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State ex rel. Schmitt v. Hayes

Court of Appeals of Missouri, Western District, Writ Division

February 26, 2019

STATE OF MISSOURI ex rel. ERIC S. SCHMITT, Relator,
v.
THE HONORABLE SCOTT A. HAYES, Circuit Judge of Randolph County, and MICHELLE CHAPMAN, Circuit Clerk, Randolph County Circuit Court, Respondents.

          ORIGINAL PROCEEDING ON PETITION FOR WRIT OF CERTIORARI

          Before: Mark D. Pfeiffer, Presiding Judge, and Thomas H. Newton and Anthony Rex Gabbert, Judges.

          Mark D Pfeiffer, Presiding Judge.

         This is an original proceeding in certiorari to review the record in the case of Cole v. Minor, Circuit Court of Randolph County, Missouri ("habeas court"), Case No. 18RA-CV00296. In that case, the Honorable Scott A. Hayes issued a writ of habeas corpus to Vance A. Cole ("Cole"). Following the issuance of the writ of habeas corpus, Eric S. Schmitt, 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. See State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001) ("When the Attorney General seeks a writ of certiorari, the writ issues as a matter of course and of right, so that an appellate court can review the propriety of the habeas court's grant of the writ." (internal quotation marks omitted) (footnote omitted)). 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.[1]

         Factual and Procedural History

         On April 29, 2013, in State v. Cole, Case No. 12CR-CR00131, Cole pleaded guilty to one count of the class C felony of first-degree tampering with a motor vehicle and one count of the class A misdemeanor of stealing. The Circuit Court of Carroll County, Missouri ("sentencing court"), sentenced Cole as a prior and persistent felony offender to ten years' imprisonment for the tampering charge and a concurrent thirty-day sentence, with credit for time served, for the stealing charge. The sentencing court suspended execution of the sentence and placed Cole on probation for five years. Cole's probation began on April 29, 2013, and had an original expiration date of April 29, 2018.

         After Cole's probation term began, he violated his probation multiple times, though no motion to revoke or suspend probation was filed at any time prior to February 2016. In fact, no hearing was requested in response to any of these violation reports prior to February 2016.[2]However, in October 2015, the Board of Probation and Parole ("Board") did request a hearing, for the purpose of discussing unpaid court costs. The sentencing court held a hearing on October 28, 2015. Cole was present at the hearing and waived counsel. A representative of the Board informed the sentencing court that Cole was "eligible for the earned compliance credits" ("ECC") and that his ECC discharge date was February 2016.

         Of relevance, there was no discussion at this time about the State seeking to suspend or revoke Cole's probation based upon any previous probation violations; nor did the sentencing court announce any intention that the court intended to suspend or revoke probation due to any probation violations. In fact, the only subject matter discussed at the hearing was the payment of court costs.[3] Cole admitted to the sentencing court that he was in arrears on payment of court costs and would not be able to complete payment of the court costs prior to February 2016. The sentencing court announced:

. . . [Cole has] admitted the violation for not paying court costs as originally ordered. I'm going to find that those unpaid costs are restitution[4] and order that you shall not have your earned compliance credits applied until restitution is paid.

         After February 2016, Cole engaged in conduct that violated his original probation terms, the State sought to revoke Cole's probation and, on January 25, 2017, a revocation hearing was held, at which Cole admitted violating the conditions of his original probation. After accepting Cole's admission and considering the alternatives to revocation, the sentencing court revoked Cole's probation and ordered his sentence executed.

         On March 6, 2018, Cole filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County, Missouri ("habeas court"), requesting that he be released from the sentence in State v. Cole because his probation period for the class C felony of first-degree tampering with a motor vehicle had expired in February 2016. Cole argued that he was being illegally detained by the Department of Corrections because he was entitled to receive ECC pursuant to section 217.703, [5] and with his ECC, his probation expired by operation of law on February 29, 2016. He argued that when a probation term ends, so does the court's authority over the case; therefore, the sentencing court exceeded its authority when it revoked his probation on January 25, 2017.

         In response, the State argued that section 217.703.8 prohibited a petitioner from challenging the award of ECC in any motion for post-conviction relief, including an application for a writ of habeas corpus filed after a probation revocation. The State also contended that Cole invited any error in ECC calculation when he agreed[6] to have his court costs declared restitution and his ECC discharge date suspended. The State further argued that the calculation of ECC is an administrative function of the Board (§ 217.703.9); thus, Cole's only avenue to challenge the ECC calculation was to seek a writ of mandamus compelling the Board to perform its duty of calculation while he was on probation, or a writ of prohibition seeking to prevent his revocation before the error was corrected.

