                                        In the
                        Missouri Court of Appeals
                                 Western District
                                 )
STATE OF MISSOURI, ex rel. CHRIS )
KOSTER,                          )             WD79277
                                 )
             Relator,            )             OPINION FILED:
                                 )             March 15, 2016
v.                               )
                                 )
THE HONORABLE GARY               )
OXENHANDLER, Circuit Judge of    )
Callaway County, and             )
                                 )
JUDY GRONER, Circuit Clerk       )
Callaway 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 is an original proceeding in certiorari to review the grant of a writ of habeas

corpus to habeas petitioner Shanon Swickheimer ("Swickheimer") by the Callaway

County Circuit Court ("habeas court"). Swickheimer was committed to the custody of

the Department of Mental Health by an order of commitment issued on July 9, 2007 by

the Polk County Circuit Court ("underlying trial court") following a plea of not guilty by
reason of insanity ("NGRI") to the class A felony of Assault 1st Degree--Serious Physical

Injury (the "underlying charge"). The writ of habeas corpus set aside Swickheimer's

NGRI plea, and ordered his delivery into the custody of the Sheriff of Polk County,

Missouri to be held pending further proceedings to address the underlying charge.

         The habeas court's record granting the writ of habeas corpus is not quashed in part,

and is quashed in part.

                                       Factual and Procedural History

         Swickheimer was charged by felony complaint on January 25, 2004 with the class

A felony of Assault 1st Degree--Serious Physical Injury pursuant to section 565.050.1

The complaint alleged that on January 24, 2004, Swickheimer "knowingly caused serious

physical injury to [M.J.] by shooting her in the chest with a pellet rifle." The facts

forming the basis for the complaint were set forth in an attached probable cause

statement. Those facts included the allegation that Swickheimer shot himself in the

mouth and chest with the same pellet rifle. M.J. survived her injuries.

         Swickheimer appeared for a preliminary hearing on March 15, 2004. The docket

sheet indicates that "[b]ased on [Swickheimer's] appearance and demeanor in court the

court finds reasonable cause to believe that the defendant lacks mental fitness to proceed,

and upon its own motion pursuant to [section] 552.020 RSMo, 2 over the objection of

defendant and his counsel, orders that that [sic] defendant be mentally examined as per


         1
            All statutory references relating to criminal charges refer to the version of the statute in effect at the time
of the charge.
          2
            All statutory references to provisions of Chapter 552 are to the version of the referenced statute in effect
prior to amendment in 2011. The 2011 amendments to Chapter 552 do not alter the analysis in our Opinion, as the
amendments involved only the replacement of insensitive language.

                                                             2
order filed."3 As a result, no preliminary hearing was conducted, and Swickheimer was

not bound over or ordered to appear and answer to the charge. See Rule 22.09.

         Following evaluation, Western Missouri Mental Health Center prepared a report

dated April 15, 2004, expressing the opinion that Swickheimer "suffers from mental

disease or defect, in the form of Psychotic Disorder, Not otherwise Specified and that, as

a result of mental disease or defect he lacks capacity to understand the proceedings

against him and to assist in his own defense." On May 3, 2004, the underlying trial court

entered an order committing Swickheimer to the Department of Mental Health due to

incompetency to proceed and for "competency training."

         On January 20, 2005, a 180-day evaluation report4 was submitted by Fulton State

Hospital. The report concluded that Swickheimer "currently possesses the capacity to

understand the charges5 and proceedings against him, and can assist his attorney in her

[sic] own defense." Notwithstanding, the underlying trial court concluded on April 29,


