Johnson v. Missouri Bd. of Prob. & Parole

• Decision Date: 27 March 2012
• Docket Number: No. WD 74090.,WD 74090.
• Parties: Joshua JOHNSON, et al., Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Missouri Court of Appeals

359 S.W.3d 500

Joshua JOHNSON, et al., Appellant,

v.MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.

No. WD 74090.

Missouri Court of Appeals, Western District.

Jan. 31, 2012.Rehearing Denied March 27, 2012.

Joshua Johnson, Appellant Pro Se, Farmington, MO, for appellant.

Andrew W. Hassell, Jefferson City, MO, for respondent.

Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, JAMES M. SMART and ALOK AHUJA, Judges.

LISA WHITE HARDWICK, Chief Judge.

Joshua Johnson appeals the circuit court's judgment denying his petition for a writ of prohibition. He contends he was entitled to a writ prohibiting the Board of Probation and Parole (“Board”) from applying the lifetime parole supervision provisions of Section 217.735 ¹ to him. Specifically, he argues the Board's interpretation of Section 217.735 is contrary to the legislature's intent and violates the constitutional prohibition against ex post facto laws. For reasons explained herein, we find no error and affirm the circuit court's judgment.

Factual and Procedural History

Johnson is presently an inmate in the Missouri Department of Corrections. In July 2008, he pled guilty to one count of sexual assault, Section 566.040, and one count of statutory sodomy in the first degree, Section 566.062, for acts he committed in March 2007. The court sentenced him to two concurrent five-year terms of imprisonment.

In September 2010, Johnson received a letter from the Board advising him it was modifying the way it applied the statutory lifetime parole supervision requirements for certain sex offenders. The Board explained that, pursuant to the current version of Section 217.735, which went into effect on June 5, 2006, lifetime parole supervision is required when an offender has been found guilty or pled guilty to rape under Section 566.030, statutory rape in the first degree under Section 566.032, forcible sodomy under Section 566.060, or statutory sodomy in the first degree under Section 566.062; and the finding or plea of guilty is based upon an act committed on or after August 28, 2006. The Board informed Johnson that he met these requirements and would now be subject to lifetime parole supervision, which includes global positioning system (“GPS”) electronic monitoring.

Along with this notice, the Board also sent Johnson a copy of a letter it had sent to the courts of this state in July 2010, notifying them of its decision to modify the way it applied Section 217.735. In its letter to the courts, the Board explained that, before 2006, the statute provided for lifetime parole supervision for those persons who committed the crimes listed in the statute only if they were prior sex offenders. Section 217.735.1, RSMo Cum.Supp.2005, read:

Notwithstanding any other provision of law to the contrary, the board shall supervise an offender for the duration of his or her natural life when the offender has pleaded guilty to or been found guilty of an offense under sections 556.030 [rape], 566.032 [statutory rape in the first degree], 566.060 [forcible sodomy], 566.062 [statutory sodomy in the first degree], 566.067 [child molestation in the first degree], 566.083 [sexual misconduct involving a child], 566.100 [sexual abuse], 566.151 [enticement of a child], 566.212 [sexual trafficking of a child], 568.020 [incest], 568.080 [child used in sexual performance], or 568.090 [promoting sexual performance by a child], RSMo, based on an act committed on or after August 28, 2005, against a victim who was less than fourteen years old and the offender is a prior sex offender as defined in subsection 2 of this section.

In 2006, however, the legislature amended the language of the statute to read:

Notwithstanding any other provision of law to the contrary, the board shall supervise an offender for the duration of his or her natural life when the offender has pleaded guilty to or been found guilty of an offense under section 566.030 [rape], 566.032 [statutory rape in the first degree], 566.060 [forcible sodomy], or 566.062 [statutory sodomy in the first degree], RSMo, based on an act committed on or after August 28, 2006, or the offender has pleaded guilty to or has been found guilty of an offense under section 566.067 [child molestation in the first degree], 566.083 [sexual misconduct involving a child], 566.100 [sexual abuse], 566.151 [enticement of a child], 566.212 [sexual trafficking of a child], 566.213 [sexual trafficking of a child under twelve], 568.020 [incest], 568.080 [child used in sexual performance], or 568.090 [promoting sexual performance by a child], RSMo, based on an act committed on or after August 28, 2006, against a victim who was less than fourteen years old and the offender is a prior sex offender as defined in subsection 2 of this section.

