Wagner v. Bowyer

559 S.W.3d 26
CourtMissouri Court of Appeals
DecidedAugust 28, 2018
DocketNo. ED 106140
StatusPublished
Cited by4 cases

This text of 559 S.W.3d 26 (Wagner v. Bowyer) 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
Wagner v. Bowyer, 559 S.W.3d 26 (Mo. Ct. App. 2018).

Opinion

KURT S. ODENWALD, Presiding Judge

Introduction

Appellant Benjamin W. Wagner ("Wagner") appeals from the circuit court's dismissal of his petition for declaratory judgment against Tamara Bowyer1 ("the State"). In his sole point on appeal, Wagner argues the circuit court erred in dismissing his petition because the newly amended Section 558.019.32 abrogates the requirement that he serve a minimum of eighty-five percent of his sentence as a dangerous felony offender. Because the revised statute does not retroactively apply to his offenses and does not distinguish between plea findings and guilty jury verdicts, the circuit court properly dismissed Wagner's petition. Accordingly, we affirm the circuit court's dismissal.

*29Factual and Procedural History

In 2012, the State charged Wagner with four counts of first-degree rape, four counts of first-degree statutory rape, one count of first-degree child molestation, two counts of first-degree sodomy, two counts of first-degree statutory sodomy, and two counts of third-degree assault. The charges involved Wagner using force and other physical restraints to sexually violate his daughter's friends between 2010 and 2011. Wagner pleaded guilty to all charges. The circuit court sentenced Wagner as a dangerous offender to ten years in prison.

Wagner filed a petition for declaratory judgment arguing that the 2016 amendment to Section 558.019.3 altered the terms of his sentence. Specifically, Wagner alleged the 2016 amendment removed the mandatory minimum sentencing guidelines for his convictions. The State moved to dismiss Wagner's petition, and the circuit court granted dismissal. Wagner now appeals.

Point on Appeal

Wagner argues the circuit court erred in dismissing his petition. Wagner maintains he pleaded sufficient facts entitling him to relief because the legislative amendments to Section 558.019.3 remove the minimum sentence requirements from his convictions.

Standard of Review

We review the circuit court's grant of a motion to dismiss de novo. Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 915 (Mo. banc 2016). We "treat[ ] the facts contained in the petition as true and in the light most favorable to the plaintiff." Id. Further, we reverse only "[i]f the petition sets forth any set of facts that, if proven, would entitle the plaintiff[ ] to relief[.]" Id. We also conduct de novo review of statutory construction, which is purely a question of law. Perkins v. Bridgeton Police Dep't., 549 S.W.3d 504, 506 (Mo. App. E.D. 2018).

Discussion

Before addressing the merits of Wagner's point on appeal, we address the deficiencies of his brief. We may dismiss an appeal for failing to comply with proper briefing procedures. See Rule 84.04.3 Further, pro se appellants must adhere "to the same standards as ... attorneys and must comply with the Supreme Court Rules, including Rule 84.04." Prosser v. State, 243 S.W.3d 496, 497 (Mo. App. E.D. 2008). Despite an appellant's failure to comply with Rule 84.04, we may exercise discretion to review the appeal when the failure does not substantially prevent meaningful review. Kieffer v. Gianino, 301 S.W.3d 119, 120 (Mo. App. E.D. 2010). Here, Wagner does not provide authority for his point relied on, cite authority for his propositions, or cite to the record. See Rule 84.04(c)-(e). Nonetheless, because we are able to ascertain the nature of his underlying claim, we will exercise our discretion to consider Wagner's appeal on its merits. See Kieffer, 301 S.W.3d at 120.

Wagner argues Section 558.019 applies to his current sentence and removes the mandatory minimum sentences placed on his convictions. Section 558.019.3 mandates a minimum prison term of eighty-five percent of the sentence for "any offender who has been found guilty of a dangerous felony as defined in [S]ection 556.061[.]" (emphasis added). The version of Section 558.019.3 effective during 2012-when Wagner pleaded guilty-stated that the minimum sentence applied to "any offender who pleaded guilty to or has been *30found guilty of a dangerous felony as defined in [S]ection 556.061 [.]" (emphasis added). Wagner maintains the change from "pleaded guilty to or has been found guilty of" to "found guilty of" removes his guilty plea from the minimum sentence requirement because he was not found guilty by a jury. He contends the change was not a mere simplification of the statutory language given that the same change was not made to all statutes in the Revised Criminal Code. See e.g., Section 217.735.2 (defining a prior sex offender as "a person who has previously pleaded guilty to or been found guilty of an offense contained in chapter 566").

I. Section 558.019.3 (2016) Does Not Apply Retroactively.

Wagner's contention that Section 558.019.3 should apply to his 2012 conviction is incorrect. Section 556.001 went into effect on January 1, 2017. Because the legislature did not express its intent for the statute to apply retroactively, it only applies prospectively. Jones by Williams v. Missouri Dep't of Soc. Servs., 966 S.W.2d 324, 327 (Mo. App. E.D. 1998). Therefore, the 2016 version of the statute does not apply to Wagner's 2010 and 2011 offenses.

"[A] defendant will be sentenced according to the law in effect at the time the offense was committed unless a lesser punishment is required by a change in the law creating the offense itself." State v. Johnson, 150 S.W.3d 132, 138 (Mo, App. E.D. 2004) (emphasis omitted); Section 1.160.

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Bluebook (online)
559 S.W.3d 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-bowyer-moctapp-2018.