Miller v. State

Decision Date31 July 2018
Docket NumberNo. SC 96754,SC 96754
Citation558 S.W.3d 15
Parties Richard MILLER, Respondent, v. STATE of Missouri, Appellant.
CourtMissouri Supreme Court

The state was represented by Shaun J. Mackelprang of the attorney general’s office in Jefferson City, (573) 751-3321.

Miller was represented by Jedd C. Schneider of the public defender’s office in Columbia, (573) 777-9977.

Patricia Breckenridge, judge

The state appeals from the motion court’s judgment sustaining Richard Miller’s Rule 29.15 motion for postconviction relief and vacating the revocation of his probation and imposition of sentences on two counts of involuntary manslaughter, under section 565.024, RSMo 2000. On appeal, the state claims the motion court clearly erred in finding the trial court was without authority to revoke Mr. Miller’s probation and to sentence him because the record reflects every effort was made to conduct the revocation hearing prior to the expiration of his probation term. Because the record refutes Mr. Miller’s claim the trial court failed to make every reasonable effort to hold his probation revocation hearing prior to the expiration of his probation term, the motion court clearly erred in granting Mr. Miller postconviction relief. The motion court’s judgment is reversed.

Factual and Procedural Background

On December 25, 2004, Richard Miller was traveling southbound on a two-lane stretch of Highway 63 near Rolla. As Mr. Miller approached a bridge, he pulled into the northbound lane to pass a vehicle traveling the speed limit. After he passed the car, Mr. Miller continued traveling south in the northbound lane, even as he entered a no-passing zone and "blind curve" approaching the bridge. As he crossed the bridge, he struck a northbound vehicle head-on. The couple riding in that vehicle were killed as a result of the collision.

Mr. Miller was charged with two counts of involuntary manslaughter in the first degree, and, on September 15, 2007, a jury found him guilty as charged. On August 29, 2007, the trial court suspended imposition of sentence and placed Mr. Miller on probation for a term of five years.

On June 26, 2012, the state filed a motion to revoke Mr. Miller’s probation asserting he violated his probation by committing the class A misdemeanors of being in possession of an imitation controlled substance and drug paraphernalia. Mr. Miller’s probation revocation hearing was initially set for a hearing on August 8, 2012. On August 3, a public defender entered his appearance in the case. At the August 8 hearing, the appointed public defender announced his office had a conflict with representing Mr. Miller, and the trial court continued the hearing to August 23. Thereafter, he withdrew, and, on August 14, a second public defender entered his appearance as counsel for Mr. Miller.

On August 23, 2012, the probation revocation hearing was continued to October 3. A memorandum filed with the trial court stated: "Case reset for Probation Violation Hearing on October 3, 2012 @ 9 am. Defendant is ordered to appear."1 The memorandum was signed by an assistant prosecuting attorney, Mr. Miller’s counsel, and the trial court. Mr. Miller’s term of probation expired August 28, and he received a letter advising he had been discharged from supervision by the board of probation and parole.

On October 3, Mr. Miller and his counsel appeared for the probation revocation hearing. The hearing was continued, on the state’s motion and without objection from Mr. Miller, and reset for December 5, 2012. A memorandum was filed memorializing the appearances and continuance signed by the assistant prosecuting attorney, Mr. Miller’s counsel, and the trial court. On October 19, 2012, the state filed an amended motion to revoke Mr. Miller’s probation, alleging two additional probation violations. In the amended motion, the state alleged, in 2008, Mr. Miller was found guilty of domestic assault in the third degree, and, in 2009, he was found guilty of driving with a revoked license.

Mr. Miller’s probation revocation hearing was ultimately held on December 5, 2012. During the hearing, Mr. Miller orally moved for dismissal on the ground the trial court no longer had statutory authority to revoke his probation because his probation term had expired. The trial court addressed whether it retained authority to hear the matter despite the expiration of his probation term:

THE COURT: There was a question about whether or not there was a necessity for a suspension. We looked up some case law, and it states that there must be a clear manifestation of an intention to revoke. The motion to revoke did that. And, secondly, that there was an attempt to get the matter set, reasonable efforts made to get it resolved prior to the expiration of five years.
I went back through the file. This matter has been set at least once, if not twice. Was continued by agreement without objection past the date—and specifically to today.
So, first of all, do the attorneys agree that that’s what’s transpired up to this point?
[THE STATE]: The State so stipulates, your Honor.
THE COURT: [Mr. Miller’s counsel]?
[MILLER'S COUNSEL]: Yes, your Honor.
THE COURT: The oral motion to dismiss filed in these proceedings earlier this morning then is denied. I'm of the opinion that the State’s manifest and clear intent, reasonable efforts were made. It passed the five years by agreement of [Mr. Miller]; therefore, this Court has not lost jurisdiction.

