State ex rel. Mark A. Richardson, Relator v. The Honorable Daniel R. Green

SUPREME COURT OF MISSOURI
en banc
STATE ex rel. MARK A. RICHARDSON, )
)
Relator, )
)
vs. ) No. SC94716
)
THE HONORABLE DANIEL R. GREEN, )
)
Respondent. )
ORIGINAL PROCEEDING IN PROHIBITION
Opinion issued July 21, 2015
The prosecutor in the underlying action seeks a writ of prohibition preventing the
trial court from applying section 558.046 1 to reduce Larry Welch’s sentences for
vehicular manslaughter. 2 Section 558.046, as relevant here, permits a reduction of
sentence only when the inmate has been convicted of an alcohol-related crime that does
not involve violence or the threat of violence. The prosecutor contends that the trial court
lacked authority to reduce Mr. Welch’s involuntary manslaughter sentences under section
558.046 because a crime that causes death and injury through the operation of a motor
vehicle while intoxicated is a crime that “involves violence.” This Court issued a
1
All statutory citations are to RSMo 2000 unless otherwise indicated.
2
The trial court also set aside the two five-year assault sentences and ordered suspended
imposition of sentences and five years’ probation on each. The prosecutor does not
contest this reduction in this action.
preliminary writ of prohibition, which it now makes permanent.
The phrase “crimes that involve violence” is broad in scope, encompassing more
than merely crimes of violence – instead, conviction of any crime that involves violence
precludes a sentence reduction. This Court presumes that the legislature had a reason for
using the broad term “involves violence” rather than merely listing crimes requiring
intentional or knowing violent conduct. Here, an element of the crime of which
Mr. Welch was convicted required that his conduct cause the death of another. Violent
conduct is, therefore, a necessary component of his crime. Nothing in section 558.046
suggests that the legislature intended to allow sentence reductions for a crime that
necessarily results in death through the criminal negligence of the defendant while
driving while intoxicated. This Court, accordingly, rejects Mr. Welch’s argument that the
scope of section 558.046 should be limited to violence that was intentionally or
knowingly inflicted by the defendant. The trial court had no authority to reduce
Mr. Welch’s involuntary manslaughter sentences pursuant to section 558.046.
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
Mr. Welch pleaded guilty to two counts of first-degree involuntary manslaughter
under section 565.024, RSMo Supp. 2006, and two counts of second-degree assault under
section 565.060, RSMo Supp. 2006, for events occurring on November 4, 2007.
Mr. Welch admitted that, on that date, he was driving while his blood alcohol content was
in excess of what the law presumes to be impaired. While so impaired, Mr. Welch was
driving east in a westbound lane. A vehicle driven by Eric Olsen and occupied by his
wife, Jean Olsen, and their two children, Tobias and Johanna, was driving west in the
westbound lane of the same road. Eric swerved into the eastbound lane to avoid
Mr. Welch’s vehicle, but at the same time, Mr. Welch also swerved into the eastbound
lane and hit the passenger side of the Olsen vehicle. Jean and Tobias died. Eric and
Johanna suffered permanent injuries.
Mr. Welch entered an open plea of guilty. The trial court sentenced him to two
concurrent 15-year terms of imprisonment on the involuntary manslaughter counts and
two concurrent five-year terms of imprisonment on the assault counts, to be served
consecutively to the involuntary manslaughter sentences. Mr. Welch moved for post-
conviction relief under Rule 24.035, which was overruled. Welch v. State, 326 S.W.3d
916 (Mo. App. 2010). Mr. Welch subsequently moved for a reduction of his sentences
under section 558.046. Rejecting the prosecutor’s argument that the conditions were not
met for a reduction in sentence under section 558.046, the circuit court ordered
Mr. Welch’s involuntary manslaughter sentences to be reduced to two concurrent seven-
year sentences. The prosecutor filed a petition for writ of prohibition in the court of
appeals. That court denied the petition but stayed the trial court’s sentence-reduction
order. During that period of stay, the prosecutor filed a petition for writ of prohibition in
this Court. On January 12, 2015, this Court issued a preliminary writ of prohibition,
pursuant to its authority under article V, section 4 of the Missouri Constitution.
