment or information, an appeal to the proper appellate court shall be allowed to the defendant[.]" This statute draws no distinction between cases tried to a jury or judge and cases in which the defendant entered a plea. The statute, therefore, permits an appeal from a final judgment whether the defendant pleaded guilty or was convicted after a trial. Id.⁶

The State is correct, however, to the extent it argues a guilty plea serves as a waiver of most nonjurisdictional errors that occurred prior to its entry, including constitutional challenges. See, e.g., Geren v. State, 473 S.W.2d 704, 707 (Mo. 1971). The State and the dissenting opinion argue that imposition of an excessive or illegal sentence is not jurisdictional and does not affect the voluntariness of the plea and, therefore, a guilty plea constitutes a waiver of these defects. This argument is in error for multiple reasons.

First, Rule 24.035 itself recognizes the right of a defendant to raise the illegality or excessiveness of his or her sentence even after a plea of guilty. It expressly provides, "A person convicted of a felony on a plea of guilty claiming that ... the court imposing the sentence was without jurisdiction to do so, or 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. " Rule 24.035(a) (emphasis added). The State, of course, does not contest that Rule 24.035 permits a court to consider and correct an excessive sentence. In so conceding, the State necessarily recognizes that whether an excessive sentence can be raised on appeal is not determined by the general principles of waiver inherent in a guilty plea.

Perhaps this is why the State alternatively argues that, even if a guilty plea does not waive claims that a sentence is excessive, relief for such an excessive sentence is exclusively available under Rule 24.035, and not on direct appeal, because Rule 24.035 says it provides the exclusive procedure for claims that come within its terms. A closer reading of Rule 24.035 shows the error of this argument. Rule 24.035 by its terms defines what claims for relief may be made "in the sentencing court." Rule 24.035(a). "Rule 24.035 provides the exclusive procedure by which [a person convicted of a felony on a plea of guilty] may seek relief in the sentencing court for the claims enumerated." Id. (emphasis added). Rule 24.035 neither limits nor expands what claims can be raised on direct appeal, nor could it, as a procedural Court rule cannot limit a statutory right of appeal. Mo. Const. art. V, § 5 .

The State further suggests, even if nothing in Rule 24.035 expressly says excessive sentences cannot be raised on direct appeal, judicial economy requires that...