State ex rel. Newton v. Johnson

• Decision Date: 21 April 2016
• Docket Number: No. SD 33990,SD 33990
• Citation: 496 S.W.3d 516
• Parties: State of Missouri ex rel. John Logan Lee Newton, Relator, v. The Honorable Laura Johnson, Respondent.
• Court: Missouri Court of Appeals

496 S.W.3d 516

State of Missouri ex rel. John Logan Lee Newton, Relator,

v.The Honorable Laura Johnson, Respondent.

No. SD 33990

Missouri Court of Appeals, Southern District, Division Two .

Filed: Apr. 21, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2016

Application for Transfer Denied June 28, 2016

James Egan, and, Jacqueline Veronica Jimene Mejia, Springfield, MO, for Relator.

Amy J. Fite, Ozark, MO, for Respondent.

DON E. BURRELL

, P.J.

John Logan Lee Newton (“Relator”) sought a writ of mandamus compelling the Honorable Laura Johnson (“Respondent”) to order the Department of Corrections (“DOC”) to release Relator onto probation under section 559.115 after Respondent had previously refused to order such a release.¹ Relator insists that “Respondent had no authority to deny Relator's release on probation and order his sentence executed because DOC erroneously calculated the date that Relator's 120 began and reported to Respondent that Relator was not going to finish his 120 day program^{[2 ]}until 4 days after the 120 period ended.”

Relator's single point relied on claims we must order Respondent to place Relator on probation or resentence him

because Respondent had no authority to deny him probation in that: (1) Respondent had placed Relator in the one-hundred-and-twenty-day program under § 559.115.3; (2) the plain language of § 559.115.3 states the one hundred twenty days starts when a defendant is delivered to [DOC], which in Relator's case was February 4, 2015; (3) DOC erroneously concluded that Relator's one hundred twenty days started on January 22, 2015, the day of his sentence, and in turn concluded that Relator would fail to complete the one-hundred-twenty-day program, though through no fault of his own; (4) Respondent erroneously adopted DOC's interpretation of the start of Relator's one hundred twenty days and denied him probation without a hearing; (5) Relator would have successfully completed the one-hundred-twenty-day program but for DOC's erroneous interpretation; (6) one hundred twenty days had not passed since Relator's delivery to DOC on February 4, 2015 when Relator brought Respondent's error to her attention; (7) it has now been more than one hundred twenty days since Relator's delivery to DOC, and Respondent has no authority to hold a hearing; and, (8) allowing Relator to withdraw his guilty plea is not a sufficient remedy.^{[3 ]}

Because Relator does not establish a right to either probation or resentencing, we quash our preliminary writ, and his application for a permanent writ of mandamus is denied.

Applicable Principles of Review and Governing Law

This Court reviews a writ of mandamus for an abuse of discretion. State ex rel. City of Jennings v. Riley, 236 S.W.3d 630, 631 (Mo. banc 2007)

. A litigant seeking mandamus must “allege and prove that he [or she] has a clear, unequivocal, specific right to a thing claimed.” State ex rel. Young v. Wood, 254 S.W.3d 871, 872 (Mo. banc 2008) (quoting Furlong Cos., Inc. v. City of Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006) ). “Ordinarily, mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control the exercise of discretionary powers.” State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. banc 2006). However, if the respondent's actions are wrong as a matter of law, then

he or she has abused any discretion he or she may have had, and mandamus is appropriate.

State ex rel. Valentine v. Orr, 366 S.W.3d 534, 538 (Mo. banc 2012)

.

Section 559.115.2 does not permit the parties to move for a grant of probation after an offender has been delivered to DOC; any order for such release must be based upon the trial court's “own motion[,]” and the time for doing so is limited to “up to one hundred twenty days after such offender has been delivered to [DOC.]” Section 559.115.3 provides:

The court may recommend placement of an offender in a [DOC program] under this subsection or order such placement under subsection 4 of section 559.036. Upon the recommendation or order of the court, [DOC] shall assess each offender to determine the appropriate [DOC program] in which to place the offender, which may include placement in the shock incarceration program or institutional treatment program. When the court recommends and receives placement of an offender in a [DOC program], the offender shall be released on probation if [DOC] determines that the offender has successfully completed the program except as follows. Upon successful completion of a program under this subsection, the board of probation and parole [ (“the Board”) ] shall advise the sentencing court of an offender's probationary release date thirty days prior to release. The court shall follow the recommendation of [DOC] unless the court determines that probation is not appropriate. If the court determines that probation is not appropriate, the court may order the execution of the offender's sentence only after conducting a hearing on the matter within ninety to one hundred twenty days from the date the offender was delivered to [DOC]. If [DOC] determines the offender has not successfully completed a [DOC program] under this subsection, the offender shall be removed from the program and the court shall be advised of the removal. [DOC] shall report on the offender's participation in the program and may provide recommendations for terms and conditions of an offender's probation. The court shall then have the power to grant probation or order the execution of the offender's sentence.

