Saunders v. Bowersox

• Decision Date: 15 November 2005
• Docket Number: No. 27068.,27068.
• Citation: 179 S.W.3d 288
• Parties: Robert O. SAUNDERS, Petitioner, v. Michael BOWERSOX, Respondent.
• Court: Missouri Supreme Court

179 S.W.3d 288

Robert O. SAUNDERS, Petitioner, v. Michael BOWERSOX, Respondent.

No. 27068.

Missouri Court of Appeals, Southern District, Division Two.

November 15, 2005.

Robert O. Saunders, pro se.

Jeremiah W. (Jay) Nixon, Atty. Gen., Michael J. Spillane, Jefferson City, for respondent.

ORIGINAL PROCEEDING IN HABEAS CORPUS

KENNETH W. SHRUM, Presiding Judge.

This is a habeas corpus case in which Robert Saunders ("Petitioner") seeks release from imprisonment in Missouri's south central correctional center.¹ The premise of his claim of unlawful confinement is that the sentencing court lacked authority to revoke his probation and order him to serve a ten-year sentence on a first-degree assault charge; that this is so because the purported probation revocation and order of confinement came after his probationary term had expired. This court orders Petitioner discharged from confinement.

FACTS

On May 28, 1997, the State of Missouri charged Petitioner with unlawful use of a weapon, case 971-1365 ("Case 1").² The State indicted Petitioner for first-degree assault on August 4, 1997. This was case 971-2417 ("Case 2").

Petitioner pled guilty to both offenses on March 17, 1998. On that date, the court sentenced Petitioner to a two-year term in Case 1 and ten years in Case 2. The court ran the sentences concurrently and committed Petitioner to the department of corrections. This was done "pursuant to section 559.115."³

Later, the trial court exercised its section 559.115 discretion to recall Petitioner from incarceration and placed him on probation. This occurred on August 19, 1998. The term of probation was three years in both cases. Supervision by the board of probation and parole began September 4, 1998.

Once released, Petitioner violated his probation conditions repeatedly by, inter alia, using illicit drugs and failing to report. As part of this, Petitioner's probation officer issued a violation report dated January 31, 2001, in which she recommended an order of suspension, issuance of a capias warrant and revocation of Petitioner's probation. The docket sheets in both Case 1 and 2 recite that a probation violation notice was filed January 31 and a capias warrant was ordered that date. However, there is neither a docket entry showing an order of suspension of Petitioner's probation in conjunction with that capias, nor is there an order to that effect in either case.

By March 23, 2001, Petitioner had been apprehended and jailed. He then posted bond and was released from custody on that same day. Almost immediately, however, Petitioner tested positive for marijuana and opiates. This triggered another probation violation report dated April 10, 2001. Again, Petitioner's probation officer recommended probation revocation; consequently, the trial judge again directed the issuance of a capias warrant.

Inexplicably, however, the capias warrant was issued only in Case 1. There were no docket entries and no orders made in Case 2 between March 30 and September 28, 2001. On the latter date, the court entered an order suspending Petitioner's probation in Case 2 and directed issuance of a capias warrant.

A revocation hearing in Case 1 was held August 28, 2001, i.e., seven days before Petitioner's probationary term ended. At the conclusion of the hearing the court revoked probation via a written judgment and committed Petitioner to the custody of the department of corrections for a term of two years. This judgment and sentence pertained to Case 1 only.

Since Petitioner was incarcerated only on the two-year sentence and because Petitioner had jail time credit, the department of corrections determined Petitioner had a conditional release date of October 1, 2001. Before his release, however, the trial court issued its September 28, 2001, order suspending his Case 2 probation. This happened twenty-four days after Petitioner's probationary term expired in Case 2. Later, on November 8, 2001, the court revoked Petitioner's probation in Case 2. Petitioner was then delivered to the department of corrections to serve the remainder of his ten-year sentence.

Petitioner filed a petition for writ of habeas corpus with the proper circuit court which was denied. Petitioner then filed this original action here requesting habeas corpus relief.

DISCUSSION AND DECISION

Petitioner's writ application alleges the twenty-second judicial circuit court was without jurisdiction to revoke his probation in Case 2 after September 4, 2001. Petitioner correctly notes that, "[n]ormally, the circuit court's jurisdiction to revoke probation ends when the probationary period expires." Cline v. Teasdale, 142 S.W.3d 215, 221[4] (Mo.App.2004). He asserts that this rule governs here and he is entitled to immediate release from the department of corrections.