         On January 8, 2019, the habeas court issued its judgment, granting Cole's petition for writ of habeas corpus and ordering that Cole be released from confinement, discharged from probation, and relieved from execution of his sentence. The habeas court concluded that:

• section 217.703 (pre-2018) governs ECC and mandates that the Board shall award earned compliance credits to an offender who is in compliance with the terms of his probation;
• section 217.703 does not grant the sentencing court authority to deny a probationer credit under the statute based on the failure to pay court costs;
• no new violation reports were filed until after Cole's ECC discharge date in February 2016;
• with the application of ECC, Cole's term of probation expired in February 2016;
• the sentencing court did not have the authority under section 559.036.8 to revoke probation after a probation term ended because it did not manifest its intention to revoke Cole's probation prior to February 2016, nor did it make every reasonable effort to conduct any such revocation hearing prior to February 2016;
• the sentencing court was without authority to revoke Cole's probation on January 25, 2017.

         On January 9, 2019, the State filed a petition for writ of certiorari in this court, requesting that this court review and quash the record of the habeas court that issued the January 8, 2019 ruling granting Cole a writ of habeas corpus. On the same date, this court granted the preliminary writ of certiorari, ordered a stay of Cole's release pending a review of the issues raised in the habeas action, and ordered the Circuit Clerk of the Circuit Court of Randolph County to return the record of the habeas corpus proceedings to this court for review.[7]

         Standard of Review

         "Because there is no right of appeal from the granting of a writ of habeas corpus, review is by writ of certiorari." State ex rel. Hawley v. Spear, 544 S.W.3d 267, 272 (Mo. App. W.D. 2018). "Certiorari is available to correct [habeas] judgments that are in excess or an abuse of jurisdiction, and that are not otherwise reviewable on appeal." Id. (internal quotation marks omitted). "Our review is limited to whether the habeas court exceeded the bounds of its authority to grant habeas relief or abused its discretion in issuing the writ of habeas corpus." Id. (internal quotation marks omitted).

         This court does not review the habeas court's findings of fact. Id. "Instead, our review is limited to questions of law that are presented in the record before the habeas court." Id. "However, the sufficiency of the evidence to support the writ of habeas corpus as a whole is a question of law subject to certiorari review." Id. (internal quotation marks omitted). "In reviewing the sufficiency of the evidence, [w]e assume the habeas court made findings of fact warranted by the evidence sufficient to sustain the habeas judgment." Id. (internal quotation marks omitted). "[E]very lawful intendment will be made in favor of the determination and the regularity of the proceedings below." Id. (internal quotation marks omitted). "We will find that the habeas court abused its discretion only if its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (internal quotation marks omitted). "Upon the completion of our review, our options are to either quash the writ or [to] uphold the actions of the habeas court in whole or in part." Id. at 273 (internal quotation marks omitted).

         Analysis

         In the Attorney General's petition for writ of certiorari, he contends that the habeas court abused its discretion in issuing the writ because: (1) under the doctrine of self-invited error, Cole waived any right to an earlier ECC discharge date; and (2) under Missouri law (§ 217.703.8), an offender may not challenge the award or rescission of ECC in a petition for habeas corpus relief.

         Self-Invited Error

         First, the Attorney General argues that the habeas court acted beyond its authority and abused its discretion when it granted habeas relief because Cole was not entitled to relief under the doctrine of self-invited error. The Attorney General contends that Cole expressly waived any right to an earlier ECC discharge date when, in response to the sentencing court announcing its plan to classify "court costs" as "restitution" and "suspend ECC," Cole, pro se, stated: "I think that's fair." While we conclude this colloquy is hardly an "invitation" to the sentencing court to act in excess of its statutory authority, the entire argument is a red herring; for, at no time prior to February 2016 did the Board or the State seek to suspend or revoke Cole's probation; nor was Cole's probation suspended or revoked prior to February 2016. And, without such a probation suspension or revocation, ECC continued to accrue via section 217.703, resulting in an ECC discharge date in February 2016.

         Cole was placed on probation in 2013. Section 217.703 was enacted effective August 28, 2012.[8] It provided:

1. The division of probation and parole shall award earned compliance credits to any offender who is:
(1) Not subject to lifetime supervision under sections 217.735 and 559.106 or otherwise found to be ineligible to earn credits by a court pursuant to subsection 2 of this section;
(2) On probation, parole, or conditional release for an offense listed in chapter 195 or for a class C or D felony, excluding the offenses of aggravated stalking, sexual assault, deviate sexual assault, assault in the second degree under subdivision (2) of subsection 1 of section 565.060, sexual misconduct involving a child, endangering the welfare of a child in the first degree under ...

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