Calvin v. Missouri Dept. of Corrections

• Decision Date: 13 January 2009
• Docket Number: No. WD 69157.,WD 69157.
• Citation: 277 S.W.3d 282
• Parties: Douglas CALVIN, Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.
• Court: Missouri Court of Appeals

277 S.W.3d 282

Douglas CALVIN, Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.

No. WD 69157.

Missouri Court of Appeals, Western District.

January 13, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 3, 2009.

Ronald S. Ribaudo, Asst. Attorney General, Jefferson City, MO, for appellant.

Jeannie Willibey, Asst. Appellate Defender, Kansas City, MO, for respondent.

Before HAROLD L. LOWENSTEIN, P.J., VICTOR C. HOWARD, and JAMES M. SMART, JR., JJ.

JAMES M. SMART, JR., Judge.

The Missouri Department of Corrections appeals the circuit court's judgment declaring that Douglas Calvin has served every day of his five-year sentence for criminal nonsupport. The department contends that the circuit court improperly credited Calvin with time he served in prison on an unrelated sentence that was later vacated. We affirm.

Facts

The parties stipulated to the facts. In January 1997, Calvin pleaded guilty to the class D felony of criminal nonsupport ("the 1996 case"). The court sentenced him to five years in prison but retained jurisdiction under the 120-day callback rule and ordered Calvin to complete the department's drug treatment program. Calvin began serving his sentence on January 9, 1997. On May 15, 1997, after Calvin successfully completed the drug treatment program, the court suspended execution of the five-year sentence and released Calvin on probation.

In July 1998, Calvin pleaded guilty to another charge of the class D felony of criminal nonsupport ("the 1998 case"). The court continued his probation in the 1996 case, suspended the imposition of sentence in the 1998 case, and placed him on probation for five years. Calvin subsequently absconded from probation and failed to pay child support.

On July 12, 2002, Calvin surrendered his probation in the 1996 case and admitted absconding and failing to pay child support. The court ordered execution of the five-year sentence on the 1996 case. On the same day, the court revoked Calvin's probation in the 1998 case and ordered him to serve two years in prison consecutively to his five-year sentence in the 1996 case.

Calvin filed a Rule 24.035 motion for post-conviction relief in the 1998 case. This court reversed the circuit court's denial of the motion after finding that there was not a sufficient factual basis for his guilty plea and, thus, the plea was not knowingly and voluntarily entered. This court vacated the 1998 felony conviction and sentence for criminal nonsupport and remanded the case to the circuit court.¹ Calvin v. State, 204 S.W.3d 220, 228 (Mo. App.2006). At the time of the reversal, Calvin was still in the custody of the department on both the five-year 1996 sentence and the two-year sentence from the 1998 case.²

Before the vacation of the conviction and sentence in the 1998 case, the department had calculated Calvin's maximum release date on the five-year 1996 sentence to be January 20, 2007. On the 1996 sentence, Calvin had served 126 days in department custody in 1997, under the 120-day callback rule, and forty-six days in the county jail, and he had been continuously in the custody of the department since July 12, 2002.

After this court vacated the conviction and sentence in the 1998 case, the department recalculated Calvin's maximum release date for the 1996 case to be July 28, 2008. As improbable as it may sound, the vacation of the 1998 conviction caused the maximum release date to be actually pushed back a year and a half. Under the department's theory, which is set forth in detail below, the 556 days Calvin served from May 21, 2005, through November 28, 2006 (the date of this court's mandate in the 1998 case), could apply only to his two-year 1998 sentence (the vacated sentence). It could not be applied to his earlier five-year sentence, according to the department, despite the fact that the 1998 sentence was vacated. This is because, says the department, the 1998 sentence remained valid until the date of the mandate.

On December 14, 2006, the day after Calvin was conditionally released to a half-way house operated by the department, the department notified Calvin that his recalculated maximum outdate on the 1996 sentence was July 28, 2008, and not January 20, 2007. Thus, he learned in December 2006 that his success in getting his 1998 felony conviction reversed had actually resulted in extending, not shortening, his maximum release date. A month and a half later, Calvin walked away from the halfway house and did not return. The department issued a parole violation warrant for Calvin, but evidently Calvin has not been arrested on the warrant.

