Parrish v. Wyrick
| Decision Date | 01 October 1979 |
| Docket Number | No. KCD,KCD |
| Citation | 589 S.W.2d 74 |
| Parties | General David PARRISH, Petitioner, v. Donald W. WYRICK, Warden, Respondent. 30533. |
| Court | Missouri Court of Appeals |
Alex Bartlett, Duane E. Schreimann, Hendren & Andrae, Jefferson City, for petitioner.
John Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
Before WASSERSTROM, C. J., and SHANGLER, PRITCHARD, SWOFFORD, SOMERVILLE, CLARK and KENNEDY, JJ.
Petitioner, by pro se application for writ of habeas corpus, sought his release from the Missouri State Penitentiary. This court issued its writ and appointed counsel for the petitioner. It is fitting to remark that appointed counsel have performed that assignment with a high degree of professional skill.
The issue made up by the pleadings and the briefs of the parties concerns the treatment which should be accorded to the "good time" which has accrued to petitioner's benefit. Petitioner argues that he is entitled to have all of that good time credited against his sentence, that after such credit his sentence has been fully served, and that he is therefore entitled to release. Respondent admits the accrual of all of the good time claimed, but he resists the conclusion that petitioner has any absolute right for said time to be credited against the sentence, and he argues instead that giving effect to such a credit lies within the complete discretion of the Governor.
Petitioner has experienced a tortuous, serpentine history of criminality and consequent litigation leading to his present situation. He entered the Missouri State Penitentiary on September 22, 1955, under sentences by the circuit court of the City of St. Louis on three charges of first degree robbery, the sentences being ten years on each charge, to run concurrently. On May 29, 1960, he escaped from the Penitentiary. Upon recapture he was charged with escape, two charges of robbery and two charges of auto theft. He pleaded guilty in the circuit court of Cole County and was sentenced to five years on the escape, five years on each charge of stealing and 25 years on each charge of robbery.
On December 15, 1962, petitioner completed the St. Louis sentences and started serving the Cole County sentences. However, on August 5, 1968, the Cole County sentences were set aside, the guilty pleas were withdrawn, and new guilty pleas were entered under which petitioner was sentenced to seven years on each robbery charge and two years on each of the other charges.
On April 9, 1970, petitioner pleaded guilty to first degree murder for the homicide of another inmate, and he received a life sentence. Shortly thereafter a declaratory judgment was entered on April 23, 1970, to the effect that the 1968 sentences were to be served consecutively. On December 11, 1972, another declaratory judgment was entered to the effect that petitioner should receive additional credit for jail time of five years, eight months and 27 days.
Thereafter on November 15, 1974, petitioner was allowed to withdraw his plea of guilty to the charge of first degree murder and he entered a plea of guilty to murder in the second degree on which a new sentence of ten years was entered. Then, on July 16, 1975, a judgment was entered in a proceeding under Rule 27.26 holding that the 1960 escape and theft convictions (as modified in 1962) were nullities, that the two robbery convictions had begun to run in 1962 and became completed May 10, 1973, and that the latter date marked the commencement of service by petitioner under the murder conviction.
By November, 1975, petitioner had accumulated credits for merit time, blood time and special time totaling 1,828 days, which if applied to his remaining sentence then being served would result in his release on November 6, 1975. The responsible officials in the Division of Corrections did so report to the Governor, but the Governor declined to issue an order of commutation of sentence.
Petitioner thereupon filed application for habeas corpus addressed to the circuit court of Cole County, but that petition was denied on November 24, 1975. However, petitioner was admitted to parole on May 24, 1976, under which he remained at liberty until June 7, 1978, when the parole was revoked.
Shortly thereafter petitioner again sought a writ of habeas corpus in the circuit court of Cole County, which was denied on September 6, 1978. That led to the institution of the present proceedings in this court on October 20, 1978.