         3
            Section 552.020.1 provides that "[n]o person who as a result of mental disease or defect lacks capacity to
understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the
commission of an offense so long as the incapacity endures." Section 552.020.2 provides that whenever a judge
"has reasonable cause to believe that the accused lacks mental fitness to proceed, he shall, upon his own motion"
appoint a qualified evaluator to prepare a report making detailed statutory findings with respect to whether the
accused "as a result of a mental disease or defect, lacks capacity to understand the proceedings against him or to
assist in his defense." Section 552.020.3(3).
          The capacity to proceed--that is to understand the proceedings and to assist in one's defense--is to be
distinguished from the NGRI defense where an accused is not responsible for a crime because, at the time of the
criminal conduct, the accused suffered from a mental disease or defect rendering him incapable of knowing and
appreciating the nature, quality, or wrongfulness of his conduct. See section 552.030.1.
          4
            Section 552.020.11(1) requires regular competency to proceed reports every six months once an accused
has been committed to the Department of Mental Health based on a determination that the accused is not competent
to proceed.
          5
            Swickheimer had been charged with the class C felony of Abuse of a Child and was in custody on that
charge when a warrant was issued in connection with the Assault 1st Degree charge. The charges arise out of
different incidents. The Abuse of a Child charge was assigned Case No. 04CR692013 (and then 04CR692013-01
following preliminary hearing). The Assault 1st Degree charge was assigned Case No. 04CR692319 (and then
04CR692319-01 following preliminary hearing). Swickheimer's competency to proceed was being evaluated in
both cases and the docket sheet entries in both cases are nearly identical. The separate cases were effectively being
managed as a single case by the underlying trial court, though never formally consolidated.

                                                          3
2005, that Swickheimer "continue[d] to lack the mental fitness to proceed," and ordered

Swickheimer's commitment to continue.

         A December 7, 2005 follow up evaluation6 prepared by Dr. Jeffrey S. Kline, a

different examiner at Fulton State Hospital, concluded that Swickheimer had the capacity

to understand the proceedings against him and the nature of the judicial process, but was

unable to assist his attorney in his own defense. The underlying trial court ordered

Swickheimer's commitment to continue.

         A June 8, 2006 follow up evaluation prepared by Dr. Kline concluded that

Swickheimer was now competent to proceed, both because he understood the

proceedings and because he could assist in his defense.

         On June 15, 2007, more than a year later, the underlying trial court found

Swickheimer competent to proceed and to assist in his own defense. The underlying trial

court proceeded with a preliminary hearing, finding that there was probable cause to bind

Swickheimer over for trial. Swickheimer was ordered to appear and answer to the charge

on July 9, 2007. See Rule 22.09(b), (c).

         Prior to the June 15, 2007 competency determination and preliminary hearing,

Fulton State Hospital separately evaluated Swickheimer to address whether Swickheimer

lacked criminal responsibility for his crime due to mental disease or defect pursuant to

section 552.030.1, the NGRI defense. The criminal responsibility evaluation was also

conducted by Dr. Kline.

         6
           This competency report was submitted more than 180 days after the January 20, 2005 competency report,
in violation of section 552.011(1). The underlying trial court issued a show cause order to precipitate preparation of
the delinquent report.

                                                          4
         Dr. Kline's criminal responsibility report, dated April 9, 2007, 7 summarized

accounts of Swickheimer's conduct on the day M.J. was shot.8 The report concluded that

as a result of Swickheimer's disease (Schizoaffective Disorder, Bipolar Type)

Swickheimer "was incapable of knowing and appreciating the nature, quality, or

wrongfulness of his conduct or [of] conforming his conduct to the requirements of the

law" at the time M.J. was shot.

         As had been scheduled during the June 15, 2007 preliminary hearing,

Swickheimer appeared in court on July 9, 2007 to answer to the Assault 1st Degree

charge. A hand written bench note indicates that on that same date, the State filed an

Information 9 charging Swickheimer with the class A felony of Assault 1st Degree in

violation of section 565.050 by "knowingly caus[ing] serious physical injury to [M.J.] by

shooting her in the chest with a pellet rifle.10 The bench note observed that the State

appeared through counsel, and that Swickheimer appeared personally and with counsel.

The bench note observed that Swickheimer was arraigned "per attached sheet," in

apparent reference to an "Arraignment" form which confirmed the parties' appearances,

which noted Swickheimer's waiver of formal arraignment and reading of the Information,


