Opinion
No. ED 107734
11-26-2019
Robert MASON, Appellant, v. STATE of Missouri, Respondent.
ATTORNEYS FOR APPELLANT, Gwenda R. Robinson, 1010 Market Street, Suite 1100, St. Louis, MO 63101. ATTORNEYS FOR RESPONDENT, Eric S. Schmitt, Attorney General, Shaun J. Mackelprang, Asst. Attorney General, P. O. Box 899, Jefferson City, MO 65102-0899.
ATTORNEYS FOR APPELLANT, Gwenda R. Robinson, 1010 Market Street, Suite 1100, St. Louis, MO 63101.
ATTORNEYS FOR RESPONDENT, Eric S. Schmitt, Attorney General, Shaun J. Mackelprang, Asst. Attorney General, P. O. Box 899, Jefferson City, MO 65102-0899.
Before Robert M. Clayton III, P.J. and Robert G. Dowd, Jr. and Roy L. Richter, JJ.
MEMORANDUM DECISION
PER CURIAM.
Robert Mason ("Movant") appeals from the denial of his Rule 24.035 motion without a hearing. Movant claims that his seven-year sentence for fraudulent use of a credit card, which was based in part on his status as a persistent offender due to a 1997 felony stealing conviction, was excessive because the 1997 conviction was invalid under State v. Bazell , 497 S.W.3d 263 (Mo. banc 2016). Bazell does not apply retroactively to a 1997 conviction that was final prior to Bazell . See State ex rel. Windeknecht v. Mesmer , 530 S.W.3d 500 (Mo. banc 2017). Movant acknowledges that all of his arguments challenging the decision not to apply Bazell retroactively have been rejected by this Court and others, but contends they were wrongly decided. We need not revisit those arguments because, irrespective of retroactivity, Movant’s 1997 conviction is outside the scope of the holding in Bazell .
Bazell addressed only the 2002 amendments to the felony enhancement provision in Section 570.030.3, specifically the language providing that if value is not an element of the offense, then it cannot be enhanced to a felony. Id. Because value is not an element of stealing, the Court held it was erroneous to use the 2002 version of Section 570.030.3 to enhance that offense to a felony. Id. at 266-67. But prior to 2002—including in 1997 when Movant was convicted of stealing—Section 570.030.3 did not contain the requirement that value be an element of the offense. See Section 570.030.3 (1997). And the "value is an element" language was removed effective January 1, 2017. See Section 570.030.3 (2019). Thus, felony stealing convictions under either of the pre-2002 amendments and post-2017 amendments were not enhanced based on the "value is an element" language and are outside the scope of, and not impacted by the holding in, Bazell . Cf. Brooks v. State , 578 S.W.3d 798, 801 (Mo. App. E.D. 2019) and State v. Rall , 557 S.W.3d 498, 499 n.3 (Mo. App. W.D. 2018) (both cases finding that stealing offense enhanced not under Section 570.030.3, but a different provision, Section 570.040, the conviction is "beyond the reach of the Bazell decision").
The motion court did not clearly err, nor is there any error of law. The judgment is affirmed pursuant to Rule 84.16(b).
AFFIRMED.