Kyle Short v. Missouri Board of probation and Parole , 2015 Mo. App. LEXIS 181 ( 2015 )

In the Missouri Court of Appeals
Western District
KYLE SHORT, )
Appellant, )
v. ) WD77964
)
MISSOURI BOARD OF PROBATION ) FILED: February 24, 2015
AND PAROLE, )
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
THE HONORABLE DANIEL R. GREEN, JUDGE
BEFORE DIVISION FOUR: ALOK AHUJA, CHIEF JUDGE, PRESIDING,
JOSEPH M. ELLIS AND LISA WHITE HARDWICK, JUDGES
Kyle Short appeals from the summary judgment entered in favor of the
Missouri Board of Probation and Parole ("Board") on his petition for declaratory
judgment. In his petition, Short sought declarations concerning his conditional
release date and parole eligibility on sentences for multiple convictions. The circuit
court found that Short is not eligible for parole and that the Board correctly
determined his conditional release date. For reasons explained herein, we affirm
the judgment on the conditional release date and reverse the judgment with regard
to Short's ineligibility for parole.
FACTUAL AND PROCEDURAL HISTORY
On December 12, 2005, Short pled guilty to two counts of second-degree
statutory rape, two counts of possession of a controlled substance other than 35
grams or less of marijuana, and one count of first-degree endangering the welfare
of a child. The court sentenced Short to concurrent terms of five years in prison
on each count ("sentence group one").1
On November 8, 2007, a jury convicted Short of three more counts of
statutory rape and one count of tampering with a victim or witness in a felony
prosecution. In that case, the court sentenced Short to concurrent terms of ten
years in prison for each of the three counts of statutory rape ("sentence group
two") and ten years in prison for the tampering with a victim or witness count
("sentence group three"). The court further ordered that the ten-year sentences in
sentence group two be served consecutively to the five-year sentences in sentence
group one. The court ordered that the ten-year sentence in sentence group three
be served consecutively to the sentences in sentence groups one and two. Thus,
Short was sentenced to a total of 25 years in prison.
Short subsequently filed a petition for declaratory judgment in which he
asserted that the Board had erroneously determined that he is ineligible for parole
because, even though parole is available for the offenses in sentence groups one
1
Short was initially given probation, but his probation was revoked after a little more than a year.
2
and two, parole is not available for the offense in sentence group three. He also
alleged that the court had erroneously calculated his conditional release date.
Specifically, Short argued that, because he is eligible for parole on the
sentences in sentence groups one and two, he should be required to serve only the
minimum term for parole eligibility on those sentences before beginning his
sentence in sentence group three, for which he is not eligible for parole. Short
further argued that he should then have to serve only that portion of the sentence
in sentence group three that is designated as the required prison term for
conditional release purposes. Based upon his calculation, Short alleged that his
conditional release date should be December 9, 2018, instead of November 1,
2023, as the Board found.
The Board filed a motion for summary judgment. The circuit court granted
the Board's motion after finding that Short's ineligibility for parole on sentence
group three renders him ineligible for parole on all of his sentences and that the
Board correctly calculated his conditional release date. Short appeals.
STANDARD OF REVIEW
Appellate review of a summary judgment is "essentially de novo." ITT
Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376
(Mo. banc 1993). In this case, there are no disputed issues of material fact.
Consequently, whether summary judgment was proper is purely an issue of law,
and we need not defer to the circuit court's decision to grant summary judgment.
Farish v. Mo. Dep't of Corr., 416 S.W.3d 793, 795 (Mo. banc 2013).
3
ANALYSIS
Short raises two points on appeal challenging the grant of summary
judgment in favor of the Board. In Point I, Short contends the circuit court erred in
determining his conditional release date because it failed to follow the requirements
of Section 217.690, RSMo Cum. Supp. 2013.2 In Point II, Short contends the
circuit court erred in determining that his ineligibility for parole on sentence group
three makes him ineligible for parole on any of his sentences.