         7
            The caption of the April 9, 2007 responsibility report states that it was prepared in Case No. 04CR692013,
Swickheimer's Abuse of a Child case. However, although the report briefly summarizes the charges Swickheimer
was facing in both of his pending criminal cases, the report discusses only the specific circumstances giving rise to
the Assault 1st Degree charge, Case No. 04CR692319.
          8
            We purposefully provide no details regarding Swickheimer's reported criminal conduct as reflected in the
April 9, 2007 criminal responsibility report. Sections 552.020.6, 552.020.13, and 552.030.3 provide that Chapter
552 reports shall not be public records or open to the public. We have limited our references to the content of
Swickheimer's Chapter 552 reports to those necessary to address the issues presented in this writ of certiorari.
          9
            Inexplicably, the Information bears a file stamp of "July 9, 2000 at 12:59."
          10
             Rule 23.03 provides that "[a]n information charging a felony shall be filed not later than ten days after the
date of the order requiring the defendant to answer to the charge. The court having jurisdiction of the offense may
extend the time for good cause shown." The State's Information thus should have been filed no later than June 25,
2007, ten days after the June 15, 2007 preliminary hearing.

                                                            5
which noted Swickheimer's entry of a plea of NGRI, and which ordered Swickheimer to

appear for trial on August 13, 2007. 11 The bench note then recited that following

arraignment, Swickheimer filed a Notice of Intent to Rely on Defense of Mental Disease

or Defect, and a separate Notice of Exclusivity of Defense of Mental Disease of Defect.

Finally, the bench note indicated that the State accepted the NGRI plea, and that an order

and judgment committing Swickheimer to the Department of Mental Health was

executed and filed.

         The July 9, 2007 order and judgment:12 (i) found that Swickheimer filed a written

notice that he had no defense to the underlying charge other than the defense of NGRI;

(ii) found that the State accepted Swickheimer's NGRI defense "pursuant to section

552.030.2"; (iii) found that a report of mental evaluation dated April 9, 2007 was


         11
              The Arraignment form is available for confidential review on Case.net, although associated with a July 9,
2007 docket sheet entry that reads "Def Not Competent to Proceed." Swickheimer complains that he never
contemporaneously received the Arraignment form. However, we perceive no legal basis that would permit this
fact, if true, to support habeas relief.
           Swickheimer also argues that his NGRI defense could not have been accepted by the underlying trial court
as a matter of law in light of the "Def Not Competent to Proceed" docket entry. We agree that a NGRI defense
cannot proceed so long as pursuant to section 552.020.1, the accused is not competent to proceed and to assist in his
defense. Compare section 552.020.1 with section 552.030.1; see State v. Grantham, 519 S.W.2d 19, 20 n.1 (Mo.
banc 1975) (noting in discussing whether State properly accepted accused's NGRI plea that the accused had been
determined competent to proceed pursuant to section 552.020.1); Ex Parte Kent, 490 S.W.2d 649, 651 (Mo banc
1973) (holding that accused who was not competent to proceed could not be committed based on acceptance of a
NGRI plea, and that matter should be remanded for proceedings until such time as accused became competent to
proceed). However, we conclude that the July 9, 2007 docket entry "Def Not Competent to Proceed" is simply a
clerical mistake. When the referenced confidential link is accessed, the Arraignment form is revealed. There is no
bench note, order, or judgment signed by a judge on July 9, 2007 finding Swickheimer not competent to proceed.
To the contrary, Swickheimer had been determined competent to proceed during a hearing conducted on June 15,
2007.
           12
              The July 9, 2007 order and judgment has "Cause No. 04CR692013-01" typed in the caption, the case
number for Swickheimer's Abuse of a Child charge. The typed case number is modified by handwritten
interlineation to "04CR692319-01," the case number for Swickheimer's Assault 1st Degree charge. It is not clear
when this handwritten modification to the order and judgment was made, or by whom. However, no one contests
that it was the Assault 1st Degree charge in Case No. 04CR692319-01 that was disposed of by acquittal attendant to
acceptance of Swickheimer's NGRI defense. The docket sheet in Case No. 04CR692013-01 (the Abuse of a Child
case) indicates that the State dismissed that charge by oral motion on July 9, 2007--the same date Swickheimer
entered, and the State accepted, the now contested NGRI plea in Case No. 04CR692319-01 (the Assault 1st Degree
case).

                                                           6
received in evidence; (iv) concluded that the April 9, 2007 report found Swickheimer to

"be suffering from mental disease or defect excluding responsibility;" and (v) found that

Swickheimer was suffering from a mental disease or defect excluding responsibility. The
                                                                                                           13
order concluded that Swickheimer was not guilty under section 552.030,                                          and

"committed [Swickheimer] to the custody of the director of the Department of Mental

Health for care and treatment for so long as the law provides, pursuant to section 552.040

RSMo."

