State v. Mennemeyer

• Decision Date: 25 February 2014
• Docket Number: No. ED 100826.,ED 100826.
• Citation: 421 S.W.3d 558
• Parties: STATE of Missouri ex rel. Ernest KIZER, Relator, v. Honorable Chris Kunza MENNEMEYER, Judge of the Circuit Court of Lincoln County, Missouri, Respondent.
• Court: Missouri Court of Appeals

421 S.W.3d 558

STATE of Missouri ex rel. Ernest KIZER, Relator,

v.Honorable Chris Kunza MENNEMEYER, Judge of the Circuit Court of Lincoln County, Missouri, Respondent.

No. ED 100826.

Missouri Court of Appeals,

Eastern District,

Writ Division Two.

Feb. 25, 2014.

George M. Archer, St. Louis, MO, for relator.

Leah Wommack Askey, Troy, MO, for respondent.

LAWRENCE E. MOONEY, Presiding Judge.

The relator, Ernest Kizer, seeks a writ of mandamus and a writ of prohibition directing the respondent, the Honorable Chris Kunza Mennemeyer, to order that Kizer be released from the Missouri Department of Corrections and placed on probation and prohibiting the respondent from executing Kizer's sentence, respectively. We issued a preliminary order in mandamus. The respondent has filed an answer, and admitted all allegations in Kizer's petition. We dispense with further briefing in the interests of justice as permitted by Rule 84.24(j). We now make our preliminary order permanent, and direct the respondent to release Kizer on probation as provided in Section 559.115.3 RSMo (Supp.2012).¹

Kizer pleaded guilty to one count of second-degree drug trafficking. On April 24, 2013, the trial court sentenced Kizer to eight years' imprisonment in the Department of Corrections. The trial court further ordered Kizer's sentence be served pursuant to the institutional drug and alcohol treatment provisions of section 559.115. Within the first 120 days of Kizer's sentence, the Department of Corrections reported that Kizer successfully completed the institutional treatment program. On July 17, 2013, the trial court denied Kizer's release on probation, and ordered his sentence of eight years to be executed. The trial court did not conduct a hearing before taking this action, or at any time thereafter.

Mandamus is a discretionary writ that is appropriate when a court has exceeded its jurisdiction or authority, and where no remedy exists through appeal. State ex rel. Dorsey v. Wilson, 263 S.W.3d 790, 791 (Mo.App.E.D.2008). A litigant seeking mandamus must allege and prove a clear, unequivocal, specific right to a thing claimed. State ex rel. Valentine v. Orr, 366 S.W.3d 534, 538 (Mo. banc 2012). “Ordinarily, mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control the exercise of discretionary powers.” Id. However, if the respondent's actions are wrong as a matter of law, then she has abused any discretion she may have had, and mandamus is appropriate. Id.

Section 559.115.3 allows the trial court to place an offender in the Department of Corrections for 120 days. Under the version of section 559.115.3 in effect at all times relevant to this case,² the statute expressly provided in pertinent part either for release on probation or a timely hearing prior to execution of the offender's sentence if the trial court decided to deny probation:

The court may recommend placement of an offender in a department of corrections one hundred twenty-day program ... When the court recommends and receives placement of an offender in a department of corrections one hundred twenty-day program, the offender shall be released on probation if the departmentof corrections determines that the offender has successfully completed the program except as follows.

Upon successful completion of a treatment program, the board of probation and parole shall advise the sentencing court of an offender's probationary release date thirty days prior to release. The court shall release the offender unless such release constitutes an abuse of discretion. If the court determined that there is an abuse of discretion, 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 of the offender's sentence. If the court does not respond when an offender successfully completes the program, the offender shall be released on probation....

(Emphases added). Thus, under this section, after the court imposes a sentence and receives notice that the offender has successfully completed the institutional-treatment program, the trial court must grant probation unless release would constitute an abuse of discretion. State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. banc 2006); Dorsey, 263 S.W.3d at 791. If the trial court determines that...