                                          In the
                         Missouri Court of Appeals
                                  Western District
STATE OF MISSOURI EX REL                      )
CHRIS KOSTER,                                 )
                                              )   WD77163 Consolidated with
                   Relator,                   )   WD77188
                                              )
v.                                            )   OPINION FILED: July 29, 2014
                                              )
THE HONORABLE CYNTHIA                         )
SUTER, ASSOCIATE CIRCUIT                      )
JUDGE OF RANDOLPH COUNTY                      )
AND PEGGY BOOTS, CIRCUIT                      )
CLERK RANDOLPH COUNTY                         )
CIRCUIT COURT,                                )
                                              )
                Respondents.                  )

                     ORIGINAL PROCEEDING IN CERTIORARI


     Before Writ Division: Gary D. Witt, Presiding Judge, Thomas H. Newton, Judge and
                                 Cynthia L. Martin, Judge

         This cause arises from a petition for writ of certiorari filed by Relator State of

Missouri ("State") to review Respondent Honorable Cynthia Suter's ("Judge Suter") entry

of a writ of habeas corpus to Joseph Thomas Bowen ("Bowen"), and a petition for writ of

prohibition to review Judge Suter's accompanying dismissal of the State's petition to

commit Bowen as a sexually violent predator ("SVP"). We issued a writ of certiorari and
a preliminary writ of prohibition and consolidated the writs for consideration. For the

reasons set forth below, we quash the writ of habeas corpus and make our preliminary

writ of prohibition absolute.

                           FACTUAL AND PROCEDURAL HISTORY

       This action arises in the midst of proceedings to civilly commit Joseph Thomas

Bowen ("Bowen") as a sexually violent predator pursuant to Section 632.486.1 On

October 1, 2008, Bowen pleaded guilty to supplying liquor to a minor and to first-degree

child molestation in the Circuit Court of Randolph County, case number 08RA-

CR00592-01. At that time he admitted to supplying a twelve-year-old girl alcohol and

then engaging in oral and vaginal intercourse with her.                         For the child molestation

conviction, Bowen was sentenced on November 19, 2008 to five years' imprisonment

under Section 559.115 (RSMo 2006), which included a 120-day assessment in the Sex

Offender Assessment Unit ("SOAU").

       Bowen participated in the SOAU program.                            The record includes a signed

statement by Bowen agreeing to the terms of the program. The record also contains a

"Court Report Investigation," dated March 5, 2009 that was generated by the Department

of Corrections ("DOC") and filed March 12, 2009. That Court Report Investigation

includes comments from a counselor with the Missouri Sexual Offender Services at the

Farmington Correctional Center indicating that Bowen had "general life instability, a

history of substance abuse, being intoxicated at the time of the offense[,] not seeing

himself as a risk to sexually offend . . . no protective factors." That counselor concluded:


       1
           All statutory references are to RSMo 2000 as currently supplemented unless otherwise indicated.
                                                         2
        While he appears to be a somewhat high risk to reoffend, it also appears
        that much of his risk is dependent on his ability to stay sober. If he is not
        using drugs or alcohol, his risk may be lower. It appears that, in spite of
        this risk, that Mr. Bowen is a good candidate for community-based
        supervision and treatment.

        After the counselor's statements, the same March 5, 2009 report then includes

additional evaluative information as well as recommendations from a probation and

parole officer with the SOAU.                     That portion of the report is titled "SOAU

EVALUATION." The SOAU officer considered Bowen's record and recommended that

probation be denied, with the following comments:

               The SOAU clinician notes he scored within the medium high risk
        category on the Static-99.2 Other test, file and interview data suggest this
        may be an underestimate of his risk. . . . This officer is concerned with
        public safety regarding Bowen's ability to not reoffend provided he remain
        substance free.

        On March 18, 2009, following receipt of the DOC's Court Report Investigation,

the court denied Bowen probation, concluding that it would be "an abuse of discretion to

release" and ordered the execution of the five-year sentence pursuant to Section 559.115

(RSMo 2006), set out below. Bowen had never challenged this determination.

        The record also contains a report written after Bowen was denied probation and

almost seven months after he was originally sentenced. That report was dated June 4,

2009 and also was generated by the DOC.                        In the June 4, 2009 report, the DOC

recommended that Bowen be granted probation effective September 22, 2010, stating that

Bowen:



        2
           The record indicates that an SOAU clinician noted that Bowen scored within the medium-high risk
category on the Static-99, which "considers the presence of risk factors which have been empirically shown to
correlate with increased risk of sexual reoffending recidivism."
                                                         3
        was admitted to the Sex Offender Assessment Unit on 12-22-08 and
        successfully completed Phase I of the MOSOP3 on 1-27-09. He did not
        incur any violations while in the program. According to the Court Report
        submitted on 03/05/09, he scored within the Medium-High Risk Category
        (Risk score=4) on the risks of sexual offending recidivism.

