SUPREME COURT OF MISSOURI en banc GARY L. MITCHELL, ) Opinion issued February 4, 2020 ) Appellant, ) ) v. ) No. SC97631 ) DON PHILLIPS, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Daniel R. Green, Judge
Gary L. Mitchell appeals from the circuit court’s judgment sustaining the chairman
of the Missouri board of probation and parole’s1 motion to dismiss Mr. Mitchell’s petition
for declaratory judgment in which he sought a declaration of his right to a parole hearing.
Mr. Mitchell claims the circuit court erroneously concluded the repeal of section
195.295.3, RSMo 2000, which prohibited his parole eligibility at the time of his offense,
could not be applied retroactively because it would alter his sentence. Because
Mr. Mitchell’s parole ineligibility is part of his sentence, the repeal of section 195.295.3,
RSMo 2000, does not render him parole eligible. The circuit court’s judgment is affirmed.
1 Mr. Mitchell filed his petition against Kenny Jones in his official capacity as chairman of the board of probation and parole. By operation of Rule 52.13, Mr. Jones’s successor, Don Phillips, has been substituted in his place. Factual and Procedural Background
In July 2013, a jury found Mr. Mitchell guilty of drug trafficking in the second
degree, section 195.223.3(2), RSMo Supp. 2010, for acts committed in November 2009.
The state charged Mr. Mitchell as a prior drug offender under section 195.275.1(1), RSMo
2000, and the circuit court found the same beyond a reasonable doubt. Because he was a
prior drug offender, section 195.295.3, RSMo 2000, required the circuit court to sentence
Mr. Mitchell “to the authorized term of imprisonment for a class A felony, which term shall
be served without probation or parole[.]”
Effective January 1, 2017, the general assembly repealed section 195.295, RSMo
2000. After the repeal, Mr. Mitchell filed a petition for declaratory judgment against the
chairman of the Missouri board of probation and parole arguing he was eligible for parole
because the statute that had rendered him ineligible for parole had been repealed. The
chairman filed a motion to dismiss for failure to state a claim. The circuit court sustained
the motion, holding Mr. Mitchell’s parole ineligibility was part of his sentence; therefore,
section 1.160 2 prohibited any retroactive application of the repeal. Mr. Mitchell appealed,
and the court of appeals transferred the case to this Court after opinion. Mo. Const. art. V,
sec. 10.
Standard of Review
This Court reviews a circuit court’s sustaining of a motion to dismiss de novo. Cope
v. Parson, 570 S.W.3d 579, 583 (Mo. banc 2019).
2 All statutory citations to section 1.160 are to RSMo 2016 unless otherwise noted.
2 A motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition. When considering whether a petition fails to state a claim upon which relief can be granted, this Court must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader.
Id. (quoting Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012)).
Analysis
The chairman asserted in his motion to dismiss that Mr. Mitchell’s petition failed to
allege facts that, if true, would entitle him to relief. The chairman argued section
195.295.3, RSMo 2000, required the no-parole provision be automatically imposed as a
condition of Mr. Mitchell’s sentence, so retroactive application of its repeal would change
Mr. Mitchell’s sentence – a result that the chairman alleged section 1.160 prohibits. The
circuit court agreed and dismissed Mr. Mitchell’s petition for declaratory judgment. On
appeal, Mr. Mitchell claims the circuit court erred because his parole ineligibility is not
part of his sentence.
“A criminal sentence is the penalty for a particular offense.” Bearden v. State, 530
S.W.3d 504, 506 (Mo. banc 2017) (quotations omitted). “The sentence that a court imposes
consists of punishment that comes within the particular statute designating the permissible
penalty for the particular offense.” McCulley v. State, 486 S.W.2d 419, 423 (Mo. 1972)
(quotations omitted). Mr. Mitchell was convicted of trafficking drugs in the second degree
as a prior offender. Section 195.223.3(2), RSMo Supp. 2010. At the time Mr. Mitchell
committed that offense, section 195.295.3, RSMo 2000, provided the permissible penalty
for the offense. Pursuant to that section, the only permissible punishment was a “term of
imprisonment for a class A felony, which term shall be served without probation or parole.”
