Williams v. Gammon, WD

• Decision Date: 14 November 1995
• Docket Number: No. WD,WD
• Citation: 912 S.W.2d 80
• Parties: John WILLIAMS, Appellant, v. James A. GAMMON, et al., Respondent. 50770.
• Court: Missouri Court of Appeals

Page 80

912 S.W.2d 80

John WILLIAMS, Appellant, v. James A. GAMMON, et al., Respondent.

No. WD 50770.

Missouri Court of Appeals Western District.

Nov. 14, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 26, 1995.

John Williams, Appellant Pro Se.

Jeremiah W. (Jay) Nixon, Attorney General, Cassandra K. Dolgin, Assistant Attorney General, Jefferson City, for respondent.

Before LAURA DENVIR STITH, P.J., and LOWENSTEIN and HANNA, JJ.

LAURA DENVIR STITH, Presiding Judge.

Following the denial of parole by the Missouri Board of Probation and Parole (MBPP), John Williams filed a Petition for Writ of Mandamus, alleging that MBPP had applied those statutes and regulations in effect at the time of the parole hearing rather than those statutes and regulations in effect at the time Mr. Williams committed the offenses. He does not allege that the Board would have been required to find he met the parole standards in effect at the time of the offense, but only that he had a right to have those standards applied in determining whether he was entitled to parole.

The trial court dismissed Mr. Williams' Petition after determining that he was not entitled to the relief requested. Mr. Williams appeals on the grounds that he established a clear and unequivocal right to the relief sought and that Respondents breached a present and unconditional duty owed him. We affirm the denial of mandamus based on the Missouri Supreme Court's recent holding in State ex rel. Cavallaro v. Groose, 908 S.W.2d 133 (Mo. banc 1995), that a prisoner has no liberty interest in the application of the statutory and regulatory conditions for parole in effect at the time of the offense, rather than those currently in effect, unless he can show that he would have been entitled to parole under the older standard.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1979, Appellant John Williams was found guilty by a jury of forcible rape, sodomy, kidnapping and stealing a motor vehicle. He was sentenced to two life terms and two terms of ten years imprisonment, all terms to be served consecutively. Pursuant to a second judgment of conviction in an unrelated case, Mr. Williams was also sentenced to terms of imprisonment of two years and ten years for stealing over $50 (auto) and rape (statutory), respectively. These sentences were ordered to run concurrent with those earlier imposed upon Mr. Williams.

On September 14, 1994, the Missouri Board of Probation and Parole (MBPP) denied Mr. Williams parole, stating:

Having been found guilty of two separate incidents where victims were taken to vacant houses and were then sexually assaulted, the Board believes that your release at this time would depreciate the seriousness of the offenses committed and/or promote disrespect for the law. The Board further notes that you have a history of criminal involvement, as evidenced by your previous convictions. Therefore, the Board has in its discretion determined to schedule you for another personal hearing in September, 1996.

(emphasis added).

Following the denial of parole, Mr. Williams filed a Petition for Writ of Mandamus, alleging that MBPP had applied those statutes and regulations governing parole which were in effect at the time of the parole hearing rather than those statutes and regulations in effect at the time Mr. Williams committed the offenses. Mr. Williams claimed that MBPP had deprived him of his liberty interest in being considered for parole under the provisions of the existing law at the time of the offenses for which he was convicted, relying upon State ex rel. Shields v. Purkett, 878 S.W.2d 42 (Mo. banc 1994). Mr. Williams sought a writ to compel MBPP to hold another hearing and apply the statutes and regulations in effect at the time the offenses were committed.

The trial court ordered that summons be issued to the both MBPP and James Gammon, Superintendent of the correctional facility where Mr. Williams was being held (collectively Respondents). The Sheriff served these summonses upon a representative of MBPP and upon Mr. Gammon.

Respondents filed a Motion to Dismiss Mr. Williams' Petition for failure to state a claim upon which relief could be granted. In this motion, Respondents alleged that the reasons provided by MBPP for deciding not to place Mr. Williams on parole were valid under the former parole statue and applicable regulations. In addition, Respondents asserted that Mr. Williams failed to establish that MBPP applied the wrong regulations as required by Shields, and presented an affidavit which they claimed raised an inference that they had used the correct standard.

The trial court, after reviewing the pleadings, concluded that Mr. Williams was not entitled to the relief requested and dismissed the Petition. Mr. Williams appeals this dismissal, claiming that he has established his clear and unequivocal right to the relief sought and that Respondents have breached a present and unconditional duty owed to him.

