Johnson v. Mo Bd. of Probation and Parole, No. WD 61199.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJoseph M. Ellis
Citation92 S.W.3d 107
PartiesCharles JOHNSON, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.
Decision Date24 September 2002
Docket NumberNo. WD 61199.

Page 107

92 S.W.3d 107
Charles JOHNSON, Appellant,
v.
MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.
No. WD 61199.
Missouri Court of Appeals, Western District.
September 24, 2002.
Motion for Rehearing and/or Transfer to Supreme Court Denied October 29, 2002.
Application for Transfer Denied January 28, 2003.

Page 108

Charles Johnson, Jefferson City, pro se.

Jeremiah W. (Jay) Nixon, Attorney General, Cassandra K. Dolgin, Assistant Attorney General, Jefferson City, MO, for respondent.

Before JOSEPH M. ELLIS, Chief Judge, RONALD R. HOLLIGER, Judge and LISA WHITE HARDWICK, Judge.

JOSEPH M. ELLIS, Chief Judge.


Charles Johnson appeals from the judgment of the circuit court granting the Missouri Board of Probation and Parole's motion for summary judgment and denying Johnson's petition for declaratory relief and motion for summary judgment in which he challenged the application of

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§ 558.0111 and 14 CSR 80-2.030(7) to his case. Specifically, Johnson claimed that the statute established that the maximum time he could be required to serve on parole, regardless of the date he was released from prison, was five years. The trial court determined, and we agree, that Johnson's argument was based on a misunderstanding of § 558.011.

Johnson is currently an inmate at the Algoa Correctional Center in Jefferson City, Missouri. Johnson was convicted in 1982 of second-degree robbery and stealing. On March 4, 1983, Johnson was sentenced to concurrent terms of imprisonment of twenty-five years for the robbery conviction and fifteen years for the stealing conviction. Johnson was placed in the custody of the Missouri Department of Corrections on March 8, 1983, and, with credit for jail time, his sentence start date was May 7, 1982. On August 6, 1993, after serving more than eleven years of his sentence, the Board released Johnson on parole. The Order of Release on Parole stated that Johnson's sentence expired on April 7, 2007.

On November 18, 1999, Johnson's parole was revoked due to the following violations:

The Board, from the evidence presented, specifically, the violation reports dated 8-2-99, 9-2-99, 9-3-99, and 10-12-99, and the offender's testimony during his 11-5-99 revocation hearing, finds by the preponderance of the credible evidence, that the offender has violated Condition # 8 REPORTING DIRECTIVES of the Conditions and Order of Parole. He did so by knowingly failing to contact his Parole Officer upon leaving inpatient treatment at Alexian Brothers Hospital on or about 7-9-99. By his own admission, he did not contact his Parole Officer to advise of his change of residency when he left inpatient treatment on or about 7-9-99.

Therefore, the Board in its discretion has determined to revoke the parole granted the offender on 8-6-93, and to schedule the offender for a hearing in March 2000.

In addition to revoking Johnson's parole, the Board determined that twenty-nine days would not be counted as time served and determined that Johnson's new release date was May 6, 2007.

On August 11, 2000, Johnson filed a petition for writ of habeas corpus in the Circuit Court of Cole County claiming that he had served more than six years on parole and that § 558.011 required the Board to release him from supervision after

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he completed five years of parole. On August 17, 2000, the court issued its order denying the petition for failure to state a claim upon which relief could be granted.

Sometime later, Johnson filed a petition for writ of habeas corpus in the Missouri Supreme Court challenging the application of § 558.011 to his case. On October 31, 2000, the court issued its order denying the writ without prejudice pursuant to Rule 84.22.2

On December 11, 2000, Johnson filed a petition for writ of habeas corpus with this Court. Johnson argued, inter alia, that § 558.011.4(1)(c) "mandates absolute discharge from supervision after a prisoner has served a fixed prison term and a fixed conditional release term." Johnson stated that the fixed conditional release term for his sentence was five years, and, therefore, he had a right to absolute discharge on August 16, 1998. The Board filed suggestions in opposition to Johnson's petition, arguing that Johnson was paroled and not conditionally released and that § 558.011 had no bearing on his case. On January 19, 2001, this court entered its order denying Johnson's petition.

