                                             In the
                          Missouri Court of Appeals
                                    Western District

                                                  
 TONY D. JONES,                                   
                                                     WD82678
                  Appellant,                         OPINION FILED:
 v.                                                  September 17, 2019
                                                  
 MISSOURI DEPARTMENT OF                           
 CORRECTIONS,                                     
                                                  
                 Respondent.                      
                                                  


                   Appeal from the Circuit Court of Cole County, Missouri
                           The Honorable Daniel R. Green, Judge

Before Division Four: Karen King Mitchell, Chief Judge, Presiding, Anthony Rex Gabbert,
                     Judge, and W. Ann Hansbrough, Special Judge

                                           Introduction

       Tony D. Jones appeals the denial of his petition for declaratory relief against Missouri

Department of Corrections (DOC) wherein he argued that the plain language of Section 558.047,

RSMo 2016, grants him eligibility for parole after serving twenty-five years of his sentence of life

without parole, notwithstanding the fact he received consecutive sentences for two armed criminal

convictions that normally require three-year mandatory minimum sentences. On appeal, Jones

argues the circuit court misinterpreted Section 558.047, failing to recognize that Section 558.047
supersedes all other conflicting general parole and sentencing laws and guidelines in cases where

a juvenile received an unconstitutional sentence of life without parole. We affirm.

                             Factual and Procedural Background

       The underlying facts are not in dispute. Jones was charged in the Circuit Court of Saint

Louis County with one count of first degree murder in violation of Section 565.020, RSMo 1986,

one count of first degree robbery in violation of Section 569.020, RSMo 1986, and two counts of

armed criminal action in violation of Section 571.015, RSMo 1986. Jones’s charges stemmed

from a robbery and subsequent murder which occurred when Jones was fifteen years old.

       On July 25, 1994, Jones was found guilty as charged after a jury trial. On September 2,

1994, Jones was sentenced to life imprisonment without parole for the first degree murder charge,

and life imprisonment for the associated armed criminal action charge. He was sentenced to a term

of twenty-five years for the robbery charge, and fifteen years for the associated armed criminal

action charge. All four sentences were to run consecutively. Jones’s convictions and sentences

were affirmed on consolidated appeal in a per curiam order accompanied by an unpublished

memorandum. State v. Jones, 955 S.W.2d 818 (Mo. App. 1997).

       On June 25, 2012, the United States Supreme Court handed down Miller v. Alabama, 567

U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), holding that “juveniles could not be sentenced

to a mandatory sentence of life without the possibility of parole in a homicide case without first

considering whether this punishment was just and appropriate given the juvenile offender’s age,

development, and the circumstances of the offense.” State ex rel. Carr v. Wallace, 527 S.W.3d 55,

58 (Mo. banc 2017). Our Missouri Supreme Court, in accordance with Miller, issued opinions in

State v. Hart, 404 S.W.3d 232 (Mo. banc 2013), and State v. Nathan, 404 S.W.3d 253 (Mo. banc



                                                2
2013), holding that a juvenile on direct appeal who had been sentenced to mandatory life without

parole must be resentenced.

       Jones filed a habeas corpus petition in 2013 under Rule 91 in the Missouri Supreme Court

raising the claim that his mandatory sentence of life without parole violated the Eighth Amendment

to the United States Constitution under Miller and required that he receive a new sentencing

hearing. Jones v. Bowersox, SC93095. This claim required Miller be given retroactive effect.

Jones’s petition had not been ruled on when, in Montgomery v. Louisiana, 136 S.Ct. 718, 193

L.Ed.2d 599 (2016), “the [United States] Supreme Court held that Miller’s substantive rule must

be applied retroactively on collateral review of a juvenile offender’s mandatory sentence of life

without parole.” Carr, 527 S.W.3d at 59. Montgomery further held:

       Giving Miller retroactive effect, moreover, does not require States to relitigate
       sentences, let alone convictions, in every case where a juvenile offender received
       mandatory life without parole. A State may remedy a Miller violation by permitting
       juvenile homicide offenders to be considered for parole, rather than by resentencing
       them. Allowing those offenders to be considered for parole ensures that juveniles
       whose crimes reflected only transient immaturity – and who have since matured –
       will not be forced to serve a disproportionate sentence in violation of the Eighth
       Amendment.

