STATE OF MISSOURI, Respondent, v. JASON RUSSELL, Appellant.
No. SC97916
SUPREME COURT OF MISSOURI en banc
Opinion issued April 28, 2020
Appeal from the Circuit Court of Lincoln County
The Honorable James D.
Jason Russell appeals the circuit court‘s judgment sentencing him for felony stealing in violation of
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
It is not surprising, therefore, that this Court expressly stated in Windeknecht that the omnipresent legal error in sentencing
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
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Jason Russell pleaded guilty to stealing in violation of
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. 2006), citing, State v. Burton, 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. Slip op. at 4-6; 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,
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.
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 each type of error be raised in only a single forum. The State argues, therefore, that because an excessive sentence can be raised in a Rule 24.035 motion, it cannot be raised on direct appeal. Again, the Court has no authority to limit a criminal defendant‘s right of appeal and the language of Rule 24.035(a) does not evidence an intent to do so.
Nonetheless, the State is correct that, on occasion, this Court and other appellate courts have made broad statements such as that “the general rule is that a guilty plea waives all nonjurisdictional defects, including statutory and constitutional guarantees.” State v. Rohra, 545 S.W.3d 344, 347 (Mo. banc 2018), quoting, Garris v. State, 389 S.W.3d 648, 651 (Mo. banc 2012). The State argues, even if otherwise not waived or prohibited by Rule 24.035, these narrow statements of what “generally” can be raised on appeal following a guilty plea preclude a defendant from raising an excessive sentence on appeal.
There is no doctrine better settled than that the language of judicial decisions must be construed with reference to the facts and issues of the particular case, and that the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision.
State ex rel. Baker v. Goodman, 274 S.W.2d 293, 297 (Mo. banc 1954).
Moreover, contrary to the dissenting opinion‘s argument, other decisions of this Court recognize that, even after a guilty plea, “direct appeal still is proper to attack . . . the sufficiency of an indictment or information,” State ex rel. Simmons v. White, 866 S.W.2d 443, 446 n.4 (Mo. banc 1993), or “where it can be determined on the face of the record that the court had no power to enter the conviction or impose the sentence,” such as in cases of double jeopardy. Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992).7 It is likely this distinction – between errors that can be waived by a guilty plea and an excessive sentence, which is not waived – results from the fact that most of this Court‘s decisions limit waiver to matters that occurred prior to the entry of the plea. See, e.g., Hampton v. State, 495 S.W.2d 638, 642 (Mo. 1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” (emphasis added)); Geren v. State, 473 S.W.2d 704, 707 (Mo. 1971) (finding a guilty plea waives “nonjurisdictional, procedural and constitutional infirmities, if any, in any prior stage of the proceeding” (emphasis added)).
While the dissenting opinion suggests these cases must not have meant what they said, they were simply following the approach taken by the United States Supreme Court. For instance, in stating that one can raise the lack of power of a court to impose a sentence on direct appeal, Hagen, 836 S.W.2d at 461, was citing the Supreme Court decision in United States v. Broce, 488 U.S. 563, 569 (1989), which similarly held “that a guilty plea does not bar a claim on appeal ‘where on the face of the record the court had no power to enter the conviction or impose the sentence.‘” Class v. United States, 138 S. Ct. 798, 804 (2018), quoting, Broce, 488 U.S. at 569.
In fact, in Class, the Supreme Court expressly rejected the argument that a guilty plea waives all nonjurisdictional claims:
First, the Government contends that by entering a guilty plea, Class inherently relinquished his constitutional claims. The Government is correct that a guilty plea does implicitly waive some claims, including some constitutional claims. However, as we explained in Part II, supra, Class’ valid guilty plea does not, by itself, bar direct appeal of his constitutional claims in these circumstances.
Id. at 805 (emphasis added). It went on to hold, as this Court did in Hampton and Geren, that “[a] valid guilty plea also renders irrelevant—and thereby prevents the defendant from appealing—the constitutionality of case-related government conduct that takes place before the plea is entered.” Id. (emphasis added).8 Class then took pains to explain that:
[A] valid guilty plea forgoes not only a fair trial, but also other accompanying constitutional guarantees. While those simultaneously relinquished rights include the privilege against compulsory self-incrimination, the jury trial right, and the right to confront accusers, they do not include a waiver of the privileges which exist beyond the confines of the trial. Here, Class’ statutory
right directly to appeal his conviction cannot in any way be characterized as part of the trial.