        In October 2007, Swickheimer filed a pro se motion in the underlying trial court

seeking conditional release from his commitment. The motion asked the court to "order

an independent mental examination" to determine Swickheimer's right to release pursuant

to section 552.040.14 The motion was denied on November 29, 2007.

        On April 12, 2010, Swickheimer filed a second petition for conditional release

pursuant to section 552.040.15 Following a bench trial, the underlying trial court denied

Swickheimer's motion on June 2, 2011.

        On July 6, 2011, Swickheimer escaped from a psychiatric facility in St. Louis. He

was taken back into custody 43 days later, on August 19, 2011. Swickheimer was

        13
            Swickheimer complains that the July 9, 2007 order and judgment failed to identify the specific charge of
which Swickheimer was acquitted upon acceptance of the NGRI defense. Section 552.030.7 does require the
judgment or verdict acquitting an accused on the ground of NGRI to "state the offense for which the accused was
acquitted." Whatever the legislative intent for this requirement, which may well have been to facilitate accurate
record keeping, Swickheimer has suffered no legal prejudice. The only charges pending against him on July 9, 2007
were the Abuse of a Child charge in 04CR692013-01 and the Assault 1st Degree charge in 04CR692319-01. The
Abuse of a Child charge was dismissed by the State's oral motion on July 9, 2007. The only charge that could have
been the subject of the July 9, 2007 order and judgment was the Assault 1st Degree charge.
         14
            Section 552.040 addresses an accused's ability to seek conditional or unconditional release from
commitment following acquittal on the grounds of NGRI.
         15
            The petition alleged that Swickheimer pled NGRI to a charge of Assault 1st Degree and to a charge of
armed criminal action. Swickheimer was never charged with armed criminal action either at the time of the
January 25, 2004 felony complaint (though the associated probable cause statement suggested there would have
been probable cause to do so), or at the time of the July 9, 2007 Information.

                                                         7
charged with escape from a State mental hospital, a class D felony pursuant to section

575.195. He pled guilty on April 19, 2012 and was sentenced to serve four years in the

Department of Corrections.

         On February 20, 2013, while he was incarcerated on the escape charge,

Swickheimer filed a petition for writ of habeas corpus in the Circuit Court of St. Louis

County.       The petition claimed that Swickheimer's NGRI plea was constitutionally

deficient for several enumerated reasons. The St. Louis County habeas court denied

Swickheimer's claims on their merits.

         In April, 2014, Swickheimer was released from the Department of Corrections,

and returned to Fulton State Hospital. On April 29, 2014, Swickheimer filed a second

petition for writ of habeas corpus in the Callaway County Circuit Court.16 The petition

alleged that Swickheimer's NGRI plea was constitutionally defective because it was

accepted: (i) in the absence of disclosure of the collateral consequences of the plea; (ii)

under circumstances where Swickheimer expected to appear on July 9, 2007 to enter a

criminal plea; (iii) under circumstances where Swickheimer had indicated that he had the

defense of accidental shooting to the underlying charge of Assault 1st Degree; and (iv)

without Swickheimer personally having verified that he had no other defense by signing



         16
            In the habeas proceedings below, the State argued that Swickheimer's second petition for writ of habeas
corpus was precluded by Rule 91 because similar assertions were denied on the merits by the St. Louis County
Circuit Court. Rule 91 contains no such prohibition. Rule 91.02(a) requires a petition for writ of habeas corpus to
be presented in the first instance to the "circuit or associate circuit judge for the county in which the person is held in
custody." Rule 91.04(a)(4) requires a petition for writ of habeas corpus to state "[t]hat no petition for relief sought
has been made to any higher court to the one to which the petition is presented or that the higher court denied the
writ without prejudice to proceeding in a lower court." (Emphasis added.) Rule 91 does not expressly prohibit the
filing of successive habeas petitions in lower courts. See Ferguson v. Dormire, 413 S.W.3d 40, 52 (Mo. App. W.D.
2013) (addressing, generally, that successive habeas petitions are not barred except as proscribed by Rule 91).

                                                            8
the notice of exclusivity of defense, or by an on-the-record inquiry to confirm that he had

no other defense and was knowingly and voluntarily entering a NGRI defense.