Respondent counters with three arguments. The first two of these rely on a document dated January 31, 2001, which Respondent attached to his answer to the writ application. This document, reproduced in an appendix to this opinion, purports to be an unfiled trial court order suspending Petitioner's probation in Case 2 as of January 31, 2001. Relying on that, Respondent argues Petitioner's probation was suspended January 31 and was "never reinstated;" consequently, the "three-year term" of probation in Case 2 did not expire September 4, 2001, nor had it expired by November 8, 2001, when it was finally revoked.

Respondent's second argument is based on that same January 31 document and section 559.036. This statute allows the circuit court to revoke probation after the term has ended in certain circumstances. Subsection 6 of section 559.036 reads:

"The power of the court to revoke probation shall extend for the duration of the term of probation . . . and for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs prior to the expiration of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period."

Relying on section 559.036(6), Respondent asserts that the trial judge made manifest his intent to revoke probation in Case 2 on January 31, 2001, by issuing a capias warrant and ordering probation suspended on that date. He then claims there was no unreasonable or prejudicial delay in conducting Petitioner's revocation hearing because Petitioner was in "absconder status" or in the penitentiary serving time on Case 1 for much of the period between January 31, 2001, and November 8, 2001.

Respondent's first and second arguments fail, however, because they rely on matters wholly outside the record, i.e., the January 31 document.

To explain, on August 15, 2005, this court ordered Respondent

"to file copies of the following in this court on or before August 22, 2005:(1) Any and all probation violation reports filed in City of St. Louis Circuit Court Case Nos. 971-1365 and/or 971-2417; (2) any notice, warrant or other process issued by the circuit court to petitioner . . . in connection with any alleged probation violations in City of St. Louis Circuit Court Case Nos. 971-1365 and/or 971-2417; and (3) complete docket sheets in City of St. Louis Circuit Court Case Nos. 971-1365 and 971-2417. All such documents shall be certified by the clerk of the Circuit Court of the City of St. Louis."

Respondent complied with this order and, in addition, filed with this court numerous pages of records from the Missouri board of probation and parole pertaining to Petitioner. The latter was accompanied by an affidavit of the custodian of such records, which said affidavit complied with section 490.692. None of these records, however, contained the January 31 document.

The first appearance of the January 31 document in our court came when Respondent filed his answer. It does not bear a file stamp, nor has it been authenticated, nor has its authenticity been supported by affidavit or other means. The only attempt at identification of this document is in footnote 3 of Respondent's brief, where the following is found: "This document was not in the certified documents supplied by the St. Louis City Circuit Clerk's office. The document was faxed and mailed to Respondent by [the trial judge], as it was in the court's file on the case but apparently not the clerk's file."

Respondent's attempted use of the subject document runs afoul of two well-established principles. First, when the inquiry in a habeas case is whether the judgment or sentence is void, the habeas court will normally not look beyond the judgment of the sentencing court. 39 C.J.S. Habeas Corpus, § 148 (2003). "The record imports verity, and is not open to contradiction or impeachment in the habeas corpus proceedings." Id. In a similar vein, Missouri courts generally limit habeas corpus proceedings to determining the facial validity of the confinement. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624[1] (Mo.banc 2002); Taylor v. State, 51 S.W.3d 149, 151[2] (Mo.App.2001); Rule 91.01; § 532.010.

Second, Respondent's attempted reliance on the January 31 document fails because it was not authenticated. Before a writing can be admitted into evidence, whether it be a private document or public record, it must be authenticated, i.e., the proponent thereof must show that it is, in fact, what it is claimed to be. Partney v. Reed, 889 S.W.2d 896, 901[12] (Mo.App.1994); Schmitz v. Dir. of Rev., 889 S.W.2d 883, 887 (Mo.App.1994). See Cummins v. Dixon, 265 S.W.2d 386, 394[7] (Mo.1954). See also William A. Schroeder, 23 Missouri Practice: Missouri Evidence, § 900.1 (2000). Whatever classification is given the January 31 document, the fact remains it was not authenticated. Absent a connection between it and the material issues in the case, the document is simply irrelevant and should not be considered by this court. Partney, 889 S.W.2d at...