136 S.Ct. at 736.

       On March 15, 2016, following Montgomery, our Missouri Supreme Court issued an order

in appellant’s case, and other pending cases involving juveniles who had received sentences of life

without parole for first degree murder, granting habeas relief in part. The Court found that a

resentencing proceeding was not constitutionally required and that a proper remedy under Miller

would be that Jones would “be eligible to apply for parole after serving 25 years’ imprisonment on

his sentence of life without parole unless his sentence is otherwise brought into conformity with

Miller and Montgomery by action of the governor or enactment of necessary legislation.”


                                                3
       On May 13, 2016, the Missouri General Assembly passed S.B. 590, which was signed into

law by Governor Jay Nixon on July 13, 2016, and effective immediately. The Missouri Supreme

Court, thereafter, vacated its March 15, 2016, order and denied Jones’s habeas petition. Senate

Bill 590, codified at Section 558.047, RSMo 2016, provides in relevant part:

       1. (1) Any person sentenced to a term of imprisonment for life without eligibility
          for parole before August 28, 2016, who was under eighteen years of age at the
          time of the commission of the offense or offenses, may submit to the parole
          board a petition for a review of his or her sentence, regardless of whether the
          case is final for purposes of appeal, after serving twenty-five years of
          incarceration on the sentence of life without parole.

After a petition is properly filed under the statute, “The parole board shall hold a hearing and

determine if the defendant shall be granted parole.” § 558.047.4.

       On June 15, 2018, Jones completed twenty-five years of his life without parole sentence

and petitioned the parole board for review of his sentence pursuant to Section 558.047. A parole

hearing was subsequently held in October 2018. At the time Jones was notified of his scheduled

hearing, he was also notified that, due to his consecutive armed criminal action convictions “which

require three additional years to be served on each, you are not eligible to be released until you

meet your statutory minimum of 06/15/2024.”

       On December 3, 2018, Jones filed a petition for declaratory judgment in the Circuit Court

of Cole County arguing that he was being held without parole eligibility for an additional six years

in violation of the explicit terms of Section 558.047. After an answer and reply were filed, both

parties filed motions for judgment on the pleadings.

       On February 25, 2019, the court granted the DOC’s motion holding that Jones is not

eligible for parole consideration on his consecutive sentences after serving twenty-five years of

imprisonment. Jones appeals.


                                                 4
                                       Standard of Review

       “Statutory interpretation raises a question of law that we review de novo.” State v. Eckert,

491 S.W.3d 228, 231 (Mo. App. 2016). “The primary rule of statutory interpretation is to effectuate

legislative intent through reference to the plain and ordinary meaning of the statutory language.”

State v. Graham, 204 S.W.3d 655, 656 (Mo. banc 2006). “In determining the intent and meaning

of statutory language, the words must be considered in context and sections of the statutes in pari

materia, as well as cognate sections, must be considered in order to arrive at the true meaning and

scope of the words.” State ex rel. Evans v. Brown Builders Elec. Co., 254 S.W.3d 31, 35 (Mo. banc

2008) (internal quotation marks and citations omitted).

                                              Analysis

       In Jones’s sole point on appeal, he argues the plain language of Section 558.047 grants him

parole eligibility after serving twenty-five years of his sentence of life without parole,

notwithstanding his consecutive sentences for other convictions that normally require mandatory

minimum sentences. Jones argues that Section 558.047 supersedes conflicting general parole and

sentencing laws/guidelines in cases where a juvenile received an unconstitutional sentence of life

without parole. Jones argues that, by using the words “offense or offenses” in the statutory

language, the legislature recognized that juveniles serving life sentences will likely be serving time

for related offenses. Jones contends that, because the same section of the applicable statute states

that such juvenile offenders are eligible for parole after serving twenty-five years “on the sentence

of life without parole,” these offenders are parole eligible regardless of whether the offender

received additional prison time for other related offenses. Jones maintains that, although the parole

board gave him a parole hearing pursuant to Section 558.047, “this hearing was a meaningless



                                                  5
ritual because the parole board determined that [he] is not eligible for release until all statutory

minimum terms for his consecutive sentences have been served.”