Calvin then filed a petition for declaratory judgment asking the court to declare that he had served every day of his five-year sentence in the 1996 case, and that the 1998 sentence must be disregarded, and that the department has no legal authority to maintain custody or control over him or arrest him for the 1996 sentence. The circuit court granted his petition, and the department appeals.

Discussion

The department says the trial court erred in granting Calvin's petition for declaratory judgment after finding that he had completed every day of his five-year sentence on his 1996 conviction. According to the department, Calvin's five-year sentence would not be completed until July 28, 2008, due to the effect of the 1998 sentence, which was not vacated until 2006.

Standard of Review

We review the circuit court's declaratory judgment to determine whether or not it is supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When, as in this case, the parties submitted the case to the circuit court upon stipulated facts, we determine only whether or not the circuit court drew the proper legal conclusions from those facts. Carlyle v. Mo. Dep't of Corr., 184 S.W.3d 76, 79 (Mo.App.2005).

The Department's Argument

The department's theory derives from section 558.011.4(1)³ and 14 CSR 80-2.040(4). Section 558.011.4(1) provides that "[a] sentence of imprisonment for a term of years for felonies other than dangerous felonies ... shall consist of a prison term and a conditional release term." (Emphasis added.) The department rule at MO.CODE REGS ANN. tit. 14 section 80-2.040(4) (2006) stated at the time:⁴

An inmate with a consecutive sentence shall be held until the inmate completes the prison term of the consecutive sentence(s). The conditional release terms taken together shall constitute the time to be served on conditional release.

According to the department, these two provisions, taken together, mean that an inmate with consecutive sentences must first complete the prison term portion of both sentences (in consecutive order) before he begins serving the conditional release portion of the first sentence (to be followed by the conditional release portion of the second). If sentence "2" is later vacated, the inmate is not credited on sentence "1" with any incarceration time he served under sentence "2" before it was vacated.

The department acknowledges that on his 1996 sentence, Calvin was entitled to 126 days of prison credit (for time served in the drug treatment program in 1997) and 46 days of jail-time credit. The department contends that after Calvin was returned to prison on July 12, 2002, he finished serving the "prison term" portion of his 1996 five-year sentence on May 20, 2005. Then, on May 21, 2005, Calvin began serving the "prison term" portion of his two-year sentence in the 1998 case. Thus, the department says, the 556 days that he spent in prison from May 21, 2005, to November 28, 2006 (the date of our mandate vacating his 1998 sentence), could apply only to the "prison term" portion of his 1998 sentence. It could not be counted toward the "conditional release" portion of his 1996 five-year sentence, despite the fact that the 1998 sentence was vacated, according to the department. Under the department's theory, Calvin's sentence on the 1998 case remained valid until the date this court issued its mandate vacating the conviction and sentence. As a result, the department contends that after November 28, 2006, Calvin still had the 20-month "conditional release" portion of the five-year 1996 sentence yet to serve, making his new release date July 28, 2008. The department says the trial court erred in finding that Calvin had served every day of his five-year sentence when he walked away from the halfway house in February 2007.

The department relies primarily on two cases, State ex rel. Meininger v. Breuer, 304 Mo. 381, 264 S.W. 1, 5 (1924), and Ex Parte Jackson, 96 Mo. 116, 8 S.W. 800, 801 (1888), that discuss a principle recited in a very old Massachusetts case, Kite v. Commonwealth, 52 Mass. 581, 585 (1846). The department points to the following passage from Kite: "Nor will it make any difference, that the previous judgment is reversed for error. It is voidable only, and not void; and, until reversed by judgment, it is to be deemed of full force and effect ..." 52 Mass. at 585. This passage appears in a discussion about when the second of two consecutive sentences would begin in the event that the first is reversed or otherwise rendered invalid. See id.

The department also says section 558.031.1⁵ "prohibits" it from crediting the 556 days toward Calvin's 1996 sentence. The department appears to be relying on language in section 558.031.1 that guarantees credit for time served "after the offense occurred and before the commencement of the sentence" (often referred to as "jail-time credit"), provided that such credit shall be applied only once as to consecutive sentences.⁶ (Emphasis added.) The department misinterprets the effect of this statute. The only circumstance it forbids is the doubling up of jail time credit when there is more than one offense. The main function of the statute is to give credit; it does not remove it or...