Corey Lee ABRAMS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Missouri Court of Appeals, Southern District, Division One2018-05-17No. No. SD 35213

550 S.W.3d 557

Summary · law.co

Holding. The court affirmed the denial of post-conviction relief, holding that although a Rule 24.035 motion is procedurally proper for raising a sentence-excess claim, Abrams's substantive challenge based on Bazell lacks merit because Bazell's holding applies only prospectively and to cases pending on direct appeal, not to cases like Abrams's that were no longer on direct appeal.

Corey Lee Abrams sought post-conviction relief under Rule 24.035, arguing that his felony conviction and seven-year sentence for firearm theft should be reduced to a misdemeanor with a one-year sentence based on the Missouri Supreme Court's decision in State v. Bazell. The motion court denied his request, finding that Bazell does not apply retroactively to cases no longer pending on direct appeal. The appellate court affirmed, holding that while Abrams used the correct procedural vehicle to raise a sentence-excess claim, his substantive argument lacked legal merit because Missouri courts have consistently established that Bazell applies only prospectively and to cases still in direct appeal.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Retroactive application of State v. Bazell to post-conviction motions
Whether Rule 24.035 is proper procedural vehicle for sentence-excess claims
Distinction between procedural cognizability and substantive legal merit

Procedural posture

Abrams appealed the motion court's denial of his amended Rule 24.035 motion seeking reduction of his felony conviction and sentence based on Bazell.

Authorities cited

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Opinion · public domain

majority opinion

MARY W. SHEFFIELD, P.J.

Corey Lee Abrams (Movant) appeals the motion courts denial of his amended Rule 24.035 motion. Movant had requested that the motion court amend his felony conviction and seven-year sentence for stealing a firearm to reflect a misdemeanor conviction and one-year sentence pursuant to State v. Bazell , 497 S.W.3d 263 (Mo. banc 2016). The motion court denied that request, finding that Movant was not entitled to the retroactive application of Bazell . Movant appeals that ruling in one point, claiming his conviction and seven-year sentence

exceeds the maximum sentence authorized by law, in that under the holding of State v. Bazell , 496 [sic] S.W.3d 263 (Mo. banc 2016), [Movants] sentence should not have been enhanced to a class C felony but should have instead remained a class A misdemeanor; therefore, under Section 558.011, the maximum possible punishment was one year imprisonment.

Our supreme court has repeatedly held that the Bazell holding only applies forward, except those cases pending on direct appeal. State ex rel. Windeknecht v. Mesmer , 530 S.W.3d 500, 503 (Mo. banc 2017) ; see also State ex rel. Zahnd v. Van Amburg , 533 S.W.3d 227, 229 n.2 (Mo. banc 2017) (the holdings in Bazell and [ State v. Smith , 522 S.W.3d 221, 229-31 (Mo. banc 2017) ] apply only prospectively and to cases still pending on direct appeal.); State ex rel. Fite v. Johnson , 530 S.W.3d 508, 510-11 (Mo. banc 2017) (concluding that a Rule 29.07(d) motions claim that the circuit court must withdraw a movants guilty plea for felony stealing was substantively meritless because Bazell s holding only applies prospectively).

Despite those clear holdings, Movant argues that a Bazell challenge, which asserts that an unlawful sentence has been imposed, may be successfully raised for the first time in a timely Rule 24.035 motion. Our Western District recently rejected the same point and supporting arguments as those raised here (asserted by the same appellate counsel) in Watson v. State , 545 S.W.3d 909, 913-16, (Mo. App. W.D. 2018). We concur in Watson s reasoning, reject Movants point accordingly, and affirm the order denying Rule 24.035 relief.

GARY W. LYNCH, J.-CONCURS

DON E. BURRELL, J.-CONCURS

Rule references are to Missouri Court Rules (2017). This Court has validated the timeliness of Movants post-conviction motions. Because Movant did not file a direct appeal, his pro se motion was due within 180 days of the date he was delivered to DOC custody. See Rule 24.035(b). Movant was delivered to DOC on April 26, 2016, and his pro se motion was filed on September 23, 2016-well within 180 days. The amended motion had to be filed within 60 days of the date both a complete transcript consisting of the guilty plea and sentencing hearing was filed in the trial court and counsel was appointed. See Rule 24.035(g). The public defender was appointed to represent Movant the same day he filed his pro se motion, and the transcript was filed on March 15, 2017. Movants amended motion was timely filed less than 60 days later on May 11, 2017.

Movant pleaded guilty in 2011, and his sentence was imposed in 2013.

To be clear, strictly speaking, Rule 24.035 was a proper procedural vehicle by which Movant could raise a claim that his sentence was in excess of the maximum authorized by law. See Rule 24.035(a). But Movants specific claim here-that he may successfully assert a Bazell challenge in a timely Rule 24.035 motion-erroneously conflates procedural cognizability with substantive merit. Watson , 545 S.W.3d at 915. Procedurally, Movant could bring his claim pursuant to Rule 24.035; substantively, his claim is without merit as a matter of law.