Mann v. McSwain

• Decision Date: 13 June 2017
• Docket Number: WD 80006.
• Citation: 526 S.W.3d 287
• Parties: Tony MANN, Appellant, v. Ellis MCSWAIN, Respondent.
• Court: Missouri Court of Appeals

526 S.W.3d 287

Tony MANN, Appellant,

v.Ellis MCSWAIN, Respondent.

WD 80006.

Missouri Court of Appeals, Western District.

Filed: June 13, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2017

Motion for Transfer to Supreme Court Denied October 5, 2017

Kent E. Gipson, Kansas City, for appellant.

Michael J. Spillane, Jefferson City, for respondent.

Before Division Three: Alok Ahuja, P.J., and Victor C. Howard and James E. Welsh, JJ.

Alok Ahuja, Judge

In 2002, appellant Tony Mann was convicted of assault of a law enforcement officer in the first degree and an associated count of armed criminal action. Mann is currently serving his sentences. The Board of Probation and Parole issued an order granting Mann parole and ordering that he be released from confinement on October 5, 2016. The Board later rescinded that order, however, because it determined that assault of a law enforcement officer is a "dangerous felony" for which Mann is required to serve eighty-five percent of his sentence before becoming parole-eligible. Mann filed a petition for a writ of mandamus in the Circuit Court of Cole County to compel the Board to reinstate his parole release date. The circuit court denied relief, and Mann appeals. We affirm.

Factual Background

Following a bench trial, Mann was convicted in 2002 in the Circuit Court of Greene County of first-degree assault of a law enforcement officer, and an associated count of armed criminal action. The convictions arose from an incident on October 4, 2001, in which Mann fired a handgun at a Springfield police officer who was attempting to detain him. The circuit court sentenced Mann to life imprisonment on the assault charge, and to ten years' imprisonment for armed criminal action, with the sentences ordered to run concurrently. A detailed description of the underlying offense, and of Mann's prosecution, is contained in the opinions of the Southern District affirming Mann's convictions on direct appeal, and affirming the denial of his motion for post-conviction relief. See State v. Mann , 129 S.W.3d 462 (Mo. App. S.D. 2004) ; Mann v. State , 245 S.W.3d 897 (Mo. App. S.D. 2008).

Mann is currently incarcerated at the South Central Correctional Center in Licking. In October 2014, Mann received his first parole hearing. Following that hearing, the Board issued an order on November 17, 2014, granting Mann parole and ordering that he be released from confinement on October 5, 2016.

On March 7, 2016, the Board cancelled Mann's parole release date. The Board rescinded its earlier order based on its determination that first-degree assault of a law enforcement officer is a "dangerous felony" within the meaning of § 556.061(8),¹ and that Mann is therefore required to serve eighty-five percent of his sentence before becoming eligible for parole pursuant to § 558.019.3. The Board set a new parole hearing in 2025.

On April 22, 2016, Mann filed a petition for a writ of mandamus challenging the Board's action in the Circuit Court of Cole County. The circuit court issued a preliminary writ of mandamus on April 25, 2016. After briefing and argument, however, the court quashed its preliminary writ and denied Mann's petition.

Mann appeals.²

Standard of Review

An appeal will lie from the denial of a writ petition when a lower court issued a preliminary order in mandamus but then denied a permanent writ. ... An appellate court reviews the denial of a petition for a writ of mandamus for an abuse of discretion. An abuse of discretion in denying a writ occurs when the circuit court misapplies the applicable statutes.

U.S. Dep't of Veterans Affairs v. Boresi, 396 S.W.3d 356, 358-59 (Mo. banc 2013) (citations omitted). "Where ... issuance of the writ depends on the interpretation of a statute, this Court reviews the statute's meaning de novo. " State ex rel. White Family P'ship v. Roldan, 271 S.W.3d 569, 572 (Mo. banc 2008) (citation omitted).

Analysis

Mann argues that the circuit court should have granted him mandamus relief, because the Board erroneously concluded that his offense constituted a "dangerous felony." We disagree.³

We begin with the text of the relevant statutes. Mann was convicted of first-degree assault of a law enforcement officer under § 565.081. At the time of his offense in 2001, § 565.081 provided:

1. A person commits the crime of assault of a law enforcement officer in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer.