         The DOC argues that Jones is not entitled to early parole eligibility on his armed criminal

action sentences because the legislature enacted no law affecting this part of Jones’s incarceration.

The DOC contends that, at the time Section 558.047 was passed, it was well-established that

periods of statutory parole ineligibility on consecutive sentences run one after the other. Citing

Edger v. Missouri Board of Probation and Parole, 307 S.W.3d 718, 721 (Mo. App. 2010).1 The

DOC argues Jones’s interpretation of Section 558.047 would illogically result in juvenile first

degree murderers being parole eligible earlier than juveniles committing lesser offenses, including

second degree murder.2 To support its argument that Section 558.047 is inapplicable to any

juvenile sentence but a life sentence, the DOC cites Willbanks v. Missouri Department of Corr.,

522 S.W.3d 238 (Mo. banc 2017).                Willbanks upheld consecutive (non-life without parole)

sentences for a juvenile offender which resulted in parole ineligibility during the offender’s normal

human life expectancy. Id. In response to the Willbanks’ dissent’s argument that Section 558.047

should apply to juvenile offenders with multiple, fixed-term sentences that result in a de facto life



         1
           Section 217.690.5, RSMo Cum. Supp. 2018, provides: “When considering parole for an offender with
consecutive sentences, the minimum term for eligibility for parole shall be calculated by adding the minimum terms
for parole eligibility for each of the consecutive sentences, except the minimum term for parole eligibility shall not
exceed the minimum term for parole eligibility for an ordinary life sentence.” In Edger we stated: “The legislature
has explicitly provided in Section 217.690.5 a method for calculating parole eligibility for an offender with
consecutive sentences by adding together the minimum terms for parole eligibility for each consecutive sentence.”
307 S.W.3d at 721. In Langston v. Missouri Bd. of Probation and Parole, 391 S.W.3d 473, 476 (Mo. App. 2012) we
stated: “The plain language of section 217.690.5 requires that the minimum prison term on each consecutive sentence
be added together to reach an aggregate minimum prison term prior to parole eligibility with the limitation that no
individual minimum prison term added into the total can itself be greater than the minimum prison term for a life
sentence.”
         2
          “The offense of murder in the second degree is a class A felony, and the punishment for second degree
murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than
murder or manslaughter.” § 565.021.2, RSMo Cum. Supp. 2018.

                                                          6
sentence, the majority in Willbanks declined “to extend the statute beyond its terms.” 522 S.W.3d

at 243.

          We find that the plain language of Section 558.047.1(1) allows a juvenile offender

sentenced to life without parole eligibility before August 28, 2016, to petition the parole board “for

a review of his or her sentence” “after serving twenty-five years of incarceration on the sentence

of life without parole.” This is not an absolute grant of parole eligibility; it is a grant of sentence

review. At sentence review, Section 558.047.5 requires consideration of Section 565.033, RSMo

2016, factors. Section 565.033 was enacted simultaneously with Section 558.047 to address Miller

and the future sentencing of individuals found guilty of first degree murder in Missouri who are

under the age of eighteen at the time of the murder. See State v. Campbell, 558 S.W.3d 554, 559-

560 (Mo. App. 2018). Like Section 558.047, Section 565.033 references “offense or offenses” to

wit: “When assessing punishment in all first degree murder cases in which the defendant was

under the age of eighteen at the time of the commission of the offense or offenses, the judge in a

jury-waived trial shall consider, or the judge shall include in instructions to the jury for it to

consider, the following factors: …” § 565.033.2 (emphasis added).3                          Yet, Section 565.033


          3
          Section 565.033.2 provides that the following Miller-type factors must be considered when sentencing a
person found guilty of murder in the first degree who was under the age of eighteen when the offense was committed:

