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Bernhardt v. McCarthy

Court of Appeals of Missouri, Western District, Fourth Division

May 12, 2015

ANDREW BERNHARDT, Appellant,
v.
NANCY McCARTHY for BOARD OF PROBATION and PAROLE, Respondent

Appeal from the Circuit Court of Cole County. The Honorable Patricia S. Joyce, Judge.

Gilbert C. Sison, Clayton, MO, Joel J. Schwartz and Hannah Zhao, St. Louis, MO, for appellant.

Monte C. Platz, Jefferson City, MO, for respondent.

Before Division Four: Alok Ahuja, C.J., James E. Welsh, J. and Patrick W. Campbell, Sp.J. All concur.

OPINION

Alok Ahuja, C.J.

Page 349

Andrew Bernhardt was placed on parole following convictions for aggravated stalking and armed criminal action. The Board of Probation and Parole ordered Bernhardt to obtain a sex offender evaluation as a special condition of his parole. Bernhardt filed suit in the Circuit Court of Cole County to challenge this parole condition, arguing that it was unlawful because he had never been convicted of a sexual offense. The circuit court granted the State's Motion for Judgment on the Pleadings, and Bernhardt appeals. Because Bernhardt has completed his parole, we conclude that the issues raised in Bernhardt's appeal are moot. The appeal is dismissed.

Factual Background[1]

Bernhardt was convicted following a jury trial of aggravated stalking in violation of § 565.225,[2] and armed criminal action

Page 350

in violation of § 571.015. The incident giving rise to Bernhardt's convictions occurred on June 21, 2009; the victim was an adult male who was treating Bernhardt for mental health issues. According to Bernhardt's petition in this case, his convictions are based on a determination that he " purposefully harassed [Victim] by appearing in front of his house on two or more occasions while in possession of a firearm . . . and communicated a credible threat by displaying a weapon in front of his home and did so with the intent of placing [Victim] in reasonable fear for his safety or the safety of his family or household."

The Missouri Board of Probation and Parole granted Bernhardt parole in November 2012. Bernhardt was ordered to obtain a sex offender evaluation as a special condition of his parole, even though he had not been convicted of a sexual offense.

On April 1, 2013, Bernhardt filed a verified petition in the Circuit Court of St. Louis County to challenge the Board's mandate that he complete a sex offender evaluation. Bernhardt's petition sought a temporary restraining order, preliminary and permanent injunctive relief, a declaratory judgment, and a writ of prohibition. The petition alleged that requiring Bernhardt to complete a sex offender evaluation exceeded the Board's statutory authority and violated his due process rights, because his underlying convictions were not sexual in nature, and he had never been previously convicted of a sex crime.

The case was transferred to the Circuit Court of Cole County. The Board filed a Motion for Judgment on the Pleadings, ...


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