In the 

Missouri Court of Appeals 

Western District

STATE OF MISSOURI EX REL 

CHRIS KOSTER,

Relator,

v.

THE HONORABLE CYNTHIA 

SUTER, ASSOCIATE CIRCUIT 

JUDGE OF RANDOLPH COUNTY 

AND PEGGY BOOTS, CIRCUIT 

CLERK RANDOLPH COUNTY 

CIRCUIT COURT,

Respondents.

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WD77163 Consolidated with 

WD77188

OPINION FILED: July 29, 2014

ORIGINAL PROCEEDING IN CERTIORARI

Before Writ Division: Gary D. Witt, Presiding Judge, Thomas H. Newton, Judge and 

Cynthia L. Martin, Judge

This cause arises from a petition for writ of certiorari filed by Relator State of 

Missouri ("State") to review Respondent Honorable Cynthia Suter's ("Judge Suter") entry 

of a writ of habeas corpus to Joseph Thomas Bowen ("Bowen"), and a petition for writ of 

prohibition to review Judge Suter's accompanying dismissal of the State's petition to 

commit Bowen as a sexually violent predator ("SVP"). We issued a writ of certiorari and 
2

a preliminary writ of prohibition and consolidated the writs for consideration. For the 

reasons set forth below, we quash the writ of habeas corpus and make our preliminary 

writ of prohibition absolute.

FACTUAL AND PROCEDURAL HISTORY

This action arises in the midst of proceedings to civilly commit Joseph Thomas 

Bowen ("Bowen") as a sexually violent predator pursuant to Section 632.486.

1

 On 

October 1, 2008, Bowen pleaded guilty to supplying liquor to a minor and to first-degree 

child molestation in the Circuit Court of Randolph County, case number 08RACR00592-01. At that time he admitted to supplying a twelve-year-old girl alcohol and 

then engaging in oral and vaginal intercourse with her. For the child molestation 

conviction, Bowen was sentenced on November 19, 2008 to five years' imprisonment 

under Section 559.115 (RSMo 2006), which included a 120-day assessment in the Sex 

Offender Assessment Unit ("SOAU"). 

Bowen participated in the SOAU program. The record includes a signed 

statement by Bowen agreeing to the terms of the program. The record also contains a 

"Court Report Investigation," dated March 5, 2009 that was generated by the Department 

of Corrections ("DOC") and filed March 12, 2009. That Court Report Investigation

includes comments from a counselor with the Missouri Sexual Offender Services at the 

Farmington Correctional Center indicating that Bowen had "general life instability, a 

history of substance abuse, being intoxicated at the time of the offense[,] not seeing 

himself as a risk to sexually offend . . . no protective factors." That counselor concluded:

 

1 All statutory references are to RSMo 2000 as currently supplemented unless otherwise indicated.
3

While he appears to be a somewhat high risk to reoffend, it also appears 

that much of his risk is dependent on his ability to stay sober. If he is not 

using drugs or alcohol, his risk may be lower. It appears that, in spite of 

this risk, that Mr. Bowen is a good candidate for community-based 

supervision and treatment.

After the counselor's statements, the same March 5, 2009 report then includes 

additional evaluative information as well as recommendations from a probation and 

parole officer with the SOAU. That portion of the report is titled "SOAU 

EVALUATION." The SOAU officer considered Bowen's record and recommended that 

probation be denied, with the following comments:

The SOAU clinician notes he scored within the medium high risk 

category on the Static-99.2 Other test, file and interview data suggest this 

may be an underestimate of his risk. . . . This officer is concerned with 

public safety regarding Bowen's ability to not reoffend provided he remain 

substance free. 

On March 18, 2009, following receipt of the DOC's Court Report Investigation, 

the court denied Bowen probation, concluding that it would be "an abuse of discretion to 

release" and ordered the execution of the five-year sentence pursuant to Section 559.115 

(RSMo 2006), set out below. Bowen had never challenged this determination.

The record also contains a report written after Bowen was denied probation and 

almost seven months after he was originally sentenced. That report was dated June 4, 

2009 and also was generated by the DOC. In the June 4, 2009 report, the DOC 

recommended that Bowen be granted probation effective September 22, 2010, stating that 

Bowen: 

 

2 The record indicates that an SOAU clinician noted that Bowen scored within the medium-high risk 

category on the Static-99, which "considers the presence of risk factors which have been empirically shown to 

correlate with increased risk of sexual reoffending recidivism."
4

was admitted to the Sex Offender Assessment Unit on 12-22-08 and 

successfully completed Phase I of the MOSOP3on 1-27-09. He did not 

incur any violations while in the program. According to the Court Report 

submitted on 03/05/09, he scored within the Medium-High Risk Category 

(Risk score=4) on the risks of sexual offending recidivism.

