State ex rel. Travis Jonas, Petitioner, vs. Dean Minor, Respondent.

STATE ex rel. TRAVIS JONAS, ) Opinion issued June 30, 2020 ) P e titio ne r, ) ) v. ) No. SC97674 ) DEAN MINOR, ) ) Respondent. )

ORIGINAL PROCEEDING IN HABEAS CORPUS

Travis Jonas seeks a writ of habeas corpus on the ground his due process rights were violated as a result of the circuit court revoking his probation and ordering his sentence executed despite having suffic ie nt earned compliance credits (ECCs) and having p a id restitutio n in full. He asserts he should have been discharged from probation. Because the c o mb ina t io n o f Jonas' time served on probation and accrued ECCs would have entitled him to discharge under section 217.703.7, 1 the circuit court no longer had authorit y to revoke his probation after he paid restitution. He should have been discharged before the State attempted to revoke probation and the circuit court

1 All statutory references are to RSMo Supp. 2013, unless otherwise noted.

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subsequently suspended and revoked his probation. Habeas relief granted; Jonas is to be discharged from the Missouri Department of Corrections' custody. Background On July 13, 2012, Jonas pleaded guilt y to the class C felony of identit y theft. The circuit court sentenced Jonas to seven years in the Missouri Department of Corrections, suspended the execution of that sentence, and placed him on a five-yea r term of probation. As part of the special conditions of the probation, Jonas was subject to obtaining the REACT assessment, 2 random drug testing, substance abuse evaluation, inc lu d in g any treatment as directed by the division of probation and parole, and payment o f the full a mo unt o f re s titut io n . Jonas' probation was punctuated by fie ld vio la t io n re p o rts file d b y his probation officer and motions to suspend and revoke his probation filed by the State. The State moved to suspend and revoke probation on May 22, 2013, for failure to pay restitution. The State withdrew this motion on September 12, 2013. On that date, the circuit court imposed an additional condition that Jonas pay a specific amount toward the restitutio n on a monthly basis. The docket reflects that the hearing regarding the mo tio n was cancelled. On November 20, 2013, Jonas' probation officer file d a field violation report. The field violation report detailed that Jonas violated his probation due to failure to pay the

2 The Required Educational Assessment and Community Treatment program (REACT) is a screening assessment to determine if a level of substance abuse or mental health treatment is necessary. The need for the assessment is not clear when Jonas' offense was ide ntity theft. See section 559.630, RSMo 2000; section 559.633.1, RSMo 2000.

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monthly court-ordered restitution imposed in September, and it recommended a continuance of probation with a plan to pay the restitution. The field violation report concluded Jonas had an optimal discharge date of April 19, 2015, at the latest. 3 The docket reflects no hearing regarding this field violation report. O n June 10, 2015, Jonas' probation officer filed a case summary report. The report specified Jonas had an outstanding restitution balance and was paying it on a monthly basis. The case summa r y report includ ed sentence infor ma t io n for the identit y theft sentence as well as two other suspended impositions of sentence under a separate docket number. On the identity theft case, the report noted, "JO N AS WILL REMAIN UNDER SUPERVISION ON THE FO LLO WIN G CASE: 1111-CR0374[1]-01[.]" On June 11, 2015, the State filed a motion to suspend and revoke Jonas' probation for failure to pay the court-ordered restitution. The status/restitution hearing was repeatedly continued. Jonas tendered his last payment toward restitution on November 2,

1. The division of probation and parole received proof of the payment on November

4, 2015. On November 5, 2015, the State withdrew the motion to suspend and revoke probation. Jonas' probation officer file d a fie ld vio la t io n re p o rt at the end of January 2016. The fie ld vio la t io n report noted Jonas had violated his probation because of a failure to

3 An optimal discharge date assumes the probationer continues to accrue ECCs without interruption. On this field violation report, which only listed the docket number corresponding to the identity theft probation, the discharge availabilit y was described as follows: "JONAS HAS AN EARNED DISCHARGE DATES OF 06/17/16 AND 09/10/16 AND HE HAS OPTIMAL DATES OF 03/01/15 AND 04/19/15." It is not clear why two dates are listed.