3 Mr. Mitchell’s parole ineligibility was mandated as part of the punishment within the
particular statute designating the permissible penalty for his offense. Therefore, parole
ineligibility is part of his sentence.
Mr. Mitchell concedes section 195.295.3, RSMo 2000, the statute establishing the
sentence for prior offenders trafficking drugs in the second degree, mandated that the
sentence be served without parole. Nevertheless, he claims retroactive application of the
repeal of section 195.295 is permitted under this Court’s decisions in 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). But these cases are
distinguishable from the present action. In Russell, Jones, and Dudley, general parole
statutes were adopted or amended, and the offenders’ sentencing statutes lacked restrictions
on parole eligibility. Russell, 129 S.W.3d at 869; Jones, 207 S.W.3d at 615-16; Dudley,
207 S.W.3d at 618.
In Russell, the offender was found guilty of 10 counts of nonviolent class D felonies
in 1999 and received sentences totaling ten years. 129 S.W.3d at 868. Subsequently, the
legislature enacted a statute, section 559.016.8, RSMo Supp. 2003, that allowed offenders
convicted of nonviolent class C and D felonies with no prior prison commitment to petition
the sentencing court for release on “probation, parole, or other court-approved alternative
sentence” after serving 120 days. Id. After the circuit court placed the offender on “judicial
parole,” the state sought an extraordinary writ. Id. This Court quashed the preliminary
writ, holding “application of section 558.016.8 does not shorten [the offender’s] sentence,
nor does it alter the law creating the offense.” Id. at 870.
4 Thereafter, in Jones, the Court reversed a judgment denying an offender retroactive
application of two newly enacted provisions, sections 559.115.7 and 217.362.5, RSMo
Supp. 2004. The newly enacted provisions precluded treating a commitment to a 120-day
program under section 559.115, RSMo 1990, or a long-term drug treatment program under
section 217.362 as prior commitments for purposes of determining parole eligibility. 207
S.W.3d at 615. In finding the newly enacted provisions applicable, the Court found the
statutes regulated parole eligibility and did not “alter a substantive law” governing
Mr. Jones’s offense. Id. at 616.
In Dudley, issued the same date, the Court reviewed a declaratory judgment
applying a subsequently enacted provision, section 559.115.7, RSMo Supp. 2004, that
provided “an offender’s first time incarceration in a 120-day callback program does not
count as a previous prison commitment for purposes of calculating mandatory minimum
prison terms.” 207 S.W.3d at 618. The Court expressly stated it was following the
rationale in Nixon in affirming the judgment applying the provision could be applied
retroactively “because the statute is a parole eligibility statute that does not change the
offender’s punishment.” Id.
These cases hold that parole eligibility governed by a statute other than the one
establishing the substantive penalty for a particular offense is not part of the sentence. This
is consistent with the Court’s holding here because, in those cases, ineligibility for parole
was not part of the punishment mandated by the particular statutes establishing the
permissible penalties for the offenses, i.e., not part of the offenders’ sentences. When an
offender’s sentence contains no restrictions on parole eligibility, statutory amendments to
5 and repeals of general parole-eligibility statutes govern, subject to the constitutional
prohibition against ex post facto laws. See Gallup v. State, 733 S.W.2d 435, 436 (Mo. banc
1987).
Both Mr. Mitchell and the dissenting opinion note the holding in McCulley that
“probation or parole is not part of the sentence imposed upon a defendant” was the basis
of the Court’s ruling in Nixon. 486 S.W.2d at 423. They argue the holding of McCulley
compels the conclusion that a statutory change to eligibility for parole does not change an
offender’s sentence that prohibits parole. The holding in McCulley, however, is not a rule
that applies universally. The holding must be read in the context of the facts and legal
issues of that case.