       The habeas court issued an order to show cause why a writ of habeas corpus

should not issue.    Testimony from Swickheimer, testimony from the attorney who

appeared with Swickheimer on July 9, 2007, and various documents were received into

evidence.

       Summarized, Swickheimer testified that after he was found competent to proceed

during the June 15, 2007 hearing, he was released from confinement at Fulton State

Hospital and returned to the Polk County Jail to await the July 9, 2007 court appearance;

that he had no discussions with his trial counsel between that date and the July 9, 2007

trial date; that he appeared before the underlying trial court on July 9, 2007 believing that

either a traditional plea to the criminal charge could be negotiated, or that he would be

going to trial; that trial counsel told him no plea could be negotiated and told him his only

options were to claim permanent incompetence or to enter a NGRI defense; that trial

counsel told him that with an NGRI defense, he could likely work himself out of the

system in 6 months, though Swickheimer did not believe that would be the case; that

Swickheimer became frustrated and hollered out to the trial judge that he wanted a trial;

that the trial judge held out his left hand and told the court reporter to go off the record,

and then told Swickheimer "it seems to me you haven't learned a damn thing in three

years;" that the trial judge ordered the bailiff to remove Swickheimer from the courtroom,

and he was taken to a bench in the hallway; that he was later returned to the Polk County

jail; that he learned on July 17, 2007 from his trial counsel that the NGRI defense had

                                             9
been entered on his behalf; that he was returned to Fulton State Hospital on July 17,

2007; that he had never authorized the entry of a NGRI defense on his behalf; that he had

consistently advised mental health evaluators he was not interested in pleading NGRI and

was aware that doing so could subject him to an indefinite confinement in a mental health

facility; and that he had always advised his attorney and mental health examiners that he

had a defense to the charge of Assault 1st Degree because MJ was shot accidentally when

she grabbed for the pellet rifle to prevent Swickheimer from shooting himself. On cross-

examination, Swickheimer confirmed that he had wanted to go to trial on July 9, 2007,

that he did not want to enter a NGRI plea, and that M.J. was shot by accident.

       The attorney who appeared with Swickheimer on July 9, 2007, testified on behalf

of the State. Trial counsel recalled that he took over representation of Swickheimer from

a different public defender sometime between January and August 2006, and likely in

May when the first attorney left the public defender's office; that he had no specific

recollection of his appearance with Swickheimer on June 15, 2007 for a preliminary

hearing; that he had no specific recollection of the proceedings in Swickheimer's case on

July 9, 2007; that he did remember the case was disposed of by an accepted NGRI plea,

which he characterized as an unusual plea; that he had no memory of the proceedings that

day but believes he would have remembered had there been an on-the-record hearing;

that it is his best recollection by looking at notes in his file that it was a simple paperwork

plea where the NGRI plea was entered and accepted on the same day; that his notes

reflect a visit with Swickheimer at the Polk County Jail on June 29, 2007 "regarding case

and NGRI plea," but that he has no memory of the particulars of the discussion; and that

                                              10
although he has no independent recollection of the proceedings leading up to the NGRI

plea, he does not believe he would have entered the plea without Swickheimer's consent.

On cross-examination, trial counsel advised that "it wouldn't surprise me if [the

appearance on July 9, 2007] wasn't a whole lot more than us just simply providing the

judge the forms and the judge signing them. That wouldn't surprise me in a situation like

this, but I don't have any independent recollection as to exactly what transpired on July 9,

2007."17 When asked by the habeas court, trial counsel equated a NGRI plea with a

felony guilty plea in significance as "both will likely involve a period of time in

confinement of some nature." When asked by the habeas court whether it struck him as

unusual that a NGRI plea would be taken without a record, trial counsel responded that

"[i]t does in a sense when you think about what could happen to the--to the Defendant in

terms of, you know, being incarcerated to some degree in a state hospital, and it is--it is

an incarceration to some degree. Certainly we would all agree to that."