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complete REACT and due to an arrest for felony identity theft, passing a bad check, and forgery. The arrest occurred in mid-December 2015. The fie ld vio la t io n report concluded Jonas had fully paid his restitution and had an earned discharge date of March 15, 2016. A case summary report was filed the same day. The case summary report noted the same earned and optimal discharge date of March 15, 2016. It recommended that – due to the arrest for felony identity theft, passing a bad check, and forgery, and because Jonas was in violation for failure to complete REACT – his probation be suspended and a hearing be held. Acting on these reports, on February 1, 2016, the State filed a motion to suspend and revoke Jonas' probation. His probation was suspended February 9, 2016, and remained suspended until May 11, 2017, when it was revoked and his seven-year sentence was executed. The circuit court found Jonas' failure to obtain the REACT assessment and conduct leading to his arrest violated the conditions of his probation. Jonas remains incarcerated in the Moberly Correctional Center, where Dean Minor is the warden. Following his probation revocation, Jonas filed a pro se Rule 24.035 motion, and court-appointed counsel filed an amended motion alleging the circuit court lacked authority to revoke Jonas' probation because Jonas had acquired enough ECCs to be discharged before the February 2016 suspension of probation. The c irc uit court held an evident iar y hearing at which the State presented the testimony of a probation and parole officer who had reviewed Jonas' file. Based on the field violation reports and motions to revoke, the probation and parole officer stated Jonas' discharge date through operation of

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ECCs was May 24, 2015, but Jonas had not paid his restitut io n by that date. 4 The c irc uit court ultimate ly overruled Jonas' Rule 24.035 mo tio n, concluding section 217.703.8 did not allow the court to calculate the proper award o f ECCs in a motion for postconvic t io n re lie f. Jonas then sought and was denied habeas relief in the circuit court and the court of appeals. Jonas now seeks a writ of habeas corpus from this Court. Juris dictio n and Standard of Review This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec. 4.1. "Any person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such restraint." Rule 91.01(b); see also section 532.010, RSMo 2016 ("Every person committed, detained, confined or restrained of his liberty, within this state, for any criminal or supposed criminal matter, or under any pretense whatsoever . . . may prosecute a writ of habeas corpus as herein provided, to inquire into the cause of such confine me nt or restraint. "). A habeas corpus proceeding may be used to challenge a probation revocation. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002).

4 The officer's testimony indicated Jonas could have been discharged in the first week of January 2016 if the division of probation and parole had provided the c ir c uit court and prosecutor w ith 60 days' notice on November 5, 2015, the date the State withdrew its motion to suspend and revoke probation and after restitution was paid, and if the court had taken no action after receiving that notice. No explanation was offered why the division did not provide such notice.

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Analys is Jonas argues he is entitled to habeas relief on the ground the circuit court lacked authority to revoke his probation. He alleges proper application of the statute governing ECCs, section 217.703, would have required his discharge before the circuit court suspended his probation in February 2016. I. Jonas Can Challenge the Calculation of His Discharge Date in Habeas Corpus The State argues Jonas cannot challenge the calculation of his discharge date in habeas corpus because section 217.703.8 prohibits challenges to the award or recession of ECCs in any motion for postconviction relief. This is incorrect, as section 217.703.8 provides: "The award or rescission of any credits earned under this section shall not be subject to appeal or any motion for postconv iction relief." (Emp hasis added). The State's interpretatio n that "any motion for postconvict io n relief" include s a petition for a writ o f habeas corpus is witho ut authorit y. The court of appeals has held this langua ge bars review of ECCs in proceedings under Rules 24.035 and 29.15, but the court of appeals has held review o f claims regarding ECCs is permissible in a habeas corpus proceeding. State ex rel. Schmitt v. Hayes, 583 S.W.3d 73, 83-84 (Mo. App. 2019); State ex rel. Hawley v. Chapman, 567 S.W.3d 197, 205-06 (Mo. App. 2018). 5 This C ourt

5 Each of these cases concluded section 217.703.8's prohibit ion does not apply to habeas corpus because the legislature cannot restrict habeas corpus. Hayes, 583 S.W.3d at 83 ("Section 217.703.8 cannot block the entry of habeas corpus relief because the General Assembly has no power to circumscribe such relief."); Chapman, 567 S.W.3d at 205 ("Section 217.703.8 cannot prevent the entry of habeas relief because the General Assembly has no power to restrict habeas relief."). This issue need not be reached because the legislature did not mean to include habeas corpus proceedings when it included "any motion for postconviction relief" in section 217.703.8.