McCulley began its analysis with the proposition that the “sentence that a court
imposes consists of punishment that comes within the particular statute designating the
permissible penalty for the particular offense.” Id. It then proceeded to note neither
probation nor parole was “permissible punishment under the statutes setting out what the
punishment for [Mr. McCulley’s] crime shall be.” Id. (quotations omitted). Indeed, the
punishment for Mr. McCulley’s offense was limited to “imprisonment in the penitentiary
for not more than ten years nor less than two years, or by imprisonment in the county jail
for not more than one year, or by a fine of not more than one thousand dollars, or by both
such fine and imprisonment.” Id. (quotations omitted). It was only after noting the
sentencing statute contained no mention of probation or parole that McCulley held neither
probation nor parole was part of Mr. McCulley’s sentence. Id. This holding was a
straightforward application of the overarching rule that the sentence is the “punishment
6 that comes within the particular statute designating the permissible penalty for the
particular offense.” Id.
This opinion applies that same overarching rule. The difference in outcome between
this case and McCulley is explained by the different punishments designated by the
respective sentencing statutes. Unlike McCulley, the statute designating the permissible
penalty for Mr. Mitchell’s offense expressly mandated his term of imprisonment be served
without probation or parole. Under a straightforward application of the overarching rule
in McCulley, Mr. Mitchell’s ineligibility for probation or parole is part of his sentence.
The circuit court, therefore, correctly held applying the repeal of section 195.295.3
retroactively would change Mr. Mitchell’s sentence. In so holding, however, the circuit
court improperly found that section 1.160 prohibited retroactive application of the statutory
repeal. While section 1.160 prohibits the retroactive application of a statute’s repeal or
amendment under certain circumstances, its scope is limited. It is a general savings statute
and serves a narrow purpose.
Section 1.160 provides:
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 provision had not been repealed or amended, except that all such proceedings shall be conducted according to existing procedural laws.
This section preserves: (1) liability for offenses committed previous to or at the time a
statutory provision is repealed or amended; (2) liability for fines, penalties, and forfeitures
incurred previous to or at the time a statutory provision is repealed or amended; and (3) the
7 authority to continue prosecutions commenced or pending before a statutory provision is
repealed or amended.
The general assembly enacted section 1.160 as a savings statute because, under the
common law, when a law is repealed and there exists neither a savings clause in the
repealing act nor a general savings statute, the repealing act obliterates the repealed law as
if it had never existed. Harkey v. Mobley, 552 S.W.2d 79, 81 (Mo. App. 1977); see State
ex rel. Wayne Cnty. v. Hackmann, 199 S.W. 990, 991 (Mo. banc 1917); State v. Matthews,
14 Mo. 133, 134 (Mo. 1851); NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND
STATUTES AND STATUTORY CONSTRUCTION 561 (7th ed. 2009) [hereinafter
SUTHERLAND]. A repeal terminates any action that has not proceeded to a final judgment
because there can be no “judgment unless the law is in force at the time of the indictment
and judgment. If the law ceases to operate . . . by a repeal at any time before judgment, no
judgment can be given.” State v. Boogher, 71 Mo. 631, 633 (Mo. 1880); accord THEODORE
SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND
APPLICATION OF STATUTORY AND CONSTITUTIONAL LAW 130 (photo. reprt. 2012) (1857).
By contrast, when a repealing act contains a savings clause, the clause continues “in force
repealed laws until proceedings commenced thereunder, regardless of their nature, might
be completed.” City of Kirkwood v. Allen, 399 S.W.2d 30, 35 (Mo. banc 1966) (quoting
State ex rel. Bair v. Producers Gravel Co., 111 S.W.2d 521, 525 (Mo. 1937)). The purpose
of section 1.160 and other general savings statutes is to dispense “with the necessity of
inserting a saving clause in any repealing statute.” State v. Matthews, 14 Mo. 133, 136
(Mo. 1851).
