In the instant case, Newton contends that the DOCs determination of the beginning date of his 120-day period ordered by the Sentencing Court was incorrect and that this alleged miscalculation impaired his rights under § 559.115. The DOC calculated the start date of his 120-day period on the date he was sentenced, January 22, 2015. Newton maintains that the DOC should have considered February 4, 2015 (the date he physically returned to the DOC) as the date he commenced his 120-day period, which would have provided him with an additional 13 days to complete the ITC program. Consequently, we consider whether Newton had a legally protected interest, if that interest was harmed by the DOCs action, and if so, whether that constitutes a justiciable controversy that presents a real, substantial, presently-existing controversy admitting of specific relief. Missouri Soybean Assn, 102 S.W.3d at 25.
Though ostensibly separate claims of error, Newtons first and third points on appeal both implicitly rely on his assertion that the trial court erred in upholding the DOCs determination of the start date of his 120-day ITC program (Point III), and erred in finding that Newtons claim failed to present a justiciable controversy (Point I). As discussed below, we find that the DOC did miscalculate the beginning date of Newtons 120-day period, but that this did not present the Trial Court with a justiciable controversy entitling Newton to declaratory relief.
In pertinent part, § 559.115.3 provides that the offender shall be released on probation if the department of corrections determines that the offender has successfully completed the program except as follows ... (emphasis added). The exception makes the offenders release on probation contingent upon the sentencing court refraining from executing his sentence. Id . Under § 559.115.3, if an offender successfully completes a program, the board of probation and parole must advise the sentencing court of the statutory discharge at least thirty days before release is scheduled to occur. Id. The sentencing court shall follow the recommendation of the department unless it determines that probation is not appropriate. Id. If the sentencing court determines that probation is not appropriate it may order execution of the sentence but only after conducting a hearing on the matter. Id. The hearing must be held within 90 to 120 days from the date the offender was delivered to the department of corrections. Id. If the DOC has reported successful completion of the ITC program, and the hearing is not held within the 120-day period, the prisoner is entitled to statutory discharge, even if the sentencing court ordered the execution of his sentence. Id. See also State ex rel. Kizer v. Mennemeyer , 421 S.W.3d 558, 560 (Mo. App. E.D. 2014) (finding that a sentencing courts order executing a prisoners sentence was beyond the courts discretion when the prisoner had successfully completed the program and the sentencing court failed to hold a hearing within 120 days as required by statute). Other than requiring a hearing, the statute places no restrictions on the discretion of the sentencing court to release the offender or execute his sentence. § 559.115.3.
Successful completion of the ITC program is determined by the DOC. Id. If the DOC finds that an offender did not complete the ITC program, they are to remove the offender from the program, to advise the court of the withdrawal, and to issue a report on the offenders participation in the program. Id. The DOC may make recommendations about the terms and conditions of probation. Id. The sentencing court then has the discretion to award probation or execute the sentence. Id. If the sentencing court decides to award probation when the offender did not successfully complete a 120-day program, it must inform the State in writing prior to the grant of probation. § 559.115.6. The State has ten days to request a hearing in writing. Id. If the State does not request a hearing, the court may then grant probation. Id.
I. The date of physical delivery to the DOC (February 4, 2015) was the beginning date of Newtons 120-day period of confinement under § 559.115.3.
Section 559.115.3 provides for a 120-day period in which a sentencing court retains authority to grant probation, or (where the DOC has determined the prisoner is eligible for statutory discharge) to hold a hearing to determine whether to require the defendant to continue serving out his sentence. In relevant part, § 559.115.3 provides that the period in which the sentencing court retains authority is calculated from the date the offender was delivered to the department of corrections. (emphasis added). Delivered is not a defined term in the statute. When a term is not defined the application of the plain and ordinary meaning of a statutes words is the north star of statutory interpretation. State v. Bouse, 150 S.W.3d 326, 329 (Mo. App. W.D. 2004). Here, the DOC does not dispute that delivery means physical delivery. However, the DOC contends, without citation, that until an offender is released, they can only be delivered to the DOC one time. Consequently, because Newton had already been delivered to the DOC pursuant to the Vernon County sentences, he was only on outcount when he was physically in the Christian County jail. According to the DOC, because Newton was still in their constructive custody, he was delivered to the DOC for the Christian County sentences on the date that he was sentenced. Under this interpretation, the 120-day term during which § 559.115.3 granted the Sentencing Court authority over Newtons probation began when he was sentenced on January 22, 2015, not when he physically was returned to their facility on February 4, 2015.