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agrees section 217.703.8 precludes review of ECCs in postconviction proceedings under Rules 24.035 and 29.15. The statute, however, does not prevent a challenge in habeas corpus to the award or resci ssion of credits earned. The State contends habeas corpus is part of Missouri's unitar y postconvic t io n process because Rules 24.035 and 29.15, which provide the "exclusive procedure" for those seeking the relief for the claims enumerated in those rules, are carve-outs of the authorit y of habeas corpus. The State posits, when the legislature prohibited challenges to the calculation of ECCs in "any motion for p o s tc o nvic t io n re lie f," the prohibition must necessarily have included habeas corpus. This argume nt fails to recognize the d is tin c t io n between Rules 24.035 and 29.15 and habeas corpus. A claim that a person's detention violates the constitution or laws of the state or federal government may require a writ of habeas corpus to be issued. State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001). 6 When that claim follows a conviction,

6 The dissent argues habeas corpus is not a substitute for a failure to object to c ir c uit court error. Slip op. at 3. This rough interpretation misconstrues the concept of habeas corpus. The failure to raise an issue or otherwise object at a revocation hearing is irrelevant when the circuit court lacks authority to revoke probation. U nlike in State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 519-20 (Mo. banc 2001), in w hic h the end result of the failure to object resulted in a punishment that ne ve r the le s s f e ll w ithin the appropriate range, the failure to advise the circuit court or otherwise object here resulted in the revocation of Jonas' probation when the circuit court no longer had authority to revoke probation, as will be developed infra. Because the sentence imposed was unlawful, habeas relief is appropriate. Although habeas corpus cla ims are procedurally barred if a petitioner could have raised those claims on direct appeal or in postconviction proceedings, State ex rel. Kelly v. Inman, No. SC 97744, 2020 WL 203148, at *2 (Mo. banc Jan. 14, 2020), Jonas' claim is not procedurally barred. Because he was challenging the calculation of ECCs, Jonas was unable to appeal or use any motion for postconviction relief. Section 217.703.8.

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relief through a motion under Rules 24.035 and 29.15 is possible. Id. Proceedings pursuant to Rules 24.035 and 29.15 "compel a defendant to raise claims that, before the enactment of these postconviction rules, might have been raised in a petition for habeas corpus re lie f. " Id. In this sense, "[p]ost-conviction remedies [i.e., relief pursuant to Rules 24.035 and 29.15] are designed to provide a 'single, unitary, post-convic t io n remedy, to be used in place of other remedies,' including the writ of habeas corpus." Id. (quoting Wiglesworth v. Wyrick, 531 S.W.2d 713, 719 (Mo. banc 1976)). A proceeding in which a person seeks a writ of habeas corpus is distinct from a proceeding in which a person seeks postconviction relief. The phrase "any motion for postconviction relief" in section 217.703.8 does not encompass habeas corpus. 7 Section 217.703.8 does not p ro hib it a c ha llenge to the calculation of ECCs in habeas corpus. II. Jonas Accrued Sufficient ECCs for Early Discharge, Pending Fulfillment of Restitution

Jonas and the State disagree regarding the calculation of ECCs. Jonas argues that, by the time his probation officer attempted to suspend his probation in January 2016, he was already entitled to discharge because he had accrued suffic ie nt EC C s, in addition to time served, to satisfy his probation term and had paid off his restitution. The State ma inta i ns this case turns on the interpretation of the 60-day notice provision, but, moreover, it argues the calculat io n of EC C s by the divis io n of probation and parole is

7 The State's argument also overlooks the plain terminology of the Court's rules. Nothing in Rule 91, the rule governing habeas corpus, suggests that the legislature would consider a petition for a writ of habeas corpus to be a "motion for postconviction relief." On the other hand, Rules 24.035 and 29.15 specifically detail the form of motion to be filed.