        After considering the evidence, the habeas court issued its order and judgment on

December 11, 2015 granting the writ of habeas corpus. The habeas court found that no

meaningful record existed of Swickheimer's NGRI plea. The habeas court noted that

because no meaningful record existed, Swickheimer's "testimony as to what occurred on

July 9, 2007, is unchallenged." The habeas court criticized the lack of a movant signed

notice of exclusivity of defense; unspecified "intentional off-the-record events" in the

underlying trial court; and trial counsel's lack of recollection of Swickheimer's plea "in a


        17
         The State does not contend that there was an on-the-record proceeding conducted at the time
Swickheimer's NGRI defense was accepted.

                                                       11
case that is not particularly old and that involves an almost unforgettable set of alleged

crime facts." The habeas court noted that the State challenged Swickheimer's credibility,

but that his "purported lack of credibility is almost tangential to and is, in fact,

overshadowed by the fact that no meaningful record exists of movant's NGRI plea."

Relying on principles of due process, the habeas court analogized the importance of a

meaningful record of acceptance of a NGRI plea with the importance of a record in

accepting guilty pleas, and with the on-the-record requirements imposed to verify that an

accused's written waiver of counsel is knowing and voluntary.              The habeas court

concluded that:

       As a result of whatever occurred at movant's appearance in the Circuit
       Court of Polk County, Missouri, on July 9, 2007, movant was committed to
       the Department of Mental Health for an indefinite period of time--maybe
       his entire life. Movant's due process rights were violated, a manifest
       injustice occurred and he is entitled to relief (Rule 29.07(d)).

The writ of habeas corpus ordered Swickheimer's NGRI plea set aside, and ordered that

Swickheimer be delivered into the custody of the Sheriff of Polk County within ten days

to be held pending further charges.        The habeas court further ordered that should

Swickheimer be subsequently prosecuted, convicted, and sentenced to the Department of

Corrections, he "shall receive credit for all time held in jail prior to the hearing on July 9,

2007, for all time in the custody of the Department of Mental Health and for all time held

in the Department of Corrections (predicated upon movant's 43 day escape conviction)."

       Following issuance of the writ of habeas corpus, the Polk County Prosecuting

Attorney filed an ex parte motion for mental evaluation in the underlying trial court on

December 16, 2015 "to determine if [Swickheimer is] mentally competent to stand trial

                                              12
and to assist in his own defense."18 On December 17, 2015, the underlying trial court

entered an order for mental examination "upon motion by the state," directing that

Swickheimer remain in the custody of the Department of Mental Health for that purpose,

whereupon he would then be delivered to the custody of the Polk County Sheriff. On

December 22, 2015, Swickheimer's counsel filed a motion in the habeas court,

characterizing as contemptuous the ex parte efforts to keep Swickheimer confined in the

custody of the Department of Mental Health.

         On December 24, 2015, the State filed a petition for writ of certiorari in this court

seeking review of the habeas record. We issued a writ of certiorari on December 30,

2015.19 On January 4, 2016, we issued our order staying all proceedings in the habeas

court, and staying enforcement of the writ of habeas corpus, pending further order of this

court. Swickheimer remains confined at the Fulton State Hospital in Callaway County.

                                               Standard of Review

         Rule 91.01(b) provides that "[a]ny person restrained of liberty within this state

may petition for a writ of habeas corpus to inquire into the cause of such restraint." See

also section 532.010 (providing that "[e]very person committed, detained, confined or

restrained of his liberty, within this state, for any criminal or supposed criminal matter, or

under any pretense whatsoever, . . . may prosecute a writ of habeas corpus as herein


         18
             The motion does not contain a certificate of service, and bears no indication that it was served on
Swickheimer or his attorney.
          19
             "'When the Attorney General seeks a writ of certiorari [following the grant of a habeas petition], the writ
issues as a matter of course and of right. . . .'" State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001)
(quoting State ex rel. Taylor v. Blair, 210 S.W.2d 1, 3-4 (Mo. banc 1948)).
          A writ of certiorari requires an inferior court to produce a certified record of a particular case for review for
irregularities. BLACK'S LAW DICTIONARY 228 (6th ed. 1990). Our writ of certiorari thus ordered the Circuit
Court of Callaway County to return the record of the habeas corpus proceedings to this court for review.

