Bazell claim in Missouri

2020In State v. Smith, 522 S.W.3d 221, 230 (Mo. banc 2017), this Court held Bazell’s analysis 2 Effective January 1, 2017, section 570.030 no longer contains the same language addressed in Bazell.

2020Nonetheless, when the circuit court revoked Ms. Hamilton’s probation on March 16, 2017, neither the court nor counsel considered the effect of Bazell’s holding that the crime to which she had pleaded guilty was a class A misdemeanor that could not be enhanced to a class C felony, and she was sentenced to concurrent five-year terms of imprisonment for each count of felony stealing. 3 In Smith, 522 S.W.3d at 230 , this Court explained: Bazell’s analysis regarding the applicability of section 570.030.3 to the offense of stealing does not depend on which particular enhancement provision is at issu

2019It is now well-established that although “a Bazell claim that a sentence has been unlawfully entered may be procedurally cognizable under Rule 24.035 in a strictly technical sense, a Bazell claim asserted pursuant to Rule 24.035 is substantively without merit as a matter of law.” Id. (rejecting Movant’s argument that a Bazell claim can be successfully raised in timely-filed post-conviction relief motions); see also Bosworth v. State, 559 S.W.3d 5, 10 (Mo. App. E.D. 2018) (finding argument erroneously conflates procedural cognizability with substantive merit); Whittley v. State, 559 S.W.3d 401,

2019It is now well-established that although “a Bazell claim that a sentence has been unlawfully entered may be procedurally cognizable under Rule 24.035 in a strictly technical sense, a Bazell claim asserted pursuant to Rule 24.035 is substantively without merit as a matter of law.” Id. (rejecting Movant’s argument that a Bazell claim can be successfully raised in timely-filed post-conviction relief motions); see also Bosworth v. State, 559 S.W.3d 5, 10 (Mo. App. E.D. 2018) (finding argument erroneously conflates procedural cognizability with substantive merit); Whittley v. State, 559 S.W.3d 401,

2019It is now well-established that although “a Bazell claim that a sentence has been unlawfully entered may be procedurally cognizable under Rule 24.035 in a strictly technical sense, a Bazell claim asserted pursuant to Rule 24.035 is substantively without merit as a matter of law.” Id. (rejecting Movant’s argument that a Bazell claim can be successfully raised in timely-filed post-conviction relief motions); see also Bosworth v. State, 559 S.W.3d 5, 10 (Mo. App. E.D. 2018) (finding argument erroneously conflates procedural cognizability with substantive merit); Whittley v. State, 559 S.W.3d 401,

2019It is now well-established that although “a Bazell claim that a sentence has been unlawfully entered may be procedurally cognizable under Rule 24.035 in a strictly technical sense, a Bazell claim asserted pursuant to Rule 24.035 is substantively without merit as a matter of law.” Id. (rejecting Movant’s argument that a Bazell claim can be successfully raised in timely-filed post-conviction relief motions); see also Bosworth v. State, 559 S.W.3d 5, 10 (Mo. App. E.D. 2018) (finding argument erroneously conflates procedural cognizability with substantive merit); Whittley v. State, 559 S.W.3d 401,

2017Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001) (quoting State ex rel.

2017Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001) (quoting State ex rel.

2019It is now well-established that although “a Bazell claim that a sentence has been unlawfully entered may be procedurally cognizable under Rule 24.035 in a strictly technical sense, a Bazell claim asserted pursuant to Rule 24.035 is substantively without merit as a matter of law.” Id. (rejecting Movant’s argument that a Bazell claim can be successfully raised in timely-filed post-conviction relief motions); see also Bosworth v. State, 559 S.W.3d 5, 10 (Mo. App. E.D. 2018) (finding argument erroneously conflates procedural cognizability with substantive merit); Whittley v. State, 559 S.W.3d 401,

2019It is now well-established that although “a Bazell claim that a sentence has been unlawfully entered may be procedurally cognizable under Rule 24.035 in a strictly technical sense, a Bazell claim asserted pursuant to Rule 24.035 is substantively without merit as a matter of law.” Id. (rejecting Movant’s argument that a Bazell claim can be successfully raised in timely-filed post-conviction relief motions); see also Bosworth v. State, 559 S.W.3d 5, 10 (Mo. App. E.D. 2018) (finding argument erroneously conflates procedural cognizability with substantive merit); Whittley v. State, 559 S.W.3d 401,

