Opinion
No. ED 86955
June 13, 2006
Appeal from the Circuit Court of Pike County, Honorable Dan Dildine, J.
Frank Jones, Bowling Green, Missouri, for Appellant.
Jeremiah W. Nixon, Michael J. Spillane, Jefferson City, Missouri, for Respondent.
Before: Gary M. Gaertner, Sr., P.J., and Kenneth M. Romines, J.
Frank Jones (hereinafter, "Jones") appeals pro se from the trial court's grant of summary judgment in favor of Gaye Linn Fife, the records officer at the Northeast Correctional Center (hereinafter, "MDOC"). Jones raises one point on appeal. Jones claims the trial court erred in granting summary judgment in favor of MDOC in that there were genuine issues of material fact with respect to the calculation of his previous prison commitments for purposes of calculating his minimum prison term before becoming eligible for parole. We would reverse and remand, but move to transfer this case to the Missouri Supreme Court.
Jones' first prison commitment occurred on October 30, 1986, after he was convicted of receiving stolen property. Later, Jones returned to the Department of Corrections on April 23, 1990, to serve a sentence for felony stealing. On July 22, 1994, Jones was delivered to the Department of Corrections after being convicted of receiving stolen property, second degree burglary, and the sale of a controlled substance. Jones received and completed a 120-day program pursuant to Section 559.115 RSMo (1990) (hereinafter, "1994 conviction") and was subsequently released. Later, Jones was convicted for violating probation and second-degree burglary on August 2, 1996. Jones was admitted to, and successfully completed, long-term drug treatment pursuant to Section 217.362 RSMo (1994) (hereinafter, "1996 conviction") with respect to this conviction and was released.
Jones is incarcerated currently at the Northeast Correctional Center in Bowling Green, Missouri, serving a sentence of eleven years as a prior and persistent offender on a felony theft conviction he received on November 14, 2001. During his current commitment, MDOC informed Jones he would be required to serve eighty percent of his sentence before being eligible for parole pursuant to Section 558.019.2(3) RSMo (2000), based upon four previous prison commitments.
Jones filed a petition for declaratory judgment with the circuit court asserting that he should not be required to serve a mandatory-minimum prison sentence of eighty percent of his sentence before being eligible for parole. Jones alleged MDOC miscalculated the number of previous prison commitments he had by improperly including the 1994 and 1996 convictions.
MDOC filed a motion for summary judgment which was granted by the trial court. The trial court held Section 559.115.7 RSMo (Cum. Supp. 2004) and Section 217.362.5 RSMo (Cum. Supp. 2004) were amendatory laws which, when applied retroactively, would reduce Jones' punishment by shortening the mandatory-minimum time he had to serve before becoming eligible for parole. As such, the trial court found these statutes could not be applied to Jones' current sentence for an offense committed before those laws became effective. Jones appeals.
All discussion with respect to Section 559.115.7 (Cum. Supp. 2004) and Section 217.362.5 (Cum. Supp. 2004) refer to the laws which were amended in 2003.
It is well-settled that when considering an appeal from a grant of summary judgment, we review the record in the light most favorable to the nonmovant. ITT Commercial Fin. v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Our review is essentially de novo. Id. at 376. The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden of proof on a summary judgment movant is to establish a legal right to judgment flowing from facts about which there is no genuine dispute. Id. at 378.
A "defending" party may establish a right to judgment by showing: (1) facts that negate any one of the claimant's elements; (2) the nonmovant has not been able to produce, or will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any of the claimant's elements; or (3) there is no genuine dispute as to the existence of facts necessary to support the movant's properly pleaded affirmative defense. Id. at 381.
There are no genuine issues of material fact presented to this Court for review. The parties agree on the dates and number of times Jones was received by the Department of Corrections. However, Jones seeks review of the legal issue of whether Section 559.115.7 and Section 217.362.5 should be applied retroactively to reduce his time for eligibility for parole.
Section 558.019 RSMo (2000) calculates the term of imprisonment a prisoner must serve prior to becoming eligible for parole based upon the number of "prison commitments" the prisoner has received. A "prison commitment" is defined as "the receipt by the department of corrections of an offender after sentencing." Section 558.019.2 RSMo (2000) If an offender has two prior prison commitments, the offender must serve a minimum term of fifty percent of his or her sentence. Section 558.019.2(2) RSMo (2000). If an offender has three or more previous prison commitments, the offender must serve a minimum term of eighty percent of his or her sentence. Section 558.019.2(3) RSMo (2000).