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controlling, citing section 217.703.9 and State ex rel. Jones v. Eighmy, 572 S.W.3d 503, 506 n.3 (Mo. banc 2019). 8 The State finds controlling the division of probation and parole's la s t c a lc ula t io n o f EC C s, whic h placed Jonas' earned and optimal discharge date 60 days after the date on which the case summary report and field violation report were prep a re d in mid-Janua r y 2016. 9

The division of probation and parole has the duty to award ECCs. Section 217.703.1 ("The division of probation and parole shall award earned compliance credits to any offender who" meets the statutory requirements. (emphasis added)); see also Eighmy, 572 S.W.3d at 507 ("The requirements for the award of ECCs are not discretionary."). This Court previously has deferred to the division of probation and parole's calculation of credits when variatio ns in c o mp uta t io ns existed between the division, the State, and the probationer. See Eighmy, 572 S.W.3d at 506 n.3; State ex rel. Coleman v. Wexler Horn, 568 S.W.3d 14, 19-20 (Mo. banc 2019). These cases, however, do not stand for the proposition that this Court would rubberstamp the award or c a lc ula t io n o f ECCs when the division of probation and parole improperly calculates a discharge date. Here, the division of probation and parole failed to reflect any accrued EC C s in its June 2015 case summar y report, even though Jonas was in "complia nce," as that term was defined in section 217.703.4. See Coleman, 568 S.W.3d at 19. The

8 Although the State's brief cites this subsection and the footnote in Eighmy, neither source goes so far as to deem the division of probation and parole's calculation controlling if incorrect. 9 This discharge date was four months after Jonas paid restitution. The State also points to another case summary report from June 2015, which states Jonas would remain under supervision without providing a discharge date.

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division of probation and parole's last calculation of the discharge date through ECCs was improper as it was not in accordance with section 217.703.7. The division of probation and parole's award of ECCs through the framework of 217.703 has been satisfactorily detailed in prior opinions. See Eighmy, 572 S.W.3d at 505-06; Coleman, 568 S.W.3d at 16-17; State ex rel. Hillman v. Beger, 566 S.W.3d 600, 603-04 (Mo. banc 2019); State ex rel. Amorine v. Parker, 490 S.W.3d 372, 374-75 (Mo. banc 2016). In particular, section 217.703.1 mandates that the division of probation and parole award ECCs to offenders who meet certain statutory requirements. 10

By April 2015, Jonas' actual time on probation and accrued ECCs would have entitled him to discharge under the terms of section 217.703.7, which states: [O]nce the combination of . . . time served on probation . . . and earned compliance credits satisfy the total term of probation, . . . the . . . sentencing court shall order final discharge of the offender, so long as the offender has completed at least two years of his or her probation . . . . 11

10 The dissent delves into a discussion premised on the concept that "legal entitlement to ECCs is not the same as the division actually awarding sufficient ECCs to warrant early discharge." Slip op. at 4-6. This Court has previously relied on a calculation of an optimal discharge date when no intervening occurrence would have tolled ECCs. See Amorine, 490 S.W.3d at 375 (relying on compliance following the calculation of an optimal discharge date to find probationer should have been discharged on that date). Here, the November 20, 2013, field violation report calculated an optimal discharge date of April 19, 2015, at the latest. There were no occurrences between that report and the optimal discharge date to toll ECCs. Like in Amorine, the Court is relying on a previous determination of the division of probation and parole to award ECCs w hile the probationer remains in compliance. 11 Jonas' term of probation was five years, or 1,825 days. He served 172 days of probation in 2012, 365 days in 2013, 365 days in 2014, and 90 days in 2015 by the end of March, for a total of 992 days. In terms of accrued ECCs, he received 30 days for each calendar month of compliance, beginning in October 2012. See section 217.703.3. Between October 2012 and March 2015, 30 months total, Jonas was not in compliance two months. See section 217.703.4. Cr e dits did not accrue during those calendar months in which a violation report was submitted or a motion to revoke or suspend was filed. Section 217.703.5. ECCs remained suspended pending a hearing. Id. But because no hearings were held, Jonas was deemed to be in compliance and earned ECCs on the first day of the next calendar month following the initia l f iling. Id. Again:

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Although the combination of time served on probation and accrued ECCs s a tis fie d the total term of proba tio n by April 2015, this C o urt c la rifie d in Hillman that a probationer must pay court-ordered restitution in full before discharge from probation. 566 S.W.3d at 608 ("A probationer may accrue ECCs under section 217.703.3, but she may not be discharged from probation by applying those ECCs to shorten her term of probation under section 217.703.7 unless and until she pays any court-ordered restitutio n in full p ursuant to section 559.105.2." (emphasis added)). 12 Jonas' last payment toward restitution was received by the prosecuting attorney's office on November 2, 2015. The division of probation and parole received notice of the payment on November 4, 2015. On November 5, 2015, the State withdrew its pending motion to suspend and revoke probation. At that point, because Jonas had accrued sufficient ECCs and had paid restitution, pursuant to section 217.703.7, the court should have discharged him. 13