II. STANDARD FOR ISSUANCE OF WRIT OF PROHIBITION
This Court has the authority to “issue and determine original remedial writs,” Mo.
Const. art. V, § 4.1, including writs of prohibition:
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The extraordinary remedy of a writ of prohibition is available: (1) to
prevent the usurpation of judicial power when the trial court lacks authority
or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of
discretion where the lower court lacks the power to act as intended; or
(3) where a party may suffer irreparable harm if relief is not granted.
State ex rel. O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. banc. 2014).
III. INVOLUNTARY MANSLAUGHTER WHILE OPERATING A MOTOR
VEHICLE WHILE INTOXICATED “INVOLVES VIOLENCE”
Mr. Welch pleaded guilty to two counts of violating section 565.024.1(3)(a),
which states in relevant part:
1. A person commits the crime of involuntary manslaughter in the first
degree if he or she:
….
(3) While in an intoxicated condition operates a motor vehicle in this
state, and, when so operating, acts with criminal negligence to: …
(a) Cause the death of any person not a passenger in the
vehicle operated by the defendant ….
Section 565.002(4) defines “intoxicated condition” as being “under the influence of
alcohol, a controlled substance, or drug, or any combination thereof.” Section 562.016.5
states that a person “acts with criminal negligence” when he or she “fails to be aware of a
substantial and unjustifiable risk that circumstances exist or a result will follow, and such
failure constitutes a gross deviation from the standard of care which a reasonable person
would exercise in the situation.”
The trial court held that it had authority under section 558.046 to reduce
Mr. Welch’s involuntary manslaughter sentences. As relevant here, section 558.046
provides that:
The sentencing court may, upon petition, reduce any term of sentence or
probation pronounced by the court or a term of conditional release or parole
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pronounced by the state board of probation and parole if the court
determines that:
(1) The convicted person was:
(a) Convicted of an offense that did not involve violence or the threat
of violence; and
(b) Convicted of an offense that involved alcohol or illegal drugs; …
(Emphasis added.) As relevant here, section 558.046(1)(a), thereby, requires that the
person’s offense did not “involve violence.” The following subsection requires proof that
the offender has successfully completed a detoxification and rehabilitation program. 3 In
other words, the statute provides a mechanism to reduce an already imposed sentence for
offenders whose crime did not involve violence if their completion of relevant programs
indicates that the enhanced risk of driving while intoxicated has been successfully
ameliorated.
The prosecutor argues that Mr. Welch’s first-degree involuntary manslaughter
convictions under section 565.024 involve violence and that the trial court acted beyond
its authority in reducing Mr. Welch’s sentences. Mr. Welch argues that the phrase
“involve violence” should be interpreted to apply only to offenses that have as an element
the requirement that the defendant intend the use of violence.
3
The remainder of section 558.046 sets out additional conditions for reduction not at
issue on this appeal, stating:
(2) Since the commission of such offense, the convicted person has
successfully completed a detoxification and rehabilitation program; and
(3) The convicted person is not:
(a) A prior offender, a persistent offender, a dangerous offender or
a persistent misdemeanor offender as defined by section
558.016; or
(b) A persistent sexual offender as defined in section 558.018; or
(c) A prior offender, a persistent offender or a class X offender as
defined in section 558.019.
5
In determining the application of section 558.046(1)(a), this Court first turns to the
statutory language. “The primary rule of statutory interpretation is to give effect to
legislative intent as reflected in the plain language of the statute.” State ex rel. Burns v.
Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007). This Court must presume “[e]very
word, sentence or clause in a statute” has effect. Wehrenberg, Inc. v. Dir. of Revenue,
352 S.W.3d 366, 367 (Mo. banc 2011). “Absent a statutory definition, words used in
statutes are given their plain and ordinary meaning with help, as needed, from the
dictionary.” Balloons Over the Rainbow, Inc. v. Dir. of Revenue, 427 S.W.3d 815, 825
(Mo. banc 2014), quoting, Am. Healthcare Mgmt., Inc. v. Dir. of Revenue, 984 S.W.2d
496, 498 (Mo. banc 1999).
Section 558.046 does not define what is meant by a crime that does not “involve
violence.” This Court, therefore, looks to the dictionary definitions. Webster’s Third
New International Dictionary defines “violence” as “exertion of any physical force so as
to injure or abuse,” and “intense, turbulent, or furious action, force, or feeling often
destructive.” Webster’s Third New International Dictionary of the English Language
2554 (3d ed. 1993). The American Heritage Dictionary defines “violence” as “[p]hysical
force exerted for the purpose of violating, damaging, or abusing,” “[a]busive or unjust
exercise of power,” and “[c]aused by unexpected force or injury rather than by natural
causes.” The American Heritage Dictionary 1921 (4th ed. 2000).
As is evident, the term “violence” encompasses both acts that involve or imply
intentional or knowing conduct and acts that do not require any particular mens rea. To
understand whether the legislature intended section 558.046(1)(a) to exclude all crimes
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based on violent conduct, or only those crimes requiring a mens rea of knowing,
intentional, or purposeful conduct, this Court looks to the context in which the term
“violence” is used in the statute.
Other statutes that use the word “violence” also use terms that indicate an
intentional or purposeful use of violence is required. For example, section 455.010(5),
RSMo Supp. 2013, defines “domestic violence” as “abuse or stalking committed by a
family or household member ….” Abuse and stalking are intentional acts. Similarly,
section 632.480(4), RSMo Supp. 2014, defines “sexually violent offense” by listing
specific crimes, including “the felonies of rape in the first degree … sodomy in the first
degree … statutory sodomy in the first degree …” and by including a catch-all that states:
“or any felony offense that contains elements substantially similar to the offenses listed
above.” These crimes can be committed only through an intentional or at least a knowing
or purposeful act.
By contrast, in section 558.046(1)(a), the legislature did not similarly list specific
crimes requiring intent, nor did it refer to violent conduct that is inherently intentional.
Instead, it broadened the scope of the word “violence” by pairing it with the word
“involve,” stating that the crime did not “involve violence.” Webster’s Third New
International Dictionary defines “involve” as “to complicate or make intricate in thought
or form,” “to require as a necessary accompaniment,” “to have an effect on,” and “to
engross or occupy fully.” Webster’s Third New International Dictionary of the English
Language 1191 (3d ed. 1993). The American Heritage Dictionary defines “involve” as
“[t]o contain as a part; include,” “[t]o have as a necessary feature or consequence; entail,”
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“[t]o influence or affect,” and “[t]o make complex or intricate; complicate.” The
American Heritage Dictionary 921 (4th ed. 2000).
“Involve violence” does not contain the implication of intent/purpose/knowledge
as a necessary element for “violence” and does not inherently imply or address the mens
rea by which the act is done. It simply requires that the offense of which the individual
was convicted involve violence, not that the individual intended violence.
Mr. Welch’s convictions for involuntary manslaughter under section
565.024.1(3)(a) inherently involved violence. That statute states:
A person commits the crime of involuntary manslaughter in the first degree
if he or she: … While in an intoxicated condition operates a motor vehicle
in this state, and, when so operating, acts with criminal negligence to: …
Cause the death of any person not a passenger in the vehicle operated by
the defendant ….
