State ex rel. Hillman v. Beger, SC 97171

• Decision Date: 13 February 2019
• Docket Number: No. SC 97171, No. SC 97331,SC 97171
• Citation: 566 S.W.3d 600
• Parties: STATE EX REL. Kevin HILLMAN, Relator, v. The Honorable John D. BEGER, Respondent. and State ex rel. Erica J. Long, Relator, v. The Honorable Fred Copeland, Respondent.
• Court: Missouri Supreme Court

566 S.W.3d 600

STATE EX REL. Kevin HILLMAN, Relator,

v.The Honorable John D. BEGER, Respondent.andState ex rel. Erica J. Long, Relator,

v.The Honorable Fred Copeland, Respondent.

No. SC 97171

No. SC 97331

Supreme Court of Missouri, en banc.

Opinion issued February 13, 2019

In SC97171, the state was represented by Kevin Hillman, the Pulaski County prosecutor, of Waynesville, (573) 774-4770.

Nettie Pallai was represented by Thomas Moser of the public defender’s office in Rolla, (573) 368-2260.

In SC97331, Long was represented by John Grobmyer and Susan Warren of the public defender’s office in Portageville, (573) 379-9308.

The state was represented by Jason H. Lamb of the state’s office of prosecution services in Jefferson City, (573) 751-0619; and Jeremy G. Lytle, the Pemiscot County prosecutor, of Caruthersville, (573) 333-2738.

Paul C. Wilson, Judge

The issue in these cases is whether a probationer must be discharged from probation as a result of Earned Compliance Credits ("ECCs") accrued under section 217.703,¹ notwithstanding the prohibition in section 559.105.2² against such a discharge if the probationer has failed to pay the full amount of court-ordered restitution. Because section 559.105.2 takes precedence over section 217.703.7, the preliminary writ of prohibition in Mr. Hillman’s case is made permanent and the preliminary writ of prohibition in Ms. Long’s case is quashed.

BACKGROUND

This Court has consolidated, for purposes of this opinion only, two separate writ petitions. Even though the central legal issue presented in each of the cases is the same, the underlying facts and procedural postures are slightly different.

First, Ms. Nettie Pallai ("Pallai") pleaded guilty in August 2014 to first-degree property damage, agreeing to a suspended execution of sentence of four years in prison and a probation term of five years. The plea agreement provided Pallai would pay $5,104 in restitution in amounts of no less than $50 per month and stated: "No earned compliance credits until restitution is paid in full." Pallai made sporadic payments on the restitution balance, but has not paid the full amount owed. In January 2018, the state filed a motion to revoke Pallai’s probation due to her failure to pay the restitution ordered. In response, Pallai filed a motion for discharge from probation, alleging she had accrued sufficient ECCs at that time to be discharged under section 213.703.7. Respondent, the Honorable John D. Beger, sustained Pallai’s motion but stayed the order discharging her from probation to provide the state time to seek a remedial writ in an appellate court.

The prosecutor (and Relator in this case), Mr. Kevin Hillman, having been denied relief in the court of appeals, petitioned this Court for a writ of prohibition. This Court issued a preliminary writ of prohibition preventing Judge Beger from discharging Pallai from probation.³

In the second case, Ms. Erica Long ("Long") pleaded guilty in September 2014 to first-degree property damage. As part of her plea agreement, the circuit court suspended the imposition of sentence; placed Long on probation for three years; and ordered her to pay court costs, $46 to the Crime Victim Compensation Fund, and $300 to the Pemiscot County Law Enforcement Restitution Fund. In May 2016, the Missouri Board of Probation and Parole ("the Board") filed an initial violation report alleging Long failed to comply with the conditions of her probation because she had fallen behind in restitution. Following a June 2016 probation revocation hearing, the circuit court extended Long’s probation an additional year. In December 2017, the Board filed a second probation violation report, again citing Long’s failure to pay restitution. Subsequently, in March 2018, Long moved to be discharged from probation, arguing she had accrued sufficient ECCs to be discharged from probation under section 213.703.7 and, therefore, the circuit court lacked authority to revoke her probation. Respondent, the Honorable Fred Copeland, overruled Long’s motion. Having been denied relief by the court of appeals, Long (Relator in this case) petitioned this Court for a writ a prohibition preventing Judge Copeland from doing anything other than discharging her from probation. This Court issued a preliminary writ of prohibition staying further action to discharge or revoke Long’s probation until further order from this Court.

