Bailey v. MO BD of Probation & Parole

• Decision Date: 05 December 2000
• Citation: 36 S.W.3d 13
• Parties: (Mo.App. W.D. 2000) . William B. Bailey, Appellant v. Missouri Board of Probation and Parole, Respondent WD58825 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

36 S.W.3d 13 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

William B. Bailey, Appellant v. Missouri Board of Probation and Parole, Respondent

WD58825

Missouri Court of Appeals Western District

Handdown Date: 12/05/2000

Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown, III, Judge

Counsel for Appellant: William B. Bailey, Pro Se

Counsel for Respondent: Cassandra K. Dolgin

Opinion Summary: William B. Bailey appeals pro se the circuit court's judgment dismissing his petition for declaratory judgment against the Missouri Board of Probation and Parole concerning his eligibility for parole on the sentence he was serving on a 1999 conviction. In his declaratory judgment action, he sought a declaration that the Board could not apply section 558.019.2(2) to require him to serve a minimum of 50% of his prison sentence before being eligible for parole, because it would be a constitutionally prohibited ex post facto application of the statute.

AFFIRMED.

Division Four holds: Giving the language of section 558.019.7 its plain and ordinary meaning, the legislature intended for the minimum term provisions of section 558.019.2 to apply only to a sentence for a crime occurring on or after August 28, 1994, and on which the defendant is seeking parole. Contrary to Bailey's argument, section 558.019.7 is not a limit on the previous prison commitments that can be used to determine an offender's eligibility for parole.

A constitutionally prohibited ex post facto law punishes an act that was not punishable when it was committed or imposes an additional punishment to that in effect at the time the act was committed. For a law to be ex post facto, it must be retrospective, and it must disadvantage the affected offender. The first element cannot be shown in the instant case.

The intent of the legislature in enacting the minimum term provisions of section 558.019.2 was not to increase or enhance the punishment received by a defendant for a prior conviction, but to increase or enhance the defendant's punishment for the present conviction by requiring him or her to serve a certain percentage of his or her sentence before being eligible for parole.

The record reflects that those provisions of section 558.019 were in effect prior to the present offense, conviction and sentence thereon. Consequently, it would not be a retrospective application of section 558.019.2(2) for the Board to apply it in determining eligibility for parole as to Bailey's present conviction and sentence. Hence, it is clear on the face of the appellant's petition for declaratory judgment that he was not entitled to the relief he sought based on an alleged ex post facto violation in applying section 558.019.2(2) such that the trial court did not err in dismissing his petition.

Opinion Author: Edwin H. Smith, Judge

Opinion Vote: AFFIRMED. Spinden, C.J., and Ulrich, J., concur.

Opinion:

William B. Bailey appeals pro se from the circuit court's judgment dismissing his petition for declaratory judgment against the Missouri Board of Probation and Parole (Board) concerning his eligibility for parole on the eight-year prison sentence he was serving on a 1999 conviction in the Circuit Court of St. Clair County for the class C felony of receiving stolen property. In his declaratory judgment action, he sought a declaration that the Board could not apply section 558.019.2(2)¹ to require him to serve a minimum of 50% of his prison sentence before being eligible for parole, because it would be a constitutionally prohibited ex post facto application of the statute.

In his sole point on appeal, the appellant claims that the trial court erred in dismissing his petition for declaratory judgment because his petition alleged facts, which, if proven, would have entitled him to the declaratory relief he sought.

We affirm.

Facts

The appellant was convicted in the Circuit Court of St. Clair County of the class C felony of receiving stolen property and was sentenced on June 2, 1999, to eight years in the Missouri Department of Corrections (DOC). In response to written inquiries to the Board by the appellant concerning his eligibility for parole on his sentence, the Board notified him in writing on September 14, 1999, and December 27, 1999, that, pursuant to section 558.019.2(2), he would be required to serve a minimum of 50% of his sentence before he would be eligible for parole in that he had two previous prison commitments to the DOC, one in March of 1993 and one in December of 1995.

On May 19, 2000, the appellant filed his pro se petition for declaratory judgment in the Circuit Court of Cole County, seeking a declaration that the Board was prohibited from applying section 558.019.2(2) to require him to serve 50% of his eight-year sentence before being eligible for parole, because such an application would violate the ex post facto clauses of the Constitutions of the United States and Missouri. On June 23, 1999, the trial court dismissed the appellant's petition for failure to state a claim upon which relief could be granted.

This appeal follows.

Standard of Review

In determining whether the appellant's petition for declaratory judgment was sufficient to survive a motion to dismiss, this court not only deems the facts pleaded to be true, but it also construes the averments liberally, and draws all reasonable and fair inferences from the facts pleaded. 'If the allegations in the petition invoke principles of substantive law which, if proved, entitles [sic] the pleader to a declaration of rights or status, the pleading is sufficient and must not be dismissed.' The petition must, however, contain facts to support its allegations, and not merely conclusions. 'If the facts demonstrate any justiciable controversy, the trial court should declare the rights of the parties.'

Roy v. Mo. Dept. of Corr., 23 S.W.3d 738, 742-43 (Mo. App. 2000) (citations omitted).

I.

In his sole point on appeal, the appellant claims that the trial court erred in dismissing his petition for declaratory judgment because in his petition he alleged facts, which, if proven, would have entitled him to the declaratory relief he sought. In his petition, the appellant sought a declaration that the Board was prohibited from applying section 558.019.2(2) to require him to serve a minimum of 50% of his eight-year prison sentence before being eligible for parole. Specifically, he alleged that the statute could not be applied because it violated the ex post facto clauses of the United States and Missouri constitutions.

In response to the appellant's written inquiry to the Board concerning the minimum he would have to serve on his eight-year sentence before being eligible for parole, the Board advised him that he would have to serve 50% of his sentence. The Board's determination was based on the application of section 558.019.2(2) and the fact that the appellant had had two previous commitments to DOC. In this regard, section 558.019, governing the minimum time that an offender must serve of his or her prison sentence before he or she is eligible for parole, conditional release, or other early release by the DOC, provides, in pertinent part:

2. The provisions of this section shall be applicable to all classes of felonies except those set forth in chapter 195, RSMo, and those otherwise excluded in subsection 1 of this section. For the purposes of this section, 'prison commitment' means and is the receipt by the department of corrections of a defendant after sentencing . . . Other provisions of the law to the contrary notwithstanding, any defendant who has pleaded guilty to or has been found guilty of a felony other than a dangerous felony as defined in section 556.061, RSMo, and is committed to the department of corrections shall be required to serve the following minimum prison terms:

. . . .

(2) If the defendant has two previous prison commitments to the department of corrections for felonies unrelated to the present offense, the minimum prison term which the defendant must serve shall be fifty percent of his sentence or until the defendant attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first;

. . . .

7. The provisions of this section shall apply only to offenses occurring on or after August 28, 1994.

Although the appellant concedes that he had two previous commitments to the DOC, he argues that one was prior to August 28, 1994, such that, pursuant to section 558.019.7, it could not be used to require him to serve 50% of his sentence before being eligible for parole. Thus, although the appellant casts the claim of error raised in his sole point relied on in terms of a violation of the ex post facto clauses of the United States and Missouri constitutions, it is apparent that he is also claiming that section 558.019.7 would...