Section 559.115 RSMo (2000) was amended in 2003 and new subdivisions were added. Section 559.115.7 states, "[a]n offender's first incarceration for one hundred twenty days for participation in a department of corrections program prior to release on probation shall not be considered a previous prison commitment for the purpose of determining a minimum prison term under the provisions of Section 558.019. . . ."
Similarly, a new subdivision was added to Section 217.362 RSMo (2000) which governs long-term drug treatment programs for chronic nonviolent offenders in 2003. Section 217.362.5 provides, "[a]n offender's first incarceration in a department of corrections program pursuant to this section prior to release on probation shall not be considered a previous prison commitment for the purpose of determining a minimum prison term pursuant to the provisions of Section 558.019. . . ."
MDOC argues all four of Jones' previous convictions should be considered previous prison commitments when calculating his minimum term of imprisonment prior to becoming eligible for parole, necessitating Jones serves eighty percent of his sentence. Jones disagrees, arguing the 1994 conviction and the 1996 conviction, which were both successfully completed, should be excluded from this calculation. Jones' calculation would result in him serving only fifty percent of his sentence before becoming eligible for parole.
MDOC first argues Sections 559.115.7 and 217.362.5 cannot be applied retroactively because it would violate Section 1.160 RSMo (2000). Section 1.160 RSMo (2000) applies to retroactive applications of substantive laws governing offenses and provides:
No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except:
(1) That all such proceedings shall be conducted according to existing procedural laws; and
(2) That if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amendatory law.
MDOC relies upon State v. Lawhorn, 762 S.W.2d 820 (Mo. banc 1988), to support its argument that the changes to Sections 559.115 and 217.362 were substantive in nature, and therefore, could not be applied retroactively. In Lawhorn, the Missouri Supreme Court addressed the issue of whether an ex post facto violation occurred when a new law mandating a longer minimum prison term was applied to an offender who was originally required to serve a shorter term before being eligible for parole. An ex post facto violation occurs when a law is retroactively applied to the disadvantage of a defendant by altering substantive personal rights, such as altering the definition of criminal conduct or increasing the range of punishment. Storey v. State, 175 S.W.3d 116, 132 (Mo. banc 2005).
The Court in Lawhorn held the application of the new, longer minimum prison term resulted in an ex post facto violation because it adversely affected the defendant's substantive rights by enlarging the minimum prison term. Lawhorn, 762 S.W.2d at 826. The Court reasoned that "under the new statute the parole board is precluded from exercising its discretion until a certain period of time has passed," and therefore, this change in the law clearly disadvantaged offenders in a substantive way. Id. Thus, the Court held the defendant should have been sentenced under the guidelines in place at the time the offense was committed, as opposed to when the new statute was enacted. Id.
The Missouri Supreme Court addressed a similar issue and came to a different conclusion sixteen years later in State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc 2004). The Court was asked to determine whether Section 558.016.8 (Cum. Supp. 2004), a new parole eligibility statute enacted simultaneously with the statutes at issue in the instant case, could be applied retroactively to an offender who was sentenced in 1999, prior to the effective date of the act. Section 558.016.8 (Cum. Supp. 2004) provided in pertinent part:
This Court recognizes Section 558.016.8 has been deleted by the Legislature in L. 2005, H.B. No. 353, § A. However, we find the reasoning provided by the Missouri Supreme Court in Russell in analyzing the applicability of this section pertinent to the issues raised on appeal.
An offender convicted of a nonviolent class C or class D felony with no prior prison commitments, after serving one hundred twenty days of his or her sentence, may, in writing, petition the court to serve the remainder of his or her sentence on probation, parole, or other court-approved alternative sentence.
The State argued Section 558.016.8 (Cum. Supp. 2004) could not be applied retroactively because it would violate Section 1.160 RSMo (2000). The Court rejected this argument, finding Section 558.016.8 (Cum. Supp. 2004) was a new statutory provision that did not repeal or amend any previously existing statute.Russell, 129 S.W.3d at 870. Moreover, the Court held that applying Section 558.016.8 (Cum. Supp. 2004) did not shorten the defendant's sentence, nor did it alter the law creating the offense and did not violate Section 1.160 RSMo (2000). Id. Further, the Court went on to recognize that "[t]he granting of parole does not reduce the sentence imposed," but "may, however, change the location or circumstances under which the sentence is served." Id. Thus, the Court held the statute could be applied retroactively to the offender who fit the criteria provided.Id. at 871.