On April 12, 2001, Johnson filed a petition for declaratory judgment in the Circuit Court of Cole County. Johnson's petition raised five claims. First, Johnson argued that § 558.011 is invalid, being constitutionally infirm because of its vagueness, because it was intended to establish the maximum length of time offenders could be supervised by the Board but does not ensure the Board's adherence to those maximum terms. Second, he claimed that § 558.011 is invalid, being constitutionally infirm because of its vagueness, because it has the effect of discriminatorily extending the parole supervision of black defendants. Third, he contended that the Board violated Article II, § 1 of Missouri's Constitution in promulgating 14 CSR 80-2.030(7)(A), because the regulation is in direct conflict with § 558.011. Fourth, he asserted that the Board violated § 558.011 and Johnson's due process rights in extending its supervision of Johnson beyond five years. Fifth, Johnson argued that the Board violated his equal protection rights in extending his parole beyond five years.

The Board filed a motion for summary judgment, arguing that Johnson's claims were barred because he had already challenged the constitutionality of § 558.011 in his petitions for writ of habeas corpus. The Board also claimed that Johnson's challenge to 14 CSR 80-2.030 was barred because Johnson could have raised the claim in his petitions for writ of habeas corpus.

On May 29, 2001, Johnson filed his "Response/Opposition to Respondent's Summary Judgment Motion." Johnson argued that he did not claim in his petitions for writ of habeas corpus that § 558.011 was invalid and that this court did not reach the merits of the issue in denying his petition. Johnson also claimed that he did not argue in his petitions for writ of habeas corpus that the Board violated Article

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I, § 1 of the Missouri Constitution by promulgating 14 CSR 80-2.030(7)(A).

On June 18, 2001, Johnson filed his motion for summary judgment in which he argued that the Board violated his due process rights by extending its supervision of him beyond the "five year maximum" set forth in § 558.011.4(1)(c).

On September 24, 2001, the court entered its judgment sustaining the Board's motion for summary judgment and denying Johnson's petition for declaratory judgment and motion for summary judgment. The court stated the following in denying the first, second and fourth claims raised in Johnson's petition:

Petitioner previously litigated the issues of the constitutionality and/or application of § 558.011, as now presented in claims 1, 2, and 4, in petitions for writ of habeas corpus. The Missouri Court of Appeals and the Circuit Court of Cole County, Missouri decided the issue adversely to petitioner. Petitioner's attempt to once again litigate his challenge to the authority of Board to revoke his parole and those courts' interpretation and/or application of § 558.011 is barred.

In a footnote, the court stated the following regarding the merits of Johnson's argument:

In any event, the Court concludes that petitioner's claims are based upon an erroneous reading of § 558.011.4. Citing § 558.011.4(1)(c), petitioner contends that he was entitled to be released from custody after service of five years, and thus his subsequent parole release and the conditions thereunder, and the revocation of parole, were violative of law. To the contrary, § 558.011.4(1)(c) required that petitioner serve a term of imprisonment of twenty years — i.e., five years of conditional release less the twenty-five year sentence. Section 558.011.4(1)(c) provided in pertinent part that "[t]he conditional release term of any term imposed under section 557.036, RSMo, shall be [f]ive years for terms more than fifteen years; and the prison term shall be the remainder of such term. ..." (emphasis added).

In denying the third and fifth claims raised in Johnson's petition, the court stated the following:

Further, the doctrine of res judicata precludes a party from litigating an issue and then, upon an adverse judgment, reviving the claim on grounds which could have been brought in the first proceeding. Thus petitioner's additional claims similarly attacking the authority of the Board to require a parolee to abide by certain conditions of parole and to revoke petitioner's parole, now upon equal protection grounds, is barred.

(internal citations omitted).

In a second footnote, the court stated that Johnson's claims were based upon an erroneous reading of § 558.011.4.

Johnson brings this appeal.

"Our review of an appeal from the grant of a motion for summary judgment is essentially de novo." Trans World Airlines, Inc. v. Associated Aviation Underwriters, 58 S.W.3d 609, 617 (Mo.App. E.D.2001). We view the record in the light most favorable to the party against whom judgment was entered and accord the non-moving party the benefit of all reasonable inferences. McDermott v. Missouri Bd. of Prob. & Parole, 61 S.W.3d 246, 247 (Mo. banc 2001). "[T]he entry of summary judgment is appropriate when the moving party establishes that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law." O.L. v. R.L., 62 S.W.3d 469, 473 (Mo.App. W.D.2001). A defending party may establish its right to summary judgment against

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a pending claim by demonstrating facts that negate any elements of the plaintiffs case. Id. The plaintiff can defeat the motion only by demonstrating "a genuine dispute of material fact regarding one or more of the material facts relied...

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