Respondent raises a threshold objection that the issue in this case has become moot. He points out that the new Missouri Criminal Code took effect on January 1, 1979, and that concurrently with the effective date of that new Code, the giving of all merit time has been discontinued. He points to the adoption of a new rule effective January 1, 1979, which provides: "Merit time will be discontinued for both inmates convicted of criminal acts prior to and after January 1, 1979." That regulation, supplementing the new concept of "conditional release" provided for in Sec. 558.011, subd. 4 of the Criminal Code, further provides that "Any person who shall serve 7/12Ths of the time he/she was sentenced to serve in an orderly and peaceful manner without a serious violation, as later defined, will be eligible for consideration for release by commutation on that date."
Respondent's argument in this respect is untenable. If petitioner's basic position is correct, then he had fully earned sufficient merit time in November, 1975, to be entitled to release. This release date would have been more than three years before the effective date of the new criminal code and the subsequent change in regulations. Those subsequent changes should not be permitted to operate so as to destroy a right which petitioner claims to have fully vested in 1975, if it did so vest. Of course, the fundamental question still remains to be answered, whether in fact petitioner did have a vested, protectable right to be released from confinement by reason of the accrued merit time. 1
"Good time" in Missouri has been of two kinds. The first category is the so called "three-fourths time" granted under Section 216.355, RSMo 1969. 2 The second category of "good time" is set forth in administrative Rules and Regulations, and has been referred to in the administrative Rules and Regulations as "merit time." This merit time is subdivided into basic merit time, administrative awards and special merit time. That merit time could be awarded at a rate not to exceed a specified number of days per month.
At one time the administrative Rules and Regulations lumped together in legal theory the two categories just mentioned. Thus in the Inmate Informational Pamphlet Rules and Procedures, dated September, 1967, it was stated: "Reduction of your sentence resulting from the three-fourths rule, institutional merit time, and blood time is a commutation of sentence." That statement was erroneous as regards the three-fourths rule, although it would have been correct in that respect under the Laws of Missouri as it existed a hundred years ago. Under the Laws of 1865-1866, the predecessor to Section 216.355, the statute provided: "when any persen (sic), imprisoned in the Penitentiary of the State of Missouri shall have, during the whole time of his or her imprisonment, behaved according to the rules and regulations of that institution, to the full satisfaction of the Inspectors, then the said Inspectors, on the expiration of three-fourths of the time for which such person was sentenced, shall write and sign a testimony to that effect and present the same to the Governor of Missouri, with a recommendation that such person be pardoned; * * *."
However, the statute was amended in 1879 so as to provide what has existed in substantially the same form from that date until January 1, 1979. Under the 1879 amendment, good conduct by a prisoner no longer triggered merely a recommendation to the governor. Instead, the amendment provided that the inmate "shall be discharged in the same manner as if said convict had served the full time for which sentenced, and In such case no pardon from the governor shall be required." (Emphasis added.) See Ex parte Collins, 94 Mo. 22, 6 S.W. 345 (1887).
Thus between 1879 and 1979, prisoner release under the three-fourths rule was not done pursuant to the governor's power to pardon or commute sentence. Instead, the legal theory was that the three-fourths rule was referable to the legislature's power to define punishment for crime, and Ex parte Rody, 348 Mo. 1, 152 S.W.2d 657, 660 (banc 1941). As said in Ex parte Carney, 343 Mo. 556, 122 S.W.2d 888, 890 (banc 1938), these provisions "become a part of every judgment of conviction with as much effect as if actually written therein." See also State v. Montgomery, 223 S.W.2d 463 (Mo.1949).
The correct legal foundation for the three-fourths rule has been recognized by the more recent institutional rules and regulations. Thus, in Bulletin No. 45 (REVISED), adopted May 15, 1974, the director clearly distinguished between statutory three-fourths time and the additional institutional merit time, and that bulletin stated in part: ...
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Love v. Black, 84-1829C(2).
...the Missouri Constitution of 1945 and was a "matter of grace resting purely within the discretion of the governor." Parrish v. Wyrick, 589 S.W.2d 74, 78 (Mo.Ct.App.1979) and cases cited Effective January 1, 1979, Mo.Rev.Stat. § 216.355 was repealed and the only merit time system available t......
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