The record does not indicate what, if any, action occurred as a result of the June 4, 

2009 report because it was generated after the plea court denied probation on March 18, 

2009, the only probation determination relevant to the proceedings at bar.

On June 11, 2013, the State filed a petition to civilly commit Bowen as a SVP 

pursuant to Section 632.486, in case number 13RA-PR0005. In that petition, the State 

alleged that Bowen (1) had a prior conviction of a sexually violent offense, as defined by 

law, (2) is currently suffering from a mental abnormality that makes him more likely than 

not to engage in predatory acts of sexual violence if released, and (3) is anticipated to be 

released from confinement on June 13, 2013, and that sufficient evidence exists to 

determine whether he suffers from a mental abnormality that makes him more likely to 

engage in predatory acts of sexual violence. Attached to the State's petition was an End 

of Confinement Report. In that report, Bowen was described as admitting to "11 plus" 

additional victims and at one point informed a mental health professional that he would 

be a danger to the community and young girls if released.

Judge Suter made an initial determination that there was probable cause to believe 

that Bowen was an SVP pursuant to Section 632.489.1. Bowen was then provided notice 

of that determination and given the opportunity to challenge that determination at a later 

 

3 The State contends that the MOSOP program is a prison treatment program (and thus different from 

SOAU). The record is not developed on this matter, but it is not relevant to the disposition of the case. 
5

hearing. On June 17, 2013, Judge Suter determined that there was probable cause to 

believe that Bowen was an SVP pursuant to Section 632.489.2.

Roughly six months later, on December 13, 2013, Bowen filed a motion to dismiss 

the petition to commit him civilly on the ground that the court lacked jurisdiction and 

statutory authority. The crux of Bowen's argument was that the State lacked authority 

under the SVP Act to file a petition because the DOC did not have jurisdiction over 

Bowen pursuant to Section 632.483. Bowen claimed in the motion that he was not 

lawfully in the custody of the DOC because the trial court in the underlying conviction 

did not conduct a hearing before exercising its discretion to deny him release on 

probation and executing his sentence. Specifically, Bowen alleged "successful 

completion" of a SOAU program and error in the plea court because he was not granted a 

hearing pursuant to Section 559.115.3. Bowen argued that such a hearing should have 

been conducted under Section 559.115.3 (RSMo 2006), which, as noted below, provides 

that "[i]f the court determines that probation is not appropriate, the court may order the 

execution of the offender's sentence only after conducting a hearing on the matter . . . ." 

On December 18, 2013, the probate court heard arguments on the motion to 

dismiss. Judge Suter noted that "if a court that has jurisdiction over Mr. Bowen's 

conviction in Case No. 08RA-CR00592 says this -- his incarceration was invalid, I would 

find -- I would overturn my ruling in the probable cause statement, I would immediately 

release him."4 

 

4

Judge Suter thus appropriately recognized that section 632.486 does not afford the probate court the 

power or authority to entertain a collateral attack on the lawfulness of the defendant's underlying confinement.
6

The next day, December 19, 2013, Bowen filed a petition for writ of habeas 

corpus in the Circuit Court of Randolph County, which Judge Suter also presided over. 

Bowen collaterally contested confinement based on the same ground he raised in the 

motion to dismiss in the probate court, which was that he "was never under the 

jurisdiction of the Department of Corrections following his conviction in the criminal 

case because the criminal trial court acted in excess of statutory authority, and without 

jurisdiction, in denying Mr. Bowen's probation and in executing his sentence in the 

criminal case." 

On January 14, 2013, the habeas court granted the writ of habeas corpus and 

ordered Bowen released from custody. In granting relief, the habeas court determined 

that Bowen's detention was "illegal" because the State did not have "statutory authority to 

file its petition seeking civil commitment." The habeas court thus concluded there was 

"no legal cause shown for the restraint" of Bowen and accordingly directed his release.

The State filed its petition for writ of certiorari in this Court, WD 77163. We 

granted the preliminary writ of certiorari and ordered a stay of Bowen's release pending a 

review of the issues raised in the habeas action. Shortly after we granted the preliminary 

writ on January 14, 2014, the probate court, apparently not in receipt of our preliminary 

writ, dismissed the SVP case based on the motion to dismiss and ordered Bowen 

released. The State filed a writ of mandamus or prohibition related to the motion to 

dismiss in this Court, WD 77188. We issued a second stay, staying the release of Bowen 

pursuant to the order of the probate court. Notwithstanding the issuance of our stay 

orders, Bowen was released.
7

Soon thereafter, in an attempt to comply with our stay orders, the probate court 

issued a warrant to return Bowen to the custody of the Randolph County sheriff. On 

January 16, 2014, this warrant was executed in Greene County, and Bowen was taken 

into custody by the Greene County Sheriff. On January 16, 2014, Bowen filed a petition 

for a writ of habeas corpus in the Circuit Court of Greene County challenging the 

lawfulness of his confinement. The Circuit Court of Greene County granted the writ and 

ordered Bowen released on January 17, 2014. That same day, the State filed a writ of 

certiorari in the Southern District of this Court, which was granted along with a stay of

the release of Bowen pending resolution of that matter. On March 17, 2014, the Southern 

District of this Court issued its opinion quashing the writ of habeas corpus issued by 

Greene County and finding, among other things, that the order dismissing the State's SVP

petition in the Circuit Court of Randolph County was not a final judgment. State ex. rel. 

