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Reynolds v. Missouri Bd. of Prob. & Parole

Court of Appeals of Missouri, Western District, First Division

July 28, 2015

BILLY J. REYNOLDS AND JODY MILLER, Appellants,
v.
MISSOURI BOARD OF PROBATION AND PAROLE, ET AL., Respondents

Page 414

Appeal from the Circuit Court of Cole County, Missouri. The Honorable Daniel R. Green, Judge.

Billy J. Reynolds and Jody Miller, Appellants, Pro se.

Michael J. Spillane, Jefferson City, MO, for respondents.

Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and James E. Welsh, Judge. All concur.

OPINION

Cynthia L. Martin, Judge

Page 415

Billy J. Reynolds (" Reynolds" ) and Jody Miller (" Miller" ) (collectively referred to as " Appellants" ) appeal from a grant of summary judgment in favor of the Missouri Board of Probation and Parole (" Board" ) and Matt Strum, the Director of the Division of Offender Rehabilitative Services for the Missouri Department of Corrections (" Director" ) on the Appellants' petition challenging the Board's extension of conditional release dates due to Appellants' failure to satisfactorily complete the Missouri Sexual Offender Program (" MoSOP" ). Finding no error, we affirm.

Factual and Procedural Background

We view the record below in the light most favorable to the Appellants against whom summary judgment was entered. Hammack v. Coffelt Land Title, Inc., 284 S.W.3d 175, 177-78 (Mo. App. W.D. 2009).

On November 7, 2005, Reynolds was sentenced following his convictions of two counts of statutory rape for offenses that occurred on August 10, 2003. Reynolds received a six year sentence on each count to be served consecutively in the Department of Corrections (" DOC" ).

On November 20, 2006, Miller was sentenced following his convictions of two counts of statutory sodomy for offenses that occurred on June 27, 2003, and one count of statutory sodomy for an offense that occurred on August 31, 2004. Miller received a five year sentence on each count with one of the sentences to be served consecutively to the concurrent service of the other two sentences in the DOC.

In April of 2013, the Board extended the conditional release dates calculated for Reynolds's and Miller's sentences to their maximum release dates because Reynolds and Miller failed to satisfactorily complete MoSOP. Reynolds's maximum release date is May 7, 2017, and Miller's maximum release date is October 6, 2016.

On September 23, 2013, the Appellants filed a petition for declaratory judgment in the Circuit Court of Cole County, Missouri asserting three counts: (1) that the Director failed to satisfy a condition precedent to the right to file a petition seeking to extend their conditional release dates because neither Reynolds nor Miller was charged with or found guilty of failing to follow a rule or regulation as required

Page 416

by section 558.011.5; [1] (2) that the Board's reliance on an amended version of section 589.040 to render the Appellants ineligible for parole violated the constitutional prohibition against ex post facto laws; [2] and (3) that the Board's reliance on an amended version of section 589.040 to render the Appellants ineligible for conditional release violated the constitutional prohibition against ex post facto laws. In summary, the Appellants alleged that satisfactory completion of MoSOP is not a " rule or regulation" permitting the Board to exercise its discretion to extend conditional release dates under section 558.011.5. And the Appellants alleged that the Board was constitutionally prohibited from relying on section 589.040 which, following its amendment in 2011, expressly prohibits the grant of parole or conditional release to any sexual offender who fails to satisfactorily complete MoSOP.

The Board and the Director filed a motion for summary judgment (" Motion" ). The Motion alleged as an uncontroverted fact that the DOC's written rules and regulations governing conditional release provide that " [a]n extension petition may . . . be filed if an offender fails to complete [MoSOP]." The Appellants controverted this assertion, arguing that the DOC's written " rules and regulations" are merely " policies." The Appellants also alleged additional controverted facts. They alleged that no evidence was offered at Reynolds's conditional release extension hearing to suggest that he had violated a " rule or regulation," and instead the evidence indicated that he violated a " policy." They alleged that Reynolds was terminated from MoSOP because his case was still on appeal, a " procedural termination" [3] and not a rule violation. Finally, the Appellants alleged that no evidence was offered at Miller's conditional release extension hearing that Miller violated a " rule or regulation." The Board and the Director did not respond to the Appellants' additional controverted facts.[4]

Page 417

The trial court entered its Judgment concluding that the Board and the Director " are entitled to judgment as a matter of law and there are no genuinely disputed issues of fact material to that finding." The Judgment held that denial of conditional release based on a failure to complete MoSOP is authorized by Missouri case law; that there is no liberty interest in conditional release; that section 558.011 does not require a " conduct" violation before a conditional release hearing may be held; that the DOC's policy requiring satisfactory completion of MoSOP at the risk of losing a conditional release date was known to the Appellants; that there is no indication the Board relied on the 2011 amendment to section 589.040 to extend the Appellants' conditional release ...


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