DISCUSSION

This Court has the authority to issue remedial writs pursuant to article V, section 4.1 of the Missouri Constitution. "A writ of prohibition is available: (1) to prevent a usurpation of judicial power when the trial court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted." State ex rel. Houska v. Dickhaner , 323 S.W.3d 29, 32 (Mo. banc 2010).

In the first case, Relator Hillman contends section 559.105 prohibits Judge Beger from discharging Pallai from probation because she has not paid the ordered restitution, notwithstanding that Pallai has accrued sufficient ECCs under section 217.703.3 to warrant such a discharge pursuant to section 217.703.7 if the restitution were paid in full. In the second case, Ms. Long asserts Judge Copeland lacked the authority to do anything other than to discharge her from probation pursuant to section 217.703.7 by applying the ECCs accrued to her under section 217.703.3, notwithstanding that she has not paid the ordered restitution in full.

The ECC scheme is entirely a statutory creation. Section 217.703 provides the ECC framework, which (stated generally) provides that for every full calendar month a probationer is in compliance with the terms of her supervision, the term of probation shall be reduced by 30 days. § 217.703.3. Section 217.703.7 provides,

Notwithstanding subsection 2 of section 217.730 to the contrary,^{[4 ]} once the combination of time served in custody, if applicable, time served on probation, parole, or conditional release, and earned compliance credits satisfy the total term of probation, parole, or conditional release, the board or sentencing court shall order final discharge of the offender, so long as the offender has completed at least two years of his or her probation or parole, which shall include any time served in custody under section 217.718 and sections 559.036 and 559.115.

§ 217.703.7 (emphasis added).⁵

Accordingly, section 217.703.7 creates a mandatory duty to discharge a probationer from probation when she has served the total term of probation to which she was sentenced minus the ECCs she has accrued under section 217.703.3, provided she has served at least two years of probation. The central question in both cases now before the Court is whether this duty to discharge in section 217.703.7 conflicts with the prohibition against discharge found in section 559.105.2, which states:

No person ordered by the court to pay restitution pursuant to this section shall be released from probation until such restitution is complete. If full restitution is not made within the original term of probation, the court shall order the maximum term of probation^{[6 ]} allowed for such offense.

§ 559.105.2 (emphasis added).

Any time a court is called upon to apply a statute, the primary obligation "is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning." S. Metro. Fire Prot. Dist. v. City of Lee’s Summit , 278 S.W.3d 659, 666 (Mo. banc 2009). If the language of a statute is plain and unambiguous, this Court is bound to apply that language as written and may not resort to canons of construction to arrive at a different result. Concerned Parents v. Caruthersville Sch. Dist., 548 S.W.2d 554, 559 (Mo. banc 1977) ("words are to be taken in accord with their fair intendment and their natural and ordinary meaning," and, "[w]hen language is plain and unambiguous, no construction is required").

But, when two statutes – each plain and unambiguous on their own – conflict with each other, resort to certain canons of construction remains appropriate. See Earth Island Inst. v. Union Elec. Co. , 456 S.W.3d 27, 33 (Mo. banc 2015) ("identifying conflict between two statutes as a precondition to the application of the principles of statutory construction") (citing State ex rel. City of Jennings v. Riley, 236 S.W.3d 630, 631 (Mo. banc 2007) (quotation marks omitted) ). Accordingly, because neither section 217.703.7 nor section 559.105.2 is ambiguous on its own, the threshold question in this case is whether there is a direct conflict in the operation of those two statutes. Id.

There is a conflict because section 217.703.7 provides that discharge from probation is mandatory any time a probationer serves the original term of probation as reduced by all ECCs accrued under section 217.703.3, but section 559.105.2 provides that discharge from probation is prohibited before a probationer has fully paid all court-ordered restitution. In certain circumstances, including particularly the two cases now before the Court, these two statutes conflict. "When two statutory provisions covering the same subject matter are unambiguous standing separately but are in conflict when examined together, a reviewing court must attempt to harmonize them and give them both effect." Earth Island Inst. , 456 S.W.3d at 33 (quotation marks omitted).

To resolve the conflict between sections 217.703 and 559.105, this Court now holds a probationer may accrue ECCs under section 217.703, but she may not be discharged from probation by applying those ECCs to reduce her original term of probation unless and until she has paid the full amount of any court-ordered restitution.⁷ In this manner, the conflicting statutes are harmonized, and both are given effect to the fullest extent possible. In light of...