                 In the Missouri Court of Appeals
                         Eastern District

                                 WRIT DIVISION FOUR

STATE OF MISSOURI EX REL.          )             No. ED103976
CHRIS KOSTER,                      )
                                   )
        Relator,                   )
                                   )
v.                                 )             Writ of Certiorari
                                   )             Cause No. 1522-CC00702
THE HONORABLE PHILIP HEAGNEY, )
Circuit Judge, St. Louis City, and )
                                   )
THOMAS L. KLOEPPINGER,             )
Circuit Clerk, St. Louis City,     )             Filed: June 30, 2016
                                   )
        Respondents.               )
                                   )

                                        Introduction

       This is an original proceeding in certiorari to review the issuance of a writ of

habeas corpus directing George Fisher (Fisher) be released from the custody of the

Department of Mental Health (DMH). The habeas court ordered Fisher released after

finding his commitment was based on defective pleas of not guilty by reason of mental

disease or defect (NGRI) in two separate cases, one originating in Jackson County and

the other in Audrain County.

       The State seeks review of the habeas court’s decision by means of a petition for

writ of certiorari. The record of the habeas court granting Fisher’s petition for writ of
habeas corpus in Jackson County is quashed and we refuse to quash the record as to the

Audrain County case.

                                Factual and Procedural Background

         Chris Koster (Relator) filed a Petition for Writ of Certiorari along with

Suggestions in Support and Exhibits, challenging the habeas court’s February 2, 2016

Order Granting In Part Petitioner’s Petitions For Writ of Habeas Corpus and ordering the

release of Fisher from the custody of the DMH. This Court issued the writ of certiorari to

the Circuit Clerk of the City of St. Louis directing a certified copy of the record of the

proceedings in Fisher’s habeas corpus case Fisher v. Laurent Javois, 1522-CC00702, be

filed with this Court. The record was filed in this Court.

         The record reflects that Fisher pled NGRI in two cases, a 2007 arson case in

Jackson County1 and a 2008 possession case in Audrain County. 2 The prosecutor and

court accepted the pleas in both cases and Fisher is currently in the custody of the DMH

in the Fulton State Hospital in Fulton, Missouri. Laurent Javois (Javois), Regional




1
  On July 4, 2005, Fisher attempted to set his girlfriend’s father’s porch on fire in Jackson County,
Missouri. On January 20, 2007, Fisher pled guilty to first-degree arson. The Circuit Court of Jackson
County sentenced Fisher to twelve years’ imprisonment in the Department of Corrections. Fisher then filed
a pro se Rule 24.035 motion for post-conviction relief, later amended by counsel asserting the guilty plea
was not knowing, intelligent, and voluntary because Fisher was NGRI at the time of the offense. Fisher
and the State entered into discussions on the amended motion, and Fisher produced two evaluations that
supported his NGRI claim. As a result of the discussions, Fisher and the State agreed the Jackson County
Circuit Court should grant relief on Fisher’s motion, and Fisher should enter a NGRI plea. Fisher’s
attorney filed a NGRI notice as part of these proceedings.
2
  Three months after he committed the arson in Jackson County, Fisher was arrested in Audrain County and
taken to the county jail. While at the Audrain County jail, Fisher was found in possession of a controlled
substance and was charged with this crime. On May 19, 2008, the Audrain County Circuit Court issued its
judgment finding Fisher NGRI and ordering him committed to the DMH. The NGRI plea was accepted by
the State, and the court’s judgment of commitment reflects a NGRI notice was filed. However, the notice
currently cannot be located in the Audrain County Circuit Court’s file. A copy is in the State’s file and the
Public Defender’s electronic file.



                                                     2
Executive Officer of the St. Louis Psychiatric Rehabilitation Center, is the DMH official

with custody over Fisher.