The DOCs interpretation of the statute is contrary to Missouri law and principles of statutory interpretation. In 2013 § 559.115.3 was amended. Before the 2013 amendment, the statute provided that the sentencing court was required (when determining whether to deny probation after the DOC had determined the defendant had successfully completed the ITC program) to conduct a hearing on the matter within ninety to one hundred twenty days of the offenders sentence. § 559.115.3, RSMo Cum. Supp. 2012 (emphasis added). The 2013 amendment now requires a hearing on the matter within ninety to one hundred twenty days from the date the offender was delivered to the department of corrections. § 559.115.3, RSMo Cum. Supp. 2013 (emphasis added).
The current version of the section 559.115.3, which became effective after Kizer completed his first 120 days, now provides that the trial court shall conduct a hearing on the matter within 90 to 120 days from the date the offender was delivered to the Department of Corrections, rather than within 90 to 120 days from the offenders sentence.
Mennemeyer , 421 S.W.3d at 560 n.3.
We do not ignore such specific and distinct changes in the law. When the General Assembly alters a statute, we are obligated to deem the alteration as having an effect. Bouse, 150 S.W.3d at 334. By explicitly replacing sentenced with delivered the legislature chose to use an event to calculate the 120-day term that ensured that an offender would be physically under the control of the DOC and able to participate in a program before the clock began to run on the term of authority of the sentencing court.
In the context of post-conviction proceedings, the Missouri Supreme Court held that the term delivery meant physical delivery:
within ninety days after the movant is delivered to the custody of the Department of Corrections. Failure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed under this Rule 24.035. The time limits established in Rule 24.035 are mandatory; failure to file a timely motion procedurally bars a movant from seeking relief under the rule.
The court of appeals held and the State argues here that a person under probation is within the constructive custody of the Department of Corrections. This is because (a) the Board of Probation and Parole is a division of the Department of Corrections and (b) a person under probation is subject to court imposed conditions and the supervision of that board.
Although a concept of constructive custody can be found in the case law in other contexts, the language of Rule 24.035 is plain and not couched in terms of constructive custody. We, therefore, hold that the time limitations imposed in Rule 24.035 begin to run when a person under sentence is delivered, physically, into the custody of the Department of Corrections.
Thomas v. State , 808 S.W.2d 364, 365 (Mo. banc 1991) (internal citation omitted)
Contrary to the DOCs assertion that there can only be one date for delivery, Missouri courts have held that delivery to the DOC for a particular sentence is required to trigger the running of the time limits for that sentence, even when the offender was already in the DOC on another charge when he received the later sentence at issue. Hopkins v. State , 802 S.W.2d 956, 958 (Mo. App. W.D. 1991) ; see also McGowan v. State , 949 S.W.2d 657, 658 (Mo. App. S.D. 1997) (finding that the fact that an offender was currently residing in the DOC was immaterial in calculating the date he was in custody because that incarceration was on a different conviction and the statute required physical delivery to the DOC for the conviction being challenged).
In light of these precedents which had interpreted delivery to mean physical delivery, the legislatures amendment of § 559.115 in 2013 changing the event used to calculate the start date of the program period from sentencing to delivery is significant.
In construing statutes to ascertain legislative intent it is presumed the legislature is aware of the interpretation of existing statutes placed upon them by the state appellate courts, and that in amending a statute or in enacting a new one on the same subject, it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature would be accomplishing nothing, and legislatures are not presumed to have intended a useless act.
Kilbane v. Director of Department of Revenue, 544 S.W.2d 9, 11 (Mo. banc 1976) (quoting Gross v. Merchants-Produce Bank , 390 S.W.2d 591, 597 (Mo. App. 1965) ).
The use of the date of Newtons sentence to calculate the start of his 120-day term was incorrect. The 120-day period began on the date he returned to the DOC, February 4, 2015, and ended on June 4, 2015.
II. The DOCs error in calculating the 120-day period does not present a justiciable controversy that serves as a basis for Newtons declaratory judgment action.
The DOCs miscalculation of the 120-day period did not entitle Newton to the declaratory relief he sought from the Trial Court. It has long been established that a declaratory judgment action can be brought to determine a prisoners entitlement to release under the relevant parole statutes and regulations.
Gettings v. Missouri Dept of Corr. , 950 S.W.2d 7, 8 n.1 (Mo. App. W.D. 1997). However, in this instance, any interest that might have been conferred to Newton pursuant to § 559.115.3 (particularly a statutory discharge) was contingent upon conditions that were not met. The authority to conduct a hearing to consider (or to ultimately grant) probation was not in the control of the DOC. Newton did not therefore present a justiciable issue in his declaratory judgment action.