Koster v. Fitzsimmons, 425 S.W.3d 166 (Mo. App. S.D. 2014). No review of the 

decision of our colleagues on the Southern District was sought by either party and any 

issues decided therein are not properly before us. Bowen ultimately was returned to the 

Randolph County jail, where he remains. 

ANALYSIS

In this consolidated action, the State raises two points. In its first point, the State 

argues that it is entitled to a permanent order prohibiting Judge Suter from dismissing the 

SVP case for lack of jurisdiction and statutory authority because "a dismissal is an abuse 

of the probate court's discretion, exceeds the probate court's authority, and would cause 

irreparable harm" in that, inter alia, the motion to dismiss the SVP action was based on 
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an untimely collateral attack on the underlying conviction. In its second point, the State 

argues that it is entitled to have the writ of habeas corpus quashed in part because the

"probate court was not required or authorized to collaterally review the conviction, 

sentence, and execution of sentence of the underlying criminal offense before obtaining 

jurisdiction, finding probable cause, and issuing the detention order." 

Discussion

In both his motion to dismiss and his petition for writ of habeas corpus, Bowen 

challenged his confinement (and therefore his eligibility to be civilly committed) under 

the theory that the plea court erred in failing to hold a hearing before denying probation

in his underlying criminal case. However, regardless of the means of the challenge, 

because the grounds under either form of relief are without substance as a matter of law, 

the State is entitled to the relief it requests.5

Understanding the error begins with Section 559.115.3 (RSMo 2006):

Upon successful completion of a treatment program, the board of probation 

and parole shall advise the sentencing court of an offender's probationary 

release date thirty days prior to release. The court shall release the offender 

unless such release constitutes an abuse of discretion. If the court 

determined that there is an abuse of discretion, the court may order the 

 

5 We question, without resolving, whether Bowen's actions could succeed on procedural grounds. First, 

Bowen sought a writ of habeas corpus questioning his confinement on the ground that the plea court did not afford 

him a proper hearing on the issue of the grant or denial of probation. An attack on a probationary ruling does not 

constitute a challenge to a sentence and is therefore beyond the scope of a post-conviction relief proceeding. Prewitt 

v. State, 191 S.W.3d 709, 711 (Mo. App. W.D. 2006); Green v. State, 494 S.W.2d 356, 357 (Mo. banc 1973); Hogan 

v. State, 755 S.W.2d 27, 28 (Mo. App. S.D. 1988). Though habeas relief is available to challenge the imposition of 

an unlawful sentence, no Missouri court has previously determined that the denial of a hearing before denying 

probation is the functional equivalent of an unlawful sentence. In fact, on prior occasions where the issue raised by 

Bowen has been addressed by our Supreme Court, it has been in response to a writ of mandamus. See State ex rel. 

Valentine v. Orr, 366 S.W.3d 534, 538 (Mo. banc 2012); State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. 

banc 2006). Bowen also filed a motion to dismiss in the probate court asking that court to dismiss the SVP petition 

because of the allegedly unlawful nature of his underlying confinement. Section 632.484.1 does not authorize such 

examination, and Bowen cites no authority authorizing the probate court to collaterally attack the final judgment 

entered by the circuit court in Bowen's underlying criminal matter.
9

execution of the offender's sentence only after conducting a hearing on the 

matter within ninety to one hundred twenty days of the offender's sentence.

* * *

If the department determines that an offender is not successful in a 

program, then after one hundred days of incarceration the circuit court shall 

receive from the department of corrections a report on the offender's 

participation in the program and department recommendations for terms 

and conditions of an offender's probation. The court shall then release the 

offender on probation or order the offender to remain in the department to 

serve the sentence imposed.

(Emphases added.)

In arguing to the habeas court that his confinement was unlawful, Bowen relied on 

the language of Section 559.115.3 and State ex rel. Valentine v. Orr, 366 S.W.3d 534 

(Mo. banc 2012). The relevant portion Section 559.115.3 states that where the court 

determines there is an abuse of discretion in the department's recommendation of 

probation, "the court may order the execution of the offender's sentence only after 

conducting a hearing on the matter." (Emphasis added.) In Valentine, after completion 

of the SOAU program, the SOAU issued a report indicating that the petitioner seemed 

amenable to treatment within his community and recommended that the circuit court 

grant him probation. Id. at 537. The circuit court, however, was tardy in holding a 

hearing to determine whether granting release was an abuse of discretion. Id. at 541. 

