Gilles v. Missouri Dept. of Corrections, WD 65864.
| Citation | 200 S.W.3d 50 |
| Decision Date | 25 April 2006 |
| Docket Number | No. WD 65864.,WD 65864. |
| Parties | Joseph A. GILLES, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | Court of Appeal of Missouri (US) |
Joseph A. Gilles, Jefferson City, MO, pro se.
Jeremiah W. (Jay) Nixon, Atty. Gen., Michael J. Spillane, Assistant Attorney General, Jefferson City, MO, for Respondent.
Before BRECKENRIDGE, P.J., and HOWARD and HOLLIGER, JJ.
Joseph A. Gilles appeals the circuit court's grant of summary judgment in favor of the Missouri Department of Corrections ("MDOC") on Gilles's petition for declaratory judgment. Gilles contended in his petition that the MDOC erred in calculating that he had three or more prior commitments on two separate cases, requiring him to serve a minimum of eighty percent of his sentence before he is eligible for release under section 558.019.1 Gilles's sole point on appeal, as stated in his point relied on, is that the trial court erred in granting summary judgment for the MDOC because binding precedent strictly and clearly prohibits the MDOC from using sentences pursuant to section 559.115 as "previous commitments" in calculating the minimum prison term he must serve prior to being eligible for parole under section 558.019.
We affirm.
Joseph Gilles has been convicted and sentenced five times for driving while intoxicated. Gilles was sentenced in Case No. CR393-1079FX (Case 1) on April 4, 1994, to three years in the MDOC with a 120-day callback under section 559.115 by the Circuit Court of Cole County, Missouri, for driving while intoxicated on July 31, 1993. Gilles was received into the MDOC on this sentence on April 15, 1994. Gilles was released from the MDOC to probation on August 15, 1994.
On April 17, 1995, Gilles was convicted in Cole County of another driving while intoxicated offense that occurred on February 22, 1995, in Case No. CR395311-FX (Case 2), while Gilles was on probation from Case 1. Also on April 17, 1995, the Circuit Court of Cole County revoked Gilles's probation in Case 1. Gilles was received into the MDOC on April 18, 1995, both for service of the new sentence in Case 2 and as a probation revokee on the sentence in Case 1. Gilles was then paroled after serving approximately two years.
On November 5, 1997, Gilles committed a new offense of driving while intoxicated in Newton County, Missouri, in Case No. CR497-2270FX (Case 3), for which he was sentenced to four years on November 10, 1998. Gilles returned to the MDOC on November 17, 1998. This was a 120-day incarceration under section 559.115, and Gilles was again released on probation on March 17, 1999.
On February 1, 2002, Gilles committed another driving while intoxicated offense, this time in Miller County, Missouri, in Case No. CR602-411FX (Case 4), for which he was convicted and sentenced on June 17, 2002, to five years in the MDOC with the possibility of a 120-day callback under section 559.115. On June 19, 2002, Gilles was received into the MDOC for service of the sentence in Case 4. His probation was also revoked in Case 3.
On March 19, 2002, Gilles committed a driving while intoxicated offense in Cole County, Missouri, in Case No. 02CR323953-01 (Case 5), for which he was sentenced on November 12, 2002, to five years' imprisonment. He was also received into the MDOC on November 12, 2002.
The MDOC calculated that Gilles had three or more prior commitments on both Cases 4 and 5. Consequently, the MDOC informed Gilles that he must serve a minimum of eighty percent of his sentence before he is eligible for release under section 558.019.2.
Gilles filed a petition for declaratory judgment in the Circuit Court of Cole County, alleging that none of his prior incarcerations under section 559.115 should count as commitments because these were "regimented discipline programs" under section 217.378, which are excluded from being counted as commitments under section 558.019. Gilles also argued that section 559.115.7, which excludes the first 120-day incarceration for a MDOC program from being counted as a commitment, should be applied retroactively to his case.
The Circuit Court of Cole County granted summary judgment for the MDOC on July 20, 2005, holding that a 120-day commitment under section 559.115 is not a regimented discipline program under section 217.378, and that even if the initial incarceration under section 559.115 is not counted as a commitment, the commitment count remains three or more commitments on the controlling sentence and parole eligibility remains the same. Gilles appeals.
