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Mann v. McSwain

Court of Appeals of Missouri, Western District, Third Division

June 13, 2017

TONY MANN, Appellant,
v.
ELLIS McSWAIN, Respondent.

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

          Before Alok Ahuja, P.J., and Victor C. Howard and James E. Welsh, JJ.

          Alok Ahuja, Judge

         In 2002, appellant Tony Mann was convicted of assault of a law enforcement officer in the first degree and an associated count of armed criminal action. Mann is currently serving his sentences. The Board of Probation and Parole issued an order granting Mann parole and ordering that he be released from confinement on October 5, 2016. The Board later rescinded that order, however, because it determined that assault of a law enforcement officer is a "dangerous felony" for which Mann is required to serve eighty-five percent of his sentence before becoming parole-eligible. Mann filed a petition for a writ of mandamus in the Circuit Court of Cole County to compel the Board to reinstate his parole release date. The circuit court denied relief, and Mann appeals. We affirm.

         Factual Background

         Following a bench trial, Mann was convicted in 2002 in the Circuit Court of Greene County of first-degree assault of a law enforcement officer, and an associated count of armed criminal action. The convictions arose from an incident on October 4, 2001, in which Mann fired a handgun at a Springfield police officer who was attempting to detain him. The circuit court sentenced Mann to life imprisonment on the assault charge, and to ten years' imprisonment for armed criminal action, with the sentences ordered to run concurrently. A detailed description of the underlying offense, and of Mann's prosecution, is contained in the opinions of the Southern District affirming Mann's convictions on direct appeal, and affirming the denial of his motion for post-conviction relief. See State v. Mann, 129 S.W.3d 462 (Mo. App. S.D. 2004); Mann v. State, 245 S.W.3d 897 (Mo. App. S.D. 2008).

         Mann is currently incarcerated at the South Central Correctional Center in Licking. In October 2014, Mann received his first parole hearing. Following that hearing, the Board issued an order on November 17, 2014, granting Mann parole and ordering that he be released from confinement on October 5, 2016.

         On March 7, 2016, the Board cancelled Mann's parole release date. The Board rescinded its earlier order based on its determination that first-degree assault of a law enforcement officer is a "dangerous felony" within the meaning of § 556.061(8), [1] and that Mann is therefore required to serve eighty-five percent of his sentence before becoming eligible for parole pursuant to § 558.019.3. The Board set a new parole hearing in 2025.

         On April 22, 2016, Mann filed a petition for a writ of mandamus challenging the Board's action in the Circuit Court of Cole County. The circuit court issued a preliminary writ of mandamus on April 25, 2016. After briefing and argument, however, the court quashed its preliminary writ and denied Mann's petition.

         Mann appeals.[2]

          Standard of Review

An appeal will lie from the denial of a writ petition when a lower court issued a preliminary order in mandamus but then denied a permanent writ. . . . An appellate court reviews the denial of a petition for a writ of mandamus for an abuse of discretion. An abuse of discretion in denying a writ occurs when the circuit court misapplies the applicable statutes.

U.S. Dep't of Veterans Affairs v. Boresi, 396 S.W.3d 356, 358-59 (Mo. banc 2013) (citations omitted). "Where . . . issuance of the writ depends on the interpretation of a statute, this Court reviews the statute's meaning de novo." State ex rel. White Family P'ship v. Roldan, 271 S.W.3d 569, 572 (Mo. banc 2008) (citation omitted).

         Analysis

         Mann argues that the circuit court should have granted him mandamus relief, because the Board erroneously concluded that his offense constituted a "dangerous felony." We disagree.[3]

         We begin with the text of the relevant statutes. Mann was convicted of first-degree assault of a law enforcement officer under § 565.081. At the time of his offense in 2001, § 565.081 provided:

1. A person commits the crime of assault of a law enforcement officer in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical ...

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