SUPREME COURT OF MISSOURI en banc
STATE OF MISSOURI, ) Opinion issued April 28, 2020 ) Respondent, ) ) v. ) No. SC97916 ) JASON RUSSELL, ) ) Appellant. )
Appeal from the Circuit Court of Lincoln County The Honorable James D. Beck, 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,
__ S.W.3d __ (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
1 All statutory references are to RSMo Supp. 2009 unless otherwise noted. 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.
2 Effective January 1, 2017, section 570.030 no longer contains the same language addressed in Bazell. See § 570.030, RSMo 2016. 2 530 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
3 The dissenting opinion suggests these cases simply meant that an excessive sentence can be raised on direct appeal of a jury verdict, not a guilty plea. But that is not what either case said, and, in fact, both cases involved guilty pleas. 4 For this reason, it is unclear why the dissenting opinion discusses its view about the irrelevant issue of whether a defendant could affirmatively choose to waive a right to appeal or even to file a postconviction motion, as that did not occur here. In any event, as discussed infra, an excessive sentence always has been permitted to be raised in a postconviction motion under Rule 24.035, thereby distinguishing it from claims that cannot be so raised because they were waived by a guilty plea. 3 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. 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).
5 Smith, also decided prior to the entry of judgment in this case, clarified that “Bazell draws no distinction among the numerous subcategories enumerated within section 570.030.3” and held that, “unless the offense contains the value of property or services as an element, section 570.030.3, in its entirety, cannot be used to enhance the offense to a felony.” 522 S.W.3d at 230. Therefore, “[a]ppropriation of property or services worth more than $500 may be charged as a felony under section 570.030.3(1) only if the underlying offense contains as an element ‘the value of property or services.’” Id. 4 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, § 547.070, RSMo 2000, allows
appeals from final judgments, which occur when the court enters a judgment of guilt and
5 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
6 To the extent the State suggests Mr. Russell’s petition to enter a guilty plea may have waived his right to file any appeal at all, it is incorrect. The written plea petition was a standard form that recognized a guilty plea waives the right to a trial and to appeal the result of that trial. The petition did not expressly waive his right to appeal his guilty plea, although models for such waivers are ubiquitous. See, e.g., 28 Mo. Prac., Mo. Criminal Practice Handbook § 14:6. For example, Jackson County’s model plea agreement, quoted in Dean v. State, 901 S.W.2d 323, 325 (Mo. App. 1995), inaccurately but expressly states there is no appeal from a guilty plea but further expressly provides the defendant gives up his right to appeal his plea, stating, “I know that if I were to go to trial and be found guilty, I would have the right to appeal this decision to a different Court with different judges but that by pleading guilty, I give up my right to any appeal and that there is no appeal from a guilty plea.” (Emphasis added). Similar language is often used. See, e.g., Meadors v. State, 571 S.W.3d 207, 212 (Mo. App. 2019) (during plea colloquy, the court asked defendant: “Do you understand if you had elected to stand trial and were found guilty by a jury or a judge you would have the right to appeal, but there is no right to appeal from this guilty plea?”). Here, such express, inaccurate waiver language was not used. 6 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. 7 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.
The broad statements of Rohra and Garris must be limited to rulings on only the
issues before the Court in those cases and, otherwise, are dicta.
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 8 443, 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.
