Dudley R. Garvis, Respondent, v. Denis Agniel, Chairman, Board of Probation and Parole, and Gary Kempker, Director, Department of Corrections, Appellants.

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: Dudley R. Garvis, Respondent, v. Denis Agniel, Chairman, Board of Probation and Parole, and Gary Kempker, Director, Department of Corrections, Appellants. Case Number: WD65507 Handdown Date: 02/28/2006 Appeal From: Circuit Court of Cole County, Hon. Richard G. Callahan Counsel for Appellant: Michael J. Spillane Counsel for Respondent: Party Acting Pro Se Opinion Summary: Denis Agniel, chairman of the Missouri board of probation and parole, and Gary Kempker, director of the Missouri department of corrections (collectively referred to as the the department), appeal the trial court's judgment in favor of Garvis R. Dudley on Dudley's petition for declaratory judgment seeking a declaration that the board incorrectly interpreted sections 559.115 and 558.019, RSMo Supp. 2004, in finding that he had three previous prison commitments and, therefore, was required to serve a minimum of 80 percent of his current sentence before becoming eligible for parole. In its sole point on appeal, the department asserts the trial court erred in finding that section 559.115.7 should be retroactively applied in calculating Dudley's mandatory minimum prison term because the statutory change was substantive and cannot be applied retroactively. AFFIRMED. Division Two holds: The trial court did not err in applying section 559.115.7 retroactively in calculating the number of Dudley's previous prison commitments because under State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc 2004), the statutory change was procedural and, therefore, is applied retroactively. Citation: Opinion Author: Patricia Breckenridge, Judge Opinion Vote: AFFIRMED. Ulrich, P.J., and Smart, J., concur.

Opinion: Denis Agniel, Chairman of the Missouri Board of Probation and Parole, and Gary Kempker, Director of the Missouri Department of Corrections (collectively referred to as the "DOC"),(FN1) appeal the trial court's judgment in favor of Garvis R. Dudley(FN2) on Mr. Dudley's petition for declaratory judgment. In his petition, Mr. Dudley sought a declaration that the Board incorrectly interpreted sections 559.115 and 558.019, RSMo Cum. Supp. 2004,(FN3) in finding that he had three previous prison commitments and, therefore, was required to serve a minimum of eighty percent of his current sentence before becoming eligible for parole. The trial court's judgment found that Mr. Dudley's prior 120-day incarceration, under section 559.115, should not count as a commitment affecting his parole eligibility for his current sentence based on this court's decision in Irvin v. Kempker, 152 S.W.3d 358 (Mo. App. W.D. 2004). This court, in Irvin, found that section 559.115 applied retroactively. Id. at 362. In its sole point on appeal, the DOC asserts the trial court erred in finding that section 559.115.7 should be retroactively applied in calculating Mr. Dudley's mandatory minimum prison term. In particular, the DOC contends that this court's prior decisions in Irvin and Powell v. Missouri Department of Corrections, 152 S.W.3d 363 (Mo. App. W.D. 2004) (also holding that section 559.115.7 applied retroactively), were wrongly decided and are inconsistent with the Missouri Supreme Court's decision in State v. Lawhorn, 762 S.W.2d 820 (Mo. banc 1988). Finding Irvin and Powell correctly decided in light of the Supreme Court's most recent opinion in State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc 2004), the trial court's judgment is affirmed. Factual and Procedural Background On April 20, 2000, Mr. Dudley committed the offense of second degree assault. On March 27, 2001, following a plea of guilty, the trial court convicted and sentenced him to eight years in prison. On March 29, 2001, he was committed to the DOC. Thereafter, the DOC determined that, because Mr. Dudley had three previous prison commitments, he was required to serve a minimum of eighty percent of his current sentence before becoming eligible for parole. On October 6, 2003, Mr. Dudley filed a petition for declaratory judgment, claiming that the DOC incorrectly calculated the number of his previous prison commitments. In particular, Mr. Dudley asserted that the DOC incorrectly counted as a prior prison commitment the time he served on a prior conviction for second degree assault in a 120-day callback program, under section 559.115.7. Specifically, on March 25, 1999, Mr. Dudley pled guilty to second degree assault and was sentenced to