[O]nce the combination of . . . time served on probation . . . and earned complianc e credits satisfy the total term of probation, . . . the . . . sentencing court shall order final discharge of the offender, so long as the offender has completed at least two years of his or her probation . . . . Section 217.703.7. By the end of March 2015, Jonas was in compliance for 28 months and accrued 840 days of ECCs. The 992 days of actual time on probation plus 840 days of ECCs – the last 30 days of which would have been awarded April 1, 2015 – exceeds the 1,825 days required for the term of probation. 12 In 2018, section 217.703.7 was amended to include the additional requirement that the offender complete restitution. Section 217.703.7, RSMo Supp. 2018. 13 The dissent argues Jonas should have sought a writ of mandamus at this point. Slip op. at 6 n.1. This issue is not before the Court. It is true this Court bars claims in habeas corpus that are cognizable on direct appeal or in postconviction proceedings, State ex rel. Simmons v. White, 866 S.W.2d 443, 445-46 (Mo. banc 1993), but the dissent offers no support for its claim that habeas corpus would be eliminated if the petitioner did not first seek the remedy of a writ of mandamus. In State ex rel. White v. Davis, the court of appeals held, "We have found no case holding that habeas is not proper if other extraordinary relief such as prohibition is available, and we find no sound policy reason for so restricting habeas relief." 174 S.W.3d 543, 548 (Mo. App. 2005).

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III. The Division of Probation and Parole's Failure to Timely Provide 60 Days' Notice Is Not Controlling

The State argues that, despite the alleged satisfaction of all components of section 217.703.7 and payment of all restitut io n owed, the act of notifying the c irc uit court and prosecuting attorney pursuant to section 217.703.10 is required before discharge. Section 217.703.10 provides: N o less than sixty days before the date of fina l discharge, the divis io n s ha ll notify the sentencing court, the board, and, for probation cases, the circuit or prosecuting attorney of the impend ing discharge. If the sentencing court, the board, or the circuit or prosecuting attorney upon receiving such notice does not take any action under subsection 5 of this section, the offender shall be discharged under subsection 7 of this section.

The State contends that, once other probation conditions are met, this subsection requires 60 days' notice to the c irc uit court and prosecuting attorney before a probationer is discharged early by ECCs. The d ivis io n of probation and parole's fa ilu re to time ly provide the 60 days' notice is not controlling. Although the statute anticip ate s the divis io n of probation and parole will provide notice, its failure to act will not work to extend the date of final discharge. Final discharge is derived by applying section 217.703.7. Although unfulfilled restitutio n may prevent a p p lic a t io n o f ECCs in section 217.703.7, once restitutio n is completed, the circuit court is divested o f its authority to revoke probation when suffic ie nt EC C s have

Although the discussion in White centered on the propriety of a writ of habeas corpus in lieu of a writ of prohibit ion, the analysis in White is useful here: seeking other forms of extraordinary r e lie f – prohibition or mandamus – is not required to leave available the option of seeking a writ of habeas corpus. See id. at 547-48.

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accrued. 14 The interplay of sections 217.703 and 559.036.8 compels this outcome. Section 559.036.8 provides, "The power of the court to revoke probation shall extend for the duration of the term of probation designated by the court and for any further period which is reasonably necessary for the adjudication of matters arising before its e xp ira t ion. " Section 217.703.3 dictates that ECCs reduce the term of probation. Here, accrued ECCs reduced Jonas' term of probation to April 2015. Once the restitution was paid, the combination of time served on probation and application of the ECCs trigge red discharge under section 217.703.7. After this, the c irc uit court did not have authorit y to revoke Jonas' probation. If the d ivis io n of probation and parole overlooks its duty to provide notice, final discharge cannot be delayed, as this notice is no t a c o nd itio n precedent to a probationer's discharge. Despite the dissent's argument, this C ourt is not expanding the duties and responsib ilities of circuit court judges in probation revocation proceedings beyond the re q uire me n ts o f the la w: sections 217.703 and 559.036.8 compel, as a matter of law, the outcome here. Any concern of increased burden raised by the dissent, slip op. at 2, 6-7, is ameliorated by the division of probation and parole adhering to section 217.703. 15

