Frank Jones, Appellant, v. G. Fife, Records Officer III, Northeast Correctional Center, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: Frank Jones, Appellant, v. G. Fife, Records Officer III, Northeast Correctional Center, Respondent. Case Number: SC87778 Handdown Date: 12/05/2006 Appeal From: Circuit Court of Pike County, Hon. Dan Dildine Counsel for Appellant: Michael T. George and James J. Wieczorek Counsel for Respondent: Michael J. Spillane Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. In November 2001, Frank Jones was convicted of felony theft and was sentenced as a prior and persistent offender to 11 years in prison. The department of corrections determined that, because he had four previous prison commitments, section 558.019.2(3), RSMo 2000, required Jones to serve at least 80 percent of his sentence before being eligible for parole. The four prison commitments the department counted included Jones' 1994 sentence to the 120-day program in section 559.115, RSMo 1990, following his conviction for receiving stolen property, and Jones' 1996 sentence to the long-term drug treatment program in section 217.362, RSMo. In 2003, sections 559.115.7 and 217.362.5 were added, providing that an offender's first-time incarceration in, respectively, the 120-day program and the long-term drug treatment program would not count as previous commitments for purposes of determining minimum prison terms under section 558.019. Jones subsequently petitioned for declaratory judgment, alleging the department incorrectly calculated his 1994 and 1996 sentences as previous prison commitments. The circuit court sustained the department's motion for summary judgment, finding that sections 559.115.7 and 217.362.5

could not be applied retroactively. Jones appeals. REVERSED AND REMANDED. Court en banc holds: For the reasons explained in SC87652, also decided this date, the rationale of State ex rel. Nixon v. Russell, 129 S.W.3d 867, 871 (Mo. banc 2004), applies to this case. Accordingly, because sections 559.115.7 and 217.362.5 do not alter a substantive law governing Jones' offense or shorten his sentence, section 1.160, RSMo 2000, does not bar their retroactive application. Citation: Opinion Author: Richard B. Teitelman, Judge Opinion Vote: REVERSED AND REMANDED. Wolff, C.J., Stith, Price, Limbaugh and Russell, JJ., and Blackmar, Sr.J., concur. White, J., not participating. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. This declaratory judgment action presents the issue of whether section 559.115.7, RSMo (Cum. Supp. 2004), (FN1) and section 217.362.5 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). The circuit court held that the statutes cannot be applied retroactively. Following the rationale of State ex rel. Nixon v. Russell 129 S.W.3d 867 (Mo. banc 2004), this Court holds that sections 559.115.7 and 217.362.5 can be applied retroactively because both statutes regulate parole eligibility and do not reduce the offender's punishment. The judgment is reversed. FACTS

On November 14, 2001, Frank Jones was convicted on felony theft charges and was sentenced as a prior and persistent offender to eleven years imprisonment. The Missouri Department of Corrections (DOC) informed Jones that pursuant to Section 558.019.2(3) RSMo (2000), he would be required to serve eighty percent of his sentence before being eligible for parole because he had four previous prison commitments. The DOC determined that Jones' 1994 conviction for receiving stolen property, for which Jones was sentenced to a 120-day program pursuant to Section 559.115 RSMo (1990), constituted a previous prison commitment. The DOC also determined that Jones' 1996 sentence to the long term drug treatment program in section 217.362 constituted a previous prison commitment. In 2003, section 559.115 was amended to include section 559.115.7, which provides that an offender's first incarceration in the 120-day program does not constitute a previous prison commitment for purposes of determining minimum prison terms under section 558.019. Similarly, section 217.362 was also amended to include section 217.362.5, which provides that an offender's first incarceration in the long term drug treatment program does not constitute a previous prison commitment for purposes of determining minimum prison terms. Jones filed a petition for declaratory judgment asserting that the DOC miscalculated the number of previous prison commitments he had by counting the 1994 and 1996 sentences as previous prison commitments and that he should not be required to serve a mandatory-minimum prison sentence of eighty percent of his sentence before being eligible for parole. The circuit court sustained the DOC motion for summary judgment, reasoning that that section 559.115.7 and section 217.362.5 would reduce Jones' punishment and, therefore, could not be applied retroactively. Jones appeals. ANALYSIS The parties do not dispute the facts of this case; the issue is purely a legal one. Because only a legal issue is at stake, this Court reviews the trial court's judgment de novo. Cox v. Tyson Foods, Inc., 920 S.W.2d 534, 535 (Mo. banc 1996). The DOC argues that retroactive application of sections 559.115.7 and 217.362.5 is prohibited by section 1.160 RSMo (2000). Section 1.160 bars the retroactive application of substantive laws governing offenses.(FN2) In State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc 2004), this Court held that section 558.016.8,(FN3) a new parole

eligibility statute enacted simultaneously with the statutes at issue in this case, could be applied retroactively to an offender who was sentenced prior to the effective date of the statute. As in this case, the State argued that retroactive application of the statute was prohibited by section 1.160. This Court rejected the State's argument because "[t]he granting of parole does not reduce the sentence imposed," but "may, however, change the location or circumstances under which the sentence is served." Id. Because the parole eligibility provisions of 558.016.8 did not repeal or amend any previously existing statute and did not shorten the defendant's sentence, section 1.160 did not bar the retroactive application of the statute. Id. at 871. The rationale of the Russell case applies to this case. The parole eligibility provisions of section 559.115.7 and section 217.362.5 do not alter a substantive law governing Jones' offense or shorten his sentence. Instead, retroactive application of the statutes would only result in a potential change of the location or circumstances under which Jones serves the remainder of his sentence. Therefore, section 1.160 does not bar retroactive application of the parole eligibility provisions of section 559.115.7 or section 217.362.5.

(FN4) Footnotes: FN1. All statutory references are to RSMo (Supp. 2004) unless otherwise indicated. FN2. Section 1.160 provides that: No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except: (1) That all such proceedings shall be conducted according to existing procedural laws; and (2) That if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amendatory law. FN3. The statute provides that an offender convicted of a nonviolent class C or D felony with no prior prison commitments may, after serving 120 days of his or her sentence, petition the court to serve the remainder of the sentence on probation, parole, or other court approved alternative sentence. FN4. The State also relies upon State v. Lawhorn, 762 S.W.2d 820 (Mo. banc 1988), to support its argument that

section 559.115.7 and section 217.362.5 cannot be applied retroactively. In Lawhorn, this Court held that retroactive application of a new law mandating longer prison terms violated the prohibition on ex post facto laws found in article I, section 10 of the United States Constitution and article I, section 13 of the Missouri Constitution. The new statute was an ex post facto violation because it clearly disadvantaged the offender. Id. at 826. In contrast, the amended statutes at issue in this case do not alter Jones' substantive rights in a manner that disadvantages him. Lawhorn is not applicable. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.