Mitchell v. Phillips

• Decision Date: 04 February 2020
• Docket Number: No. SC 97631,SC 97631
• Citation: 596 S.W.3d 120
• Parties: Gary L. MITCHELL, Appellant, v. Don PHILLIPS, Respondent.
• Court: Missouri Supreme Court

596 S.W.3d 120

Gary L. MITCHELL, Appellant,

v.Don PHILLIPS, Respondent.

No. SC 97631

Supreme Court of Missouri, en banc.

Opinion issued February 4, 2020

Rehearing Denied March 31, 2020

Mitchell was represented by Kent E. Gipson and Taylor L. Rickard of the Law Office of Kent Gipson LLC in Kansas City, (816) 363-4400.

The chairman of probation and parole was represented by Caroline M. Coulter of the attorney general’s office in Jefferson City, (573) 751-3321.

Patricia Breckenridge, Judge

Gary L. Mitchell appeals from the circuit court’s judgment sustaining the chairman of the Missouri board of probation and parole’s¹ motion to dismiss Mr. Mitchell’s petition for declaratory judgment in which he sought a declaration of his right to a parole hearing. Mr. Mitchell claims the circuit court erroneously concluded the repeal of section 195.295.3, RSMo 2000, which prohibited his parole eligibility at the time of his offense, could not be applied retroactively because it would alter his sentence. Because Mr. Mitchell’s parole ineligibility is part of his sentence, the repeal of section 195.295.3, RSMo 2000, does not render him parole eligible. The circuit court’s judgment is affirmed.

Factual and Procedural Background

In July 2013, a jury found Mr. Mitchell guilty of drug trafficking in the second degree, section 195.223.3(2), RSMo Supp. 2010, for acts committed in November 2009. The state charged Mr. Mitchell as a prior drug offender under section 195.275.1(1), RSMo 2000, and the circuit court found the same beyond a reasonable doubt. Because he was a prior drug offender, section 195.295.3, RSMo 2000, required the circuit court to sentence Mr. Mitchell "to the authorized term of imprisonment for a class A felony, which term shall be served without probation or parole[.]"

Effective January 1, 2017, the general assembly repealed section 195.295, RSMo 2000. After the repeal, Mr. Mitchell filed a petition for declaratory judgment against the chairman of the Missouri board of probation and parole arguing he was eligible for parole because the statute that had rendered him ineligible for parole had been repealed. The chairman filed a motion to dismiss for failure to state a claim. The circuit court sustained the motion, holding Mr. Mitchell’s parole ineligibility was part of his sentence; therefore, section 1.160² prohibited any retroactive application of the repeal. Mr. Mitchell appealed, and the court of appeals transferred the case to this Court after opinion. Mo. Const. art. V, sec. 10.

Standard of Review

This Court reviews a circuit court’s sustaining of a motion to dismiss de novo. Cope v. Parson , 570 S.W.3d 579, 583 (Mo. banc 2019).

A motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition. When considering whether a petition fails to state a claim upon which relief can be granted, this Court must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader.

Id. (quoting Bromwell v. Nixon , 361 S.W.3d 393, 398 (Mo. banc 2012) ).

Analysis

The chairman asserted in his motion to dismiss that Mr. Mitchell’s petition failed to allege facts that, if true, would entitle him to relief. The chairman argued section 195.295.3, RSMo 2000, required the no-parole provision be automatically imposed as a condition of Mr. Mitchell’s sentence, so retroactive application of its repeal would change Mr. Mitchell’s sentence – a result that the chairman alleged section 1.160 prohibits. The circuit court agreed and dismissed Mr. Mitchell’s petition for declaratory judgment. On appeal, Mr. Mitchell claims the circuit court erred because his parole ineligibility is not part of his sentence.

"A criminal sentence is the penalty for a particular offense." Bearden v. State , 530 S.W.3d 504, 506 (Mo. banc 2017) (quotations omitted). "The sentence that a court imposes consists of punishment that comes within the particular statute designating the permissible penalty for the particular offense." McCulley v. State , 486 S.W.2d 419, 423 (Mo. 1972) (quotations omitted). Mr. Mitchell was convicted of trafficking drugs in the second degree as a prior offender. Section 195.223.3(2), RSMo Supp. 2010. At the time Mr. Mitchell committed that offense, section 195.295.3, RSMo 2000, provided the permissible penalty for the offense. Pursuant to that section, the only permissible punishment was a "term of imprisonment for a class A felony, which term shall be served without probation or parole." Mr. Mitchell’s parole ineligibility was mandated as part of the punishment within the particular statute designating the permissible penalty for his offense. Therefore, parole ineligibility is part of his sentence.