        The record does not indicate what, if any, action occurred as a result of the June 4,

2009 report because it was generated after the plea court denied probation on March 18,

2009, the only probation determination relevant to the proceedings at bar.

        On June 11, 2013, the State filed a petition to civilly commit Bowen as a SVP

pursuant to Section 632.486, in case number 13RA-PR0005. In that petition, the State

alleged that Bowen (1) had a prior conviction of a sexually violent offense, as defined by

law, (2) is currently suffering from a mental abnormality that makes him more likely than

not to engage in predatory acts of sexual violence if released, and (3) is anticipated to be

released from confinement on June 13, 2013, and that sufficient evidence exists to

determine whether he suffers from a mental abnormality that makes him more likely to

engage in predatory acts of sexual violence. Attached to the State's petition was an End

of Confinement Report. In that report, Bowen was described as admitting to "11 plus"

additional victims and at one point informed a mental health professional that he would

be a danger to the community and young girls if released.

        Judge Suter made an initial determination that there was probable cause to believe

that Bowen was an SVP pursuant to Section 632.489.1. Bowen was then provided notice

of that determination and given the opportunity to challenge that determination at a later



        3
        The State contends that the MOSOP program is a prison treatment program (and thus different from
SOAU). The record is not developed on this matter, but it is not relevant to the disposition of the case.
                                                      4
hearing. On June 17, 2013, Judge Suter determined that there was probable cause to

believe that Bowen was an SVP pursuant to Section 632.489.2.

         Roughly six months later, on December 13, 2013, Bowen filed a motion to dismiss

the petition to commit him civilly on the ground that the court lacked jurisdiction and

statutory authority. The crux of Bowen's argument was that the State lacked authority

under the SVP Act to file a petition because the DOC did not have jurisdiction over

Bowen pursuant to Section 632.483. Bowen claimed in the motion that he was not

lawfully in the custody of the DOC because the trial court in the underlying conviction

did not conduct a hearing before exercising its discretion to deny him release on

probation and executing his sentence.                         Specifically, Bowen alleged "successful

completion" of a SOAU program and error in the plea court because he was not granted a

hearing pursuant to Section 559.115.3. Bowen argued that such a hearing should have

been conducted under Section 559.115.3 (RSMo 2006), which, as noted below, provides

that "[i]f the court determines that probation is not appropriate, the court may order the

execution of the offender's sentence only after conducting a hearing on the matter . . . ."

         On December 18, 2013, the probate court heard arguments on the motion to

dismiss.      Judge Suter noted that "if a court that has jurisdiction over Mr. Bowen's

conviction in Case No. 08RA-CR00592 says this -- his incarceration was invalid, I would

find -- I would overturn my ruling in the probable cause statement, I would immediately

release him."4



         4
          Judge Suter thus appropriately recognized that section 632.486 does not afford the probate court the
power or authority to entertain a collateral attack on the lawfulness of the defendant's underlying confinement.
                                                          5
       The next day, December 19, 2013, Bowen filed a petition for writ of habeas

corpus in the Circuit Court of Randolph County, which Judge Suter also presided over.

Bowen collaterally contested confinement based on the same ground he raised in the

motion to dismiss in the probate court, which was that he "was never under the

jurisdiction of the Department of Corrections following his conviction in the criminal

case because the criminal trial court acted in excess of statutory authority, and without

jurisdiction, in denying Mr. Bowen's probation and in executing his sentence in the

criminal case."

       On January 14, 2013, the habeas court granted the writ of habeas corpus and

ordered Bowen released from custody. In granting relief, the habeas court determined

that Bowen's detention was "illegal" because the State did not have "statutory authority to

file its petition seeking civil commitment." The habeas court thus concluded there was

"no legal cause shown for the restraint" of Bowen and accordingly directed his release.

       The State filed its petition for writ of certiorari in this Court, WD 77163. We

granted the preliminary writ of certiorari and ordered a stay of Bowen's release pending a

review of the issues raised in the habeas action. Shortly after we granted the preliminary

writ on January 14, 2014, the probate court, apparently not in receipt of our preliminary

writ, dismissed the SVP case based on the motion to dismiss and ordered Bowen

released. The State filed a writ of mandamus or prohibition related to the motion to

dismiss in this Court, WD 77188. We issued a second stay, staying the release of Bowen

pursuant to the order of the probate court. Notwithstanding the issuance of our stay

orders, Bowen was released.

