## In the



# Missouri Court of Appeals Western District

KEVIN E. RILEY ,

Respondent , v. MISSOURI DEPARTMENT OF CORRECTIONS ,

Appellant
.            WD 81743 O PINION FILED : April 28, 2020

Appeal from the Circuit Court of Cole County, Missouri The Honorable Daniel Richard Green , Judge

Before Division Four : Karen King Mitchell, Chief Judge Presiding, Mark D. Pfeiffer and Thomas N. Chapman, Judges The Missouri Department of Corrections (DOC) appeals the judgment of the Circuit Court of Cole County, Missouri, which granted Kevin Riley ’ s (Riley) motion for judgment on the pleadings. In his motion, Riley sought a declaration that he be considered elig ible for parole. Riley had been sentenced in 2007 as a prior and persistent drug offender under § 195.291.2, which required his sentence to be served without the possibility of probation and parole. That provision was subsequently repealed. Riley argued that the general assembly ’ s repeal of §
195.291 must be applied retroactively so as to render him immediately parole eligible . The circuit court agreed and the DOC appeals. For the reasons explained herein, we reverse and enter judgment in favor of the DOC.2 Factual and Procedural Background In February 2004, Riley was charged with the class B felony of manufacturing a controlled substance as defined by § 195 .211, RSMo Cum. Supp. 200 4

. 1 Following a jury trial,
h e was found guilty in April 2007. 2 Because Riley was found to be a prior and persistent offender , he was required to “ be sentenced to the authorized term of imprisonment for a class A felony. ” § 195.291 .2 , RSMo 200 0

. 3 Riley was sentenced to a term of twenty

- five years ’ imprisonment. At t he time of h is sentencing, § 195.291.2 further provided that a defendant convicted of an offense set out under § 195.211 and found to be a persistent drug offender was required to serve his sentence without the possibility of probation or parole

. Effect ive January 1, 2017, Senate Bill 491, revised Mis souri ’ s Criminal Code and

“ became law by virtue of the Missouri Constitution, Article III, § 31. ” 4 Under the revised criminal code , § 195.211 (defining the offense of manufacturing a controlled substance an d prescribing its penalties) was transferred to § 579.055, RSMo. Section 195.291 (requiring Riley to serve his sentence without eligibility for probation or parole) was repealed by operation of Senate Bill 491. On December 20, 2017, Riley filed a Petition for Declaratory Judgment in the Circuit Court of Cole County, requesting that the circuit court “ declare [him] probation and parole eligible [

. ] ” After the DOC filed its Answer , Riley moved for judgment on the pleadings. Riley argued that Senate Bill 491’ s repeal of § 195.291 should be applied retroactively, rendering him

1 State v. Riley , 213 S.W.3d 80, 85 (Mo. App. W.D. 2006).

2 “[ A ] defendant is sentenced according to the law in effect at the time the offense was committed [

. ]” Wagner v. Bowyer , 559 S.W.3d 26, 30 (Mo. App. E.D. 2018) (citation omitted)

.
3 All references to § 195.291 are to RSMo 2000. All references § 195.211 are to RSMo Cum. Supp. 2004.

4 See Fields v. Missouri Bd. of Prob. & Parole , 559 S.W.3d 12, 14 (Mo. App. W.D. 2018).3

eligible for parole. The DOC filed a cross

- motion for judgment on the pleadings, arguing that retroactive ap plicatio n of § 195.291’ s repeal was barred under § 1.160, RSMo 2016. On April 23, 2017, the circuit court granted Riley ’ s motion for judgment on the pleadings, ruling that “[ p]ursuant to State ex rel Nixon v. Russell , 129 S.W.3d 867, 879

- 871 [ sic ] (Mo. banc 2004) and Irvin v. Kempker , 152 S.W.3d 358, 361

- 62 (Mo. App[.] 2004)

... Section 195.291 is not applicable to determining parole eligibility and [ the DOC] is hereby ordered to apply existing laws concerning [Riley ’ s] parole eligibility. ” The DOC appeal ed the circuit

court ’ s judgment. This Court stayed the DOC ’ s appeal pending decisions from the Supreme Court of Missouri in two cases discussing the impact of the general assembly ’ s repeal of parole ineligibility provisions in cases like the one at issue here

. See Mitchell v. Phillips , No. SC 97631, 2020 WL 547402 (Mo. banc Feb. 4, 2020); Woods v. Missouri Dep't of Corr. , No. SC 97633, 2020 WL 548567 (Mo. banc Feb. 4, 2020). 5 Mitchell and Woods require this Court to reverse the circuit court ’ s judgment a nd enter judgment in favor of the DOC.
Discussion

“ The trial court's judgment on the pleadings addresses only issues of law. Accordingly, our review is de novo and without deference to the trial court's judgment. ” State ex rel Koster v. Charter Commc'ns , Inc. , 461 S.W.3d 851, 854 (Mo. App. W.D. 2015)

. “ A motion for judgment on the pleadings is properly granted if, from the face of the pleadings, the moving party is entitled to judgment as a matter of law. ” Hill v. Missouri Dep't of Corr. , 570 S. W.3d 95 , 99 (Mo. App. W.D. 2018)

.