The revocation hearing continued, and Mr. Miller admitted to the trial court he violated his probation by being found guilty of three misdemeanors—driving while revoked, domestic assault in the third degree, and possession of drug paraphernalia. The state presented impact testimony from the family of the two victims killed in the head-on collision. The trial court then found Mr. Miller had violated his probation. Thereafter, on February 3, 2013, the trial court revoked Mr. Miller’s probation and sentenced him to five years' imprisonment on each count, to be served consecutively.

Mr. Miller’s convictions were affirmed on appeal. State v. Miller , 448 S.W.3d 331 (Mo. App. 2014). Mr. Miller then filed a timely Rule 29.15 motion for postconviction relief, which included a claim the trial court did not have authority2 to revoke his probation after the expiration of his probation term.

An evidentiary hearing was held to determine whether the trial court’s authority to revoke Mr. Miller’s probation was extended by section 559.0363 beyond the expiration of his probation term because the trial court made "every reasonable effort" to hold a revocation hearing before his probation expired. At the hearing, the state and Mr. Miller’s counsel presented "evidence of a timeline by stipulation." Regarding the continuance of the August 23, 2012 probation revocation hearing, it was stipulated by the state and Mr. Miller’s counsel that, "At that time, by agreement of the parties, the case was re-set to ... October 3, 2012, for hearing on the motion." Both parties further stipulated: "On October 3, the case was again continued by agreement to December 5, 2012." Both parties also stipulated that, at the December 5, 2012 hearing, counsel for Mr. Miller moved that the case be dismissed because his probation expired August 28, which the trial court overruled.

At the end of the recital of the stipulations, counsel for Mr. Miller advised the motion court that Mr. Miller "maintains that he did not agree to the—whatever [his counsel in the revocation proceedings] may have done that he did not agree to any continuances of the hearing." The state did not present any evidence. Mr. Miller testified as follows:

Initially, when the continuances, the first two continuances that were—were done prior to the expiration of my probation—by process of law, the—my [counsel], he did do a verbal objection on both of those occasions and argued to the court that—that I was about to be—you know, my probations was about to expire.
On both occasions, the prosecutor’s office—or the prosecutor himself had argued that they had maintained jurisdiction to do a revocation after expiration by satisfying one of the two conditions of 559.036.8 and without regard to the—to the third—third portion of the second condition of—which case law, you know, will show that—that it needs to be conducted prior to—prior to the expiration if—you know, if they appear—or if the defendant appears.
So that—that was the main issue, was that he did make objection and there was—it was just a verbal argument. There wasn't any research done at—at that point.

At the request of Mr. Miller’s counsel, the motion court took judicial notice of the entire court file in the underlying criminal case, including the transcript of the December 5, 2012 probation revocation hearing. After the hearing, Mr. Miller’s counsel filed suggestions in support of his postconviction motion.

In those suggestions, Mr. Miller’s postconviction counsel stated, "On August 23, [Mr. Miller’s second public defender] asked for a continuance without consultation with Defendant and without objection by the State of Missouri." Without referencing this admission—that Mr. Miller’s probation revocation counsel requested the continuance on August 23—his counsel went on to argue the trial court lost authority to take action on the motion to revoke Mr. Miller’s probation when it continued the case past the expiration of Mr. Miller’s probation without objection by the state.

The motion court sustained Mr. Miller’s motion for postconviction relief. In its judgment, the motion court made only two findings directly related to whether the trial court made every reasonable effort to hold the revocation hearing during Mr. Miller’s probation term. The motion court found the hearing on August 8 was continued to August 23 "due to the entry of conflict counsel" for Mr. Miller. It also found:

The August 23, 20[12] hearing was reset by signed
...

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