Id. (emphasis added) (citations and quotations omitted).
In any event, the dissenting opinion‘s view as to what is waived in pleading guilty is not determinative, for, as already discussed, this case does not involve waiver. The waiver cases simply are not determinative because it is settled that excessiveness, unlike errors that occur prior to the guilty plea, can be raised in a postconviction motion. Excessiveness, therefore, already is recognized as being different in kind from other errors.
The only issue before the Court is whether an excessiveness error also can be raised on direct appeal. That question is an easy one because Mr. Russell‘s right to appeal cannot constitutionally be limited by this Court in a rule. Additionally, this Court already has determined – in two separate decisions applying Bazell – that Bazell errors can be raised on direct appeal. First, in Fite, this Court expressly held that Bazell applied “to those cases pending on direct appeal” at the time Bazell was decided. 530 S.W.3d at 511. Fite did not limit Bazell‘s effect to only those cases on direct appeal after a trial, as the dissenting opinion tries to suggest. And certainly such a limitation is not implicit from the facts of Fite, for Fite itself involved a guilty plea, not a trial, and specifically said that, while an excessive sentence could not be raised in a post-trial motion under Rule 29.12, it could be raised on direct appeal. Then, in Zahnd, in holding that a sentence invalid under Bazell is merely voidable, not void, this Court again held “if a circuit court with personal jurisdiction over the defendant and subject matter jurisdiction over the case enters a sentence that is contrary to law, that sentence is merely erroneous – not void – and the appropriate remedy is a direct appeal.” Zahnd, 533 S.W.3d at 231 (emphasis added). Like in Fite, and as is the case here, both cases consolidated for appeal in Zahnd also were guilty pleas, the dissenting opinion‘s wishes to the contrary notwithstanding. Id. at 229. While Rule 24.035 provides that an excessive sentence can be raised in a postconviction motion, this
IV. CONCLUSION
Mr. Russell could not be sentenced for felony stealing under
LAURA DENVIR STITH, JUDGE
Draper, C.J., Russell and Breckenridge, JJ., concur; Powell, J., dissents in separate opinion filed; Wilson and Fischer, JJ., concur in opinion of Powell, J.
STATE OF MISSOURI, Respondent, v. JASON RUSSELL, Appellant.
No. SC97916
SUPREME COURT OF MISSOURI en banc
I respectfully dissent. Because Jason Russell entered a plea of guilty, he cannot raise a claim that he was sentenced in excess of the maximum sentence authorized by law on direct appeal. He must instead raise his claim in a Rule 24.035 motion for postconviction relief. See Hamilton v. State, SC97881, __ S.W.3d __ (Mo. banc 2020).
It is well settled in Missouri that “[a] plea of guilty voluntarily made with understanding of the nature of the charge is conclusive as to guilt and waives all nonjurisdictional, procedural and constitutional infirmities.” Geren v. State, 473 S.W.2d 704, 707 (Mo. 1971) (emphasis added); see also State v. Rohra, 545 S.W.3d 344, 347 (Mo. banc 2018) (“[A] guilty plea waives all nonjurisdictional defects, including statutory and constitutional guarantees.“); Garris v. State, 389 S.W.3d 648, 651 (Mo. banc 2012) (same). And for good reason. “A guilty plea ‘represents a break in the chain of events which has preceded it in the criminal process.‘” Garris, 389 S.W.3d at 651 (quoting Hampton v. State, 495 S.W.2d 638, 642 (Mo. banc 1973)). “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.” Rohra, 545 S.W.3d at 347. By entering an unconditional plea of guilty, an accused necessarily admits substantive guilt notwithstanding any and all errors, prejudicial or otherwise. “A guilty plea not only admits guilt but also consents to judgment of conviction.” Garris, 389 S.W.3d at 651 (quoting Cooper v. State, 356 S.W.3d 148, 153 (Mo. banc 2011)). “Because an unconditional guilty plea waives ‘any challenge to the merits of the underlying conviction’ review is generally limited to a Rule 24.035 motion for post-conviction relief to determine if the plea was entered knowingly and voluntarily,” Rohra, 545 S.W.3d at 347 (quoting State v. Craig, 287 S.W.3d 676, 679 (Mo. banc 2009)), or the conviction or sentence imposed otherwise “violates the constitution and laws of this state or the constitution of the United States.” Rule 24.035(a). Entering a plea of guilty, therefore, effectively cleanses the criminal proceeding of any error, thereby waiving all substantive legal arguments the defendant could have raised in defense and exposing the defendant to all subsequent consequences of guilt, including the resulting judgment of conviction and sentence. See id. at 347.