We address the two points together because Short argues that he is eligible
for parole on sentence groups one and two and that the Board should require him
to serve only the minimum terms for parole eligibility on sentence groups one and
two, plus the prison term on sentence group three, before conditionally releasing
him. Although we agree that Short is eligible for parole on sentence groups one
and two, we disagree with his conclusion that this affects his conditional release
date.
Short's conclusion appears to be based upon his confusion between
conditional release and parole. "While conditional release is akin to parole, the two
are not identical or interchangeable terms." Edger v. Mo. Bd. of Prob. & Parole,
307 S.W.3d 718, 721 (Mo. App. 2010). Both conditional release and parole
provide for the discharge of an offender from prison subject to the Board's
conditions and supervision; however, "[t]he operation of conditional release is
2
All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
Cumulative Supplement.
4
dictated by statute, while parole is almost entirely left to the discretion of the
Parole Board." Edger, 307 S.W.3d at 721.
Looking first at conditional release, section 558.011 provides that a
sentence of imprisonment consists of a prison term and a conditional release term.
§ 558.011.4(1). During the conditional release term, which is the last few months
or years of a sentence, the offender is discharged, subject to the Board's
conditions and supervision. § 558.011.4(2); Edger, 307 S.W.3d at 721. The
portion of the sentence before the conditional release term is the prison term.
Cooper v. Holden, 189 S.W.3d 614, 618 (Mo. App. 2006). Section 558.011.4(1)
specifies the conditional release terms for all lengths of sentences.3 Edger, 307
S.W.3d at 721.
In this case, Short's sentence structure contains three sentence groups that
run consecutively to each other. This court has ruled that, in determining the
conditional release date on consecutive sentences, the offender is to serve all of his
prison terms consecutively, followed by the consecutive running of the conditional
release terms. Bantle v. Mo. Bd. of Prob. & Parole, 256 S.W.3d 205, 206 (Mo.
App. 2008). This is precisely what the Board did in Short's case.
Short's concurrent sentences in sentence group one have a total term of five
years, which means the prison term is 40 months and the conditional release term
3
Section 558.011.5 provides a procedure for the Board to extend the conditional release date "up
to a maximum of the entire sentence of imprisonment" if the offender "fails to follow the rules and
regulations of the division or commits an act in violation of such rules."
5
is 20 months. § 558.011.4(1)(a).4 He began serving the prison term portion of
the sentences in sentence group one on July 4, 2006, and the Board deferred
service of the conditional release term 40 months later, on November 3, 2009.
Short's concurrent sentences in sentence group two have a total term of ten years,
which means the prison term is seven years and the conditional release term is
three years. § 558.011.4(1)(b).5 He began serving the prison term portion of the
sentences in sentence group two on November 3, 2009, and will be eligible to
enter deferred status on his conditional release term seven years later, on
November 2, 2016. Short's final sentence in sentence group three is a total of ten
years, which means the prison term is seven years and the conditional release term
is three years. § 558.011.4(1)(b). Short will begin serving the prison term portion
of this sentence on November 2, 2016, and will be eligible for conditional release
seven years later, on November 1, 2023.
November 1, 2023, is the conditional release date the Board provided to
Short. The Board correctly calculated Short's conditional release date on his
consecutive sentences pursuant to Section 558.011.4(1) and Bantle. Therefore,
the circuit court did not err in granting summary judgment in favor of the Board
with respect to Short's claims concerning the accuracy of his conditional release
date. Point I is denied.
4
The conditional release term for a sentence of imprisonment of nine years or less is one-third of
the sentence. § 558.011.4(1)(a).
5
The conditional release term for a sentence of imprisonment between nine and fifteen years is
three years. § 558.011.4(1)(b).
6
Short's parole eligibility, on the other hand, is governed by Section 217.690
and 14 CSR 80-2.010. Section 217.690 gives the Board the discretion to parole
offenders where "there is a reasonable probability that an offender . . . can be
released without detriment to the community or himself," except as otherwise
prohibited by law. § 217.690.1. Section 217.690.4 authorizes the Board to adopt
rules regarding parole eligibility and parole hearings, and 14 CSR 80-2.010 provides
guidelines under which the Board is to determine an offender's parole eligibility.