8 When a case has been reduced to final judgment and direct review exhausted,
however, the preservation afforded by section 1.160 is unnecessary because the repeal does
not affect final adjudications in the first instance. Such limitation has been recognized by
this Court for more than a century. Ex parte Wilson, 48 S.W.2d 919, 921 (Mo. banc 1932)
(“The result of our construction of section 4468 is to subject all offenders against any
statute of this state to the punishment prescribed for the offense at the time it was
committed, although the statute creating the offense is repealed before the entry of
judgment and sentence . . . .”); Ex parte McCardle, 74 U.S. 506, 514 (1868) (“[W]hen an
act of the legislature is repealed, it must be considered, except as to transactions past and
closed, as if it never existed.” (emphasis added)); SUTHERLAND, supra, at 552-53
(“Except as to proceedings past and closed, the statute is considered as if it had never
existed.”). It is only when a statutory provision is repealed or amended before adjudication
is complete and direct review exhausted that section 1.160 saves the liability, punishment,
and prosecution arising under the repealed provision and continues the statute in force
“until proceedings commenced thereunder, regardless of their nature, might be completed.”
City of Kirkwood, 399 S.W.2d at 35.
Indeed, even when section 1.160 contained a provision permitting an offender to
obtain the benefit of a statutory repeal or amendment that reduced or lessened his or her
punishment by altering the law creating the offense, 3 the offender could claim the
3 For more than a century, section 1.160 and its predecessors contained a clause allowing an offender to receive the benefit of lessened punishment if the law creating the offense changed before a final judgment was rendered against him or her.
9 amelioration only while the offender’s case was pending. In State v. Sumlin, the Court held
“[s]ection 1.160 authorizes a defendant to move for a reduction of sentence if the penalty
for his offense of conviction has been reduced subsequent to the commission of the offense
but before the conviction becomes final.” 820 S.W.2d 487, 492 (Mo. banc 1991) (emphasis
added); see also State v. Edwards, 983 S.W.2d 520, 521-22 (Mo. banc 1999); A.B. v. Frank,
657 S.W.2d 625, 627 (Mo. banc 1983); State v. Hawkins, 482 S.W.2d 477, 479-80 (Mo.
1972); State v. Reiley, 476 S.W.2d 473, 474 (Mo. 1972); State ex rel. Cole v. Nigro, 471
S.W.2d 933, 934 (Mo. banc 1971). 4
The circuit court was incorrect to rely on section 1.160 because it is inapplicable to
sentences in final judgments. Nevertheless, the circuit court’s finding was correct that
retroactive application of the repeal of section 195.295.3, RSMo 2000, is prohibited
because it would change Mr. Mitchell’s sentence.
Conclusion
At the time he committed the offense, Mr. Mitchell’s parole ineligibility was
mandated by section 195.295.3, RSMo 2000, which set the mandatory punishment for prior
offenders trafficking drugs in the second degree. Any application of the repeal of section
195.295.3, RSMo 2000, to Mr. Mitchell retroactively would change his sentence.
4 Subsequent to these decisions, the clause was codified as section 1.160(2), RSMo 2000, and provided, “[I]f the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amendatory law.” Subsection 2 of section 1.160 was repealed in 2005. For prior codifications of section 1.160(2), see section 4861, RSMo 1939; section 4468, RSMo 1929; section 3709, RSMo 1919; and section 1675, RSMo 1879.
10 Therefore, the repeal of section 195.295.3, RSMo 2000, can have no effect on
Mr. Mitchell’s parole eligibility. He remains ineligible for parole in accordance with the
terms of his sentence. Accordingly, the circuit court’s judgment is affirmed.
___________________________________ PATRICIA BRECKENRIDGE, JUDGE
Draper, C.J., Wilson, Russell, Powell and Fischer, JJ., concur; Stith, J., dissents in separate opinion filed.