          (1) The nature and circumstances of the offense committed by the defendant;
          (2) The degree of the defendant's culpability in light of his or her age and role in the offense;
          (3) The defendant's age, maturity, intellectual capacity, and mental and emotional health and
          development at the time of the offense;
          (4) The defendant's background, including his or her family, home, and community environment;
          (5) The likelihood for rehabilitation of the defendant;
          (6) The extent of the defendant's participation in the offense;
          (7) The effect of familial pressure or peer pressure on the defendant's actions;
          (8) The nature and extent of the defendant's prior criminal history, including whether the offense
          was committed by a person with a prior record of conviction for murder in the first degree, or one
          or more serious assaultive criminal convictions;
          (9) The effect of characteristics attributable to the defendant's youth on the defendant's judgment;
          and

                                                           7
addresses only punishment for murder in the first degree convictions and does not address

punishment for related crimes with less severe penalties. The offender is sentenced separately for

those crimes. The legislature undoubtedly recognized that a judge or jury might be faced with

contemplating more than one murder in the first degree charge/conviction during the same trial.

Notably, a juvenile may still be sentenced to life without the possibility of parole after

consideration of Section 565.033 factors if aggravating factors listed in Section 565.034, RSMo

2016, are found beyond a reasonable doubt.

        Hence, our legislature did not fully adopt our Missouri Supreme Court’s post-Montgomery

remedy for Miller which allowed juvenile offenders to be considered for parole in the same manner

as any other parole-eligible prisoner after serving twenty-five years’ imprisonment on a sentence

of life without parole. Our legislature also did not adopt our Missouri Supreme Court’s pre-

Montgomery rulings which required resentencing on related crimes along with resentencing on life

sentences. See Hart, 404 S.W.3d 232, and Nathan, 404 S.W.3d 253. Section 558.047 grants

sentence review of only life sentences;4 upon review, the parole board is required to assess Miller-

type factors which address the appropriateness of the original sentence in light of the juvenile

offender’s age, maturity, etc. at the time of the crime, along with additional factors which might

suggest maturation of the offender, rehabilitation since incarceration, etc. § 558.047.5. The parole



        (10) A statement by the victim or the victim's family member as provided by section 557.041 until
        December 31, 2016, and beginning January 1, 2017, section 595.229.
        4
           Jones argues that the Missouri Supreme Court’s holdings in Hart and Nathan (requiring resentencing on
armed criminal action convictions which related to a juvenile’s crimes that resulted in life sentences) bolster his
position that Section 558.047 requires other sentences being served by a “juvenile lifer” be ignored. We disagree, as
the express language of Section 558.047 authorizes review of only juvenile life sentences. Moreover, while Hart and
Nathan ordered resentencing of related armed criminal action convictions, those convictions did not disappear. Had
Jones been resentenced under Hart and Nathan, he would still be serving a minimum of three years on each of the
armed criminal action convictions, as the statutory sentence range for armed criminal action is a minimum of three
years with no upper limit. § 571.015.1.

                                                         8
board determines parole eligibility in light of all of these factors. While the parole board must

hold a hearing and determine if the offender shall be granted parole, nothing within Section

558.047 expunges sentences for other crimes committed by the juvenile, and nothing within

Section 558.047 supersedes established parole guidelines and/or authorizes the parole board to

ignore these guidelines.5

         The circuit court did not err in granting declaratory judgment for the DOC as the plain

language of Section 558.047 allows for sentence review (and subsequent parole consideration) of

only a juvenile offender’s life sentence. Jones’s point on appeal is denied.

         The circuit court’s judgment is affirmed.




                                                                   Anthony Rex Gabbert, Judge


All concur.




         5
          Compare Section 217.692 regarding life without parole offenders found guilty of homicide of a spouse or
domestic partner. Section 217.692 states: “Notwithstanding any other provision of law to the contrary,” an offender
meeting the criteria set forth in the statute “shall be eligible for parole after having served fifteen years of such sentence
when the board determines by using the guidelines established by this section that there is a strong and reasonable
probability that the person will not thereafter violate the law.” (Emphases added). Section 217.692, by its express
language, clearly supersedes any conflicting law. Section 558.047 contains no similar language.

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