                                            6
      Soon thereafter, in an attempt to comply with our stay orders, the probate court

issued a warrant to return Bowen to the custody of the Randolph County sheriff. On

January 16, 2014, this warrant was executed in Greene County, and Bowen was taken

into custody by the Greene County Sheriff. On January 16, 2014, Bowen filed a petition

for a writ of habeas corpus in the Circuit Court of Greene County challenging the

lawfulness of his confinement. The Circuit Court of Greene County granted the writ and

ordered Bowen released on January 17, 2014. That same day, the State filed a writ of

certiorari in the Southern District of this Court, which was granted along with a stay of

the release of Bowen pending resolution of that matter. On March 17, 2014, the Southern

District of this Court issued its opinion quashing the writ of habeas corpus issued by

Greene County and finding, among other things, that the order dismissing the State's SVP

petition in the Circuit Court of Randolph County was not a final judgment. State ex. rel.

Koster v. Fitzsimmons, 425 S.W.3d 166 (Mo. App. S.D. 2014).              No review of the

decision of our colleagues on the Southern District was sought by either party and any

issues decided therein are not properly before us. Bowen ultimately was returned to the

Randolph County jail, where he remains.

                                       ANALYSIS

      In this consolidated action, the State raises two points. In its first point, the State

argues that it is entitled to a permanent order prohibiting Judge Suter from dismissing the

SVP case for lack of jurisdiction and statutory authority because "a dismissal is an abuse

of the probate court's discretion, exceeds the probate court's authority, and would cause

irreparable harm" in that, inter alia, the motion to dismiss the SVP action was based on

                                             7
an untimely collateral attack on the underlying conviction. In its second point, the State

argues that it is entitled to have the writ of habeas corpus quashed in part because the

"probate court was not required or authorized to collaterally review the conviction,

sentence, and execution of sentence of the underlying criminal offense before obtaining

jurisdiction, finding probable cause, and issuing the detention order."

                                                   Discussion

         In both his motion to dismiss and his petition for writ of habeas corpus, Bowen

challenged his confinement (and therefore his eligibility to be civilly committed) under

the theory that the plea court erred in failing to hold a hearing before denying probation

in his underlying criminal case. However, regardless of the means of the challenge,

because the grounds under either form of relief are without substance as a matter of law,

the State is entitled to the relief it requests.5

         Understanding the error begins with Section 559.115.3 (RSMo 2006):

         Upon successful completion of a treatment program, the board of probation
         and parole shall advise the sentencing court of an offender's probationary
         release date thirty days prior to release. The court shall release the offender
         unless such release constitutes an abuse of discretion. If the court
         determined that there is an abuse of discretion, the court may order the


         5
           We question, without resolving, whether Bowen's actions could succeed on procedural grounds. First,
Bowen sought a writ of habeas corpus questioning his confinement on the ground that the plea court did not afford
him a proper hearing on the issue of the grant or denial of probation. An attack on a probationary ruling does not
constitute a challenge to a sentence and is therefore beyond the scope of a post-conviction relief proceeding. Prewitt
v. State, 191 S.W.3d 709, 711 (Mo. App. W.D. 2006); Green v. State, 494 S.W.2d 356, 357 (Mo. banc 1973); Hogan
v. State, 755 S.W.2d 27, 28 (Mo. App. S.D. 1988). Though habeas relief is available to challenge the imposition of
an unlawful sentence, no Missouri court has previously determined that the denial of a hearing before denying
probation is the functional equivalent of an unlawful sentence. In fact, on prior occasions where the issue raised by
Bowen has been addressed by our Supreme Court, it has been in response to a writ of mandamus. See State ex rel.
Valentine v. Orr, 366 S.W.3d 534, 538 (Mo. banc 2012); State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo.
banc 2006). Bowen also filed a motion to dismiss in the probate court asking that court to dismiss the SVP petition
because of the allegedly unlawful nature of his underlying confinement. Section 632.484.1 does not authorize such
examination, and Bowen cites no authority authorizing the probate court to collaterally attack the final judgment
entered by the circuit court in Bowen's underlying criminal matter.
                                                          8
      execution of the offender's sentence only after conducting a hearing on the
      matter within ninety to one hundred twenty days of the offender's sentence.

      ***

      If the department determines that an offender is not successful in a
      program, then after one hundred days of incarceration the circuit court shall
      receive from the department of corrections a report on the offender's
      participation in the program and department recommendations for terms
      and conditions of an offender's probation. The court shall then release the
      offender on probation or order the offender to remain in the department to
      serve the sentence imposed.

(Emphases added.)

      In arguing to the habeas court that his confinement was unlawful, Bowen relied on

the language of Section 559.115.3 and State ex rel. Valentine v. Orr, 366 S.W.3d 534

(Mo. banc 2012). The relevant portion Section 559.115.3 states that where the court

determines there is an abuse of discretion in the department's recommendation of

probation, "the court may order the execution of the offender's sentence only after

conducting a hearing on the matter." (Emphasis added.) In Valentine, after completion

of the SOAU program, the SOAU issued a report indicating that the petitioner seemed

amenable to treatment within his community and recommended that the circuit court

grant him probation. Id. at 537. The circuit court, however, was tardy in holding a

hearing to determine whether granting release was an abuse of discretion. Id. at 541.