The principal opinion contends prohibiting Russell from raising his claim on direct appeal, and limiting him to raising his claim exclusively in a Rule 24.035 motion, would violate the statutory right to appeal provided by
Without citing any direct authority, the principal opinion next asserts that entering a guilty plea does not waive an excessive sentence claim because such claims do not arise until after entry of the plea. See slip op. at 9 n.7. Instead, the principal opinion relies on past cases that generally state a guilty plea waives all errors “in any prior stage of the proceeding.” Id. (citing Geren, 473 S.W.2d at 707); Hampton, 495 S.W.2d at 642; see also Garris, 389 S.W.3d at 652. The principal opinion interprets this vague language to imply that entering a plea of guilty waives only those errors that occurred prior to entry of the plea. But those same cases, nevertheless, like so many others, ultimately apply the principle that “[a] plea of guilty voluntarily made with understanding of the nature of the charge . . . waives all nonjurisdictional, procedural and constitutional infirmities” without giving any special consideration to the fact that the claimed errors occurred prior to the entry of the plea. Geren, 473 S.W.2d at 707 (emphasis added); Hampton, 495 S.W.2d at 642; see also Garris, 389 S.W.3d at 651.2 And other cases enforce the waiver of appellate review without considering whether the error occurred at a stage of the proceeding “prior” to the guilty plea. See, e.g., Rohra, 545 S.W.3d at 347 (stating, without qualification, that “a guilty plea waives all nonjurisdictional defects, including statutory and constitutional guarantees“). Although many of the cases addressing waiver of appellate review in the guilty plea context involve alleged errors occurring prior to entry of the plea, the principal opinion points to no direct authority holding the principle of waiver applies exclusively to claims of error occurring prior to the guilty plea and not to claims of errors occurring after entry of the plea. Without such authority, or a compelling explanation for its absence, there is no reason this Court should deviate from the settled rule that a plea of guilty “waives all nonjurisdictional, procedural and constitutional infirmities.” Geren, 473 S.W.2d at 707.
The principal opinion relies heavily on this Court‘s decisions in State ex rel. Fite v. Johnson, 530 S.W.3d 508 (Mo. banc 2017), and State ex rel. Zahnd v. Van Amburg, 533 S.W.3d 227 (Mo. banc 2017), to support its position. The principal opinion contends these two cases have already held an offender may raise an excessive sentence claim on direct appeal, but the principal opinion‘s reliance on those cases is misplaced. The principal opinion acknowledges:
There is no doctrine better settled than that the language of judicial decisions must be construed with reference to the facts and issues of the particular case, and that the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision.
Slip op. at 8 (quoting State ex rel. Baker v. Goodman, 274 S.W.2d 293, 297 (Mo. banc 1954)). The principal opinion applies this doctrine to limit the holdings of Rohra and Garris, slip op. at 9 n.7, which both expressly hold that a guilty plea waives appellate review of nonjurisdictional claims. Yet, after acknowledging this fundamental doctrine and applying it to Rohra and Garris, the principal opinion conveniently ignores this same doctrine with respect to its analysis of Fite and Zahnd. The principal opinion instead greatly expands the holdings of those cases beyond their facts and issues, patently contradicting the very doctrine it purports to champion.