       On March 30, 2015, Fisher filed a petition for writs of habeas corpus in the

Circuit Court of the City of St. Louis in Fisher v. Javois, 1522-CC00702, challenging his

own NGRI pleas. On April 9, 2015, Fisher filed his first amended petition for habeas

corpus relief. On April 20, 2015, Fisher filed his second amended petition for habeas

corpus relief. These petitions challenged Fisher’s commitment to the DMH in the

Jackson County arson case, State v. Fisher, 0516-CR8303-01, and related PCR case,

Fisher v. State, 0716-CV08959; and the Audrain County possession case, State v. Fisher,

05U1-CR00609.

       Fisher’s habeas corpus petitions alleged the NGRI pleas in the Jackson County

Case and the Audrain County Case were both deficient. Fisher’s petitions also alleged

the DMH was violating his Eighth Amendment rights because it was providing

inadequate medical treatment. The habeas court issued a show cause order to Respondent

Javois, represented by Assistant Attorney General Gregory Goodwin (Goodwin), who

filed a response. On November 12, 2015, the habeas court held a hearing where both

Fisher, pro se, and Javois, via Goodwin, presented evidence. Fisher testified in his own

behalf and called Dr. James Kelly (Dr. Kelly) to testify on his behalf. Goodwin did not

present any witnesses on behalf of Javois or the State. Both sides introduced exhibits and

presented argument to the habeas court, who took the Petitions under submission at the

end of the hearing.




                                            3
        On February 2, 2016, the habeas court granted in part Fisher’s Petition for writs of

habeas corpus on the Jackson County Case and the Audrain County Case, and denied his

Eighth Amendment claim. This writ of certiorari follows.

                                     Standard of Review

        A writ of certiorari requires an inferior court to produce a certified record of a

particular case for review for irregularities. State ex rel. Koster v. McCarver, 376 S.W.3d

46, 50 (Mo.App. E.D. 2012). It is available to correct judgments that are in excess or an

abuse of jurisdiction, and that are not otherwise reviewable by appeal. Id. A grant of a

writ of habeas corpus in a lower court is reviewed by writ of certiorari. Id. When the

State files a petition for writ of certiorari, this Court issues the writ as a matter of course

and of right. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo.banc 2002).

However, we limit our review to determining whether the circuit court exceeded the

limits of its authority or abused its discretion. Id.

        An abuse of discretion occurs only when the trial court’s 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. Certiorari

presents only questions of law on the record brought up by the return and does not permit

consideration of issues of fact. Id. Questions of sufficiency of the evidence, however,

are questions of law and may be considered by this Court in conducting its review. State

ex rel. White v. Davis, 174 S.W.3d 543, 547 (Mo.App. W.D. 2005).

        Every lawful intendment will be made in favor of the determination and the

regularity of the proceedings below. McCarver, 376 S.W.3d at 50. If we determine the




                                               4
circuit court has erred, then we quash the record of the court that granted the writ. Id. If,

however, we determine the circuit court did not err, we decline to quash the record. Id.

                                            Points

        In its first point, Relator claims it is entitled to an order quashing the habeas

court’s entire record, because the habeas court abused its discretion by granting relief on

Fisher’s claim the NGRI notices were defective, in that Fisher is the one who filed the

“defective” notices.

        In its second point, Relator contends it is entitled to an order quashing the habeas

court’s record with respect to the Jackson County case because the habeas court abused

its discretion by granting relief on the theory that Fisher failed to sign the notice, in that

Missouri law does not require the notice to be signed by the defendant.

        In its third point, Relator maintains it is entitled to an order quashing the habeas

court’s record with respect to the Jackson County case because the habeas court abused

its discretion by returning Fisher to pre-trial status, in that Fisher’s Jackson County

conviction was vacated by the NGRI plea so rendering the NGRI plea a nullity must

reinstate that conviction.

        In its fourth point, Relator asserts it is entitled to an order quashing the habeas

court’s record with respect to the Audrain County case because the habeas court abused

its discretion when it found no notice was filed, in that the habeas court’s determination

was not supported by sufficient evidence.

