Bratton v. Mitchell, WD
| Decision Date | 17 November 1998 |
| Docket Number | No. WD,WD |
| Court | Missouri Court of Appeals |
| Parties | Norma BRATTON, Appellant, v. Cranston MITCHELL, Chairman Mo. Board of Probation & Parole and Donna Schriro, Director Mo. Dept of Corrections, Respondents. 55010. |
Bob Tyler, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jeffeson City, for Respondents.
Before Presiding Judge ELLIS, Judge, and LOWENSTEIN and Judge RIEDERER.
Norma Bratton, the appellant, an inmate at the Chillicothe Correctional Center, filed a suit titled, "Relating to Incarceration Status." The circuit court deemed the pleading to be a petition for declaratory relief as covered in Rule 87. The present defendant-respondents are the Board of Probation and Parole (Board), and the Department of Corrections (Corrections). In broad terms Bratton seeks a declaration that the respondents have incorrectly interpreted §§ 559.115.2 and 558.019, RSMo 1994 1, resulting in her being improperly deprived of early parole status. Summary judgment was rendered in favor of the respondents, the trial court holding the Board had correctly determined Bratton was ineligible for parole until she had served forty percent of a sentence. Section 558.019.2(1), supra.
The reader is first advised a motion to dismiss the appeal as being moot was filed shortly before oral argument. A recitation first of the statutes and then the facts will follow, since disposition of the motion and the appeal depend on establishing a procedural background of Bratton's involvement in the criminal justice system.
Section 559.115.2, as pertinent to the issues in this case reads:
A circuit court only upon its own motion and not that of the state or the defendant shall have the power to grant probation to a defendant any time up to one hundred-twenty days after such defendant has been delivered to the custody of the department of corrections but not thereafter. The court may request information and a recommendation from the department concerning the defendant and such defendant's behavior during the period of incarceration. Except as provided in this section, the court may place the defendant on probation in a program created pursuant to section 217.777, (this section of the statutes deals with substance abuse offenders) RSMo, or may place the defendant on probation with any other conditions authorized by law. (Emphasis added.)
Under the normal statutory scheme, the matter of parole is left to the Board, but this section allows the circuit court such authority up to 120 days after delivery to Corrections. Duly v. Heflin, 873 S.W.2d 932, 935 (Mo.App.1994). This section allows what is sometimes referred to as authorizing "shock incarceration,"and this tool, which allows a sentencing judge the option of parole, is commonly referred to as a 120 day call-back.
As pertains to this case, § 558.019 titled, "Previous remands for felony offenses, minimum prison terms-calculation of term ...", reads:
1) This section shall not be construed to affect the powers of the governor under article IV, section 7, of the Missouri Constitution. This statute shall not affect those provisions of section 565.020, RSMo, 558.018 or 571.015, RSMo, which set minimum terms of sentences, or the provisions of section 559.115, RSMo, relating to probation.
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 purposes of this section, prior remands to the department of corrections shall not include commitment to a regimented discipline program established pursuant to section 217.378, RSMo. 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;
(1) If the defendant has one previous remand to the department of corrections for a felony offense, the minimum prison term which the defendant must serve shall be forty 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; (Emphasis added).
The remaining subdivisions of this section provide if there have been previous remands, the percentage of time to be served under the sentence increases. As pertinent here, subdivision (1) states if the defendant has had one previous remand for a felony, the defendant must serve forty percent of the sentence.
The following thumbnail chronology of events lends some background for this suit:
1) January 1994--Bratton pleads guilty in Pettis County to passing a bad check of over $150. Suspended imposition of sentence (SIS). Five years probation. Bratton also went to trial and was convicted on one count stealing, resulting in SIS and probation.