Appellate review of summary judgment is de novo, with no deference given to the circuit court's ruling. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Pursuant to Rule 74.04(c)(6), "[s]ummary judgment is appropriate when there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law." Johnson v. Mo. Dep't of Corr., 166 S.W.3d 110, 111 (Mo.App. W.D.2005).
Gilles's sole point on appeal, as stated in his brief's point relied on, is that the trial court erred in granting summary judgment for the MDOC because binding precedent strictly and clearly prohibits the MDOC from using sentences pursuant to section 559.115 as "previous commitments" in calculating the minimum prison term Gilles must serve prior to being eligible for parole under section 558.019.
We first address Gilles's stated point relied on, that the MDOC cannot use sentences pursuant to section 559.115 as "previous commitments" in calculating the minimum prison term he must serve prior to being eligible for parole under section 558.019. The Missouri Supreme Court rejected this argument in Star v. Burgess, 160 S.W.3d 376, 378 (Mo. banc 2005), finding that "[n]othing in section 558.019 or section 559.115 . . . provides that commitments under section 559.115 are not to be used for purposes of determining the number of prior commitments under section 558.019." The court noted that while the action was pending, section 559.115.7 was enacted. Star, 160 S.W.3d at 378 n. 2. However, the court did not consider whether section 559.115.7 could afford the inmate relief, as he did not raise the issue before the trial court. Id.
Section 559.115.7 provides that "[a]n offender's first incarceration for one hundred twenty days for participation in a department of corrections program prior to release on probation shall not be considered a previous prison commitment for the purpose of determining a minimum prison term under the provisions of section 558.019, RSMo." This section was enacted in 2003. It applies retroactively. Nieuwendaal v. Mo. Dep't of Corr., 181 S.W.3d 153, 155 (Mo.App. W.D.2005); Powell v. Mo. Dep't of Corr., 152 S.W.3d 363, 366 (Mo.App. W.D.2004); Irvin v. Kempker, 152 S.W.3d 358, 362 (Mo.App. W.D.2004).
Section 559.115.7 clearly indicates that it is only an offender's first incarceration under section 559.115 that may not be considered a previous prison commitment for the purpose of determining a minimum prison term under section 558.019. Therefore, it is only Gilles's initial incarceration in Case 1, on April 15, 1994, which may not be considered a "previous prison commitment" for the purpose of determining Gilles's minimum prison term under section 558.019. Gilles's argument that section 559.115.7 is retroactively applicable to this case has no effect on the outcome of the case because, as discussed below, we agree with the trial court that even disregarding the April 15, 1994, incarceration in Case 1, Gilles still has three or more previous commitments on his controlling sentence.
We next address Gilles's argument that the MDOC erred in concluding that he has three or more previous prison commitments "unrelated to the present offense" that should be counted against his sentences in Cases 4 and 5, requiring him to serve eighty percent of those sentences prior to parole eligibility under section 558.019.2(3).
We initially note that this issue was not preserved for appellate review. It was not raised in Gilles's petition for declaratory judgment. The first time this issue was raised before the trial court was in Gilles's response to the MDOC's motion for summary judgment. It was not decided by the trial court. "An issue that was never presented to or decided by the trial court is not preserved for appellate review." State ex rel. Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122, 129 (Mo. banc 2000). We "will generally not convict a lower court of error on an issue that was not put before it to decide." Smith v. Shaw, 159 S.W.3d 830, 835 (Mo. banc 2005). When an issue has not been preserved on appeal, we may, in our discretion, review for plain error. Smith v. White, 114 S.W.3d 407, 412 (Mo.App. W.D. 2003). "We rarely review for plain error in civil cases, however." Id. We find no error by the trial court on this issue, plain or otherwise.
Section 558.019.2 provides, in relevant part, as follows:
Other provisions of the law to the contrary notwithstanding, any offender 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: . . .
(3) If the offender has three or more 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 eighty 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 occurs first.
Section 558.019.2 further provides that "[f]or the purposes of this section, `prison commitment' means and is...
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