        In its fifth point, Relator argues it is entitled to an order quashing the habeas

court’s entire record because it was an abuse of discretion not to apply the escape rule to




                                               5
the habeas petition, in that Fisher’s nine-month escape is ample justification to deny

habeas relief.

                                                 Discussion

           For purpose of clarity, we discuss the points out of the order in which they were

presented in Relator’s brief.

                                                   Point II

           In its second point, Relator contends it is entitled to an order quashing the habeas

court’s record with respect to the Jackson County case because the habeas court abused

its discretion by granting relief on the theory that Fisher failed to sign the notice to pursue

a NGRI plea, in that Missouri law does not require the notice to be signed by the

defendant.

           Section 552.030 3 governs NGRI pleas. “A person is not responsible for criminal

conduct if, at the time of such conduct, as a result of mental disease or defect such person

was incapable of knowing and appreciating the nature, quality, or wrongfulness of such

person’s conduct.” Section 552.030.1. Section 552.030.2 provides for the notice to be

given when such a plea is pursued:

           2. Evidence of mental disease or defect excluding responsibility shall not
           be admissible at trial of the accused unless the accused, at the time of
           entering such accused’s plea to the charge, pleads not guilty by reason of
           mental disease or defect excluding responsibility, or unless within ten days
           after a plea of not guilty, or at such later date as the court may for good
           cause permit, the accused files a written notice of such accused’s
           purpose to rely on such defense. Such a plea or notice shall not deprive
           the accused of other defenses. The state may accept a defense of mental
           disease or defect excluding responsibility, whether raised by plea or
           written notice, if the accused has no other defense and files a written
           notice to that effect. The state shall not accept a defense of mental
           disease or defect excluding responsibility in the absence of any pretrial
           evaluation as described in this section or section 552.020. Upon the

3
    All statutory references are to RSMo 2006, unless otherwise indicated.


                                                       6
         state’s acceptance of the defense of mental disease or defect excluding
         responsibility, the court shall proceed to order the commitment of the
         accused as provided in section 552.040 in cases of persons acquitted on
         the ground of mental disease or defect excluding responsibility, and
         further proceedings shall be had regarding the confinement and release of
         the accused as provided in section 552.040.

         (Emphasis added.)

         A plain reading of the applicable statute reveals no requirement the defendant

personally sign the notice. The habeas court read this requirement into the statute

although there is a complete absence of language suggesting such a specific requirement.

         In interpreting statutes, our purpose is to ascertain the intent of the legislature.

State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo.banc 1997). In doing so, we

look to the language used, giving it its plain and ordinary meaning. Am. Healthcare

Mgmt., Inc. v. Dir. of Revenue, 984 S.W.2d 496, 498 (Mo.banc 1999). The courts are

without authority to read into a statute a legislative intent which is contrary to the intent

made evident by giving the language employed in the statute its plain and ordinary

meaning. Kearney Special Rd. Dist. v. County of Clay, 863 S.W.2d 841, 842 (Mo.banc

1993).

         Further, the Missouri Practice Series, although not binding precedent, gives

scholarly guidance in this area because it is based on current, relevant law and compiled

by practitioners and specialists in the particular area of law. 27 MO Practice Series §

7.38, Notice of Intent to Rely on Defense of Not Guilty Due to Mental Disease or Defect,

sets forth a form for the notice prescribed in Section 552.030, which includes a signature

line solely for the attorney for the defendant. 27 Mo. Prac. Criminal Practice Forms §

7.38 (2d ed.) April 2016 update.




                                                7
       We find the statute cannot be read as requiring the defendant himself, who is

pleading guilty by reason of mental defect, to sign the notice of his intent to do so.

Courts may not add words by implication where the statute is clear and unambiguous.

Martinez v. State, 24 S.W.3d 10, 16 (Mo.App. E.D. 2000). Moreover, the habeas court

explained he is giving the statute a “strict construction” by reading the requirement into

the statute, but when the words in the statute are plain and ordinary, as they are here,

there is no room for statutory construction at all, strict or otherwise. Id. When no

ambiguity exists, there is nothing to construe. Id.