It is undisputed that Newton failed to complete the program in the 120-day period. Newton was withdrawn from the ITC program on April 24, 2015, when the Sentencing Court entered its order denying probation and ordering continued execution of his sentence. Newton waited over a month (until June 1, 2015) to file his motion challenging this determination and asking the Sentencing Court for reconsideration of its ruling. As a consequence, by the time his motion came before the Sentencing Court (June 3, 2015), the 120-day period in which the Sentencing Court had authority to grant probation under § 559.115 had expired according to the calculation of the DOC and had just one day remaining before the June 4, 2015, date that Newton had correctly argued. Even were the Sentencing Court to have agreed with Newton as to his delivery date, there would have been no meaningful opportunity for Newton to complete the ITC program.
Even though the DOC erred in calculating the start date of his 120-day term for the Christian County sentences, Newtons only possible legally protected interest under § 559.115.3 was his loss of the opportunity to complete the ITC program, and, even more remote, his opportunity to receive probation. The assertion that Newton would have successfully completed the remaining thirty-two days of the program is mere speculation that does not entitle him to the relief he requests (declaration of his entitlement to a statutory discharge to probation or entitlement to a hearing to determine whether he is entitled to probation). § 559.115.3.
Moreover, Newtons request for a hearing to determine his entitlement to probation would require that we compel the Circuit Court of Christian County (not a party) to undertake an action (a hearing to consider whether to grant probation after the 120-day period has expired) which it does not have authority to do.
The DOC report, which calculated the wrong start date and indicated that Newton would not be able to complete the program through no fault of his own also indicated, in very clear terms, that Newton should be denied probation. The DOC report highlighted that his past performance on probation was poor, citing criminal violations, contact with a victim of domestic violence (when prohibited from such contact), and absconding from supervision. The DOC report noted Newtons victimization of a juvenile is particularly troubling, especially as he took no accountability for his actions and denied that he had ever engaged in sexually offending behavior.
Despite the positive accounting of Newtons participation in the ITC program, the Sentencing Court followed the DOC recommendation and denied probation. Even had the DOC correctly calculated Newtons 120-day period and had then also determined Newton was entitled to statutory discharge to probation, the Sentencing Court still would have had an opportunity to conduct a hearing 90 to 120 days from February 4, 2015 (May 5 to June 4, 2015), to have determined whether to deny probation. In addition to speculating whether Newton would have completed the ITC program to the DOCs satisfaction, granting him the statutory discharge to probation he now seeks would also require speculating whether the Sentencing Court would have allowed the statutory release to probation.
In County Court of Washington County v. Murphy , 658 S.W.2d 14, 16 (Mo. banc 1983), the Court said:
No justiciable controversy exists and no justiciable question is presented unless an actual controversy exists between persons whose interests are adverse in fact.... Plaintiffs petition [for declaratory relief] must present a real and substantial controversy admitting of specific relief .... The question is justiciable only where the judgment will declare a fixed legal right and accomplish a useful purpose. Plaintiff must present a state of facts from which he has present legal rights against those he names as defendants with respect to which he may be entitled to some consequential relief immediate or prospective.
Id. (emphasis in original) (quoting State ex rel. Chillcutt v. Thatch , 359 Mo. 122, 221 S.W.2d 172, 176 (Mo. banc 1949) ). A declaratory judgment requires a real, substantial, presently-existing controversy as to which specific relief is sought.... a legally protected interest ... subject to immediate or prospective consequential relief.... [And] the question presented by the petition must be ripe for judicial determination. A petitioner who satisfies all three of these elements must also demonstrate that he or she does not have an adequate remedy at law. Charron v. State , 257 S.W.3d 147, 151-52 (Mo. App. W.D. 2008) (quoting Northgate Apartments, L.P. v. City of North Kansas City , 45 S.W.3d 475, 479 (Mo. App. W.D. 2001) ).
In Gettings , our Court set out the circumstances where an offender is entitled to bring a declaratory judgment action to determine whether a statute has been improperly interpreted in violation of their liberty interest:
State statutes and regulations governing parole can create a constitutionally protected liberty interest in parole, however, if they specifically mandate that parole must be granted when certain criteria are met. Yet, even in such cases, a liberty interest is not implicated unless and until statutory and regulatory criteria for release have been satisfied.
Gettings, 950 S.W.2d at 9 (internal citations omitted).
Here, Newton requests that we order his statutory release to probation, or, in the alternative, that he be provided a hearing as required by § 559.115.3. However, he fails to demonstrate facts entitling him to either of these remedies. He has not, and did not, complete the ITC program. Completion of the ITC program is a necessary condition to a provisional grant of statutory release or to a hearing before a court considering denial of such statutory discharge. § 559.115.3. Newton cannot now ask us to craft a remedy to which he was not entitled under the statute. Once judgment and sentencing occur in a criminal proceeding, the trial court has exhausted its jurisdiction. It can take no further action in that case except when otherwise expressly provided by statute or rule. Orr , 366 S.W.3d at 541 (quoting State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. banc 2006) ). This Court cannot grant relief which Newton was not entitled under the statute. Id.