The Western District relied upon Russell to support its holdings in several recent cases, ruling it was proper to apply Sections 559.115.7 and 217.362.5 retroactively because these statutes did not violate Section 1.160 RSMo (2000) and did not affect an offender's substantive rights. The Western District first applied the Russell holding when calculating previous prison commitments in Irvin v. Kempker, 152 S.W.3d 358 (Mo.App.W.D. 2004). In Irvin, Irvin sought retroactive application of Section 559.115.7 to omit his 120-day shock incarceration from the calculation of his previous prison commitments.
The court, relying upon the holding in Russell, held Section 1.160 RSMo (2000) was not violated when Section 559.115.7 was applied retroactively because "Section 559.115.7 does not shorten Irvin's sentence or alter the law creating the offense." Irvin, 152 S.W.3d at 362. The court ordered Irvin's parole eligibility be recalculated based upon omitting the conviction which resulted in 120-day shock probation. Id. at 363. See also Powell v. Missouri Dept. of Corrections, 152 S.W.3d 363 (Mo.App.W.D. 2004) (holding same, companion case to Irvin); Nieuwendaal v. Missouri Dept. of Corrections, 181 S.W.3d 153, 155 (Mo.App. W.D. 2005) (finding Section 1.160 did not apply because Section 559.115.7 was new statute that did not repeal or amend previous statute, did not shorten a defendant's sentence, or affect substantive rights); Carlyle v. Missouri Dept. of Corrections, 184 S.W.3d 76 (Mo.App.W.D. 2005) (affirming retroactive application of Section 559.115.7 based upon holdings inRussell, Irvin, and Powell).
Later, the Western District recognized the apparent conflict between the holdings in Lawhorn and Russell in Carlyle, supra stating:
However, Lawhorn's holding that such matters are substantive appears to be at odds with the Supreme Court's more recent ruling in Russell that new statutes affecting the minimum prison time served in prison are merely procedural and can be applied retroactively. Finding no way to reconcile or distinguish the two decisions, we can only conclude that Russell overruled Lawhorn sub silentio.
Carlyle, 184 S.W.3d at 80. The court went on to affirm the circuit court's reliance upon Russell, and its progeny inIrvin and Powell, applying Section 559.115.7 retrospectively when determining parole eligibility. Id. At this time, we are willing to follow the Western District's rationale with respect to the reconciliation of the conflict presented in these holdings. However, we believe this case presents the perfect opportunity for our Supreme Court to finally and clearly determine whether it has in fact overruled Lawhorn based on its decision in Russell. Therefore, we transfer this case to the Missouri Supreme Court.
Even in light of this precedent, MDOC asserts in a footnote that there exists a "manifest intent that such changes not apply retroactively." MDOC claims there is a strong argument that Sections 559.115.7 and 217.362.5 be read in pari materia with Section 558.019.9 RSMo (Cum. Supp. 2004). Section 558.019.9 (Cum. Supp. 2004) explicitly states the provisions of the statute as amended were only to be applied to offenses committed after August 28, 2003. As such, MDOC argues Sections 559.115.7 and 217.362.5 are controlled by the date of the language as contained in amended Section 558.019.9 (Cum. Supp. 2004). We disagree.
The Western District explicitly rejected this exact argument inIrvin. First, the Western District stated Section 559.115 contained no express provision with respect to the effective date of the statute. Irvin, 152 S.W.3d at 362. Second, the court explained the State's reading would require it to ignore the plain language of Section 558.019.9 RSMo (Cum. Supp. 2004), which specifically affects only "this section," meaning the statute in which it is contained. Id. Finally, the court noted the purpose of Section 558.019.9 (Cum. Supp. 2004) as amended "is merely to determine which version of [S]ection 558.019, RSMo, is applicable to a particular offender. It does not control the applicability of Section 559.115.7, RSMo 2003." Id. See also, Scott v. Missouri Dept. of Corrections, 152 S.W.3d 372, 373 (Mo.App. W.D. 2004).
Finally, MDOC rejects all of the Western District precedent granting relief to prisoners whose claims mirror those brought by Jones in this appeal by dismissing them as adding "[a]pparent, but not actual, complexity" to this issue. We find these cases persuasive and see no need to depart from the detailed analysis provided by Missouri courts on this issue. Jones' point is granted.
We conclude the trial court erred in granting summary judgment in favor of MDOC on Jones' claim for declaratory relief. The trial court erred in failing to retroactively apply Sections 559.115.7 and 217.362.5 when calculating Jones' previous prison commitments. Therefore, we would reverse the judgment and remand the matter for recalculation and any further proceedings consistent with this opinion. However, we are transferring the matter for further determination by the Missouri Supreme Court.
Gary M. Gaertner, Sr., P.J., and Kenneth M. Romines, J., concur