7 Although Simmons, 866 S.W.2d at 446 n.4, also repeated the general refrain that “a plea of guilty ordinarily waives all defenses and errors” for purposes of direct appeal before recognizing the exceptions for jurisdiction and the indictment, it, like Rohra and Garris, must be limited to its holding and, in any case, did not purport to list all issues that could be raised; in fact, as just noted in the text, this Court had held in Hagan, just a year earlier, that double jeopardy also could be raised on appeal. 836 S.W.2d at 461. Indeed, none of this Court’s cases has directly held that an excessive sentence cannot be raised on appeal, and, as discussed below, in Fite, 530 S.W.3d at 511, and Zahnd, 533 S.W.3d at 231, this Court recently recognized that an excessive sentence can be raised on appeal. To the extent a few cases from the court of appeals have concluded to the contrary, see, e.g., State v. Carter, 62 S.W.3d 569, 570 (Mo. App. 2001), they are inconsistent with this opinion and should no longer be followed. 9 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
8 The Supreme Court has, in fact, long held that a guilty plea does not foreclose appeal entirely but, rather, that a criminal defendant may not, after entering a plea, challenge conduct “that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). 10 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
11 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 Court
reaffirms its determination in Zahnd and Fite that Bazell errors also may be raised on direct
appeal if one is taken in a case to which Bazell otherwise applies.
IV. CONCLUSION
Mr. Russell could not be sentenced for felony stealing under section 570.030
because Bazell held that stealing in violation of that statute is a class A misdemeanor that
cannot be enhanced to a felony. The circuit court’s judgment convicting Mr. Russell of a
felony for violating section 570.030 is reversed, and the case is remanded for entry of
judgment of conviction and sentencing for a class A misdemeanor.
_________________________________ 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.
12 SUPREME COURT OF MISSOURI en banc STATE OF MISSOURI, ) ) Respondent, ) ) v. ) No. SC97916 ) JASON RUSSELL, ) ) Appellant. )
DISSENTING OPINION
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 section 547.070 and would exceed this
Court’s authority to enact rules of procedure pursuant to article V, section 5 of the Missouri
2 Constitution. See slip op. at 2. But the principal opinion’s argument fails on its premise
because a defendant who has pleaded guilty to an offense has necessarily waived the
statutory right to appellate review of all but jurisdictional claims. See, e.g., Geren, 473
S.W.2d at 707. It is Russell’s own conduct of entering a plea of guilty, therefore, that limits
his right to appeal, not Rule 24.035. This Court’s rule simply provides Russell an avenue
to challenge the legality of his sentence notwithstanding his waiver of appellate review. 1
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
1 What is more, the principal opinion’s position with respect to the issue of waiver is logically inconsistent. The principal opinion acknowledges entering a plea of guilty waives appellate review of at least all claims of error occurring prior to the guilty plea. Yet the principal opinion does not explain why the waiver of claims of error made prior to the guilty plea does not also improperly “limit a defendant’s statutory right to appeal.” Slip op. at 2.
3 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 does not explain why Russell’s excessive sentence claim is
jurisdictional or why this Court should abandon the holding in this extensive line of cases.
2 Indeed nothing in Geren, Hampton, or Garris suggests the result in those cases turned on the fact that the claimed errors occurred prior to the plea’s entry. Rather, in all three cases, the Court simply applied the principle that a guilty plea waives all nonjurisdictional defects. In Geren, this Court held an offender waived his constitutional challenge to the State’s failure to provide him with counsel at his preliminary hearing by pleading guilty to the underlying charge. 473 S.W.2d at 707. Likewise, in Hampton, this Court held an offender’s guilty plea waived his constitutional challenge to the police presenting him to the victim for identification, without counsel, shortly after his arrest. 495 S.W.2d at 642. And in Garris, this Court held an offender waived his constitutional challenge to a pair of statutes classifying him as a predatory sexual offender by pleading guilty to the underlying statutory sodomy charges. 389 S.W.3d at 653. 4 See First Bank v. Fischer & Frichtel, Inc., 364 S.W.3d 216, 224 (Mo. banc 2012) (Stith,
J.) (“Under the doctrine of stare decisis, a decision of this Court should not be lightly
overruled, particularly where the opinion has remained unchanged for many years.”
