EDGER v. MO. BD. OF PROBATION AND PAROLE, WD 71395.
| Decision Date | 20 April 2010 |
| Docket Number | No. WD 71395.,WD 71395. |
| Parties | Joe M. EDGER, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE, Respondent. |
| Court | Missouri Court of Appeals |
Joe M. Edger, Appellant pro-se.
Michael J. Spillane for Respondent.
Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
Joe Edger appeals the summary judgment entered in favor of the Missouri Board of Probation and Parole (Parole Board) on his petition seeking a declaration that he became eligible for parole on November 2, 2005, based on the calculation of his minimum term for eligibility for parole. The trial court found that he will not become parole eligible until February 3, 2014, or until he has served an aggregate term of 15.5 years on his consecutive sentences. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
On June 26, 1998, Edger was sentenced, as a persistent offender, to two fifteen-year terms of imprisonment for two counts of stealing a motor vehicle and one ten-year term of imprisonment for resisting arrest. The sentences were to run concurrently. He began serving the sentences the same day.
In April 2000, Edger attempted to escape. He was subsequently convicted of attempt to escape confinement and was sentenced on November 2, 2001, to eight years imprisonment to run consecutively to his prior sentences.
In December 2004, the Parole Board calculated that Edger would be eligible for parole on February 3, 2014. The Parole Board determined that the eight-year sentence for attempted escape has a fifty percent mandatory minimum prison term, or four years, and that the sentence would not begin to run until February 3, 2010. February 3, 2010, is the conditional release date for Edger's previous fifteen-year sentence.
Edger filed his petition for declaratory judgment in June 2008 arguing that his parole eligibility date was November 2, 2005, not February 3, 2014. Edger calculated that he became parole eligible on his first fifteen-year sentence after twenty-five percent of the sentence, or three years and nine months, under 14 CSR 80-2.010(1)(b). He acknowledged that he must serve the minimum prison term of fifty percent of his eight-year sentence under section 558.019.2(2), RSMo Cum.Supp.2009. Pursuant to section 217.690.5, RSMo Cum. Supp.2009, Edger added the minimum terms for parole eligibility for each of the consecutive sentences for a total of seven years and nine months making him eligible for parole on November 2, 2005.
Thereafter, the parties filed cross motions for summary judgment. The trial court granted summary judgment in favor of the Parole Board finding that Edger will not become parole eligible until February 3, 2014, or until he has served an aggregate term of 15.5 years on his consecutive sentences. This appeal by Edger followed.
In his sole point on appeal, Edger contends that the trial court erred in entering summary judgment in favor of the Parole Board because the Parole Board violated section 217.690.5 in calculating his parole eligibility date.
Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376.
Section 217.690, RSMo Cum.Supp.2009, is the general parole statute. Subsection 5 of the statute provides a formula for calculating the minimum term of parole eligibility for an offender with consecutive sentences:
When considering parole for an offender with consecutive sentences, the minimum term for eligibility for parole shall be calculated by adding the minimum terms for parole eligibility for each of the consecutive sentences, except the minimum term of parole eligibility shall not exceed the minimum term for parole eligibility for an ordinary life sentence.
The parties do not dispute that Edger's eight-year sentence for attempted escape has a fifty percent mandatory minimum prison term under section 558.019.2(2), RSMo Cum.Supp.2009. That statute provides:
If the offender has two previous prison commitments to the department of corrections for felonies unrelated to the present offense, the minimum prison term which the offender must serve shall be fifty percent of his or her sentence or until the offender attains seventy years of age, and has served at least forty percent of the sentence imposed; whichever comes first.
§ 558.019.2(2). Because Edger has two prior commitments to the Department of Corrections, he must serve four years of his eight-year sentence. The parties disagree, however, on the minimum term for parole eligibility on Edger's fifteen-year sentence for stealing a motor vehicle.
Section 217.690 authorizes the Parole Board to adopt rules regarding parole eligibility and hearings. § 217.690.4. Fourteen CSR 80-2.010 sets forth the guidelines under which the Parole Board is to determine the parole eligibility of an offender. Cooper v. Holden, 189 S.W.3d 614, 618 (Mo.App. W.D.2006). Under the rules, an offender convicted of an enhanced non-violent class C or D offense is eligible for parole after twenty-five percent of the maximum sentence has been served, except where statute would require more time to be served. 14 CSR 80-2.010(1)(B). Under this rule, Edger would be eligible for parole on his fifteen year sentence after serving three years...
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