Belk v. Mo. Dep't of Corr.
| Docket Number | WD 86497 |
| Decision Date | 30 April 2024 |
| Citation | 689 S.W.3d 222 |
| Parties | Lawrence G. BELK, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Cole County, Missouri, Honorable Christopher Kirby Limbaugh, Judge
Lawrence Belk, Licking, MO, appellant acting pro se.
Andrew Crane, Jefferson City, MO, counsel for respondent.
Before Division Four: Gary D. Witt, Chief Judge Presiding, Karen King Mitchell, Judge, and Janet Sutton, Judge
Lawrence Belk (Belk) appeals the Cole County Circuit Court’s (circuit court) judgment granting the Missouri Department of Corrections Board of Probation and Parole’s (the Department) motion for judgment on the pleadings. On appeal, Belk argues the circuit court erred in denying his petition for declaratory judgment because Belk alleged facts entitling him to relief. Belk argues the circuit court wrongly interpreted how the armed criminal action statute, section 571.015, interacts with the definition of "dangerous felony" under section 556.061 and the mandatory minimum parole eligibility statute, section 558.019, thereby violating the U.S. and Missouri Constitutional prohibitions on ex post facto laws. Further, Belk argues the circuit court erred in concluding that Belk has no liberty interest in his parole eligibility. We affirm the circuit court’s judgment, as modified.
[1] The following facts are taken from Belk’s initial petition for declaratory judgment and the exhibits attached to that petition filed with the circuit court and supplemented, as necessary, by the briefs filed in this Court.
Belk is currently incarcerated at the South Central Correctional Center in Licking, Missouri. On December 1, 1994, a St. Louis County jury found Belk guilty of one count of first-degree burglary, one count of kidnapping, one count of rape, two counts of sodomy, one count of first-degree sexual abuse, one count of first-degree robbery, and seven counts of armed criminal action for events that took place on December 23, 1992. On January 3, 1995, the trial court sentenced Belk as a prior, persistent, and class X offender under section 558.019. Belk received eleven consecutive terms of life imprisonment, two consecutive terms of thirty years’ imprisonment, and one consecutive term of twenty years’ imprisonment.
On January 5, 1995, Belk was delivered to the Department and, soon after, was scheduled for a mandatory minimum parole hearing consideration date of December 2047. In 2007, in the wake of this Court’s decisions in Johnson v. Missouri Department of Corrections, 166 S.W.3d 110 (Mo. App. W.D. 2005) and Talley v. Missouri Department of Corrections, 210 S.W.3d 212 (Mo. App. W.D. 2006), the Department removed the requirement that Belk serve at least eighty percent of each of his life sentences for his seven armed criminal action convictions. The Department continued to use the December 2047 date until October 26, 2021. On October 26, the Department recalculated Belk’s mandatory minimum parole consideration hearing date, moving it to December 2065.
Belk protested this additional eighteen years first through an informal resolution request in December 2021, and then in April 2022 through an offender grievance appeal within the Department. In May 2022, the Department reviewed and denied Belk’s offender grievance appeal, stating, "Offender Grievance matters concerning Probation and Parole are non-grievable" and the Department found no policy and procedure violation.
In August 2022, Belk filed a petition for declaratory judgment with the circuit court. In his petition, Belk asked the circuit court to: (1) declare the Department "violated the general rule of retroactivity that turns on the issue of fundamental fairness" and the Ex Post Facto Clauses of the Missouri and U.S. Constitutions; (2) order the Department to "use the guidelines governing parole eligibility in place when Belk … committed the offense(s);" (3) order the Department to pay his litigation costs and filing fees; and (4) appoint Belk a public defender in this case.
The Department filed its answer on October 11, 2022, and, that same day, also filed a motion for judgment on the pleadings, arguing, "Belk’s ex post facto argument fails as a matter of law, and he has no statutory right to earlier parole eligibility," thus, the circuit court should grant the Department’s motion for judgment on the pleadings and deny Belk’s petition for declaratory judgment. Ten days later, on October 21, Belk responded to the Department’s motion for judgment on the pleadings.