Edger, 307 S.W.3d at 720. In particular, 14 CSR 80-2.010(1) provides the
minimum term for parole eligibility for offenses where no other statute requires that
more time be served.
Because Short's sentence structure consists of three groups of consecutive
sentences, the calculation of his minimum term for parole eligibility is controlled by
Section 217.690.5. This section provides:
When considering parole for an offender with consecutive
sentences, the minimum term for eligibility for parole shall be
calculated by adding the minimum terms for parole eligibility for each
of the consecutive sentences, except the minimum term for parole
eligibility shall not exceed the minimum term for parole eligibility for an
ordinary life sentence.6
§ 217.690.5. We applied this provision in Edger, 307 S.W.3d 718. In that case,
Edger was serving concurrent sentences totaling 15 years and a consecutive eight-
year sentence. Edger, 307 S.W.3d at 719. The Board had argued that Edger
would not be eligible for parole until after he served the entire prison term portion
6
The minimum term for parole eligibility for an ordinary life sentence is 15 years. 14 CSR 80-
2.010(1)(E).
7
of his 15-year sentence, as set forth in the conditional release statute, plus the
minimum parole eligibility term of his eight-year sentence. Id. at 721. We rejected
the Board's argument, noting that, because parole and conditional release are
distinct, Section 217.690 and 14 CSR 80-2.010 govern the calculation of parole
eligibility and not Section 558.011, which governs conditional release. Id. We
directed the Board to calculate Edger's parole eligibility pursuant to Section
217.690.5 by simply adding together the minimum parole eligibility term for the
15-year sentence, which was three years and nine months under 14 CSR 80-
2.010(1)(B), and the minimum parole eligibility term for the eight-year sentence,
which was four years under Section 558.019.2(2). Id. Thus, we found that Edger
had to serve seven years and nine months before he would be eligible for parole.
Id.
In this case, Short's concurrent five-year sentences in sentence group one
have a minimum term for parole eligibility of 33% of the sentence, which is
approximately one year and eight months. 14 CSR 80-2.010(1)(D). Likewise, his
concurrent ten-year sentences in sentence group two have a minimum term for
parole eligibility of 33% of the sentence, which is approximately three years and
four months. Id.7
7
In its brief, the Board states that Short is correct to argue that, 'under Section 217.690.5, his
second group of sentences has a mandatory-minimum term of three years." As noted in the text,
however, 14 CSR 80-2.010(1)(D) requires that Short serve 33% of the sentences in sentence group
two. Thirty-three percent of the concurrent ten-year sentences is three years and four months.
8
Short is not eligible for parole on his ten-year sentence in sentence group
three, however. His ten-year sentence in sentence group three is for tampering
with a witness or victim. The statute defining that crime states, in pertinent part:
3. Tampering with a witness in a prosecution, tampering with a
witness with purpose to induce the witness to testify falsely, or victim
tampering is a class C felony if the original charge is a felony.
Otherwise, tampering with a witness or victim tampering is a class A
misdemeanor. Persons convicted under this section shall not be
eligible for parole.
§ 575.270.3 (emphasis added). The Board urges us to interpret the last sentence
of this subsection, "[p]ersons convicted under this section shall not be eligible for
parole," as instituting an absolute, lifetime ban on parole eligibility for an offender
convicted of witness or victim tampering, regardless of whether any other crime
committed by the offender allows for parole.
To ascertain whether the legislature intended such a result, we look to the
plain and ordinary meaning of the statutory language. State v. Rodgers, 396
S.W.3d 398, 401 (Mo. App. 2013). We look at the usage of the words in the
context of the entire statute to determine their plain meaning. Union Elec. Co. v.