II. JURISDICTION AND STANDARD OF REVIEW

A. Jurisdiction.

The first issue which we must resolve is whether we have jurisdiction of this appeal. Petitioner suggests, without citation, that this Court has jurisdiction to hear an appeal of a denial of mandamus. Respondent discusses numerous cases addressing our jurisdiction to hear an appeal of a denial of an alternative writ of mandamus and notes that the opinions in this area appear to be inconsistent. Respondent urges that the cases holding that we do have jurisdiction are better reasoned and asks us to find that we do have jurisdiction and to affirm dismissal.

The general rule is that, if a trial court issues an alternative or provisional writ of mandamus, then the issues are joined and the court's ultimate decision either granting a permanent writ of mandamus, or quashing the alternative writ, is appealable as a final order. Hunter v. Madden, 565 S.W.2d 456 (Mo.App.1978). Where, however, a court refuses to issue an alternative writ in the first instance, then no appealable order exists, and Petitioner's remedy is simply to file for a writ in the next higher court. Pessin v. State Tax Comm'n, 875 S.W.2d 143 (Mo.App.1994).

In this case, the trial court did not immediately rule on the Petition. Rather, it directed that a summons issue to each of the Respondents. In response, Respondents filed a Motion to Dismiss which addressed the merits of the claim that MBPP had used the incorrect regulation in denying Petitioner parole. Respondents attached to the Motion an affidavit, based on the personal knowledge of the affiant, which stated that MBPP would have applied the regulations more beneficial to Mr. Williams in determining his eligibility for parole. Following review of the Petition and the Motion to Dismiss, the trial court entered an order dismissing the Petition for Writ of Mandamus.

The dismissal on its face is ambiguous as to whether it constitutes a refusal to issue an alternative writ, or whether it is intended to constitute a substantive determination on the merits that Petitioner is not entitled to relief. Both Petitioner and MBPP have interpreted it in the latter manner.

A similar situation was addressed in State ex rel. Schaefer v. Cleveland, 847 S.W.2d 867 (Mo.App.1992). There, as here, before the trial court could issue or refuse to issue an alternative writ of mandamus, respondents filed a motion to dismiss which addressed the merits of the claim. In addressing the jurisdictional issue, Schaefer held:

Where, however, the respondent appears without service of an alternative writ, and makes his return, the petition stands as and for the alternative writ itself for the purposes of the case and the return. Where the court below dismisses the petition following answer or motion directed to the merits of the controversy and in so doing determines a question of fact or law the order is final and appealable. Here respondents answered the petition for alternative writ and filed motions to dismiss directed to the sufficiency of the allegations to state a cause of action. The trial court ruled on the sufficiency of the allegations, an issue of law. The order granting the motion to dismiss is final and appealable. We have jurisdiction.

Id. at 870 (emphasis added) (citations omitted).

Here, Respondents not only filed a Motion to Dismiss, but further filed an affidavit addressing the merits. This in effect turned the motion into one for summary judgment. Rule 74.04; Gardner v. City of Cape Girardeau, 880 S.W.2d 652 (Mo.App.1994). Following Shaefer, we consider the order of the trial court to have been a final and appealable order on the merits and find that we have jurisdiction to hear the appeal.

B. Standard of Review.

A writ of mandamus is appropriate only when the respondent has a clear duty to perform a certain act. State ex rel. City of Crestwood v. Lohman, 895 S.W.2d 22, 27 (Mo.App.1994). Furthermore, the purpose of mandamus is to execute and not to adjudicate; it coerces performance of a duty already defined by law. Id. On appeal from dismissal of a writ of mandamus, the concern of this Court is whether the trial court reached the correct result. State ex rel. Patterson v. Tucker, 519 S.W.2d 22 (Mo.App.1975). The discretion of the trial court in granting or refusing a writ of mandamus will not be reversed where it appears to have been lawfully exercised and no abuse is shown. Sampson Distributing Co. v. Cherry, 346 Mo. 885, 143 S.W.2d 307 (1940).

III. THE COURT DID NOT ERR IN DISMISSING MR. WILLIAMS' PETITION

The substantive issue we must resolve is whether the trial court erred in dismissing Mr. Williams' Petition in mandamus on the merits. The determination of this issue is governed by the principles set out in State ex rel. Shields v. Purkett, 878 S.W.2d 42 (Mo. banc 1994), as supplemented in the Missouri Supreme Court's recent decision in State ex rel. Cavallaro v. Groose, 908 S.W.2d 133.

In Shields, as here, the prisoner claimed a liberty...