Gettings v. Missouri Department of Corrections

950 S.W.2d 7, 1997 Mo. App. LEXIS 1407, 1997 WL 433657
CourtMissouri Court of Appeals
DecidedAugust 5, 1997
DocketNo. WD 53864
StatusPublished
Cited by7 cases

This text of 950 S.W.2d 7 (Gettings v. Missouri Department of Corrections) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gettings v. Missouri Department of Corrections, 950 S.W.2d 7, 1997 Mo. App. LEXIS 1407, 1997 WL 433657 (Mo. Ct. App. 1997).

Opinion

LAURA DENVIR STITH, Judge.

Mr. Gettings filed a Petition for Certiorari in the circuit court requesting it to grant review of the August 1996 decision of the Board of Probation and Parole denying Mm parole and setting Ms next parole hearing for August 1998. The court dismissed Ms Petition. Mr. Gettings appeals, alleging that he [8]*8had a constitutional right to parole, that the Board violated its own guidelines by denying him parole, and that the circuit court should have ordered the Board to grant him parole. Assuming without deciding that the issues are properly raised by Mr. Gettings’ Petition, we find that his contentions are without merit and affirm dismissal of his Petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Gettings was convicted of voluntary manslaughter and armed criminal action. On February 25, 1991, he received concurrent fifteen and five year sentences, respectively, for these crimes. The parole regulations in effect at the relevant time set forth guidelines for parole release consideration. Among those guidelines is a table which sets forth how many months a prisoner will customarily serve on sentences of various lengths. The amount of time shown varies considerably based on the prisoner’s “Salient Factor Score.”

Salient factor scores can range from a low of 0 to a high of 11. The matters considered in determining a salient factor score are clearly intended to assist the Board in forecasting success while on parole, for they include issues such as whether the prisoner has prior convictions or incarcerations, how recently any other crimes were committed, history of alcohol or drug abuse, prior revocation of parole or probation, and similar matters.

Mr. Gettings first came up for parole consideration in 1994. Parole was denied, and a second hearing was scheduled for August of 1996. At that time Mr. Gettings received a salient factor score of 11, the highest score possible. The table indicates that a prisoner with a score of 9 to 11 is in the excellent category and that the anticipated time to be served under the guidelines for such a prisoner, who has received a 15 year sentence, would be 60 to 72 months, that is, 5 to 6 years.

The Board denied parole to Mr. Gettings, stating:

Because you have been convicted of Voluntary Manslaughter and Armed Criminal Action after you shot and killed the victim following an altercation, the Board believes that your release at this time would depreciate the seriousness of the offense committed and/or promote disrespect for the law. Therefore, the Board in its discretion has determined to go outside the guidelines and schedule you for another personal hearing in August, 1998.

Mr. Gettings’ appeal to the full Board was denied. He then filed this Petition for Cer-tiorari1 alleging that he had a liberty and due process interest in parole after 60 months, and a regulatory right to such parole in light of his salient factor score of 11.

II. MR. GETTINGS HAS NO LIBERTY OR DUE PROCESS INTEREST IN RELEASE ON PAROLE ONCE HE HAS SERVED THE TIME SET OUT IN THE SALIENT FACTORS TABLE

First, we note that “there is no constitutional or inherent right of a convicted person to be conditionally released before expiration of a valid sentence.” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668, 675 (1979). This is because the conviction has extinguished any liberty interest in release until the sentence has been served. Id.; McKown v. Mitchell, 869 S.W.2d 765, 768 (Mo.App.1993).

[9]*9State statutes and regulations governing parole can create a constitutionally protected liberty interest in parole, however, if they specifically mandate that parole must be granted when certain criteria are met. Maggard v. Wyrick, 800 F.2d 195, 198 (8th Cir.1986), cert. denied, 479 U.S. 1068, 107 S.Ct. 958, 93 L.Ed.2d 1006 (1987); McKown, 869 S.W.2d at 767-69; Watley v. Missouri Bd. Of Probation and Parole, 863 S.W.2d 337, 339 (Mo.App.1992). Yet, even in such cases, a liberty interest is not implicated unless and until statutory and regulatory criteria for release have been satisfied. Id.

Where the relevant statutes and regulations do not create mandatory criteria for parole but instead leave the question of parole to the discretion of the parole board, then the prisoner has no liberty or due process right to parole just because non-mandatory guidelines have been met. McKown, 869 S.W.2d at 769 (fact that guidelines set service of 25% of sentence as factor in deciding when parole would be granted did not create liberty interest in parole once 25% of sentence had been served).

Applying these principles here, we note that the governing statute is Section 217.690. It states in relevant part that:

When in its opinion there is reasonable probability that an offender of a correctional facility can be released without detriment to the community or to himself, the board may in its discretion release or parole such person except as otherwise prohibited by law. All paroles shall issue upon order of the board, duly adopted.

§ 217.690.1 (emphasis added).

In interpreting this statute, Fults v. Missouri Bd. of Probation and Parole, 857 S.W.2d 388 (Mo.App.1993), specifically found that the statute does place the parole decision in the wide discretion of the Board. As Fults noted, the regulations adopted pursuant to this statute similarly indicate in multiple places that they are simply intended to provide guidelines as to the customary range of time to be served, but that they do not remove the Board’s discretion to consider individual factors in each case and thus create no constitutional right to application of a particular parole date. 857 S.W.2d at 391-92. Accord Cooper v. Missouri Bd. of Probation and Parole, 866 S.W.2d 135 (Mo. banc 1993); Watley, 863 S.W.2d at 340.

The rationale set out in the above cases is applicable here. Even a cursory review of the parole guidelines relied on by Mr. Gettings reveals that they do not mandate release of a prisoner in 60 months just because the prisoner has a perfect salient factor score and has been sentenced to a 15-year term. The guidelines place such release fully within the discretion of the Board.

The document relied on by Mr. Gettings as the source of the parole guidelines on which he relies is entitled “Rules and Regulations Governing the Granting of Paroles, Conditional Releases and Related Procedures.” The section entitled “Parole Policy Guidelines” states in relevant part:

A. To establish a uniform parole policy, promote consistent exercise of discretion and equitable decision-making, without removing individual case consideration,

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Bluebook (online)
950 S.W.2d 7, 1997 Mo. App. LEXIS 1407, 1997 WL 433657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gettings-v-missouri-department-of-corrections-moctapp-1997.