The Valentine court held that the circuit court's hearing out of time meant that it lacked

any authority to enter its judgment denying probation.        Id.   "Once judgment and

sentencing occur in a criminal proceeding, the trial court has exhausted its jurisdiction."

Id. "It can take no further action in that case except when otherwise expressly provided

by statute or rule." Id. (quoting State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618
                                            9
(Mo. banc 2006) (issuing writ of mandamus directing respondent to place petitioner on

probation where petitioner had successfully completed the program and respondent had

denied probation without hearing). The Valentine court thus granted the petitioner's writ

of mandamus, holding that the trial court lacked jurisdiction to deny release after it failed

to conduct a hearing within 120 days of sentence to determine whether recommendation

for release was an abuse of discretion.

       On the other hand, where the DOC determines that an offender is "not successful"

in a program, the court is not required to hold a hearing before denying probation.

Section 559.115.3 states instead that where the DOC determines that an offender is "not

successful," then it shall issue a report, at which point the court shall release the offender

on probation or order the offender to serve the sentence imposed. This provision was

triggered in Woods v. State, 371 S.W.3d 928, 930 (Mo. App. S.D. 2012). There, the

Court Investigation Report did not contain any recommendation of probation, nor did the

report state that the movant successfully completed the SOAU program. Also, it was

"clear from the report that the Probation Officer and Unit Supervisor recommended that

probation be denied." Id. at 929. Under these facts, the Woods court concluded that the

"plea court was not thereby compelled to conduct a hearing within 90 to 120 days of

Movant's sentence before ordering the execution of the sentence." Id. at 930 (citation

omitted).

       In this case, similarly, we are not directed to any statement in the record indicating

that the DOC determined that Bowen had successfully completed the institutional

treatment program. It is true that one counselor noted that "[i]t appears that, in spite of

                                             10
this risk, that Mr. Bowen is a good candidate for community-based supervision and

treatment"; however, in the "SOAU EVALUATION" portion of the DOC's Court Report

Investigation, the Probation and Parole Officer with the SOAU unit unequivocally

recommended that probation be denied. (Emphasis added.) Given the SOAU's position,

there is no indication, therefore, that the SOAU determined that Bowen "successfully

completed" the program. Bowen acknowledged at oral argument that there was no

document in the court file which directly stated that he had successfully completed the

program by DOC and that his argument was based upon the conduct of the parties: he

argues that the parties behaved as though they believed that he had successfully

completed the program.

       Even if the March 5, 2009 report could be construed as a successful completion of

the SOAU program, however, the statute only mandates a hearing to determine whether

the DOC's recommendation of probation constitutes an abuse of discretion. Specifically,

the statute states that upon successful completion, the board shall advise the sentencing

court of an offender's probationary release and that the court shall release the offender

"unless such a release constitutes an abuse of discretion." § 559.115.3 (RSMo 2006).

However, "if the court determined that there is an abuse of discretion, the court may order

the execution of the offender's sentence only after conducting a hearing on the matter

within ninety to one hundred twenty days of the offender's sentence."         Despite one

counselor's comments that "[i]t appear[ed] that" release was appropriate, the probation

and parole officer with the SOAU definitively did not recommend probation. Under the

plain language of the statute, no hearing was necessary.

                                            11
       Therefore, as a matter of law, the record indicates that Bowen failed to establish

that his incarceration was illegal or that there was any jurisdictional defect or lack of

statutory authority to detain him so as to warrant relief under either a writ of habeas

corpus or a motion to dismiss. There was insufficient evidence to support habeas relief.

State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 518 (Mo. banc 2001) ("The sufficiency of

the evidence to support the habeas writ is a question of law. . . . "). The accompanying

grant of the motion to dismiss the SVP petition was therefore also erroneous. State ex

rel. State v. Campbell, 386 S.W.3d 229, 234 (Mo. App. W.D. 2012) (holding that

prohibition is available when a circuit court acts in clear excess of jurisdiction or abuse of

discretion such that the lower court lacks the power to act as contemplated); State ex rel.

State v. Parkinson, 280 S.W.3d 70, 77 (Mo. banc 2009) (holding that prohibition is

appropriate where a trial court has erroneously granted an inmate's motion to dismiss in

an SVP case).

                                      CONCLUSION

       The writ of habeas corpus is quashed and our preliminary writ of prohibition

prohibiting the probate court from dismissing the SVP action in reliance on the writ of

habeas corpus is made absolute.



                                           __________________________________
                                           Gary D. Witt, Judge
All concur




                                             12