Id. Because of its size, weight, and capability for movement and velocity, a vehicle can
apply a significant amount of physical force. The risk of that physical force being
applied to an individual increases substantially when the driver is in an intoxicated
condition. Drunk driving is an extremely dangerous crime, causing tens of thousands of
injuries and deaths and uncounted harm to property each year. 4 A conviction under
section 565.024.1(3)(a) inherently requires that physical force be applied to a person
because the killing of an individual is an element of the offense. The elements of section
565.024.1(3)(a) inherently involve violence regardless of whether violence was intended
4
National Highway Traffic Safety Administration, Traffic Safety Facts 2013 (DOT HS
812 102, Dec. 2014), http://www-nrd.nhtsa.dot.gov/Pubs/812102.pdf (last accessed July
16, 2015) (a copy has been placed in the court file).
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by the driver. 5
Mr. Welch argues that this Court, nonetheless, should interpret section
558.046(1)(a) to require intentional or purposeful violent or aggressive conduct, and so
not to apply to involuntary manslaughter involving criminal negligence, because federal
courts have so interpreted what he claims is similar language in federal statutes.
None of the federal cases on which Mr. Welch relies are on point. All involve
interpretation of certain language in a section of 18 U.S.C. § 924 (2006), also known as
the Armed Criminal Career Act, or ACCA. The ACCA is not a sentence-reduction
statute. Rather, it imposes a 15-year mandatory minimum sentence on an offender who
unlawfully possesses a firearm and who is considered an “armed career criminal” because
the offender has three prior convictions “for a violent felony or a serious drug offense.”
§ 924(e)(1). The purpose of the statute is to identify those repeat offenders who present a
danger to others and to impose mandatory minimum sentences on them.
By contrast, section 558.046 is not a method of increasing the sentence a
defendant must serve if his or her conduct involves violence. The persons to whom the
statute applies already have been convicted and sentenced based upon other Missouri
5
The United States Supreme Court looks at what would be a typical case of a crime such
as driving under the influence rather than to the particular facts of a specific driving
under the influence case to determine whether a crime is a “crime of violence” or a
“violent crime” when interpreting federal law. Johnson v United States, -- U.S. --, --
S.Ct. --, No. 13-7120, slip op. at 4, 13 (June 26, 2015); Begay, 553 U.S. at 141; Sykes v.
United States, 131 S. Ct. 2267, 2272 (2011). It is unnecessary here to determine whether,
in using the term “involve violence,” the Missouri legislature intended to broaden the
scope of section 558.046(1)(a) to allow consideration of whether the specific facts of the
individual case involved violence, even if the elements of the crime would not always do
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statutes. Missouri’s legislature chose in section 558.046 to provide a mechanism by
which those offenders who have completed alcohol rehabilitation programs can have
their sentence, probation, or parole reduced for what amounts to “good behavior.” The
legislature chose not to make this mechanism available to those whose crimes involved
violence, however.
The cases Mr. Welch relies on are further distinguishable in that they all involve
the meaning of what has become known as “the residual clause” in § 924(e)(2)(B). That
section defines “violent felony” to include not only a felony that involves the use,
attempted use or threatened use of physical force against another, but also a crime that
“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical harm to another.” Id. The
meaning of subsection (ii) has been elusive to the federal courts because it appears to
require that a felony involve “a serious potential risk of physical harm to another,” yet the
subsection specifically lists burglary and extortion, which do not on their face appear
necessarily to involve a serious potential risk of physical injury to another.
The United States Supreme Court has attempted to determine the meaning of this
residual clause in three cases. In the first case, Begay v. United States, 553 U.S. 137
(2008), it concluded that, because the listed crimes (burglary, extortion, arson) all involve
intentional conduct, the statute must apply only to intentional crimes, under the principle
of noscitur a sociis – a word is known by the company it keeps. Begay, therefore,
so, for here the elements and the facts both involve causing the death of another through
use of a dangerous instrument, a motor vehicle.
