Donald W. Pointer, Respondent, v. Missouri Board of Probation and Parole, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Donald W. Pointer, Respondent, v. Missouri Board of Probation and Parole, Appellant. Case Number: WD66665 Handdown Date: 03/06/2007 Appeal From: Circuit Court of Cole County, Hon. Thomas Joseph Brown, III Counsel for Appellant: Stephen D. Hawke Counsel for Respondent: Party Acting Pro Se Opinion Summary: The Missouri Board of Probation and Parole appeals the circuit court's judgment granting Donald Pointer declaratory judgment and determination that certain of Pointer's incarcerations do not constitute commitments under sections 558.019.2 and 559.115.7, RSMo. In its two points on appeal, the board claims the trial court erred because (1) Pointer continues to have three prior commitments even if the 120-day incarceration is excluded, and (2) the amendment to section 559.115 should not have retroactive application. REVERSED AND REMANDED WITH INSTRUCTIONS. Division Two holds: Where an offender has four prior prison commitments and section 558.019.2(3) provides that an offender shall serve a minimum prison term of eighty percent if the offender has three or more prior prison commitments, declaring that one of the four prior prison commitments shall not be counted in determining the minimum prison term pursuant to section 559.115.7 will not impact the offender's minimum prison term and the offender's petition is moot. Citation: Opinion Author: Robert G. Ulrich, Judge Opinion Vote: The judgment is reversed and remanded with instructions. White Hardwick, P.J., and Newton,

J., concur. Opinion: The Missouri Board of Probation and Parole (the Board) appeals the judgment of the Cole County Circuit Court. The judgment granted Donald Pointer's Petition for Declaratory Judgment and determined that certain of Mr. Pointer's incarcerations do not constitute commitments under sections 558.019.2 and 559.115.7.(FN1) In its two points on appeal, the Board claims the trial court erred because (1) Mr. Pointer continues to have three prior commitments even if the 120-day incarceration is excluded, and (2) the amendment to section 559.115 should not have retroactive application. The judgment is reversed, and the case is remanded with instructions. Standard of Review In reviewing a court-tried case, reviewing authority must affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Carlyle v. Mo. Dep't. of Corr., 184 S.W.3d 76, 79 (Mo. App. W.D. 2005)(citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). Questions of law are reserved for the independent judgment of reviewing authority without deference to the trial court's determination. Id. Facts Donald Pointer filed a Petition for Declaratory Judgment on May 23, 2005, naming the Board as Respondent. (FN2) He contended that his mandatory minimum prison term for his two concurrent seven-year sentences for possession of a controlled substance and stealing should be 50% of the imposed sentence instead of 80% because he had two prior commitments instead of three commitments under section 558.019. He contended his June 25, 1996, incarceration should not be treated as a commitment because of the 2003 enactment of section 559.115.7. The Board filed a Motion to Dismiss as Moot on December 2, 2005. The Board claimed Mr. Pointer had five commitments, including his current incarceration. It stated: "Accordingly, even if one were to exclude one of the four prior commitments as being a commitment under section 559.115, there remain three prior commitments that support

the [Board's] determination that petitioner remains ineligible for parole consideration until he has served eighty percent of his sentence." Thus, the Board asserted that the petition for declaratory judgment was moot. The trial court issued its Memorandum, Order, and Judgment on February 7, 2006. It found that Mr. Pointer's June 25, 1996, incarceration should not be counted as a commitment pursuant to section 559.115. It denied the Board's Motion to Dismiss and granted Mr. Pointer's Petition for Declaratory Judgment. The Board's timely appeal followed. Statutory Framework Section 559.115.7, states:

1. An offender's first incarceration for one hundred twenty days for participation in a department of corrections

program prior to release on probation shall not be considered a previous prison commitment for the purpose of determining a minimum prison term under the provisions of section 558.019, RSMo. Section 558.019, states, in relevant part:

1. The provisions of subsections 2 to 5 of this section shall be applicable to all classes of felonies except those set

forth in chapter 195, RSMo, and those otherwise excluded in subsection 1 of this section. For the purposes of this section, "prison commitment" means and is the receipt by the department of corrections of an offender after sentencing. For purposes of this section, prior prison commitments to the department of corrections shall not include commitment to a regimented discipline program established pursuant to section 217.378, RSMo. Other provisions of the law to the contrary notwithstanding, any offender who has pleaded guilty to or has been found guilty of a felony other than a dangerous felony as defined in section 556.061, RSMo, and is committed to the department of corrections shall be required to serve the following minimum prison terms: .... (2) If the offender has two previous prison commitments to the department of corrections for felonies unrelated to

the present offense, the minimum prison term which the offender must serve shall be fifty percent of his or her sentence or until the offender attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first; (3) If the offender has three or more previous prison commitments to the department of corrections for felonies unrelated to the present offense, the minimum prison term which the offender must serve shall be eighty percent of his or her sentence or until the offender attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs first. Point I In its first point on appeal, the Board claims the trial court erred in entering judgment in favor of Mr. Pointer because he continues to have three prior commitments, even excluding the 120-day incarceration at issue as a commitment. The Board filed Mr. Pointer's "FACE SHEET" and his "Remand Count Worksheet" with the court as exhibits to its Motion to Dismiss as Moot. The following chart reflects documents of record, which show Mr. Pointer's convictions and the sentences imposed for each: FN(FN3) # Sequence( FN4) OffenseOffense Type Cause No. Offense Date Sentence Date Received Date Sentence Length 1 ---------CR873430---October 30, 1992 ------ 2 1Tampering IC Felony CR931321---March 4, 1994 March 11, 1994 4 years 3 2Stealing (120 Day) C Felony CR965752April 26, 1996 June 18, 1996 June 25, 1996 1 year 4 3Stealing (T)C Felony CR1952144 FX September 25, 1995 October 16, 1996 June 25, 1996 4 years 5 5(FN5)Possession of Controlled Substance C Felony 16CR99003 109-01 March 7, 1999 March 14, 2003 November 15, 2004 7 years 5 6Stealing (Third Offense) C Felony 16CR01005 046-01 April 20, 2001 March 14, 2003 November 15, 2004 7 years

Mr. Pointer is currently serving commitment #5.(FN6) In his petition, he argued his mandatory minimum prison term for #5 should be 50% instead of 80% because he has two prior commitments instead of three commitments under section 558.019. Mr. Pointer acknowledged commitment #2 was a commitment in his petition. He also acknowledged commitments #3 and #4 in his petition. He claimed #3 should not be treated as a commitment because of the 2003 enactment of section 559.115.7. Thus, he concluded he has two prior commitments, #2 and #4. In its Motion to Dismiss as Moot, the Board identified commitments #1, #2, #3, #4, and #5. It argued that even if Mr. Pointer were correct and # 3 should not be counted as a commitment, he still has three prior commitments (#1, #2, and #4), and his mandatory minimum prison term for his current sentences would remain 80%. In his suggestions in opposition to the Board's Motion to Dismiss, Mr. Pointer claimed #1 and #3 were both 120- day incarcerations. He claimed neither could be counted as a commitment under section 559.115.7. He asserted he only had two prior commitments, #2 and #4. In its Memorandum, Order & Judgment, the trial court stated : Even if the court were to declare that one of [Mr. Pointer's] prior incarcerations is not a commitment for the purposes of calculation of the mandatory minimum prison term under section 558.019.2, RSMo. Cum. Supp. 2005, the [Board] is free to calculate petitioner's parole eligibility as authorized by statute based on the facts in the present case. In other words, the granting of the petition only prohibits [the Board] from counting the June 25, 1996 incarceration as a commitment. The petition does not affect the Department's counting or not counting other incarcerations as commitments. The court determined that "[t]he June 25, 1996, incarceration was for a 120 day commitment under section 559.115, RSMo. and such an incarceration no longer counts as a commitment under section 559.115.7, RSMo. Cum. Supp. 2005."(FN7) Thus, the court determined that #3 did not count as a commitment under section 559.115.7. Mr. Pointer is currently serving #5. All parties are in agreement that #2 and #4 are prior commitments. The