Dir. of Revenue, 425 S.W.3d 118, 122 (Mo. App. 2014). "Provisions not found
plainly written or necessarily implied from what is written will not be imparted or
interpolated therein . . . ." Mo. Pub. Serv. Co. v. Platte-Clay Elec. Co-op., Inc.,
407 S.W.2d 883, 891 (Mo. 1966) (internal quotation marks and citations omitted).
"When the language of a statute is clear and unambiguous, there is no room for
9
construction." Kinder v. Mo. Dep't of Corr., 43 S.W.3d 369, 372 (Mo. App.
2001).
Given the plain language of Section 575.270.3's prohibition against parole
eligibility in the context of the statute, we find that it applies only to the sentence
for the tampering conviction. The plain language bars parole eligibility for persons
convicted "under this section" -- not "this and any other section." Additionally,
the plain language states that persons convicted under this section "shall not be
eligible for parole" -- not "shall never be eligible for parole." Moreover, the
prohibition against parole eligibility is contained in the penalties subsection of the
statute, immediately following the legislature's classifications of the offense for
punishment purposes. The implication is that the prohibition against parole
eligibility refers back to those prescribed punishments for the tampering conviction
and is not a stand-alone provision that bans parole eligibility for any and all other
present and future convictions. When read in its context, the plain language of
§ 575.270.3 cannot be so broadly interpreted as to institute an absolute, lifetime
ban on parole eligibility.8
The Board further contends that Short is ineligible for parole on all of his
sentences because it is not possible to calculate a parole eligibility date for
8
In its brief, the Board argues that there are actually "two plausible readings of the statute: either
the legislature prohibited parole only on the sentence for victim or witness tampering . . ., or the
legislature created a life-time prohibition on parole." Thus, the Board is arguing that Section
575.270.3 is ambiguous. State v. Graham, 204 S.W.3d 655, 656 (Mo. banc 2006). Because we
are able to discern the legislature's intent from the plain language of the statute, we do not find
Section 575.270.3 to be ambiguous. We note, however, that a finding that the statute is
ambiguous would not aid the Board's claim that Section 575.270.3 imposes a lifetime prohibition on
parole, as we would construe the statute in Short's favor under the rule of lenity. State v. Hardin,
429 S.W.3d 417, 419 (Mo. banc 2014).
10
sentence groups one and two. Specifically, the Board argues that, because Section
217.690.5 provides that the parole eligibility date for consecutive sentences is
calculated by adding together each consecutive sentence's minimum term for
parole eligibility, the fact that the sentence in sentence group three has no
minimum term for parole eligibility makes the Section 217.690.5 calculation
"impossible."
That the sentence in sentence group three is for a non-parole eligible offense
means that Short is not eligible for parole during the entire ten-year sentence.
Essentially, then, sentence group three's "minimum term for parole eligibility," for
purposes of the Section 217.690.5 calculation, would be ten years. Thus, Short's
minimum term for parole eligibility for his consecutive sentences under Section
217.690.5 would be calculated by adding together sentence group one's minimum
term for parole eligibility of one year and eight months, sentence group two's
minimum term for parole eligibility of three years and four months, and sentence
group three's "minimum term for parole eligibility" of ten years. Pursuant to this
calculation, Short would be eligible for parole on his consecutive sentences after
serving 15 years.9 Accordingly, the circuit court erred in granting summary
judgment based on its determination that Short's ineligibility for parole on sentence
9
In its brief, the Board asserts that, if Short's sentences were structured differently and his
sentence for the non-parole eligible offense were first-in-time, then it would be able to calculate a
parole date after Short had completed his non-parole eligible sentence by following Section
217.690.5. The Board does not explain, and we fail to see, how adding the ten years to the
minimum parole eligibility terms of the other two sentence groups at the end, rather than the
beginning, of the Section 217.690.5 calculation renders a different outcome.
11
group three renders him ineligible for parole on all of his sentences. Point II is
granted.
CONCLUSION
The circuit court's judgment is affirmed on the Board's calculation of Short's
conditional release date. The judgment is reversed with regard to the determination
of Short's parole eligibility, and the case is remanded for further proceedings
consistent with this opinion.
____________________________________
LISA WHITE HARDWICK, JUDGE
ALL CONCUR.
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