11 SUPREME COURT OF MISSOURI en banc
GARY L. MITCHELL, ) ) Appellant, ) ) v. ) No. SC97631 ) DON PHILLIPS, ) ) Respondent. )
DISSENTING OPINION
I respectfully dissent. The principal opinion recognizes the well-settled rule in
Missouri “that probation or parole is not part of the sentence imposed upon a defendant.”
McCulley v. State, 486 S.W.2d 419, 423 (Mo. banc 1972). This Court has applied that
rule in scores of cases, including in McCulley and the three other cases discussed by the
principal opinion, 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); see also Smith v. State, 517 S.W.2d 148, 149 (Mo. 1974). But the principal
opinion says this rule does not apply when the statute setting out the permissible “term of
imprisonment” also provides that the “term shall be served without probation or parole.” Slip op. at 4; see also § 195.295.3, RSMo 2000. The principal opinion cites no authority
for this exception, instead contenting itself with distinguishing the facts of the above
cases because in none of them did the same statute creating the crime also provide there
would be no probation or parole for the crime.
While true, this factual distinction does not provide a basis for reaching a different
result than this Court reached in the four cited cases, for the plain holding of McCulley
still applies: “probation or parole is not part of the sentence imposed upon a defendant.”
486 S.W.2d at 423. That holding was not conditioned on whether the statute defining
what sentence could be imposed also stated whether that sentence would be served
without probation or parole, but on the fact that “[p]robation is not a sentence nor could
the conditions of probation be a sentence.” Id.; accord, Smith, 517 S.W.2d at 150
(because probation was not part of sentence the court had no authority to modify it).
Similarly, in Russell, this Court did not base its analysis on which statute
contained the provision governing the offender’s right to parole, but on the general
principle that “[t]he granting of parole does not reduce the sentence imposed.” 129
S.W.3d at 870, citing McCulley, 486 S.W.2d at 423. This is because, Russell said, a
statute governing parole “does not shorten [the defendant’s] sentence; its application
may, however, change the location or circumstances under which the sentence is served.
… As long as the new statute does not increase the length of an offender’s sentence, the
changes it makes are a fit subject for legislation.” 128 S.W.3d at 871; accord, Dudley,
207 S.W.3d at 619 (because “the granting of parole does not reduce the sentence
imposed” then “retroactive application of section 559.115.7 would only result in a
2 potential change of the location or circumstances under which [the offender] serves the
remainder of his sentence”). 1
Here, as in each of the above cases, the sentence imposed is the term of years to
which the accused is sentenced. When no probation or parole is permitted, that simply
means the entire sentence will be served in prison; when probation or parole is permitted,
that simply means some part of the sentence may be served outside of prison. Where the
sentence will be served does not change the fact the actual sentence is the term of years to
which the defendant was sentenced. “Probation lessens the immediate impact of the
sentence on the defendant; but probation does not, per se, shorten or lengthen the
sentence.” McCulley, 486 S.W.2d at 423.
That parole is not part of the sentence itself is evident from the language of section
195.295.3, which prior to its repeal stated that a prior drug offender was to be sentenced
“to the authorized term of imprisonment for a class A felony, which term shall be served
without probation or parole” (emphasis added). In other words, section 195.295.3 itself
states that the imprisonment is “the term” of sentence imposed, and the lack of probation
or parole merely describes the manner in which the “term shall be served.” Id. Were Mr.
Mitchell to become parole-eligible, there would be no change in his sentence because
parole eligibility would not shorten or lengthen the term of his sentence.
The principal opinion misreads the statute. This misreading of the statute is what
1 See also Jones, 207 S.W.3d at 616 (“retroactive application of [sections 559.115.7 and 217.362.5] do not alter a substantive law governing Jones’ offense or shorten his sen- tence” and “would only result in a potential change of location or circumstances under which Jones serves the remainder of his sentence”).
3 has precluded it from applying the revised statute to Mr. Mitchell and allowing him to be
eligible for parole. For this reason, I dissent.
_________________________________ LAURA DENVIR STITH, JUDGE