Cooper v. Holden, WD 65674.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Per Curiam
• Citation: 189 S.W.3d 614
• Parties: William COOPER, Appellant, v. Governor Robert HOLDEN, et al., Respondent.
• Docket Number: No. WD 65674.,WD 65674.
• Decision Date: 21 March 2006

189 S.W.3d 614 William COOPER, Appellant,
v.
Governor Robert HOLDEN, et al., Respondent. No. WD 65674. Missouri Court of Appeals, Western District. March 21, 2006. Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2006.

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William Cooper, pro se.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, Andrew W. Hassell, Asst. Attorney General, joins on the briefs, for Respondent.

Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JR., JJ.

PER CURIAM.

William Cooper appeals the trial court's grant of the motion of respondents, Holden,¹ Kempker, Agniel, Lock, Loethen, White, and Byrd (hereinafter referred to as "the State"), for judgment on the pleadings and denial of the petition for declaratory judgment. We affirm.

Factual Background

Cooper is currently serving a life sentence for murder in the second degree. He was sentenced in Jackson County in 1981. His sentence was upheld by this court in State v. Cooper, 660 S.W.2d 184 (Mo.App.1983), as was the denial of his Rule 27.26 motion in Cooper v. State, 784 S.W.2d 621 (Mo.App.1990).

On January 6, 2003, the Parole Board scheduled Cooper for parole on December 7, 2005.² Cooper filed this action for a declaratory judgment on December 1, 2004. His petition sought numerous forms of relief, but primarily it sought the application

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of twenty-five months of "good-time credit" applied toward his parole release date of December 7, 2005. The circuit court granted the State's motion for judgment on the pleadings and denied Cooper's petition for declaratory judgment. This appeal follows.

Standard of Review

When reviewing a declaratory judgment, an appellate court's standard of review is the same as in any other court-tried case. Guyer v. City of Kirkwood, 38 S.W.3d 412, 413 (Mo. banc 2001). Thus, the trial court's decision should be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Analysis

Cooper raises eight points on appeal. Points I and II raise the issue of whether good-time credit should apply to his December 7, 2005, release date. Points III and IV raise the issue of whether the administrative rules and regulations relevant to applying good-time credit toward conditional release were promulgated and applied properly. Point V raises the issue of whether the Governor acted inappropriately by failing to grant him a reprieve, commutation, or pardon. Points VI, VII, and VIII raise the issue of whether the circuit court erred in adopting the State's proposed judgment that did not address each claim and prayer for relief and was based upon the pleadings.

I.

Cooper's first issue on appeal is whether he should receive good-time credit applied to his parole date of December 7, 2005. He argues that he is entitled to a conditional release date based upon section 558.011, RSMo 1978, the statute in effect at the time of his sentencing. The circuit court determined that conditional release was a statutorily created entitlement that the General Assembly can clarify and alter without violating constitutional restrictions, including the Due Process Clause and the Ex Post Facto Clause. The applicable conditional release statute is section 558.011, RSMo 2000. That statute provides for conditional release only for persons sentenced to a term of years, who have not been convicted of a dangerous felony as described in section 556.061³ or who have not been remanded four or more times to the Department of Corrections.

Cooper was convicted of murder in the second degree, a dangerous felony under section 556.061, and sentenced to life imprisonment. Because of each of these factors, Cooper is not eligible for conditional release. No conditional release term has been determined. Instead, the Parole Board granted Cooper a parole date of December 7, 2005.

"Conditional release" and "parole" are neither identical nor interchangeable terms, although "[c]onditional release is akin to parole." Rowland v. State, 129 S.W.3d 507, 511 (Mo.App.2004). When a sentence of imprisonment is imposed, it consists of a "prison term," which the offender is required to serve prior to being eligible for conditional release. 14 C.S.R. 10-5.010(1)(F). Senate Bill 60 first introduced the term "conditional release" to the Missouri Statutes in 1977. The comments by the drafters to section 558.011 stated that "[t]he "conditional release term" is the

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maximum length of time a person must satisfactorily serve on parole before he is finally discharged, regardless of the point in time when he is released from his confinement in prison." Comment to 1973 Proposed Code, § 558.011, V.A.M.S. (1999). This comment means that regardless of when an offender may be paroled, his or her sentence has not been fulfilled until the statutory requirements of the sentence are met. See Johnson v. Mo. Bd. of Prob. & Parole, 92 S.W.3d 107 (Mo.App. 2002).

The operation of conditional release is specifically dictated by statute. Section 558.011.4(1) specifies that the last few years of a sentence, up to a maximum of five years for sentences over fifteen years, is the conditional release term.⁴ The portion of the sentence prior to the conditional release term is the prison term. While the statute thus sets boundaries as to the maximum period of the sentence that could be the conditional release term, the statute also allows the Parole Board discretion in determining the conditional release term up to the maximum. § 558.011.5.

Parole, on the other hand, is almost entirely within the discretion of the Parole Board. Section 217.690 allows the Board to determine if and when an offender may be released on parole. The Code of State Regulations sets forth the guidelines under which the Board is to determine the parole eligibility of an offender. 14 C.S.R. 80-2.010. With the exceptions of the mandatory minimum sentences set forth in statutes or 14 C.S.R. 80-2.010, offenders can be paroled virtually anytime during their sentence at the discretion of the Parole Board under conditions set by the Board. This also means that the Parole Board can deny parole to an offender throughout his or her entire sentence.

Although parole and conditional release are similar, the legislature and courts have distinguished between the two procedures. For example, section 217.690.6 limits the parole eligibility of an offender sentenced for first-degree murder, but the...