Short v. Mo. Bd. of Prob. & Parole, WD 77964
| Citation | 456 S.W.3d 72 |
| Decision Date | 24 February 2015 |
| Docket Number | WD 77964 |
| Parties | Kyle Short, Appellant, v. Missouri Board of Probation and Parole, Respondent. |
| Court | Court of Appeal of Missouri (US) |
Kyle Short, Licking, MO, Appellant Pro Se.
Gregory M. Goodwin, Jefferson City, MO for respondent.
Before Division Four: Alok Ahuja, Chief Judge, Presiding, Joseph M. Ellis and Lisa White Hardwick, Judges
Kyle Short appeals from the summary judgment entered in favor of the Missouri Board of Probation and Parole (“Board”) on his petition for declaratory judgment. In his petition, Short sought declarations concerning his conditional release date and parole eligibility on sentences for multiple convictions. The circuit court found that Short is not eligible for parole and that the Board correctly determined his conditional release date. For reasons explained herein, we affirm the judgment on the conditional release date and reverse the judgment with regard to Short's ineligibility for parole.
On December 12, 2005, Short pled guilty to two counts of second-degree statutory rape, two counts of possession of a controlled substance other than 35 grams or less of marijuana, and one count of first-degree endangering the welfare of a child. The court sentenced Short to concurrent terms of five years in prison on each count (“sentence group one”).1
On November 8, 2007, a jury convicted Short of three more counts of statutory rape and one count of tampering with a victim or witness in a felony prosecution. In that case, the court sentenced Short to concurrent terms of ten years in prison for each of the three counts of statutory rape (“sentence group two”) and ten years in prison for the tampering with a victim or witness count (“sentence group three”). The court further ordered that the ten-year sentences in sentence group two be served consecutively to the five-year sentences in sentence group one. The court ordered that the ten-year sentence in sentence group three be served consecutively to the sentences in sentence groups one and two. Thus, Short was sentenced to a total of 25 years in prison.
Short subsequently filed a petition for declaratory judgment in which he asserted that the Board had erroneously determined that he is ineligible for parole because, even though parole is available for the offenses in sentence groups one and two, parole is not available for the offense in sentence group three. He also alleged that the court had erroneously calculated his conditional release date.
Specifically, Short argued that, because he is eligible for parole on the sentences in sentence groups one and two, he should be required to serve only the minimum term for parole eligibility on those sentences before beginning his sentence in sentence group three, for which he is not eligible for parole. Short further argued that he should then have to serve only that portion of the sentence in sentence group three that is designated as the required prison term for conditional release purposes. Based upon his calculation, Short alleged that his conditional release date should be December 9, 2018, instead of November 1, 2023, as the Board found.
The Board filed a motion for summary judgment. The circuit court granted the Board's motion after finding that Short's ineligibility for parole on sentence group three renders him ineligible for parole on all of his sentences and that the Board correctly calculated his conditional release date. Short appeals.
Appellate review of a summary judgment is “essentially de novo. ” ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In this case, there are no disputed issues of material fact. Consequently, whether summary judgment was proper is purely an issue of law, and we need not defer to the circuit court's decision to grant summary judgment. Farish v. Mo. Dep't of Corr., 416 S.W.3d 793, 795 (Mo. banc 2013).
Short raises two points on appeal challenging the grant of summary judgment in favor of the Board. In Point I, Short contends the circuit court erred in determining his conditional release date because it failed to follow the requirements of Section 217.690, RSMo Cum.Supp. 2013.2 In Point II, Short contends the circuit court erred in determining that his ineligibility for parole on sentence group three makes him ineligible for parole on any of his sentences.
We address the two points together because Short argues that he is eligible for parole on sentence groups one and two and that the Board should require him to serve only the minimum terms for parole eligibility on sentence groups one and two, plus the prison term on sentence group three, before conditionally releasing him. Although we agree that Short is eligible for parole on sentence groups one and two, we disagree with his conclusion that this affects his conditional release date.
