Court of Appeals of Missouri, Western District, Writ Division
STATE OF MISSOURI, ex rel. JOSHUA D. HAWLEY, Relator,
THE HONORABLE BART SPEAR, Circuit Judge of DeKalb County, and, JULIE WHITSELL, Circuit Clerk DeKalb County Circuit Court, Respondents.
PROCEEDING ON PETITION FOR WRIT OF CERTIORARI
Before: Lisa White Hardwick, Presiding Judge, Victor C.
Howard and Cynthia L. Martin, Judges
White Hardwick, Presiding Judge
an original proceeding in certiorari to review the record in
the case of Embrey v. Pash, Circuit Court of DeKalb
County, Missouri, Case No. 17DKCC00073. In that case,
the Honorable Bart Spear ("the habeas court")
issued a writ of habeas corpus to Donnie Embrey
("Embrey") on October 5, 2017.
the issuance of the writ of habeas corpus, the Attorney
General of the State of Missouri ("Attorney
General") filed a petition for writ of certiorari in
this court, which we granted as a matter of right. State
ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc
2001). Because we conclude that the habeas court did not
abuse its discretion in granting the writ of habeas corpus,
we refuse to quash the record of the habeas court.
and Procedural History
September 2013, Embrey pleaded guilty to one count of
financial exploitation of the elderly. In January 2014, the
court sentenced him to a term of 25 years in prison, but the
court retained jurisdiction pursuant to Section
559.115and ordered him to serve 120 days of shock
incarceration in the Department of Corrections. After Embrey
successfully completed the 120-day program, the court placed
him on probation for a period of five years, beginning on May
22, 2014. One of the conditions of Embrey's probation was
to pay restitution in the amount of $242, 000, together with
interest of nine percent per annum. In its judgment, the
sentencing court ordered that the monthly amount of
restitution initially be set by Embrey's parole officer
and continue in that amount unless modified by the court. The
record does not reflect that Embrey's parole officer set
a monthly amount for Embrey to pay.
August 7, 2014, the State filed a motion to revoke
Embrey's probation. The ground stated for revocation was
that Embrey failed to pay court-ordered restitution. On
September 4, 2014, the sentencing court held a hearing. No
evidence was presented, but counsel for the State and Embrey
offered arguments. Embrey's counsel explained that Embrey
had taken a job in Oklahoma but voluntarily terminated it
after the employer refused to deduct taxes from Embrey's
paycheck, which was one of the court's requirements.
After leaving the job in Oklahoma, Embrey returned to St.
Joseph to work at a pork plant. At the time of the September
hearing, he was still working at the pork plant but had
acquired a different job that he planned to start shortly
after the hearing. Embrey's counsel asked the court's
permission to allow Embrey to work for himself in addition to
working for an employer, but the court would not allow it
because of his criminal history of stealing from people who
hired him when he was self-employed. The court set
Embrey's monthly restitution payment at $4000 and
scheduled a probation violation hearing for October 2, 2014.
October 2, 2014, Embrey waived his right to a probation
violation hearing and admitted that he violated a condition
of his probation by failing to pay restitution as ordered.
After this hearing, the court ordered that Embrey's
probation be continued and ordered additional conditions of
his probation. On November 20, 2014, the sentencing court, on
its own motion, issued a notice of probation violation
alleging that Embrey had violated his probation by failing to
court held another probation violation hearing on December
18, 2014. The only evidence adduced by the State concerning
Embrey's nonpayment of restitution was its provision of a
printout, which Embrey conceded was accurate, showing that he
had paid a total of $6200 in restitution since the October
hearing. According to the State, as of the date of the
December 2014 hearing, Embrey owed approximately $215, 300 of
the original restitution amount of $242, 000.
offered evidence of his current employment with Blue Sun St.
Joe Refining. The company's human resources manager
testified that Embrey began working as a full-time temporary
employee at an entry level wage of $11 per hour on October
14, 2014. Embrey worked full time and overtime, which meant
that he worked 12-hour shifts. The manager testified that,
after Embrey's probationary period ended in mid-January
2015, he anticipated that Embrey would begin making $12 to
$14 per hour.
court also heard arguments from both counsel. The prosecutor
argued that Embrey owed "a massive amount of
restitution"; that he did not know how Embrey could
"possibly pay this restitution at $4, 800 a month during
the course of his probation"; and that it was not
"reasonable to believe" that Embrey could pay it.
In response, Embrey's counsel noted that Embrey had paid
over $27, 000 during the past 16 months, which included the
four months in which he was serving his 120-day shock
incarceration. Embrey's counsel also asserted that Embrey
was using his income solely to pay restitution, while his
wife was working two jobs to support them. Embrey's
counsel requested that the court continue to allow Embrey to
make restitution averaging approximately $2000 per month for
the entire period of his probation, consider extending his
probation beyond five years, and if, at the end of the
probation extension the restitution was not paid, revoke his
probation and send him to prison at that time. According to
Embrey's counsel, Embrey indicated that he would sell
"everything they own" and family members would
assist him if he was unable to pay his restitution at the end
of an extended probation term.
sentencing court stated that, if Embrey were to continue to
pay restitution in the amount of $2000 per month, it would
take him nine years to pay off the entire amount owed, and
"there's no law in the world that allows anybody to
be on probation for nine years." The court also said
that, if Embrey could really pay only $2000 per month, then
"somebody" should "pay a lump sum right now of
$100, 000 or whatever it would be and then he pays the $2,
000 a month over that time period." At the close of the
hearing, the sentencing court revoked Embrey's probation,
right. In this case, the Court finds that the restitution has
not been paid as directed. As I indicated, Mr. Embrey was
ordered to pay $4, 000 per month as of October; that in
October, it was shy by $200. In November, that was ...