14 Of course, prior to the payment of f ull restitution, the c ir c uit court could revoke probation, even though sufficient ECCs e xis t. Here, the motion to revoke that was pending when restitution was paid was premised on a failure to pay restitution and not failure to comply with any other probation conditions. The circuit court granted the State's motion to withdraw it. Although f a ilure to complete REACT was cited as a reason for the revocation of probation, this failure was not recognized until after restitution was paid and the conditions of section 217.703.7 were met. 15 The dissent hypothesizes: "The practical effect of this ruling will require circuit courts to calculate and determine whether sufficient ECCs have accrued to warrant discharging a probationer before every probation revocation hearing, even if the probationer does not raise or argue the issue." Slip op. at 2. This is not true. Absent an error in reporting, as was the case here, the circuit court can rely on the reporting of the division of probation and parole. The

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Conclus ion By operation of section 217.703.7, Jonas' discharge from probation should have preceded the State's attempt to revoke probation and the circuit court's subsequent suspension and revocation of his probation. Habeas relief is granted; Jonas is to be discharged fro m the Missouri Department of Corrections' custody.

______________________________

Mary R. Russell, Judge

Draper, C.J., Breckenrid ge and Stith, JJ., concur; P o we ll, J., dissents in separate opinion filed; F is cher a nd W ils o n, JJ., concur in o p inio n o f P o we ll, J .

merely requires an examination of a calendar, reference to entries on the court's docket, and subtraction. If the issue is raised in habeas corpus, courts are fully capable of ensuring compliance with this calculation.

STATE ex rel. TRAVIS JONAS, ) ) P e titione r, ) ) v. ) No. SC97674 ) DEAN MINOR, ) ) Respondent. )

challenging job. Among their numero us duties and responsib ilit ies, Missouri's tria l jud g es juggle the concerns and needs of litiga nts, attorneys, victims, witnesses, jurors, and cour t sta ff, a ll while a d d re s s ing the important legal issues that come before the court. Today, this C ourt needlessly makes this challenging endeavor even more diffic ult by expanding tria l jud ge s ' duties and responsibilities in probation revocation proceedings beyond the re q uire me n ts o f the la w. Travis Jonas seeks a writ of habeas corpus, arguing the circuit court lacked authorit y to revoke his probation because he accrued enough earned compliance credits (ECCs) to entitle him to discharge before the circuit court revoked his probation. But Jonas did not ma k e this a rgume n t to the circuit court a t his probation revocation hearing. Because Jonas

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could have raised his ins ta nt c la im at his probation revocation hearing, his p e titio n fo r a writ o f habeas corpus is procedurally defaulted. Further mor e, Jonas has not demonstra ted the division of probation and parole, the entity statutorily responsib le for administe ring the ECC scheme, actually awarded sufficient ECCs to entitle him to discharge before the circuit court revoked his probation. N onetheles s, the principa l opinio n grants Jonas wr it relief. The practical effect of this rulin g will require circuit courts to calculate and determine whether suffic ie nt ECCs have accrued to warrant discharging a probationer before every probation revocation hearing, even if the probationer does not raise or argue the issue. Because the law does not require circuit courts to carry this additional burden, this C ourt should quash this writ. I. "Ha b e a s c o rp us is the la s t jud ic ia l inq u ir y into the va lid it y o f a c rimin a l c o nvic t i o n and serves as a bulwark against convictions that violate fundamental fairness." State ex rel. Amrine v. Roper, 102 S.W.3d 541, 545 (Mo. banc 2003) (inte r na l q uo ta tio ns o mitt e d ). Because habeas corpus is a secondary collateral attack to a presumptively valid crimina l judgment, habeas relief is necessarily narrow to prevent "unend ing challe nges to fina l judgme nt s," id. at 546, reflecting the deep respect typically afforded to final crimina l judgme nt s. See Amrine, 102 S.W.3d at 549 (Wolff, J., concurring). For these reasons, courts should deny habeas relief "if the petitioner raises procedurally barred claims that could have been raised at an earlier stage." Id. at 546; see also State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 519 (Mo. banc 2001) (holding "[h]abeas corpus is not a substitute" fo r "a failure to object to trial court error").