2. Assault of a law enforcement officer in the first degree is a class A felony.

The parole-eligibility statute at issue here provided:

Other provisions of the law to the contrary notwithstanding, any defendant who has pleaded guilty to or has been found guilty of a dangerous felony as defined in section 556.061, RSMo, and is committed to the department of corrections shall be required to serve a minimum prison term of eighty-five percent of the sentence imposed by the court or until the defendant attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first.

§ 558.019.3. Finally, "dangerous felony" was defined as follows in § 556.061(8) :

"Dangerous felony" means the felonies of arson in the first degree, assault in the first degree, forcible rape, forcible sodomy, kidnapping, murder in the second degree and robbery in the first degree.

Our interpretation of these statutes is subject to well-established canons of construction.

[T]he primary rule of statutory interpretation ... is to give effect to the plain and ordinary meaning of the statutory language. If the words are clear, the Court must apply the plain meaning of the law. When the meaning of a statute is clear, the Court should not employ canons of construction to achieve a desired result.

State v. Bazell , 497 S.W.3d 263, 266 (Mo. banc 2016) (citations omitted). Although the statutes at issue are criminal statutes which "we generally construe ... in the manner most favorable to the defendant," "that rule of construction does not require us to ignore common sense or the statute's evident purpose." Irvin v. Kempker , 152 S.W.3d 358, 360 (Mo. App. W.D. 2004) (citing State v. Knapp , 843 S.W.2d 345, 347 (Mo. banc 1992) ); see also Bantle v. Dwyer , 195 S.W.3d 428, 431 (Mo. App. S.D. 2006).

Mann contends that his offense did not constitute "assault in the first degree" as that term is used in § 556.061(8), and was accordingly not a "dangerous felony" subject to the "85% rule" established by § 558.019.3. We conclude, to the contrary, that assault of a law enforcement officer in the first degree constitutes a type of "assault in the first degree," and therefore falls within the statutory definition of a "dangerous felony." We reach this conclusion for multiple reasons.

A.

First, by naming Mann's offense "assault of a law enforcement officer in the first degree," the legislature expressly designated the offense as a form of "assault in the first degree." In addition, the offense of assault of a law enforcement officer in the first degree includes all of the elements of simple first-degree assault. Section 565.050 defined first-degree assault as follows:

1. A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.

2. Assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim in which case it is a class A felony.

The offense of which Mann was convicted merely added an additional element to the definition of simple first-degree assault: that the offender knows that the assault victim is a law enforcement officer. In addition, § 565.081.2 subjected offenders who assault law enforcement officers to more severe punishment than for simple first-degree assault: the offense was in all cases categorized as a class A felony, unlike simple first-degree assault, which only constituted a class A felony if serious physical injury actually resulted.

Because proof of assault of a law enforcement officer in the first degree required proof of all of the elements of simple first-degree assault, with the addition of a further element, Mann concedes that first-degree assault was a lesser-included offense of the crime of which he was convicted. See § 556.046.1(1) (specifying that a defendant may be convicted of an included offense if "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged"); State v. Johnson , 220 S.W.3d 377, 385 (Mo. App. E.D. 2007). Therefore, Mann was "found guilty of a dangerous felony" within the meaning of § 558.019.3, both because his offense is denominated by statute as a type of first-degree assault, but also because the court necessarily found that he had committed all of the essential elements of simple first-degree assault.⁴

B.

The history of the relevant statutes supports the conclusion that the reference to "assault in the first degree" in § 556.061(8) includes assault of a law enforcement officer in the first degree.

The General Assembly originally enacted a definition of "dangerous felony" in 1977, as part of the Criminal Code which became effective on January 1, 1979. The original definition provided:

"Dangerous felony" means the felonies of murder, forcible rape, assault, burglary, robbery, kidnapping or the attempt to commit any of these felonies.

§ 556.061(8), RSMo 1978 (emphasis added). At the time, Missouri statutes contained no generic crime of "assault"; instead, Missouri criminalized the offenses of assault in the first, second, and third degrees. See §§ 565.050, .060 and .070, RSMo 1978. Thus, when the "dangerous felony" definition was originally enacted, the term "assault" necessarily referred to a category of offenses, rather than to a specific crime. This reading of the original "dangerous felony" definition is supported...