In June 2023, the circuit court entered judgment in the Department’s favor, granting the Department’s motion for Judgment on the pleadings, and denying Belk’s petition for declaratory judgment. The circuit court held that Belk’s claim failed "because no law has been retroactively applied to him." Further, the circuit court stated that Belk had "no right to enforce the Board’s earlier interpretation where Missouri law requires otherwise," because Belk "has no liberty interest in early release" and "no constitutional or statutory right to parole." Significantly, the circuit court held, "Even if the [Department] failed to follow its own rules or regulations in determining [Belk’s] release date, that would not violate due process or give Belk any right to relief," and cited to Blackburn v. Missouri Board of Probation & Parole, 83 S.W.3d 585, 587 (Mo. App. W.D. 2002) in support.
Before continuing with the merits of Belk’s appeal, we address a persistent confusion about who is the Respondent in this case. In his initial petition for declaratory judgment, Belk only named the "Missouri Department of Corrections, Division of Probation & Parole" in his caption, and alleged in the body of his petition that the Department was the Respondent. In September, the circuit court issued a summons to the Department, listing Julie Kempker (Kempker) as the agent to accept service on its behalf as the Director of the Division of Probation and Parole.
When the Department filed its answer and motion for judgment on the pleadings in October 2022, the Department wrongly captioned both filings as "Missouri Department of Corrections, et al." In both its answer and motion, the Department stated the "Respondents" included the Missouri Department of Corrections, the Division of Probation and Parole, and Julie Kempker. In its answer, the Department specifically stated, "Respondents also note that this Court has captioned Julie Kempker, the Director of the Division of Probation and Parole, as a Respondent." The Department was incorrect.
Likewise, the circuit court captioned its judgment "Missouri Department of Corrections, et al.," but referred to the singular "Respondent." This confusion persisted through Belk’s filing of his notice on appeal, where he only listed Julie Kempker as the Respondent, and in both Belk’s brief and the Department’s brief before our Court, where both parties list the Respondent as the "Missouri Department of Corrections, et al."
[2] Julie Kempker was never added as a party to the initial petition, nor was she properly added to the action, in either her individual or official capacity. "In order to be a party, a person ‘must either be named as a party in the original pleadings, or be later added as a party by appropriate trial court orders.’ " Henson v. Merob Logistics, LLC, 670 S.W.3d 142, 150 (Mo. App. W.D. 2023) (quoting F.W. Disposal S., LLC v. St. Louis Cnty. Council, 266 S.W.3d 334, 338 (Mo. App. E.D. 2008)). Kempker was not named in the original pleadings nor was Kempker added by court order. Kempker was named in the summons to simply accept service on the Department’s behalf. Therefore, Kempker was not a proper party to the case. Whether Kempker should have been named as a party or had a right to become one, we do not decide. Further, we do not separate the Department of Corrections from the Division of Probation and Parole, but consider it one entity as listed in the initial petition. This in no way affects our analysis of the appeal.
Belk appeals. Additional facts necessary to the disposition of the case are included below as we address Belk’s point on appeal.
[3–6] "This Court reviews a circuit court’s ruling on a motion for judgment on the pleadings de novo." Dunn v. Mo. Dep't of Corr., 645 S.W.3d 565, 568–69 (Mo. App. W.D. 2022). "In reviewing a judgment on the pleadings for a defendant, the plaintiff's ‘pleadings are liberally construed and all alleged facts are accepted as true and construed in a light most favorable to the pleader.’ " Hickerson v. Mo. Bd. of Prob. & Parole, 475 S.W.3d 204, 206 (Mo. App. W.D. 2015) (quoting Anderson v. Crawford, 309 S.W.3d 863, 866 (Mo. App. W.D. 2010)). "The moving party admits, for the purposes of the motion, the truth of well-pleaded facts in the opposing party’s pleadings." Id. "[A] motion for judgment on the pleadings should be sustained if, from the face of the pleadings, the moving party is entitled to judgment as a matter of law." Dunn, 645 S.W.3d at 569 ().
In his sole point relied on, Belk argues:
The [c]ircuit [c]ourt erred in denying [Belk’s] [p]etition for [d]eclaratory [j]udgment, because [Belk] alleged facts not conclusively refuted by the record entitling him to relief, in that, the retroactive changes in the law regarding the armed criminal action statute § 571.015 and its new relationship to statutes § 556.061 and § 558.019, that changed after February 2007, which in this case violated the general rule of retroactivity and/or the ex post facto clause of theUnited States Constitution, Article I, §§ 9 and 10 and the Missouri Constitution, Article I, § 13, in that, the motion court’s denial was on an incorrect misinterpretation of § 217.690.5 after 2007, with no forethought to the repeat offender statu...
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