Short's conclusion appears to be based upon his confusion between conditional release and parole. “While conditional release is akin to parole, the two are not identical or interchangeable terms.” Edger v. Mo. Bd. of Prob. & Parole, 307 S.W.3d 718, 721 (Mo.App.2010). Both conditional release and parole provide for the discharge of an offender from prison subject to the Board's conditions and supervision; however, “[t]he operation of conditional release is dictated by statute, while parole is almost entirely left to the discretion of the Parole Board.” Edger, 307 S.W.3d at 721.
Looking first at conditional release, section 558.011 provides that a sentence of imprisonment consists of a prison term and a conditional release term. § 558.011.4(1). During the conditional release term, which is the last few months or years of a sentence, the offender is discharged, subject to the Board's conditions and supervision. § 558.011.4(2); Edger, 307 S.W.3d at 721. The portion of the sentence before the conditional release term is the prison term. Cooper v. Holden, 189 S.W.3d 614, 618 (Mo.App.2006). Section 558.011.4(1) specifies the conditional release terms for all lengths of sentences.3 Edger, 307 S.W.3d at 721.
In this case, Short's sentence structure contains three sentence groups that run consecutively to each other. This court has ruled that, in determining the conditional release date on consecutive sentences, the offender is to serve all of his prison terms consecutively, followed by the consecutive running of the conditional release terms. Bantle v. Mo. Bd. of Prob. & Parole, 256 S.W.3d 205, 206 (Mo.App.2008). This is precisely what the Board did in Short's case.
Short's concurrent sentences in sentence group one have a total term of five years, which means the prison term is 40 months and the conditional release term is 20 months. § 558.011.4(1)(a).4 He began serving the prison term portion of the sentences in sentence group one on July 4, 2006, and the Board deferred service of the conditional release term 40 months later, on November 3, 2009. Short's concurrent sentences in sentence group two have a total term of ten years, which means the prison term is seven years and the conditional release term is three years. § 558.011.4(1)(b).5 He began serving the prison term portion of the sentences in sentence group two on November 3, 2009, and will be eligible to enter deferred status on his conditional release term seven years later, on November 2, 2016. Short's final sentence in sentence group three is a total of ten years, which means the prison term is seven years and the conditional release term is three years. § 558.011.4(1)(b). Short will begin serving the prison term portion of this sentence on November 2, 2016, and will be eligible for conditional release seven years later, on November 1, 2023.
November 1, 2023, is the conditional release date the Board provided to Short. The Board correctly calculated Short's conditional release date on his consecutive sentences pursuant to Section 558.011.4(1) and Bantle. Therefore, the circuit court did not err in granting summary judgment in favor of the Board with respect to Short's claims concerning the accuracy of his conditional release date. Point I is denied.
Short's parole eligibility, on the other hand, is governed by Section 217.690 and 14 CSR 80–2.010. Section 217.690 gives the Board the discretion to parole offenders where “there is a reasonable probability that an offender ... can be released without detriment to the community or himself,” except as otherwise prohibited by law. § 217.690.1. Section 217.690.4 authorizes the Board to adopt rules regarding parole eligibility and parole hearings, and 14 CSR 80–2.010 provides guidelines under which the Board is to determine an offender's parole eligibility.
Edger, 307 S.W.3d at 720. In particular, 14 CSR 80–2.010(1) provides the minimum term for parole eligibility for offenses where no other statute requires that more time be served.
Because Short's sentence structure consists of three groups of consecutive sentences, the calculation of his minimum term for parole eligibility is controlled by Section 217.690.5. This section provides:
When considering parole for an offender with consecutive sentences, the minimum term for eligibility for parole shall be calculated by adding the minimum terms for parole eligibility for each of the consecutive sentences, except the minimum term for parole eligibility shall not exceed the minimum term for parole eligibility for an ordinary life sentence.6
§ 217.690.5. We applied this provision in Edger, 307 S.W.3d 718. In that case, Edger was serving concurrent sentences totaling 15 years and a consecutive eight-year sentence. Edger, 307 S.W.3d at 719. The Board had argued that Edger would not be eligible for parole until after he served the entire prison term portion of his 15–year sentence, as set forth in the conditional release statute, plus the minimum parole eligibility term of his eight-year sentence. Id. at 721. We rejected...
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