Opinion
No. ED 108133-01
12-29-2020
Daniel C. HARMON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
Lisa M. Stroup, 1010 Market Street, Suite 1100, St. Louis, MO 63101, For Movant/Appellant. Shaun J. Mackelprang, P.O. Box 899, Jefferson City, MO 65102, For Respondent/Respondent.
Lisa M. Stroup, 1010 Market Street, Suite 1100, St. Louis, MO 63101, For Movant/Appellant.
Shaun J. Mackelprang, P.O. Box 899, Jefferson City, MO 65102, For Respondent/Respondent.
SHERRI B. SULLIVAN, J.
Introduction
Daniel C. Harmon (Appellant) appeals from the motion court's judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We reverse and remand.
Factual and Procedural Background
In January 2013, the State of Missouri (State) charged Appellant with class B felony stealing. At his March 2014 plea hearing, Appellant pleaded guilty, admitting that while employed by a company that contracted with AT&T, he stole cellular phones, tablets, and other accessories with a retail value of approximately $106,000. Appellant was advised before pleading guilty the range of punishment for class B felony stealing was five to fifteen years in the Missouri Department of Corrections (DOC). The trial court deferred sentencing at Appellant's request to allow time to investigate the amount of restitution Appellant would owe.
Appellant appeared for sentencing on May 2, 2014. The prosecutor recommended a five-year sentence but stated if the court were going to grant probation, the parties had agreed to restitution of $25,000, payable at $425 per month over five years. Appellant requested the court suspend imposition of sentence and place him on probation. The trial court indicated it was willing to suspend imposition of his sentence, but stated if Appellant was not successful on probation, the court could sentence him to up to fifteen years. Appellant stated he understood. The trial court suspended imposition of Appellant's sentence and placed him on five years’ probation. Appellant was also ordered to pay restitution of $25,000, payable at $425 per month, beginning in June 2014. Noting Appellant was unemployed, the trial court told him if he was not initially able to make the payments, he needed to make whatever payments he could and the trial court "would work with him."
In September 2014, the State filed a notice of probation violation based on non-payment of restitution. The trial court suspended Appellant's probation and ordered a capias warrant. In October 2014, the court quashed the warrant and set the case for a probation violation hearing. Defense counsel advised the court that Appellant would pay the past due restitution amount by the date of the hearing. However, Appellant failed to appear at the probation hearing in February 2015, so the trial court suspended Appellant's probation and issued another warrant. Following two bond reduction requests, on March 20, 2015, the court ordered that Appellant be released on personal recognizance and his probation remain suspended.
Appellant's probation revocation hearing was continued several times in early 2015 at his request. In May 2015, Appellant failed to appear and the trial court ordered a warrant for the third time. More than a year later, Appellant was taken into custody. In June 2016, the trial court set a bond of $1,000 and set the case for August 5, 2016. Appellant posted the bond and promised to appear. On August 5, 2016, Appellant requested a continuance. The case was continued five additional times at Appellant's request. In July 2017, Appellant again failed to appear. The court ordered a fourth warrant. Approximately seven months later, Appellant was taken into custody and the court set the case for a probation violation hearing on April 20, 2018.
On April 20, 2018, Appellant appeared, waived his right to a hearing, and admitted he had violated his probation by failing to report. The court revoked Appellant's probation. The prosecutor stated he was "open to whatever [disposition] the Court wants to do." Appellant, represented by a different attorney (probation revocation counsel), asked the court to "keep him on some sort of probation." Appellant prayed for mercy and asked the court "to give [him] one more chance." The court stated Appellant had "had more than [his] share" of "second chances." The court indicated Appellant's conduct had been "very disappointing" and explained, "No matter what opportunity you were given, it's never happened." The court continued:
And, you know, I have no – no sympathy really at this point. Basically you've just thumbed your nose at this Court. And it's taken a lot of effort to get you back here in order to make this happen. And I just – my inclination, frankly, was to give you 15 years. But your attorney
has worked very diligently on your behalf.
I, you know, have given you some opportunity because of him and it's still not happening. We're still in the same boat we've been in for four years. So I just can not – I can't condone it. I can't see anything changing.
The court sentenced Appellant to five years’ imprisonment.
On September 17, 2018, Appellant timely filed a pro se motion pursuant to Rule 24.035. On September 25, 2018, the court appointed counsel to represent Appellant. On November 27, 2018, the court granted a 30-day extension to file an amended motion. The transcript of the guilty plea and initial sentencing hearing was filed on January 10, 2019. The transcript of the sentencing hearing (following the probation revocation) was filed on September 30, 2019. On April 8, 2019, Appellant timely filed an amended motion alleging: (1) he was denied due process of law because his stealing offense was a misdemeanor under State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016), and his five-year sentence exceeded the authorized punishment; (2) plea counsel was ineffective for failing to move to dismiss the felony charge and failing to advise Appellant that he was charged only with a misdemeanor; and (3) probation revocation counsel was ineffective for failing to argue the conviction should be amended to a misdemeanor and Appellant should be sentenced to no more than one year's incarceration.
Appellant is no longer proceeding with this point.
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On July 10, 2019, the motion court denied Appellant's post-conviction motion without an evidentiary hearing. Relying on this Court's opinion in Hamilton v. State, No. ED106540, 2019 WL 1339462 (Mo. App. E.D. Mar. 26, 2019), the motion court ruled Appellant's claims were substantively without merit under Rule 24.035.
Appellant brought an appeal to this Court, which was denied. Harmon v. State, No. ED108133, 2020 WL 1861999 (Mo. App. E.D. Apr. 14, 2020). Appellant then sought transfer to the Supreme Court of Missouri. The Missouri Supreme Court granted Appellant's application for transfer and, in the same order, transferred Appellant's case back to the Eastern District for reconsideration in light of the Missouri Supreme Court's recent ruling in Hamilton v. State, 598 S.W.3d 607 (Mo. banc 2020).