       Based on the foregoing, we find the habeas court abused its discretion by granting

habeas relief on the theory that Fisher failed to personally sign the notice of his intent to

plead NGRI. Point II is granted.

                                           Point IV

       In its fourth point, Relator asserts it is entitled to an order quashing the habeas

court’s record with respect to the Audrain County case because the habeas court abused

its discretion when it found that no notice was filed, in that the habeas court’s

determination was not supported by sufficient evidence.

       As set forth in Point II, Section 552.030.2 provides for notice to be given when a

defendant pursues a NGRI plea: “…Evidence of mental disease or defect excluding

responsibility shall not be admissible … unless… the accused files a written notice of

such accused’s purpose to rely on such defense…. The state may accept a defense of

mental disease or defect excluding responsibility, whether raised by plea or written

notice, if the accused has no other defense and files a written notice to that effect.”

Section 552.030.2 (emphasis added). The habeas court found no NGRI notice was ever




                                              8
filed with respect to the Audrain County case, and granted Fisher’s petition for habeas

relief on that basis. The habeas court based its finding of no notice on the lack of a hard

copy notice in the Audrain County Circuit Court file.

        However, Relator presented evidence of the notice filed by Fisher’s public

defender Sarah Schappe (Schappe) on December 3, 2007, certifying a copy of the notice

was personally served on all parties. The notice provided:

                 NOTICE OF INTENT TO RELY ON DEFENSE OF MENTAL
                                     DISEASE
                      OR DEFECT EXCLUDING RESPONSIBILITY
                                   AND NOTICE

               COMES NOW the defendant, by and through his attorney, Sarah

       Schappe, Assistant Public Defender, and having been arraigned in this

       case on the 3rd day of December, 2007, files notice of intent to plead Not

       Guilty by Reason of Mental Disease or Defect and to plead not guilty.

                                         NOTICE

               COMES NOW defendant, by and through his/her (sic) attorney,

       Sarah Schappe, Assistant Public Defender, and hereby gives notice to the

       court and to counsel for the state that she will on the 3rd day of December,

       2007, at 9:00 a.m. or as soon thereafter as counsel may be heard, call up

       for hearing defendant’s Notice of Intent to Rely on Defense of Mental

       Disease or Defect Excluding Responsibility now pending in the above-

       styled cause.

       Although the notice lacks the required “no other defenses” language required by

Section 552.030.2, the Audrain County Circuit Court’s May 19, 2008, Order of

Commitment indicates the language was there:



                                             9
       2. That defendant and defense counsel have filed written notice that said

       [NGRI] defense is the only defense available to defendant.

       3. That the Prosecuting Attorney has accepted said defense.

There is no transcript of the hearing held on the notice to assist this Court in resolving the

obvious incongruity between the actual notice’s lack of the required statutory “no other

defenses” language, and the commitment order’s specific finding the notice contained the

required statutory “no other defenses” language. This variance is not reconciled by

anything in the record.

       In Obradovich v. Peterson, 566 S.W.2d 827 (Mo.banc 1978), the petitioner

offered in evidence a certified copy of the file in the murder case against him in the City

of St. Louis circuit court, pointing out the file did not contain a written notice he had “no

defense other than not guilty by reason of mental disease or defect excluding

responsibility.” Id. at 829. He argued if such a notice was filed it would be in the court

file and its absence indicates there was no such written notice. Id. The Missouri

Supreme Court concluded the evidence taken as a whole, including the fact that the

specific language in the trial court’s judgment indicated the petitioner had filed such a

notice, plus the fact that the filing of such notice had been admitted in the petitioner’s

amended petition for writ of habeas corpus, established the petitioner had authorized such

a notice and that it was filed. Id. Accordingly, the Court quashed the writ of habeas

corpus and remanded the petitioner to the custody of the respondent. Id.