(internal quotations and alterations omitted)). Because entering a guilty plea admits
substantive guilt, thereby waiving any and all legal, constitutional, and procedural
arguments against a finding of guilt and exposing the accused to all subsequent
consequences of that guilt, Russell waived his right to bring an appeal absent a claim the
circuit court lacked jurisdiction. 3
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
3 The principle that entering a plea of guilty does not waive jurisdictional claims makes perfect sense because jurisdictional claims challenge the court’s very ability to enter a valid judgment in the first place. See J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009). A court that lacks jurisdiction has neither the power “to require a person to respond to a legal proceeding” nor to “render a judgment” in that case. Id. As a result, any judgment entered by a court that lacks jurisdiction is void. State ex rel. Laughlin v. Bowersox, 318 S.W.3d 695, 703 (Mo. banc 2010). It would defy common sense, therefore, to hold a void judgment itself bars a person from challenging that judgment simply because that judgment was entered pursuant to a guilty plea. But the same is not true of nonjurisdictional claims of error. 5 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 conviction from a class C felony to a class A misdemeanor and
resentencing him accordingly. Id. The prosecuting attorney petitioned this Court for a writ
of prohibition, arguing the circuit court lacked authority to sustain Ledford’s motion. Id.
This Court agreed, holding Rule 24.035 provided the “exclusive procedure by which
4 These events occurred before this Court decided State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016). 6 Ledford could have collaterally attacked the final judgment based on his claim his sentence
exceeds the maximum sentence authorized by law.” Id. at 510. Fite, therefore, stands for
nothing more than the fact an offender cannot raise an excessive sentence claim in a Rule
29.07(d) motion. 5 Because Russell did not file a Rule 29.07(d) motion, but instead raises
his claim on direct appeal, the actual holding of Fite has no bearing on the disposition of
this case.
Zhand 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.
5 In fact, the holding in Fite should have guided Russell as he considered his options for seeking postconviction relief. Fite directs Russell to seek relief pursuant to Rule 24.035, not direct appeal, by holding Rule 24.035 provided the “exclusive procedure by which Ledford could have collaterally attacked the final judgment based on his claim his sentence exceeds the maximum sentence authorized by law.” 530 S.W.3d at 510. 7 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 sentence in some circumstances, 533 S.W.3d at 231, nothing in
that case suggests an excessive sentence claim is jurisdictional or that excessive sentence
claims are exempted from the established principle that a guilty plea waives all
8 nonjurisdictional claims of error. Rohra, 545 S.W.3d at 347. Quite to the contrary, in light
of the waiver principle consistently applied by this Court, the only correct reading of the
statements from Fite and Zahnd that the principal opinion selectively quotes is a Bazell
claim may lie on direct appeal of a judgment of conviction and sentence entered after a
jury’s verdict, not a guilty plea.
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,
section 570.030, is unconstitutional and the State, therefore, lacked the power to prosecute
him. The principal opinion, accordingly, overextends the holding of Class just as it
overextends the holdings of Fite and Zahnd.
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
9 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 24.035 as this Court held
in Fite and reaffirmed in Hamilton.
___________________ W. Brent Powell, Judge
6 Setting aside that an excessive sentence claim is not cognizable on direct appeal from a guilty plea, it is important to note this Court has recognized a criminal defendant may expressly waive both the right to appeal, State v. Phason, 406 S.W.2d 671, 673 (Mo. 1966), and the right to file a motion for postconviction relief pursuant to Rule 24.035 as part of a guilty plea. Cooper v. State, 356 S.W.3d 148, 154 (Mo. banc 2011). Indeed, this Court has acknowledged doing so may ultimately be in the defendant’s best interest. See id. at 157 (observing “Cooper received substantial benefit in exchange for his waiver of post- conviction relief”). While the principal opinion is correct that Russell did not expressly waive the right to appeal his sentence, slip op. at 6 n.6, nothing prevents an express waiver of the right to appeal the sentence imposed pursuant to a guilty plea. Circuit courts may insist all written petitions to enter a guilty plea include such a waiver. Circuit courts may also include such waivers in the guilty plea colloquy.