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Brown v. Missouri Board of Probation and Parole

Court of Appeals of Missouri, Western District, Third Division

December 20, 2016

RICHARD BROWN, Appellant,
v.
MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Daniel R. Green, Judge

          Before: Victor C. Howard, Presiding Judge, Lisa White Hardwick and Edward R. Ardini, Jr., Judges

          Lisa White Hardwick, Judge

         Richard Brown appeals the grant of judgment on the pleadings in favor of the Missouri Board of Probation and Parole ("the Board") on his declaratory judgment petition. Brown had sought a judgment declaring that his second-degree assault conviction should be reclassified as a nonviolent felony for purposes of parole eligibility and that he should be eligible for parole after serving fifteen percent of his second-degree assault sentence. He argues that the court misapplied the law in denying his request for declaratory judgment. For reasons explained herein, we affirm.

         Factual and Procedural History

         In January 1998, Brown was sentenced to consecutive terms of twenty-five years in prison for second-degree murder and five years in prison for second-degree assault. The Department of Corrections calculated Brown's sentences as starting on November 3, 1997.

         The Board determined that Brown must serve eighty-five percent of his murder sentence, or approximately twenty-one years and three months, before becoming parole eligible. After serving the minimum term for murder, Brown must then serve the minimum term for second-degree assault before becoming parole eligible. The Board determined that Brown's minimum term for second-degree assault is twenty months. Pursuant to the Board's calculation, Brown would become parole eligible in October 2020.

         In July 2014, Brown filed a petition for declaratory judgment. In his petition, he asked the court to order the Board to reclassify his assault offense as a nonviolent felony and to recalculate his parole eligibility accordingly. He argued that the Board's regulations classifying second-degree assault as a violent felony for purposes of parole eligibility are contrary to statute and the Supreme Court's opinion in State ex rel. Matthews v. Maloney, 155 S.W.3d 62 (Mo. banc 2005). He asserted that second-degree assault should be classified as a nonviolent felony, which would require him to serve only fifteen percent of the maximum sentence before becoming parole eligible.

         In its answer, the Board argued that Section 217.690[1] authorizes it to adopt regulations governing parole eligibility and that, under these valid regulations, second-degree assault is a violent felony requiring an offender to serve thirty-three percent of the maximum sentence before becoming parole eligible.

         The Board filed a motion for judgment on the pleadings, and Brown filed suggestions in opposition. The court granted the motion and entered judgment on the pleadings in favor of the Board, finding that the Board's classification of second-degree assault was not contrary to statute and that the Board correctly calculated Brown's parole eligibility. Brown appeals.

         Standard of Review

         On appeal from a grant of judgment on the pleadings, "we review the allegations of the petition to determine whether the pleaded facts were insufficient as a matter of law." Kaczynski v. Mo. Bd. of Prob. & Parole, 349 S.W.3d 354, 356 (Mo. App. 2011). We will affirm the grant of judgment on the pleadings if, taking the facts alleged in the plaintiff's petition as true, we find that the moving party was entitled to judgment as a matter of law. Id.

         Analysis

         In his sole point on appeal, Brown contends the court misapplied the law when it found that the Board did not exceed its authority by classifying second-degree assault as a violent felony for parole eligibility purposes. The Board classifies felonies as violent or nonviolent in Appendix C of its Procedures Governing the Granting of Paroles and Conditional Releases. These classifications are then used to determine an offender's minimum parole eligibility under 14 C.S.R. 80-2.010(1). Regulation 14 C.S.R. 80-2.010(1)(D) provides that offenders convicted of felonies classified as violent are eligible for parole after serving thirty-three percent of the maximum sentence, ...


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