incarcerations at issue are #1 and #3. Mr. Pointer's Petition for Declaratory Judgment did not identify #1 and requested the court to declare that #3 could not be counted as a commitment because it was a 120-day incarceration. The Board's Motion to Dismiss identified #1. In his response to the motion, Mr. Pointer acknowledged #1 was an incarceration, but argued it was an 120-day incarceration and could not be counted as a commitment. Section 559.115.7 provides that an "offender's first incarceration for one hundred twenty days for participation in a department of corrections program prior to release on probation shall not be considered a previous prison commitment for the purpose of determining a minimum prison term under the provisions of section 558.019, RSMo." (Emphasis added.) Even if #1 and #3 were both 120-day incarcerations, the statute states that only the first 120 day incarceration under section 559.115.7 would not count as a commitment. Thus, the Board proved and Mr. Pointer acknowledged four prior incarcerations. Section 559.115.7 provides for one incarceration not to be counted as a prior commitment under certain circumstances. It does not provide for more than one incarceration to be excluded. Even if Mr. Pointer were correct, he would have three prior commitments instead of four prior commitments. Under section 558.019.2(3) "the minimum prison term which the offender must serve shall be eighty percent of his or her sentence" if the offender has "three or more previous prison commitments." The percentage does not change if the offender has three as opposed to four prior commitments. The granting of Mr. Pointer's petition would not change his status. Accordingly, the issue raised was moot. The judgment is reversed, and the case is remanded to the trial court with instructions to enter a new judgment dismissing Mr. Pointer's petition as moot. See Inman v. Mo. Dep't of Corr., 139 S.W.3d 180, 186 (Mo. App. W.D. 2004). Conclusion The Petition for Declaratory Judgment was moot and should have been dismissed. The judgment is reversed, and the case is remanded. The trial court is directed to dismiss Mr. Pointer's petition.(FN8) All concur.

Footnotes: FN1. All statutory citations are to RSMo. Cum. Supp. 2005 unless otherwise stated. FN2. While Mr. Pointer named the Missouri Department of Probation and Parole as Respondent, its actual name is the Missouri Board of Probation and Parole. FN3. FN is the number designation representing commitments imposed as a result of convictions (sequence). FN4. The sequence number is a number utilized by the Department of Corrections to organize computer entries. It does not have independent significance. FN5. Sequence 5 is a drug offense under Chapter 195 and has no mandatory minimum prison term. Section 558.019.2. FN6. Mr. Pointer's incarcerations are referred to in this manner for convenience. Throughout the pleadings and judgment, there is a wide disparity with respect to how each incarceration is labeled. The incarcerations are inconsistently referred to by Cause No., offense, sentence length, offense date, sentence date, or date Mr. Pointer was received by the Department of Corrections. As to #4, the Board refers to the "fourth commitment" having "occurred on October 28, 1996." In his suggestions in opposition to the Board's motion, Mr. Pointer also references an October 28, 1996, incarceration. After thoroughly reviewing the record, it is evident the "fourth commitment" is #4. The "Comments" section of the FACE SHEET indicates CR195-2144FX was "added" on October 28, 1996. CR195-2144FX is #4. FN7. The trial court further stated in its Memorandum, Order & Judgment that "[t]he April 25, 1996, incarceration does not constitute a commitment under section 558.019.2 and section 559.115.7, RSMo." A thorough review of the record reveals this is a typographical error. The court intended to reference #3, the June 25, 1996, incarceration. FN8. Given the disposition of Point I, the Board's second point need not be discussed. It will be addressed briefly, however, so as to call the Board's attention to recent Missouri Supreme Court caselaw. In its second point, the Board claims the trial court erred in holding that the Board should not count Mr. Pointer's June 25, 1996, incarceration as a commitment. The trial court relied upon a 2003 amendment to section 559.115 directing the Department of Corrections not to count the first 120-day incarceration as a prior commitment in calculating whether a mandatory minimum prison term must be served. The Board claims the amendment was a reduction in the penalty for an offense, and section 1.160 expressly prohibits the retroactive application of a statutory amendment that reduces the penalty for an offense unless the amendment is purely procedural or the amendment is to the law creating the offense. It asserts that Mr. Pointer's penalty for his offense was reduced by a statutory amendment that was substantive and was not an amendment to the law creating the offense. The Board notes that Irvin v. Kemper, 152 S.W.3d 358 (Mo. App. W.D. 2004), and Powell v. Missouri Department of Corrections, 152 S.W.3d 363 (Mo. App. W.D. 2004), address this issue and hold that the 2003 amendment to section 559.115 does have retroactive application. It asserts they were wrongly decided. After the Board filed its brief in this case, the Missouri Supreme Court addressed this issue. It stated: This declaratory judgment action presents the issue of whether section 559.115.7 ... can be applied retroactively so as to reduce the number of previous "prison commitments" attributed to an offender for purposes of determining parole eligibility under section 558.019.2 RSMo (2000). ... [T]his Court holds that section 559.115.7 can be applied retroactively because the statute is a parole eligibility statute that does not change the offender's punishment. Dudley v. Agniel, 207 S.W.3d 617, 617-18 (Mo. banc 2006); see also Jones v. Fife, 207 S.W.3d 614, 615 (Mo. banc 2006).

Separate Opinion:

None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.