2) June 6,1994--Bratton pleads guilty to stealing in Pettis County. Probation for the two previous January offenses is revoked. Bratton sentenced, pursuant to § 559.115, supra, to three (the two January offenses plus this one) terms of four years to be served concurrently. The judgment recited that jurisdiction was retained for the 120 day call back, and contained a recommendation Bratton "... enter the Mineral Area treatment facility or its equivalent." Bratton was delivered to the Department on June 10,1994.
3) On October 8,1994, pursuant to § 559.115, Bratton was granted a one hundred-twenty day callback, released from prison and placed on probation.
4) On April 6, 1996 Bratton pled guilty in Pettis County to one count of attempted stealing. The court revoked the § 559.115 probation it had granted on the three previous convictions, and sentenced her to three years on this offense, to be served consecutive to the three prior four year concurrent sentences.
5) Two days later, on April 8, 1996, Bratton, apparently having expanded the territory for her operations, entered two pleas of guilty for passing a bad check of over $150 and stealing in Boone County Circuit Court. Sentences of three and five years imposed to run concurrent with the three June 1994 sentences of four years.
6) April 15, 1996 Bratton delivered to prison for the three 1996 convictions. Board and Corrections determined that under § 558.019.2(1), Bratton must serve forty per cent of this, her April 1996 sentence, because her delivery to custody on June 10,1994 was a "previous remand" within the meaning of the statute. This determination was based on the Board's and Corrections' interpretation that "remand", as used in § 558.019.2, is defined as any conviction, other than a chapter 195 (Narcotic Drug Act) offense, which results in any incarceration, no matter how short the period of confinement.
Bratton's amended petition, as well as her points on appeal, are somewhat difficult to follow. Summarized, the amended petition now before this court contained the following assertions and requests for declaratory relief:
1) Bratton asked for a declaration stating that her eligibility for parole was not subject to the restrictions of Section 558.019.2(1) since she did not have a previous remand.
2) A declaration that the Board and Corrections had adopted unlawful administrative rules and were guilty of an erroneous interpretation of the statutes by failing to recognize that a 120 day incarceration under Section 559.119 did not constitute a "previous remand," improperly denying her a chance for early parole.
3) The amended petition alleged, but did not pray for specific relief that the legislature has denied her equal protection because the statutory scheme of 558.019.2. exempts from the definition "previous incarceration", confinement in "Boot Camps", and there are no boot camp programs in our correctional system for women. (This reference is to the statutory language of "prior remands ... shall not include ... a regimented discipline program ...").
4) the 1994 incarceration was to a substance abuse program(559.115) which is also exempted from the application of 558.019.
5) she prayed for costs and attorney fees as well as damages for being unlawfully treated as an offender not entitled to parole eligibility.
Summary judgment was granted in favor of the respondents. Both at trial and here Bratton's primary argument is that the June 10,1994 incarceration is not a "remand" within the meaning of Section 559.115, so that she should not have to serve forty per cent of her present sentence. The trial court agreed with the respondents' interpretation. Bratton further contends the 120 day period of incarceration spanning June through October 1994 was spent in a drug and alcohol institutional treatment program, thus putting her confinement in the category of a chapter 195 drug related offense and beyond the stated language of Section 559.115.2.
After briefs were filed in this court, but before argument, the respondents filed a motion to dismiss Bratton's appeal as moot for the reason she has been granted all the relief for which she had prayed. It is necessary to take up the motion to dismiss the appeal before considering the points raised on appeal. Fowler v. Children of Fowler, 860 S.W.2d 380, 382 (Mo.App.1993). In support of their motion, respondents first present the Supreme Court hand down of December 23, 1997 in the case of Boersig v. Missouri Department of Corrections, 959 S.W.2d 454, 457 (Mo. banc 1997). Boersig's declaratory judgment suit did not, as in the case at bar, implicate the shock incarceration one hundred twenty day call back statute (559.115), but was limited to seeking judicial interpretation of the 558.019 language of "previous remands to the department of corrections." 2 The Court noted this statute's pre-1994 language was, "pleaded guilty to, or has been...
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