Points Relied On
In his first point on appeal, Appellant claims he was denied due process of law because his stealing offense was a misdemeanor under Bazell and his five-year sentence exceeded the authorized punishment. In his second point on appeal, Appellant claims probation revocation counsel was ineffective for failing to argue at his sentencing that his charge should be reduced to a misdemeanor in light of Bazell.
We find Appellant's first point dispositive, rendering the second point on appeal moot.
Standard of Review
"A judgment denying postconviction relief will be affirmed unless its findings and conclusions are clearly erroneous." Hamilton, 598 S.W.3d at 610. "A judgment is clearly erroneous only if this Court is ‘left with a definite and firm impression that a mistake has been made.’ " Meiners v. State, 540 S.W.3d 832, 836 (Mo. banc 2018), quoting Mallow v. State, 439 S.W.3d 764, 768 (Mo. banc 2014). Discussion
As dictated by our Supreme Court, Appellant's claim must be considered in light of Hamilton, 598 S.W.3d 607. Prior to Hamilton, it was unclear whether Bazell applied to claims for postconviction relief, such as Appellant's. In State ex rel. Windeknecht v. Mesmer, the Supreme Court had stated that Bazell "only applies forward, except those cases pending on direct appeal." 530 S.W.3d 500 (Mo. banc 2017). However, Windeknecht did not address whether Bazell applied to cases that were going forward but not direct appeals. Id. The Supreme Court addressed this question in Hamilton.
In Hamilton, the movant was on probation for stealing and had not yet been sentenced when Bazell was handed down. 598 S.W.3d at 609. Without considering the effect of Bazell, the movant was sentenced to concurrent five-year terms for two counts of felony stealing. Id. The movant filed a postconviction motion pursuant to Rule 24.035, claiming she could only be charged for misdemeanor theft in light of Bazell. Id. The Supreme Court agreed, stating:
Whether pending in the circuit court or on direct appeal, any case not yet final at the time of Bazell is entitled to the benefit of Bazell ’s rule. Ms. Hamilton received a suspended imposition of sentence, and her probation was not revoked and a sentence was not imposed, until after this Court decided Bazell . Ms. Hamilton's case, therefore, was not final when Bazell was announced.
Id. at 611.
The State concedes that because Appellant was sentenced following Bazell, "a straightforward application of the holding in Hamilton would result in Mr. Harmon being resentenced." However, the State argues we should apply the escape rule because Appellant could not have relied on Bazell had he not delayed his sentencing by absconding.
The escape rule is a judicially-created doctrine that operates to deny the right of appeal to a defendant who escapes justice. The escape rule applies to appeals on the merits as well as to motions for post-conviction relief under Rules 29.15 and 24.035. The escape rule can be invoked to dismiss post-conviction appeals regardless of whether the motion court reaches the merits of a movant's claim or dismisses the motion based on its application of the escape rule. The escape rule applies to errors that occur prior and up to the time of escape, but errors occurring after recapture remain appealable.
McNeil v. State, 514 S.W.3d 63, 65 (Mo. App. E.D. 2017), citing Nichols v. State, 131 S.W.3d 863, 865 (Mo. App. E.D. 2004).
Our application of the escape rule to this case is guided by Benedict v. State, 569 S.W.3d 447 (Mo. App. W.D. 2018). In Benedict, the defendant was charged with the class C felony of stealing. The defendant entered into a plea agreement with the State on September 4, 2014. Id. at 448-49. The plea court ordered a sentencing assessment report and granted the defendant's request to be released on his own recognizance pending the sentencing hearing. Id. at 449. The defendant failed to appear for the November 2014 sentencing hearing and the plea court issued a warrant for his arrest. Id. The defendant remained at large until February 16, 2016. Id. At the defendant's sentencing hearing on March 28, 2016, the plea court announced that due to the defendant's flight, it would no longer follow the terms of the original plea agreement. Id. The defendant was then sentenced to five years’ incarceration for the class C felony of stealing. Id. The defendant timely filed a Rule 24.035 motion, alleging he was denied due process of law because his conviction should have been for a misdemeanor pursuant to Bazell. Id. The motion court dismissed the defendant's motion, holding the escape rule applied because the defendant absconded for an extended period of time. Id. On appeal, the defendant argued the motion court erred in applying the escape rule because the alleged sentencing error occurred after he was back in custody. Id. at 450.
The Western District held "where a post-conviction motion ‘challenges errors that occurred after the movant returned to custody, the escape rule does not apply.’ " Id., quoting Robinson v. State, 854 S.W.2d 393, 396 (Mo. banc 1993). The Benedict court explained that the escape rule must not apply to post-capture errors so as to avoid "the temptation to complete the proceedings in a less than diligent manner secure in the knowledge that any errors resulting from procedural short cuts would not result in reversal." Id., quoting Robinson, 854 S.W.2d at 396.
Similarly, we hold the escape rule does not apply to prevent review of Appellant's post-capture sentencing on April 20, 2018. Benedict, 569 S.W.3d at 451. While the State reasonably argues that Appellant, not the State, brought about the very delay Appellant now seeks to take advantage of, the sentencing error Appellant complains of occurred after his capture. Benedict, 569 S.W.3d at 450-51. Therefore, the escape rule does not apply.
Consequently, as conceded by the State and clearly set out in Hamilton, the motion court erred in denying Bazell relief to Appellant.
Conclusion
The judgment of the motion court denying Appellant's Rule 24.035 motion for postconviction relief is reversed and the case is remanded for resentencing as a class A misdemeanor.
Mary K. Hoff, P.J., and Angela T. Quigless, J., concur.