5 In Woods , the Supreme Court entered ju dgment in favor of the DOC “[f]or the reasons fully set forth in Mitchell ,” without additional analysis. Thus, while both Woods and Mitchell require this Court to reverse the circuit court’s judgment and enter judgment in favor of the DOC, our discussion focuses on Mitchell where the Supreme Court’s reasoning is fully explained.4

Here, Riley was convicted of the class B felony of manufacturing a controlled substance under § 195.211. Riley was found to be a prior and persistent drug offender, and the circuit court was therefore required to sentence him for a class A felony term of imprisonment without the possibility of probation or parole

. § 195.2 91.2. Effective January 1, 2017, § 195.211 was transferred to § 579.055 ( which now prescribes the felony classifications for the offense of manufacturing a c ontrolled substance ); and § 195.291 was repealed. Riley sought a declaration from the circuit court that he must be considered parole eligible because the repeal of the parole ineligibility provision in § 195.291.2 applies retroactively to his sentence. The DOC argues that retroactive application of § 195.291’ s repeal is prohibited by § 1.160, RSMo 2016, which provides as follows: 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 prov ision had not been repealed or amended, except that all such proceedings shall be conducted according to existing procedural laws. The Supreme Court explained in Mitchell that “[ w]hile section 1.160 prohibits the retroactive application of a statute ’ s rep eal or amendment under certain circumstances, its scope is limited. It is a general savings statute and serves a narrow purpose. ” 2020 WL 547402, at *3. Application of § 1.160 is confined to those cases where “ a statutory provision is repealed or amended before adjudication is complete and direct review exhausted [.]” Id

. at *4 (emphasis added) . When that is the case, the statute “ saves the liability, punishment, and prosecution arising under the repealed provision and continues the statute in force unti l proceedings commenced thereunder, regardless of their nature, might be completed. ” Id

. ( citation and internal quotation marks omitted). Section 1.160 “ is inapplicable ” in cases (like the one we consider here) involving5

“ sentences in final judgments. ” I d

. at *5. Regardless of the inapplicability of § 1.160, the repeal of § 195.291 cannot be used to retroactively allow Riley consideration for parole, as
paro le ineligibility was par t of hi s punishment when sentence was imposed

. Id . at *3.
In Mitchell , the inmate had been found guilty of drug trafficking in the second degree pursuant to § 195.223.3(2), RSMo Supp. 2010. Id

. at *1

. 6 Mitchell was also found to be a prior drug offender. Id

. Under § 195.295.3 , RSMo 2000 , the circuit court was required t o sentence him “ to the authorized term of imprisonment for a class A felony, which term shall be served without probation or parole[.] ” I d

. (citation omitted). Following the repeal of § 195.295 , Mitchell filed a declaratory judgment action against the ch airman of the Missouri board of probation and parole. Id

. Mitchell sought a determination that he was eligible for parole because the statute t hat had rendered him ineligible had been repealed. Id . The chairman moved to dismiss Mitchell ’ s petition and the circuit court sustained the motion. Id

. On appeal, the Supreme Court began by observing that “ Mitchell ’ s parole ineligibility was mandated as part of the punishment within the particular statute [ § 195.295.3 ] designating the permissible penalty for his offense. Therefore, parole ineligibility is part of his sentence. ” Id

. at *2. The Court then distinguished several precedents relied upon by Mitchell, including State ex rel. Nixon v. Russell , 129 S.W.3d 867 (Mo. banc 2004); Jones v. Fife , 207 S.W.3d 614 (Mo. banc 2006); and Dudley v. Agniel , 207 S.W.3d 617 (Mo. banc 2006 ). Id . at *2. In those cases, the Court reasoned, “ general parole statutes were adopted or amended, and the offenders ’ sentencing statutes lacked restrictions on parole eligibility

. ” Id . (emphasis added). By contrast,

6 Mitchell and Woods involved the repeal of sentencing statutes pertaining to offenses for drug trafficking. Here, Riley was convicted of manufacturing a controlled substance in v iolation of § 195.211 . Although the type of offense differs from the ones at issue in Mitchell and Woods , the Missouri Supreme Court’s holding with respect to the retroactive application of the repeal of a parole ineligibility provision controls the disposition in this case.6

“ the statute designating the permissible penalty for Mr. Mitchell ’ s offense expressly mandated his term of imprisonment be served without probation or parole. ” Id . at *3. Because the statute prescribing the penalty for Mitchell ’ s offense specifically stated that his sentence was to be served without parole, parole ineligibility was a part of his punishment and the circuit court was not permitted to change his sentence retroactively. Id . at *3, * 5. The Supreme Cou rt ’ s holding controls the outcome in the instant matter

. Riley contends that granting him parole eligibility would not change his sentence, but would only result in a potential change in the location or circumstances under which his sentence is served. S ee Russell , 129 S.W.3d at 871. Like the inmate in Mitchell , Riley therefore argues that retroactive application of § 195.29 1’ s repeal is permissible in this case under the Supreme Court ’ s opinions
in Russell , Jones , and Dudley

. Riley ’ s reliance on those cases is unavailing for the reasons elucidated by our Supreme Court in Mitchell. The statute designating the permissible penalty for Riley ’ s offense mandated that hi s twenty

- five

- year prison term be served without the possibility of probation or parole. The sentencing statutes at issue in Russell , Jones , and Dudley contained no such restrictions regarding parole eligibility, rendering those precedents inapposite. Parole ineligibility was a part of Riley ’ s punishment and the circuit court was not authoriz ed to change Riley ’ s sentence retroactively. Because the parties ’ disagreement concerns only the legal effect that § 195.29 1’ s repeal has on Riley ’ s eligibility for parole, “ further proceedings in the circuit court are unnecessary, and, under Rule 84.14, this Court may enter judgment for the [DOC] on its cross

- motion for judgment on the pleadings. ” Woods , 2020 WL 548567, at *1

.7 Conclusion The circuit court ’ s judgment is reversed, and judgment is entered in favor of the DOC pursuant to Rule 84.14.

/s/ 

# Thomas N. Chapman Thomas N. Chapman, Judge

All concur.