The Valentine court held that the circuit court's hearing out of time meant that it lacked 

any authority to enter its judgment denying probation. Id. "Once judgment and 

sentencing occur in a criminal proceeding, the trial court has exhausted its jurisdiction." 

Id. "It can take no further action in that case except when otherwise expressly provided 

by statute or rule." Id. (quoting State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 
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(Mo. banc 2006) (issuing writ of mandamus directing respondent to place petitioner on 

probation where petitioner had successfully completed the program and respondent had 

denied probation without hearing). The Valentine court thus granted the petitioner's writ 

of mandamus, holding that the trial court lacked jurisdiction to deny release after it failed 

to conduct a hearing within 120 days of sentence to determine whether recommendation 

for release was an abuse of discretion.

On the other hand, where the DOC determines that an offender is "not successful"

in a program, the court is not required to hold a hearing before denying probation. 

Section 559.115.3 states instead that where the DOC determines that an offender is "not 

successful," then it shall issue a report, at which point the court shall release the offender 

on probation or order the offender to serve the sentence imposed. This provision was 

triggered in Woods v. State, 371 S.W.3d 928, 930 (Mo. App. S.D. 2012). There, the 

Court Investigation Report did not contain any recommendation of probation, nor did the 

report state that the movant successfully completed the SOAU program. Also, it was 

"clear from the report that the Probation Officer and Unit Supervisor recommended that 

probation be denied." Id. at 929. Under these facts, the Woods court concluded that the 

"plea court was not thereby compelled to conduct a hearing within 90 to 120 days of 

Movant's sentence before ordering the execution of the sentence." Id. at 930 (citation 

omitted). 

In this case, similarly, we are not directed to any statement in the record indicating 

that the DOC determined that Bowen had successfully completed the institutional 

treatment program. It is true that one counselor noted that "[i]t appears that, in spite of 
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this risk, that Mr. Bowen is a good candidate for community-based supervision and 

treatment"; however, in the "SOAU EVALUATION" portion of the DOC's Court Report 

Investigation, the Probation and Parole Officer with the SOAU unit unequivocally 

recommended that probation be denied. (Emphasis added.) Given the SOAU's position, 

there is no indication, therefore, that the SOAU determined that Bowen "successfully 

completed" the program. Bowen acknowledged at oral argument that there was no 

document in the court file which directly stated that he had successfully completed the 

program by DOC and that his argument was based upon the conduct of the parties: he 

argues that the parties behaved as though they believed that he had successfully 

completed the program. 

Even if the March 5, 2009 report could be construed as a successful completion of 

the SOAU program, however, the statute only mandates a hearing to determine whether 

the DOC's recommendation of probation constitutes an abuse of discretion. Specifically, 

the statute states that upon successful completion, the board shall advise the sentencing 

court of an offender's probationary release and that the court shall release the offender 

"unless such a release constitutes an abuse of discretion." § 559.115.3 (RSMo 2006). 

However, "if the court determined that there is an abuse of discretion, the court may order 

the execution of the offender's sentence only after conducting a hearing on the matter 

within ninety to one hundred twenty days of the offender's sentence." Despite one 

counselor's comments that "[i]t appear[ed] that" release was appropriate, the probation 

and parole officer with the SOAU definitively did not recommend probation. Under the 

plain language of the statute, no hearing was necessary.
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Therefore, as a matter of law, the record indicates that Bowen failed to establish 

that his incarceration was illegal or that there was any jurisdictional defect or lack of 

statutory authority to detain him so as to warrant relief under either a writ of habeas 

corpus or a motion to dismiss. There was insufficient evidence to support habeas relief.

State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 518 (Mo. banc 2001) ("The sufficiency of 

the evidence to support the habeas writ is a question of law. . . . "). The accompanying 

grant of the motion to dismiss the SVP petition was therefore also erroneous. State ex 

rel. State v. Campbell, 386 S.W.3d 229, 234 (Mo. App. W.D. 2012) (holding that 

prohibition is available when a circuit court acts in clear excess of jurisdiction or abuse of 

discretion such that the lower court lacks the power to act as contemplated); State ex rel. 

State v. Parkinson, 280 S.W.3d 70, 77 (Mo. banc 2009) (holding that prohibition is 

appropriate where a trial court has erroneously granted an inmate's motion to dismiss in 

an SVP case). 

CONCLUSION

The writ of habeas corpus is quashed and our preliminary writ of prohibition 

prohibiting the probate court from dismissing the SVP action in reliance on the writ of 

habeas corpus is made absolute. 

__________________________________

Gary D. Witt, Judge

All concur