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Jonas never advised the circuit court or o the rwis e objected that his probation had expired by operation o f EC Cs before the court revoked his probation. After he paid restitution and before or at his probation revocation hearing, Jonas could have argued, as he does in this habeas action, that he had accrued enough EC Cs to warrant early discharge and the circuit court lacked authority to revoke his probation. Ra is in g this is s ue p rio r to the probation revocation hearing could have avoided the necessit y o f this habeas action entire ly by giving the division an opportunity to properly calculate and award Jonas the ECCs to which he now claims entitle me nt under the statute. It wo uld ha ve a ls o a llo w e d the circuit court to consider whether Jonas's term of probation had expired by operation of ECCs and, accordingly, whether it lacked the authority to revoke his probation. But Jonas did not make this argume n t, nor did he make any mention of ECCs before the circuit court revoked his probation and executed his sentence. Indeed, Jonas' counsel conceded during argume nt on the State's motion to revoke that, on the day of the hearing— May 11, 2017—Jonas had "completed almost all of his probation," and his counsel we nt on to state he believed Jonas's probation "was set to expire in July of [2017]." (Emphas is added). Jonas did not object or otherwise raise the issue of ECCs with the circuit court in any respect during his revocatio n hearing. Because the issue of early discharge by operation of ECCs "c o uld have been raised at an earlier stage" and the extraordinar y wr it of habeas corpus is not a substitute for "a failure to object to trial court error," Jonas' ins t a nt habeas action is procedurally barred. Amrine, 102 S.W.3d at 546; Sprick, 59 S.W.3d at

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II. Furthermore, even if Jonas was legally entitled to suffic ie nt ECCs to warrant early discharge, the circuit court did not lack authority to revoke his probation because ECCs are not automatica lly awarded to reduce a probationer's term of probation. Although a probationer is legally entitled to ECCs for every month he or she is "[i]n compliance with the conditions of supervision imposed by the sentencing court or board," § 217.703.1(4), the d ivis io n of probation and parole s till mus t "award earned compliance credits to any o ffe nd e r who" satisfies the statutory criteria. § 217.703.1. While EC Cs may "accrue" automatically in the sense that some probationers become legally entitled to ECCs for every month that they are in complia nc e with their terms of supervis io n, EC Cs are no t automatically awarded as a matter of law to reduce the probationer's term of probation. Rather, the division of probation and parole must affirma tive ly award ECCs to a probationer before ECCs ma y be applied to shorten the probationer's term of supervis io n. In other words, legal entit le me nt to EC Cs is not the same as the d ivis io n actually awarding suffic ie nt EC Cs to warrant early discharge. The p rinc ip a l o p inio n c o rre c tly re c o gnize s the d ivis io n "has the duty to award ECCs," slip op. at 9, and that awarding ECCs to probationers who satisfy the statutory criteria is mandatory. Slip op. at 10; see also § 217.703.1 (providing the division "shall" award ECCs to eligible probationers); Bauer v. Transitional Sch. Dist. of City of St. Louis, 111 S.W.3d 405, 408 (Mo. banc 2003) (observing the term "shall" typically indicates mandatory action). But immediately after recognizing it is the division's duty to awar d ECCs that accrue by operation of a probationer staying in compliance with his or her terms

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of supervis io n, the p rinc ip a l o p inio n effective ly shifts to the circuit court this responsibil it y to calculate and award ECCs. By ho ld in g J o na s wa s e ntit le d to imme d ia te discharge from probation by operation of ECCs the instant he completed restitutio n, without consider ing whether the division actually awarded Jonas his accrued ECCs, the principal opinio n conflate s legal entitle me nt to ECCs with the actual award o f EC Cs, effective ly holding ECCs apply automatically. W ha t is mo re , the p rinc ip a l o p inio n essentia lly places the duty and responsib il it y on the circuit court to recognize, calculate, and award ECCs that sho uld have been awarded by the division before revoking a probationer's term of probation. This result clearly violates both the plain language of section 217.703.1 and the broader intent of the ECC scheme overall. This C ourt presumes "the legislature intended that every word, clause, sentence, and provis io n o f a statute have effect," and, relatedly, that "the le gis la t ure d id no t ins e rt id le verbiage or superfluo us langua ge in a statute." Hyde Park Housing P'ship v. Dir. of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993). Chapter 217 does not d e fine the te rm "award" as it is used in section 217.703. When a term is not defined by statute, this C our t will give the te rm its "p la in a nd o rd ina ry me a nin g a s d e rive d fro m the d ic tio na r y. " Mo. Pub. Serv. Comm'n v. Union Elec. Co., 552 S.W.3d 532, 541 (Mo. banc 2018). The dictionary defines the term "award," in pertinent part to mean "to confer or bestow upon." W EBST ER'S THIRD NEW INT'L DICT. 151 (3d ed. 2002). In the statutory context, therefore the term "award," is an active verb indicating the need for the divis io n to take some affirmative action before ECCs become effective to shorten a probationer 's term. If EC Cs applied automatically and the circuit court was responsible for recognizi ng