§ 217.735.1.

The Board told the courts that, when the 2006 version of the statute initially went into effect, the Board applied the lifetime parole supervision requirements in the same manner as under the prior version of the statute. That is, it ordered lifetime parole supervision for persons who committed any of the crimes listed in the statute only if those persons were prior sex offenders. After additional analysis of the amended statute's construction, however, the Board determined the plain language of the 2006 version of Section 217.735.1 caused the victim's age requirement and the prior sex offender requirement to apply only to the second set of crimes listed in the statute, Sections 566.067 to 568.090, and not to the first set of crimes, Sections 566.030 to 566.062.

After receiving the Board's notice that he was subject to Section 217.735's lifetime parole supervision provisions, Johnson filed a petition for a writ of prohibition in the Cole County Circuit Court.² In his petition, he asserted he was entitled to a writ prohibiting the Board from applying its revised interpretation of Section 217.735.³ Johnson argued he was not subject to lifetime parole supervision under the statute because the legislature intended such supervision apply only to prior sex offenders and he was not a prior sex offender. Additionally, Johnson contended the Board's application of its revised interpretation of Section 217.735 violated the constitutional prohibition against ex post facto laws.

The circuit court denied both of Johnson's claims. In interpreting Section 217.735.1, the court determined the legislature intended that the prior sex offender requirement apply only to the second set of crimes listed in the statute, that is, Sections 566.067 to 568.090. As Johnson's crime was contained in the first set of crimes to which the prior sex offender requirement did not apply, the court found he was subject to lifetime parole supervision. The court further found the application of the Board's reinterpretation of Section 217.735 did not violate the prohibition against ex post facto laws. Johnson appeals.

Standard of Review

Preliminarily, we note that, in general, “the proper remedy to contest the denial of a writ is to request an extraordinary writ from a higher court and not a direct appeal.” State ex rel. Arnett v. Greer, 921 S.W.2d 128, 129 (Mo.App.1996). When the denial is based on the merits of the writ petition or determines a question of law, however, an appeal is appropriate. Id. Because the circuit court denied Johnson's petition on its merits and addressed questions of law, his appeal is proper. Id.

We review the circuit court's denial of a writ of prohibition for an abuse of discretion. State ex rel. SGI Hotels, L.L.C. v. City of Clayton, 326 S.W.3d 484, 488 (Mo.App.2010). “[A]n abuse of discretion occurs where the circuit court fails to follow applicable statutes.” Id. (internal quotation marks and citations omitted).

Analysis

In Point I, Johnson contends the circuit court erred in holding the Board properly interpreted Section 217.735's lifetime parole supervision provisions to apply to him. Specifically, he argues the Board's interpretation is contrary to the legislature's intent that the statute is to apply only to prior sex offenders.

“The primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning.” In re Boland, 155 S.W.3d 65, 67 (Mo. banc 2005). If the statutory language is unambiguous, we must give effect to the language as it is written. Denbow v. State, 309 S.W.3d 831, 834 (Mo.App.2010). Section 217.735.1 states that lifetime parole supervision for offenders is required when:

the offender has pleaded guilty to or been found guilty of an offense under section 566.030 [rape], 566.032 [statutory rape in the first degree], 566.060 [forcible sodomy], or 566.062 [statutory sodomy in the first degree], RSMo, based on an act committed on or after August 28, 2006, or the offender has pleaded guilty to or has been found guilty of an offense under section 566.067 [child molestation in the first degree], 566.083 [sexual misconduct involving a child], 566.100 [sexual abuse], 566.151 [enticement of a child], 566.212 [sexual trafficking of a child], 566.213 [sexual trafficking of a child under twelve], 568.020 [incest], 568.080 [child used in sexual performance], or 568.090 [promoting sexual performance by a child], RSMo, based on an act committed on or after August 28, 2006, against a victim who was less than fourteen years old and the offender is a prior sex offender as defined in subsection 2 of this section.

(Emphasis added.)

Looking at the statute's plain language, we note it contains two distinct clauses that are separated by the word “or.” Use of the word “or” “ordinarily denotes an alternative to the preceding phrase.” Moore v. State, 318 S.W.3d 726, 734 (Mo.App.2010). Clearly, it does so here, as each clause provides an alternative for when lifetime parole supervision applies to an offender who “has pleaded guilty to or been found guilty of” certain...