The record for our review is “[t]he petition for the writ, together with the suggestions in support thereof, any exhibits accompanying the petition, all suggestions in opposition, the writ and return of service thereon, all answers made to the petition for the writ, and all other papers, documents, orders, and records filed in” this court. Rule 84.24(g). “In mandamus, undenied allegations in a pleading to which a traverse or other pleading is required are deemed admitted and must be accepted as true.” Leamon v. City of Indep., 625 S.W.2d 204, 207 (Mo.App.W.D.1981)

.

Background

At the core of Relator's point are his contentions that: (1) “Respondent had no authority to deny him probation” after DOC used the wrong date for his delivery to DOC in calculating the applicable 120–day period to determine that Relator could not finish his DOC program within that time; and (2) Respondent erroneously denied probation without first holding a hearing on the matter. The background for our analysis is based on the following identical July 2015 docket entries entered by Respondent in the Christian County cases.⁴

Before the Court is [Relator]'s Motion to Reconsider Court's Previous Order to Execute Sentence and to Release [Relator] From 120 ITC pursuant to 559.115.3. The Court heard argument from both the State and [Relator]. The Court makes the following findings:

On November 14, 2014, [Relator] was sentenced pursuant to Section 559.115 (ITC) in [the Vernon County case]. He was subsequently delivered to [DOC]. On December 30, 2014, [Relator] filed a disposition on detainers in ... [the stealing case]. The State filed an Application for Writ of Habeas Corpus Ad Prosequendum in [the stealing case] on December 31, 2014, and [Relator] was transported to the Christian County Jail.

.... On January 22, 2015, [Relator] pled guilty to charges in [the stealing case] and [the harassment case]. [Relator] received sentences in each case pursuant to Section 559.115 (ITC).^[5]On or about February 4, 2015, [Relator] was returned to [DOC].

On April 20, 2015, [the Board] filed with the Court a Court Report Investigation [ (“the report”) ] that reflected [Relator]'s 120–day sentence began on his date of sentencing, January 22, 2015, and ended on May 22, 2015. The report stated that [Relator “]will be unable to complete the [DOC] program through no fault of his own and is therefore ineligible for a statutory discharge. He will not be released unless ordered by the Court.^[”^6]Included in the report was the recommendation of the probation and parole officer to deny [Relator] probation. On April 24, 2015, the Court entered its order stating: “The Court has determined it would be an abuse of discretion to release and orders execution of the sentence of 7 years.”^[7]

Pursuant to Section 559.115 [Relator]'s 120–day sentence is to be calculated from date of delivery to DOC. In this case, [Relator] had already been delivered to [DOC] on the Vernon County sentence at the time he was sen[tenced] on his Christian County cases. Because he had already been delivered to [DOC], [DOC] used his Christian County sentencing date as the start date for his 120–day sentence and calculated the end of his sentence to be May 22, 2015. [Relator] did not complete the [DOC] program.

[Relator] filed his Motion to Reconsider on June 1, 2015. The matter was heard on June 2, 2015.^[8]The Court finds that no hearing is required, because, under Section 559.115(3) [Relator] failed to complete his [DOC] program by May 22, 2015. The Court further finds it is without jurisdiction to hear the Motion pursuant to Section 559.115, because the 120–day time period has run.

Analysis

“We examine the language used in the statute according to its plain and ordinary meaning.” State v. Acevedo, 339 S.W.3d 612, 617 (Mo.App.S.D.2011)

. Section 559.115.3 provides two distinct procedures to be followed when an offender is placed in a DOC program. One is to be followed “if [DOC] determines that the offender has successfully completed the [DOC] program”; a different procedure is followed “[i]f [DOC] determines the offender has not successfully completed a [DOC] program[.]” Id. If the first procedure applies, the trial court is required to release the offender on probation unless a hearing is held “within ninety to one hundred twenty days from the date the offender was delivered to” DOC. Id. This first procedure does not apply to Relator because there was no determination by...