In re: Andrew J. Kory v. Bob Gray, Jail Administrator, Daviess/Dekalb Regional Jail

In the
Missouri Court of Appeals
Western District
)
IN RE ANDREW J. KORY, )
) WD79273
Petitioner, )
) OPINION FILED:
v. ) January 5, 2016
)
BOB GRAY, Jail Administrator, )
Daviess/Dekalb Regional Jail, )
)
Respondent. )
ORIGINAL WRIT OF HABEAS CORPUS
Before Writ Division: Gary D. Witt, Presiding Judge, James Edward Welsh, Judge and
Cynthia L. Martin, Judge
Andrew Kory ("Kory") filed a Petition for Writ of Habeas Corpus in this court
alleging that he is being confined in the Daviess/DeKalb Regional Jail by Bob Gray, the
Jail Administrator ("Respondent") in restraint of his liberty. We agree and issue our writ
of habeas corpus.
Factual and Procedural Background
Kory was originally incarcerated in the Daviess/DeKalb Regional Jail on July 2,
2014, after being charged in 2014 ("2014 Information") with rape concerning an incident
with a minor victim alleged to have occurred on October 31, 2013 ("Incident"). The State
dismissed the 2014 Information on August 11, 2015, but refiled a new Complaint the
same day ("2015 Complaint") charging Kory with felony rape, felony statutory rape, and
felony endangering the welfare of a child based on the same Incident.
On December 16, 2015, the State dismissed the 2015 Complaint and filed an
Amended Information, alleging that Kory committed the Class A Misdemeanor of sexual
abuse stemming from the same Incident.
On the same date, Kory pleaded guilty to the misdemeanor charge and was
sentenced to one year in the county jail. As of December 16, 2015, Kory had already
been confined for 532 days pursuant to the 2014 Information and the 2015 Complaint.
Following his guilty plea, Kory was returned to Daviess/DeKalb Regional Jail, where he
received a commitment order that varied from the commitment order he was provided at
the plea hearing. The revised commitment order contained a hand written note stating
that the circuit court was denying him credit for time served while being held on the 2014
Information, and was intending his one year jail sentence to run from August 11, 2015 to
August 11, 2016.
Kory filed a Petition for Writ of Habeas Corpus in this court on December 22,
2015 ("Petition") alleging that his continued confinement was an unlawful restraint
because he should have been afforded credit against his one year sentence for the 532
days he had already been confined. This court entered its Order to Show Cause on
December 22, 2015.
2
Analysis
Rule 91.01(b) provides that "[a]ny person restrained of liberty within this state
may petition for a writ of habeas corpus to inquire into the cause of such restraint."
Kory's Petition establishes that he is entitled to habeas relief.
As a preliminary matter, we observe that Kory did not first file his Petition in the
circuit court in the circuit where he is confined. Rule 91.02(a) provides that a petition
seeking a writ of habeas corpus shall be filed in the first instance in the circuit court in the
circuit where the petitioner is confined, unless good cause is shown to first file the
petition in a higher court. Kory argues that it would have been futile to first file his
Petition in the circuit court in the county where he is confined, as it is the act of that court
in ordering that he receive no credit for time served prior to August 11, 2015 which has
led to his unlawful restraint. We agree, and find that good cause to first file the Petition
in this court has been established pursuant to Rule 91.02(a).
Kory has been continuously incarcerated since July 2, 2014 in connection with the
Incident. He entered a guilty plea to the Class A Misdemeanor of sexual abuse on
December 16, 2015. His imposed sentence was one year confinement in the
Daviess/DeKalb Regional Jail. At the time of his guilty plea and sentence, Kory had
already been confined for 532 days in the Daviess/DeKalb Regional Jail. Kory's
confinement was exclusively related to the Incident, though over the course of time, the
State had charged, dismissed, and refiled charges relating to the Incident on three
different occasions.
3
Missouri law provides that a sentence imposed:
shall commence when a person convicted of a crime in this state is received
into the custody of the department of corrections or other place of
confinement where the offender is sentenced. Such person shall receive
credit toward the service of a sentence of imprisonment for all time in
prison, jail or custody after the offense occurred and before the
commencement of the sentence, when the time in custody was related to
that offense . . .
Section 558.031.1. 1 Section 558.031.1 is not limited to felony convictions or to
confinement in the department of corrections. Rather, by its plain terms, section
558.031.1 applies to any confinement following any conviction of any crime. Kory is
thus entitled to jail credit toward the service of his sentence if his 532 days in custody
were related to the offense of which he was convicted and sentenced.
"Time in custody is generally 'related to' a sentence, and thus eligible for credit . . .
if the inmate could have been free from custody absent the charge." Pettis v. Missouri
Dept. of Corrections, 275 S.W.3d 313, 317 (Mo. App. W.D. 2008) (citing Mikel v.
McGuire, 264 S.W.3d 689, 691-92 (Mo. App. W.D. 2008)). Here, Kory would have been
free from custody absent the charges in the 2014 Information. The 2014 Information was
dismissed and replaced by the 2015 Complaint. Kory would have been free from custody
absent the charges in the 2015 Complaint. The 2015 Complaint was dismissed and
replaced by the December 16, 2015 Amended Information, on which date Kory pled
guilty to a reduced, amended charge. The successive amended charging documents filed
by a single prosecuting entity based on the same nucleus of facts resulted in "time in
custody" that was related to the offense of which Kory was ultimately convicted. Stated
1
All statutory references are to RSMo 2000 as supplemented, except as otherwise noted.
4
another way, absent Kory's arrest on July 2, 2014, and later conviction on December 16,
2015 of a reduced, amended charge, Kory would not have been in custody. Kory is thus
entitled to jail time credit against his sentence for the 532 days he was confined from
July 2, 2014 to the date of his guilty plea and sentence. Because that credit exceeds his
one year sentence, Kory is now being restrained of his liberty without legal authorization.
The directive by the sentencing court to the Respondent on the revised commitment order
which sought to limit the credit afforded Kory to time served from and after August 11,
2015, is without legal authority.
Conclusion
There being no legal cause for Kory's continued restraint, Kory's request for a writ
of habeas corpus is granted.2 Kory is ordered immediately released from custody.
__________________________________
Cynthia L. Martin, Judge
All concur
2
On December 31, 2015, this court issued its order granting Kory's request for a writ of habeas corpus,
noting that an opinion would follow. See Rules 84.24(a), 84.24(e), 84.24(j), 84.24(l), 91.01(a), 91.18.
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