2019It is now well-established that although “a Bazell claim that a sentence has been unlawfully entered may be procedurally cognizable under Rule 24.035 in a strictly technical sense, a Bazell claim asserted pursuant to Rule 24.035 is substantively without merit as a matter of law.” Id. (rejecting Movant’s argument that a Bazell claim can be successfully raised in timely-filed post-conviction relief motions); see also Bosworth v. State, 559 S.W.3d 5, 10 (Mo. App. E.D. 2018) (finding argument erroneously conflates procedural cognizability with substantive merit); Whittley v. State, 559 S.W.3d 401,

2019It is now well-established that although “a Bazell claim that a sentence has been unlawfully entered may be procedurally cognizable under Rule 24.035 in a strictly technical sense, a Bazell claim asserted pursuant to Rule 24.035 is substantively without merit as a matter of law.” Id. (rejecting Movant’s argument that a Bazell claim can be successfully raised in timely-filed post-conviction relief motions); see also Bosworth v. State, 559 S.W.3d 5, 10 (Mo. App. E.D. 2018) (finding argument erroneously conflates procedural cognizability with substantive merit); Whittley v. State, 559 S.W.3d 401,

2020See § 570.030, RSMo 2016. 2 applied to all of the sentence-enhancing provisions in section 570.030.3 because those enhancements could be applied only if the value of property or services were an element of the underlying offense. 3 In Windeknecht, this Court declined to make the holdings in Bazell and Smith retroactive to cases on collateral review. 530 S.W.3d at 503 .

2017Windeknecht v. Mesmer, 530 S.W.3d 500 (Mo. banc 2017).

2024While plea counsel was familiar with Bazell and its holding, he testified that he did not believe a Bazell defense applied to Count II in Browning’s case. “[W]e will not convict [plea] counsel of being deficient for failing to do a futile act.” Edgar v. State, 145 S.W.3d 458, 461 (Mo. App. 2004).

2024While plea counsel was familiar with Bazell and its holding, he testified that he did not believe a Bazell defense applied to Count II in Browning’s case. “[W]e will not convict [plea] counsel of being deficient for failing to do a futile act.” Edgar v. State, 145 S.W.3d 458, 461 (Mo. App. 2004).

2018See Henson v. State , 518 S.W.3d 828 , 836 (Mo. App. S.D. 2017) (holding claims that felony stealing charges should have been classified as misdemeanors based on the rationale of Bazell were waived because they were not raised in a timely filed Rule 24.035 motion); Murphy v. State , 510 S.W.3d 876 , 880-81 (Mo. App. E.D. 2017) (same holding).

2018As was the case with the habeas petitioner in Windeknecht , the Rule 24.035 movants in Watson and Abrams "received a sentence that was authorized by a different interpretation of section 570.030 without objection and should not receive the benefit of retroactive application of this Court's decision in Bazell ." Watson , 545 S.W.3d at 915 ; Abrams , 2018 WL 2252395 , at *2 (following Watson ); see also Dobbs v. State , 546 S.W.3d 612 , ----, 2018 WL 1161972 , at *1 (Mo. App. E.D.

2018As was the case with the habeas petitioner in Windeknecht , the Rule 24.035 movants in Watson and Abrams "received a sentence that was authorized by a different interpretation of section 570.030 without objection and should not receive the benefit of retroactive application of this Court's decision in Bazell ." Watson , 545 S.W.3d at 915 ; Abrams , 2018 WL 2252395 , at *2 (following Watson ); see also Dobbs v. State , 546 S.W.3d 612 , ----, 2018 WL 1161972 , at *1 (Mo. App. E.D.

2016See, e.g., State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009) (“Non-preserved issues are reviewed for plain error, if the error resulted in manifest injustice or a miscarriage of justice.”).

2016See, e.g., State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009) (“Non-preserved issues are reviewed for plain error, if the error resulted in manifest injustice or a miscarriage of justice.”).