In Fite, the underlying offender, Robby Ledford, pleaded guilty to felony stealing. 530 S.W.3d at 509. The circuit court suspended imposition of sentence and placed Ledford on probation for five years. Id. The circuit court subsequently revoked Ledford‘s probation and imposed a sentence.4 Id. Ledford neither appealed nor filed a Rule 24.035 motion for postconviction relief. Id. Instead, Ledford filed a Rule 29.07(d) motion to withdraw his guilty plea. Id. The circuit court sustained Ledford‘s 29.07(d) motion, amending his stealing
Zahnd was a case in which a prosecuting attorney sought a writ of prohibition to remedy a circuit court exceeding its jurisdiction. 533 S.W.3d at 229. In that case, the underlying offenders, Jesse Nelson and Jack Walker II, were charged with felony stealing in separate cases. Id. Both offenders pleaded guilty to the charged offenses. Id. The circuit court sentenced both offenders to terms of imprisonment but suspended execution of their sentences and placed them on probation. Id. While both offenders were on probation, this Court decided State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016). Citing Bazell, Nelson and Walker both filed Rule 29.12(b) motions to amend the judgments in their respective cases. Zahnd, 533 S.W.3d at 229. The circuit court sustained both motions, amending each judgment to reflect a conviction for the class A misdemeanor of stealing rather than class C felonies. Id.
The prosecuting attorney sought prohibition. Id. This Court issued a permanent writ, holding the circuit court lost jurisdiction after imposing sentences on each defendant and, therefore, lacked jurisdiction to entertain the Rule 29.12(b) motions. Id. at 230. “[A]ny action taken by a circuit court after sentence is imposed is a ‘nullity’ and ‘void’ unless specifically authorized by law.” Id. This Court explained, because “the plain language of Rule 29.12(b) does not provide for an independent post-sentence procedure,” the offenders’ “Rule 29.12(b) motions did not extend the jurisdiction of the circuit court after the original sentences were imposed.” Id. Accordingly, “the circuit court had no jurisdiction to adjudicate the Rule 29.12(b) motions and amend the judgments.” Id.
Just as Fite decided an issue much narrower than the principal opinion suggests, Zahnd, too, decided nothing more than the issue before the Court in that case—that a circuit court lacks jurisdiction to entertain a Rule 29.12(b) motion after a criminal judgment becomes final. It is true that this Court acknowledged in both Fite and Zahnd that Bazell claims may be raised on direct appeal. Fite, 530 S.W.3d at 511; Zahnd, 533 S.W.3d at 231. But neither of those cases considered whether a Bazell claim could lie on direct appeal from a guilty plea. Indeed, Fite did nothing more than mention in passing the general rule announced in State ex rel. Windeknecht v. Mesmer, 530 S.W.3d 500 (Mo. banc 2017), that ”Bazell applies prospectively only, except in those cases pending on direct appeal.” Fite, 530 S.W.3d at 511. And while Zahnd acknowledged a direct appeal may be the appropriate remedy for an excessive
Finally, the principal opinion cites the Supreme Court‘s decision in Class v. United States, 138 S. Ct. 798 (2018). Slip op. at 10. But that case is equally unhelpful because it is no more on point than Fite or Zahnd. In Class, a defendant pleaded guilty to violating a statute that prohibited possession of firearms on the grounds of the United States Capitol. Class, 138 S. Ct. at 802. Class appealed, arguing the statute violated the Second Amendment to the United States Constitution. Id. The Supreme Court held the defendant‘s guilty plea did not waive his challenge that the statute was unconstitutional. Id. at 805. But importantly, the Supreme Court reached this result only because it found Class “seeks to raise a claim which, judged on its face, . . . would extinguish the government‘s power to constitutionally prosecute the defendant if the claim were successful.” Id. at 806 (emphasis added). By contrast, Russell does not raise any claim that the stealing statute,
The principal opinion does not contend an excessive sentence claim is a jurisdictional defect or the State lacked the authority to prosecute Russell. Nor could it, as an excessive sentence is merely a legal error. See Zahnd, 533 S.W.3d at 231. By waiving appellate review of all nonjurisdictional claims of error, Russell‘s guilty plea necessarily waived appellate review of the legality of his sentence. Moreover, the principal opinion fails to comprehend the true scope of its ruling, which opens the door to a litany of appeals of sentences imposed following guilty pleas and constitutes a sea change in post-guilty plea litigation. By entering his guilty plea, Russell waived all substantive legal arguments and exposed himself to all subsequent legal consequences. Because an excessive sentence claim is a substantive legal claim, not a jurisdictional defect, Russell cannot challenge the legality of his sentence on direct appeal from a plea of guilty.6 He instead must utilize the postconviction relief procedure available to him pursuant to Rule
W. Brent Powell, Judge