State ex rel. Cullen v. Cardona, No. ED 107388

CourtMissouri Court of Appeals
Writing for the CourtColleen Dolan, Presiding Judge
Citation568 S.W.3d 492
Docket NumberNo. ED 107388
Decision Date29 January 2019
Parties STATE EX REL. John CULLEN, Relator, v. The Honorable Troy A. CARDONA, Judge of the Circuit Court of the County of Jefferson, 23rd Judicial Circuit, Respondent.

568 S.W.3d 492

STATE EX REL. John CULLEN, Relator,
v.
The Honorable Troy A. CARDONA, Judge of the Circuit Court of the County of Jefferson, 23rd Judicial Circuit, Respondent.

No. ED 107388

Missouri Court of Appeals, Eastern District, Writ Division One.

Filed: January 29, 2019


Amy E. Lowe, Travis C. Bargeon, 1010 Market St. Ste. 1100, St. Louis, MO 63101, For Relator.

Michael J. Spillane, P.O. Box 899, Jefferson City, MO 65102, Jacob T. Costello, P.O. Box 100, Hillsboro, MO 63050, For Respondent.

OPINION

Colleen Dolan, Presiding Judge

John Cullen ("Relator") seeks a writ of mandamus compelling the Honorable Troy A. Cardona ("Respondent") to release Relator from the custody of the Missouri Department of Corrections and place him on probation pursuant to § 217.362.1 Relator argues that he should be released on probation because he successfully completed the long-term substance abuse treatment program established by § 217.362. We hold that the evidence upon which Respondent based the denial of Relator’s probation was insufficient to support Respondent’s conclusion that Relator was unfit for probation, and mandamus relief is therefore proper.

I. Factual and Procedural Background

Relator pleaded guilty to three counts of tampering in the first degree, one count of assault in the second degree, and two counts of felony leaving the scene of a motor vehicle accident. On November 28, 2016, Relator was sentenced to 15 years' imprisonment pursuant to § 217.362, which allows an offender to be released on probation upon successful completion of the long-term treatment program.2 On March 23, 2017, Relator began the long-term treatment program. On January 24, 2018, the Missouri Board of Probation and Parole (the "Board") submitted an investigation report, which outlined Relator’s assessment and program participation. The report stated that Relator successfully completed the requirements of the long-term treatment program; Relator

568 S.W.3d 494
[W]as rated satisfactorily in all aspects of the treatment program, turned in [homework] and written assignments in a timely manner, attended the required number of treatment classes and [self-help] groups, and was cooperative and respectful when dealing with staff and peers.... He was engaged in his program, and maximized his time, taking all classes that were recommended.

Relator also undertook two positions (Conflict Resolution Department Head and Housing Unit One Coordinator) within the long-term treatment program’s therapeutic community. Further, the report included Relator’s home, employment, and counseling plans that he was prepared to execute upon his release. In regards to disciplinary violations, the report indicated that Relator received a conduct violation for disregarding an instruction "to move his chair during tighthouse intervention from the main group to the Strike 1 group" and leaving to use the restroom instead. This was Relator’s sole conduct violation and it was "self-corrected."

On January 29, 2018, Respondent determined that Relator was "not amenable to probation and that it would be an abuse of discretion to release him based upon his conduct violation" cited in the Board’s report. Accordingly, Respondent ordered execution of the 15-year sentence previously imposed. Relator subsequently filed a petition for writ of mandamus with our Court. We issued a preliminary order in mandamus. We dispense with further briefing as permitted by Rule 84.24(i). The preliminary order is made permanent.

II. Standard of Review

The procedural means for challenging the denial of probation is through a writ of mandamus. Prewitt v. State, 191 S.W.3d 709, 711 (Mo. App. W.D. 2006). "Mandamus is a discretionary writ that is appropriate when a...

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5 practice notes
  • Spicer v. Spicer, No. ED 106563
    • United States
    • Missouri Court of Appeals
    • 29 Enero 2019
    ...See id. at 148 ; Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590, 592 (Mo. banc 2007) (finding that because the respondents 568 S.W.3d 492failed to prove the fourth element of their promissory-estoppel claim, JNOV was inappropriate); Zipper v. Health Midwest, 978 S.W.2d 398, 412 ......
  • State ex rel. Washington v. Crane, WD85356
    • United States
    • Court of Appeal of Missouri (US)
    • 10 Junio 2022
    ...court's 'determination that probation was not appropriate must be supported by evidence.'" Id. (quoting State ex rel. Cullen v. Cardona, 568 S.W.3d 492, 495 (Mo. App. E.D. 2019)). "Pre-sentencing evidence does not, by itself, make [Relator] unfit for probation." Id. (quoting State ex rel. B......
  • State ex rel. Upshaw v. Cardona, ED 108935
    • United States
    • Missouri Court of Appeals
    • 4 Agosto 2020
    ...when a court has exceeded its jurisdiction or authority, and where no remedy exists through appeal."2 State ex rel. Cullen v. Cardona, 568 S.W.3d 492, 494 (Mo. App. E.D. 2019) (quoting State ex rel. Kizer v. Mennemeyer, 421 S.W.3d 558, 559 (Mo. App. E.D. 2014) ). While mandamus does not ord......
  • State ex rel. Hunt v. Seay, No. SD 36966
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Febrero 2021
    ...559.115."The procedural means for challenging the denial of probation is through a writ of mandamus." State ex rel. Cullen v. Cardona , 568 S.W.3d 492, 494 (Mo. App. E.D. 2019). One seeking mandamus relief must prove a clear and unequivocal right to the thing claimed. State ex rel. Young v.......
  • Request a trial to view additional results
5 cases
  • Spicer v. Spicer, No. ED 106563
    • United States
    • Missouri Court of Appeals
    • 29 Enero 2019
    ...See id. at 148 ; Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590, 592 (Mo. banc 2007) (finding that because the respondents 568 S.W.3d 492failed to prove the fourth element of their promissory-estoppel claim, JNOV was inappropriate); Zipper v. Health Midwest, 978 S.W.2d 398, 412 ......
  • State ex rel. Washington v. Crane, WD85356
    • United States
    • Court of Appeal of Missouri (US)
    • 10 Junio 2022
    ...court's 'determination that probation was not appropriate must be supported by evidence.'" Id. (quoting State ex rel. Cullen v. Cardona, 568 S.W.3d 492, 495 (Mo. App. E.D. 2019)). "Pre-sentencing evidence does not, by itself, make [Relator] unfit for probation." Id. (quoting State ex rel. B......
  • State ex rel. Upshaw v. Cardona, ED 108935
    • United States
    • Missouri Court of Appeals
    • 4 Agosto 2020
    ...when a court has exceeded its jurisdiction or authority, and where no remedy exists through appeal."2 State ex rel. Cullen v. Cardona, 568 S.W.3d 492, 494 (Mo. App. E.D. 2019) (quoting State ex rel. Kizer v. Mennemeyer, 421 S.W.3d 558, 559 (Mo. App. E.D. 2014) ). While mandamus does not ord......
  • State ex rel. Hunt v. Seay, No. SD 36966
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Febrero 2021
    ...559.115."The procedural means for challenging the denial of probation is through a writ of mandamus." State ex rel. Cullen v. Cardona , 568 S.W.3d 492, 494 (Mo. App. E.D. 2019). One seeking mandamus relief must prove a clear and unequivocal right to the thing claimed. State ex rel. Young v.......
  • Request a trial to view additional results

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