Mr. Mitchell concedes section 195.295.3, RSMo 2000, the statute establishing the sentence for prior offenders trafficking drugs in the second degree, mandated that the sentence be served without parole. Nevertheless, he claims retroactive application of the repeal of section 195.295 is permitted under this Court’s decisions in State ex rel. Nixon v. Russell , 129 S.W.3d 867 (Mo. banc 2004) ; Jones v. Fife , 207 S.W.3d 614 (Mo. banc 2006) ; and Dudley v. Agniel , 207 S.W.3d 617 (Mo. banc 2006). But these cases are distinguishable from the present action. In Russell , Jones , and Dudley , general parole statutes were adopted or amended, and the offenders’ sentencing statutes lacked restrictions on parole eligibility. Russell , 129 S.W.3d at 869 ; Jones , 207 S.W.3d at 615-16 ; Dudley , 207 S.W.3d at 618.

In Russell , the offender was found guilty of 10 counts of nonviolent class D felonies in 1999 and received sentences totaling ten years. 129 S.W.3d at 868. Subsequently, the legislature enacted a statute, section 559.016.8, RSMo Supp. 2003, that allowed offenders convicted of nonviolent class C and D felonies with no prior prison commitment to petition the sentencing court for release on "probation, parole, or other court-approved alternative sentence" after serving 120 days. Id. After the circuit court placed the offender on "judicial parole," the state sought an extraordinary writ. Id. This Court quashed the preliminary writ, holding "application of section 558.016.8 does not shorten [the offender’s] sentence, nor does it alter the law creating the offense." Id. at 870.

Thereafter, in Jones, the Court reversed a judgment denying an offender retroactive application of two newly enacted provisions, sections 559.115.7 and 217.362.5, RSMo Supp. 2004. The newly enacted provisions precluded treating a commitment to a 120-day program under section 559.115, RSMo 1990, or a long-term drug treatment program under section 217.362 as prior commitments for purposes of determining parole eligibility. 207 S.W.3d at 615. In finding the newly enacted provisions applicable, the Court found the statutes regulated parole eligibility and did not "alter a substantive law" governing Mr. Jones’s offense. Id. at 616.

In Dudley , issued the same date, the Court reviewed a declaratory judgment applying a subsequently enacted provision, section 559.115.7, RSMo Supp. 2004, that provided "an offender’s first time incarceration in a 120-day callback program does not count as a previous prison commitment for purposes of calculating mandatory minimum prison terms." 207 S.W.3d at 618. The Court expressly stated it was following the rationale in Nixon in affirming the judgment applying the provision could be applied retroactively "because the statute is a parole eligibility statute that does not change the offender’s punishment." Id.

These cases hold that parole eligibility governed by a statute other than the one establishing the substantive penalty for a particular offense is not part of the sentence. This is consistent with the Court’s holding here because, in those cases, ineligibility for parole was not part of the punishment mandated by the particular statutes establishing the permissible penalties for the offenses, i.e., not part of the offenders’ sentences. When an offender’s sentence contains no restrictions on parole eligibility, statutory amendments to and repeals of general parole-eligibility statutes govern, subject to the constitutional prohibition against ex post facto laws. See Gallup v. State , 733 S.W.2d 435, 436 (Mo. banc 1987).

Both Mr. Mitchell and the dissenting opinion note the holding in McCulley that "probation or parole is not part of the sentence imposed upon a defendant" was the basis of the Court’s ruling in Nixon . 486 S.W.2d at 423. They argue the holding of McCulley compels the conclusion that a statutory change to eligibility for parole does not change an offender’s sentence that prohibits parole. The holding in McCulley , however, is not a rule that applies universally. The holding must be read in the context of the facts and legal issues of that case.

McCulley began its analysis with the proposition that the "sentence that a court imposes consists of punishment that comes within the particular statute designating the permissible penalty for the particular offense." Id. It then proceeded to note neither probation nor parole was "permissible punishment under the statutes setting out what the punishment for [Mr. McCulley’s] crime shall be." Id. (quotations omitted). Indeed, the punishment for Mr. McCulley’s offense was limited to "imprisonment in the penitentiary for not more than ten years nor less than two years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment." Id. (quotations omitted). It was only after noting the sentencing statute contained no mention of probation or parole that McCulley held neither probation nor parole was part of Mr. McCulley’s sentence. Id. This holding was a straightforward application of the overarching rule that the sentence is the "punishment that comes within the particular statute...