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and calculating ECCs then the division would not need to "award" ECCs. But sectio n 217.703 instead specifically requires the division "to confer" or "to bestow" ECCs upon eligible probationers who have satisfied the statutory criteria for earning ECCs. Section 217.703.1(2) charges the d ivis io n, therefore, not the circuit court, with calculating and awarding ECCs to eligible probationers. Only after the divis io n actually awarded Jona s his ECCs wo uld he be entitled to early discharge. Until then, the circuit court retaine d authority to revoke his probation because his term had not yet expired. 1

Conclus ion The calculation and awardin g o f EC Cs is a c o mp lex matter that section 217.703 charges the divis io n, not the circuit courts, with executing. The practical effect of the principa l opinio n shifts this burden to the circuit courts by requir ing them to calculate ECCs

1 Of course, because the duty to award ECCs imposed by section 217.703 is mandator y, Jonas could and should have sought mandamus to compel the division to award ECCs he legally accrued the ins ta nt he c o mp le te d his re s titu t io n if he believed the d ivis io n fa ile d to discharge this mandator y duty. "The purpose of the extraordinary writ of mandamus is to compel the performance of a ministerial duty." State ex rel. Henderson v. Asel, 566 S.W.3d 596, 598 (Mo. banc 2019). "To be granted re lie f b y ma nd a mus , a litiga n t must allege and prove he has a clear, unequivocal, spe c ific right to a thing c la ime d." State ex rel. Robinson v. Lindley-Myers, 551 S.W.3d 468, 474 (Mo. banc 2018) (inte r na l q uo ta tio ns o mitte d ). Section 217.703.1 provides probationers who meet the statutory criteria "shall" be awarded ECCs for every month the probationer remains in compliance with the terms of the ir probation. This sets forth a "clear, unequivo ca l, spe c ific right" to EC Cs in tha t circumstance. Robinson, 551 S.W.3d at 474. As set forth in Part I, this Court should refrain from issuing a writ of habeas corpus "when an alternative remedy is available from a lower court." State ex rel. Kelly v. Inman, SC97744, 2020 WL 203148, at *4 (Mo. banc Jan. 14, 2020) (Powell, J., dissenting); Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000) ("[C]ourts are not required to issue this extraordinary writ where other remedies are adequate and available."). Because Jonas had a va ila b le to him the writ o f ma nd a mus to c o mp e l the d ivis io n to p e rfo rm its ma nd a t o r y duty to award ECCs yet did not seek mandamus, this C ourt should not grant Jonas habea s re lie f.

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before revoking a term of probation. Requirin g circuit courts to carry this burden is especially tro ub le s o me in c a s e s lik e this in which the probationer failed to even raise the issue o f EC Cs or otherwise object to the circuit court's authority to revoke his probation. Moreover, ECCs do not apply automatically, and a circuit court does not lose the authorit y to revoke a term of probation the instant a probationer becomes legally entitled to receive suffic ie nt EC Cs to warrant early discharge. Rather, the divis io n must firs t award ECCs and apply those ECCs to shorten a probationer's term before the probationer may become eligible for early discharge. Because Jonas did not raise the issue of ECCs before the circuit court revoked his probation and did not establis h the divis io n actually awarded suffic ie nt ECCs to entitle him to early discharge, his c la im is both procedurally barred and substant ive l y merit le ss. For these reasons, I respectfully dissent.

___________________ W. Brent Powell, Judge