Even though Newton correctly asserts that the DOC miscalculated the 120-day period, this did not present the Trial Court with a state of facts from which he had present rights against the DOC (the only named defendant) entitling him to consequential relief. County Court of Washington , 658 S.W.2d at 16.
Even if the 120-day period had been correctly calculated, Newton would not necessarily have been entitled to a statutory discharge to probation. This did not present the Trial Court with a justiciable controversy that presents a real, substantial, presently-existing controversy admitting of specific relief and is more in the nature of a hypothetical situation requiring speculation as to Newtons eventual successful completion of the ITC program and the Sentencing Courts action (or inaction in the case of a statutory discharge)
allowing probation. Missouri Assn of Nurse Anesthetists , 343 S.W.3d at 353-54.
Points I and III are denied.
Because denial of points I and III is dispositive of Newtons appeal, we need not address Newtons second point on appeal claiming that the trial court erred in finding his petition was barred by the statute of limitations.
Conclusion
Judgment of the Trial Court is affirmed.
All concur.
Newton raises three points on appeal, the first is that the trial court erred in finding that there was no justiciable controversy because the DOC wrongly declared the sentencing court lost authority to release Appellant, the second is that his claim was not time-barred due to his diligent pursuit of his rights, and the third is that the DOCs calculation of his start date was error.
There was some confusion at oral argument about whether Newton completed all but five days of the program. A close examination of the record makes clear that he was withdrawn from it immediately upon the execution of his sentence.
Had Newton immediately sought to correct the DOC error after it generated the April 15, 2015, Court Report Investigation, he might have presented the issue to the Sentencing Court before it executed his sentence (nine days later on April 24, 2015) and before he was withdrawn from the ITC program. The Sentencing Court held a hearing two days after Newton filed his Motion to Reconsider its denial of probation; so clearly there was an opportunity to bring the issue before the Sentencing Court quickly. Alternatively (or simultaneously) he might have sought a timely writ compelling the DOC to correct its error in the calculation of the 120-day period, and requiring the DOC to allow him the opportunity to complete the ITC program. Hopefully, with our clarification regarding the correct manner to calculate the 120-day period, this will not be a recurring issue.
[I]n a criminal proceeding, once judgment and sentencing occur, the trial court has exhausted its jurisdiction, and subsequent proceedings will be considered a nullity. The trial court can take no further action except as otherwise expressly provided by statute. State ex rel. Johnston v. Berkemeyer , 165 S.W.3d 222, 224 (Mo. App. E.D. 2005) (internal citations omitted).
This issue was also examined by this Court in Duly v. Heflin , 873 S.W.2d 932, 934-35 (Mo. App. W.D. 1994) :
Pursuant to sections 559.100 and 217.650, the general rule is that the circuit court has jurisdiction to grant parole to a defendant already confined under a sentence by the court for an offense over which the court has jurisdiction. Therefore, pursuant to the general statutory scheme, the circuit court retains jurisdiction for purpose of parole.
However, when a person is sentenced to the custody of the department of corrections, the state board of probation and parole is solely empowered to determine parole. § 217.655. The only exception to the authority of the state board of probation and parole is provided under section 559.115, which grants the circuit court authority to grant probation to a defendant any time up to 120 days after he has been delivered to the custody of the department of corrections.
In accordance with the statutory scheme, the circuit court loses jurisdiction over parole of a defendant, sentenced to the department of corrections, after 120 days. However, the circuit court retains jurisdiction over parole of a defendant sentenced to a county or city jail.
(Emphasis added.) (limited by State ex rel.Nixon v. Russell , 129 S.W.3d 867 (Mo. banc 2004) on other grounds, since abrogated by amendment of statute.).More recently, following the clarification of authority and jurisdiction set forth in Webb v. Wyciskalla , 275 S.W.3d 249 (Mo. banc 2009), it has been determined that, where an inmate has successfully completed an ITC program (thus entitling him to a statutory discharge), a sentencing court lacks authority to conduct a hearing and deny probation after the 120-day period has expired. State ex rel. Valentine v. Orr , 366 S.W.3d 534, 541 (Mo. banc 2012).
Newton asserts that the Sentencing Courts mistaken belief that it lacked jurisdiction to grant probation (on June 3) caused him to be denied probation. While the Sentencing Court did find that it was without jurisdiction to rule on Newtons motion, it also concluded, as a separate basis for denying Newtons Motion to Reconsider, that Newton failed to complete his program within the time that was required, so for that reason theres no hearing thats required.