       In Obradovich, the petitioner himself acknowledged in his petition the notice had

been filed. A special master found this allegation credible and coupled with the specific




                                              10
language in the trial court’s judgment indicating the notice had been filed, determined

notice had indeed been filed.

       In our case, we have the notice in the record, but on its face it lacks the required

“no other defenses” statutory language. We cannot explain why the court in its

commitment order stated the statutory language was contained in the notice.

       Based on the evidence in the record before us, we conclude the following. The

lack of a paper copy of the notice in the Audrain County Circuit Court case file is not

sufficient evidence the notice was not filed at the pertinent time. However, its lack of the

statutorily required language the defendant has no other defenses renders it fatal. Section

552.030.2 provides that “[t]he state may accept a defense of mental disease or defect

excluding responsibility, whether raised by plea or written notice, if the accused has no

other defense and files a written notice to that effect.” State ex rel. Koster v.

Oxenhandler, 2016 WL 1039446, at *12 (Mo. App. W.D. Mar. 15, 2016) (emphasis in

original). Point IV is accordingly denied.

                                       Points I and III

         In its first point, Relator claims it is entitled to an order quashing the habeas

court’s entire record because the habeas court abused its discretion by granting relief on

Fisher’s claim the NGRI notices were defective, in that Fisher is the one who filed the

“defective” notices. This point is not preserved for review and is denied as such.

       In its third point, Relator maintains it is entitled to an order quashing the habeas

court’s record with respect to the Jackson County case because the habeas court abused

its discretion by returning Fisher to pre-trial status, in that Fisher’s Jackson County

conviction was vacated by the NGRI plea so rendering the NGRI plea a nullity must




                                             11
reinstate that conviction. This point is moot because the Jackson County NGRI plea

stands.

                                             Point V

          In its fifth point, Relator argues it is entitled to an order quashing the habeas

court’s entire record because it was an abuse of discretion not to apply the escape rule to

the habeas petition, in that Fisher’s nine-month escape is ample justification to deny

habeas relief. This point is dismissed as moot with regard to the Jackson County case

because we have determined Fisher was not entitled to habeas relief in that case.

          With regard to the Audrain County case, Relator maintains the record should be

quashed because Fisher escaped from confinement for nine months. In Oxenhandler,

2016 WL 1039446, at *20, our colleagues in the Western District found it inappropriate

to apply the escape rule to a habeas petition because the escape rule “operates to deny the

right of appeal” if deemed appropriate in the exercise of an appellate court’s discretion.

Id., citing Nichols v. State, 131 S.W.3d 863, 865 (Mo.App. E.D. 2004)(emphasis in

original). The habeas court is not an appellate tribunal. Oxenhandler, 2016 WL 1039446

at *20. Relator cites no authority for applying the escape rule to dismiss a petition for

writ of habeas corpus. Id.

          Even if the escape rule is presumed available to dismiss a petition for writ of

habeas corpus, application of the rule is subject to the exercise of discretion. Id. The

habeas court did not abuse its discretion in refusing to apply the escape rule to dismiss

Fisher’s petition for writ of habeas corpus challenging a NGRI notice because such

application could leave a person confined for the rest of his life with no recourse for the

unlawful commitment. Id.




                                                12
       Based on the foregoing, Point V is denied.

                                       Conclusion

       The habeas court’s record with respect to the Jackson County Case is quashed.

We refuse to quash the record as to the Audrain County Case. Fisher is currently in the

custody of the DMH where he will remain under the Jackson County Judgment of

Commitment for the arson case, State v. Fisher, 0516-CR8303-01, and related PCR case,

Fisher v. State, 0716-CV08959. The Audrain County Prosecutor can choose whether to

pursue charges in the Audrain County possession and property damage case, State v.

Fisher, 05U1-CR00609.




                                            SHERRI B. SULLIVAN, Presiding Judge



Mary K. Hoff, J. and
Robert G. Dowd, Jr., J., concur.




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