five years in prison. Mr. Dudley was sentenced, however, under section 559.115, to a 120-day callback program, which he served from June 16, 1999, through October 14, 1999. In his petition for declaratory judgment, Mr. Dudley argued that the DOC incorrectly counted this time as a prior prison commitment in calculating the minimum amount of his current sentence that he must serve before becoming eligible for parole under section 558.019.2. While Mr. Dudley does not expressly argue that section 559.115.7 should be retroactively applied, in effect, that is the basis of his argument. This is so because section 559.115.7, which currently provides that an offender's first time incarceration in a 120-day callback program does not count as a prior prison commitment for purposes of section 558.019.2, was not so amended to add that provision until 2003. Only if the amendment were retroactively applied would Mr. Dudley be entitled to the benefit of amended section 559.115.7. The DOC filed an answer and a motion for summary judgment, claiming that the DOC correctly calculated the number of Mr. Dudley's previous prison commitments and the minimum prison term he must serve before becoming eligible for parole. On April 12, 2005, relying on this court's decision in Irvin, the trial court held that Mr. Dudley's prior incarceration in a 120-day callback program should not count as a commitment in calculating the minimum prison term he must serve before becoming eligible for parole. The DOC filed this appeal. Standard of Review The standard of review in a declaratory judgment case is the same as in any other court-tried case. Inman v. Mo. Dep't of Corrs., 139 S.W.3d 180, 183 (Mo. App. W.D. 2004). Therefore, the judgment will be affirmed 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. Id. The evidence, and all reasonable inferences drawn therefrom, are viewed in the light most favorable to the judgment and all evidence and inferences to the contrary are disregarded. Id. Section 559.115.7 Applies Retroactively In its sole point on appeal, the DOC asserts the trial court erred in finding, based on Irvin, that Mr. Dudley's 120- day incarceration in a callback program should not count as a commitment for purposes of determining the minimum prison term he must serve before becoming eligible for parole. Specifically, the DOC argues that this court's prior decisions in Irvin and Powell, which held that section 559.115.7 applied retroactively, were wrongly decided and are inconsistent with the Missouri Supreme Court's decision in Lawhorn. This court recently addressed the same issue raised by the DOC in Carlyle v. Missouri Department of Corrections, 184 S.W.3d 76 (Mo. App. W.D. 2005). In Carlyle, while agreeing with the DOC that Lawhorn addressed the question raised in this appeal (i.e., whether an amendment to a statute that affects the minimum prison

time served is substantive or procedural and, therefore, whether the amendment should be retroactively applied), this court nevertheless found that "Russell overruled Lawhorn sub silentio."(FN4) Carlyle, 184 S.W.3d at 79. In Russell, the Supreme Court held that section 558.016.8, "a new parole eligibility statute enacted in the same set of legislation as Section 559.115.7, applied retroactively because it did not change the offender's punishment." Carlyle, 184 S.W.3d at 79 (citing Russell, 129 S.W.3d at 870-71). Consequently, in Carlyle, this court held that "[e]xisting law permits the retroactive application of Section 559.115.7." Id. See also Nieuwendaal v. Mo. Dep't of Corrs., 181 S.W.3d 153, 155 (Mo. App. W.D. 2005). Accordingly, the trial court did not error in finding that Mr. Dudley's prior 120- day incarceration, under section 559.115, did not constitute a previous prison commitment for purposes of section 558.019.2. The trial court's judgment is affirmed. All concur. Footnotes: FN1. Mr. Agniel and Mr. Kempker were sued in their official capacities. FN2. The records on appeal show significant inconsistency in the name of the appellant. In the original Department of Correction records and the records of his prior criminal cases, the appellant's name appears as Garvis Dudley and Garvis R. Dudley. His name in the caption of the Petition for Declaratory Judgment is Garvis Dudley but, in the body of the petition, his name is Garvis Dudley-El. Nevertheless, the summons was issued showing the petitioner's name as Dudley R. Garvis, and pleadings filed thereafter utilize that name. The judgment used Dudley R. Gravis in both the caption and body. Then, the Notice of Appeal uses the name Dudley R. Garvis-El. Because Garvis R. Dudley appears to be the correct name for appellant, that name will be used in this opinion. FN3. All statutory references are to the Revised Statutes of Missouri 2000 Cum. Supp. 2004. FN4. Lawhorn held that a new law mandating a minimum prison term could not be retroactively applied because it adversely affected the offender's substantive rights by enlarging his minimum prison term. 762 S.W. 2d at 825-26. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.