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refused to apply it to crimes such as driving under the influence, which required only
negligent or reckless conduct. Begay, 553 U.S. at 139, 141-44. 6 In Sykes v. United
States, 131 S. Ct. 2267, 2273-74 (2011), the Supreme Court narrowed Begay in holding
that, although the crime of felony vehicle flight of which the defendant was convicted
was not one of the listed offenses in § 924(e)(2)(B)(ii), it did have “as an element the use,
attempted use, or threatened use of physical force against the person” as stated in 18
U.S.C. § 924(e)(2)(B)(i) and so was encompassed by the statute’s residual clause because
such conduct – felony vehicle flight from the police – inherently involved a serious risk
of injury.
Most recently, since argument of this case, the United States Supreme Court
decided Johnson v United States, -- U.S. --, -- S.Ct. --, No. 13-7120 (June 26, 2015).
Johnson held that the residual clause in § 924(e)(2)(B)(ii) was too vague to provide
adequate notice as to what conduct was punishable by the mandatory minimum set out in
the statute. Id., slip op. at 4-5. In particular, it noted, the courts had taken a “categorical
approach” to determining whether a crime involves conduct that presents a serious
potential risk of physical injury to another. Id., slip op. at 4, 13. That meant that, if in
”the ordinary case” a crime of the sort of which defendant was accused would involve
6
Although Begay involved only DUI, not manslaughter, United States v. Herrick, 545
F.3d 53, 59 (1st Cir. 2008), applied Begay’s reasoning to a vehicular homicide
conviction under Wisconsin law because, as noted, the crimes listed in the statute all
require intent, which vehicular homicide did not. Herrick’s analysis was directed solely
to the intent expressed by Congress, as interpreted by Begay, in the federal statute, and
did not address the issue of whether the term “violence” could, in other circumstances,
include manslaughter.
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such conduct, then the crime was a violent crime, even if the defendant’s actual crime or
the crime’s statutory elements did not require or involve a serious risk of violence. Id. It
found that the residual clause did not give sufficient notice to the defendant of what
conduct was made criminal or subject to a greater sentence. Id., slip op. at 10-13.
Johnson specifically clarified, however, that its holding did not call into question the
constitutional validity of other statutes using the term “substantial risk” because those
statutes generally gauge risk by looking at the individual offender’s actual conduct, not
the riskiness of “an idealized ordinary case of the crime.” Id., slip op. at 12.
The crime of which Mr. Welch was convicted is not subject to the vagueness
objections that concerned the United States Supreme Court in Johnson. Section
565.024.1(3) requires as an element that death result from the defendant’s driving in an
intoxicated condition, and section 558.046 excepts a defendant from sentence reduction
only if that defendant’s crime – not some “idealized ordinary case of the crime,” as
contemplated by Johnson – involved violence. The vagueness concerns that troubled the
Johnson court are not present here. Neither does section 558.046(1)(a) list examples of
crimes that require purposeful violent action as does the federal statute on which
Mr. Welch relies. To the contrary, section 558.046(1)(a) uses the broader phrase: a crime
that “did not involve violence.” Accordingly, Mr. Welch’s reliance on federal cases
interpreting the ACCA is not persuasive. 7
7
As Mr. Welch’s crime “involved violence,” this Court has no occasion to determine
whether the reasoning in Johnson would have any application to an offender who was
convicted of a crime that instead involved “the threat of violence,” as also set out as an
exception in section 558.046(1)(a). That determination would require a review of
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IV. CONCLUSION
Because Mr. Welch’s offenses involved violence, the trial court had no authority
to reduce Mr. Welch’s sentences under section 558.046. The preliminary writ of
prohibition is made permanent.
_________________________________
LAURA DENVIR STITH, JUDGE
All concur.
whether the particular case involved a threat of violence rather than whether such a threat
was presented only in the “ordinary case.” Further, it would require a determination of
whether Johnson’s analysis of what constitutes adequate notice of what conduct is
criminal has any application to a statute that provides a basis for sentence reduction or
parole or probation relief. Those issues are not now before this Court.
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