                                                           13
provided, to inquire into the cause of such confinement or restraint."). Consideration of a

petition for writ of habeas corpus is "limited to determining the facial validity of

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

"Under the statutes that have codified the common law writ, the 'facial validity' of

confinement is determined on the basis of the entire record of the proceeding in

question." State ex rel. Nixon v. Dierker, 22 S.W.3d 787, 789 (Mo. App. E.D. 2000)

(citing Brown v. Gammon, 947 S.W.2d 437, 440 (Mo. App. W.D. 1997)). The essential

question to be determined is whether a review of the entire record establishes that a

habeas petitioner is being deprived of his liberty without due process of law. See Ex

Parte Kent, 490 S.W.2d 649, 650 (Mo. banc 1973).

       "[A]n action in certiorari . . . seek[s] to quash" the habeas judgment. State ex rel.

White v. Swink, 256 S.W.2d 825, 827 (Mo. App. St. L. Dist. 1953). Certiorari is thus

"available to correct [habeas] judgments that are in excess or an abuse of jurisdiction, and

that are not otherwise reviewable on appeal." State ex rel. Nixon v. Sprick, 59 S.W.3d

515, 518 (Mo. banc 2001). However, our review is limited to a determination whether

the habeas court exceeded the bounds of its jurisdiction. Id.; see also State ex rel. Nixon

v. Jaynes, 61 S.W.3d 243, 245 (Mo. banc 2001) ("The chief purpose of certiorari is to

confine an inferior court within its jurisdiction.").

       "Missouri recognizes only two types of jurisdiction: personal and subject matter,

both of which derive from constitutional principles relating to the circuit court's ability to

exercise power over particular persons and categories of cases." State ex rel. Koster v.

Jackson, 301 S.W.3d 586, 589 (Mo. App. W.D. 2010) (citing J.C.W. ex rel. Webb v.

                                              14
Wyciskalla, 275 S.W.3d 249 (Mo. banc. 2009)). Here, there is no issue that the habeas

court had personal and subject matter jurisdiction over Swickheimer's habeas petition.20

As a result, post-Webb, we assess whether the habeas court exceeded its authority or

abused its discretion in issuing the writ of habeas corpus.21

         An abuse of discretion occurs only when a "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." State v. Stewart, 313

S.W.3d 661, 665 (Mo. banc 2010).                       "In accordance with general rules relating to

presumptions in an appellate court, a court reviewing an order or judgment in a habeas

proceeding will not presume error but in the absence of a contrary showing, will presume

the order or judgment is correct; [and] that the rulings of the [habeas] court are correct."

State ex rel. Shartel v. Skinker, 25 S.W.2d 472, 477 (Mo. banc 1930).

         Our review in this regard is limited to questions of law presented by the record

before the habeas court. State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 518 (Mo. banc

2001). We do not review findings of fact. 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


         20
             The Callaway County Circuit Court possessed personal jurisdiction over the habeas proceedings, as
Swickheimer is in the State of Missouri, and is confined in Callaway County, Missouri. Rule 91.02(a). The
Callaway County Circuit Court had subject matter jurisdiction over the habeas proceedings pursuant to Mo. Const.
art. V, section 14(a), which affords circuit courts in Missouri non-exclusive original jurisdiction over remedial writs.
          21
             There is no contention here that Swickheimer's habeas claims are procedurally defaulted, an issue that is
common in habeas cases where claims arguably should have been pursued in post-conviction proceedings pursuant
to Rules 24.035 and 29.15. However, Rules 24.035 and 29.15 apply only to felony convictions, and afford no
recourse to challenge the acceptance of a NGRI defense which results in an acquittal. Habeas is thus the only viable
means by which the lawfulness of confinement as a result of the NGRI defense can be challenged. See State v.
McKee, 39 S.W.3d 565, 569, n.6 (Mo. App. S.D. 2001) (holding that "habeas corpus is available as a remedy for
persons confined pursuant to Chapter 552 procedures if an application therefor is properly pleaded, filed in a court
having jurisdiction, and facts are proven showing entitlement to relief"). There is no time constraint imposed on the
filing of a writ of habeas corpus.

                                                          15
review. Id. We assume the habeas court made findings of fact warranted by the evidence

sufficient to sustain the habeas judgment." Skinker, 25 S.W.2d at 478. "[E]very lawful

intendment will be made in favor of the determination and the regularity of the [habeas]

proceeding below." Id. Upon the completion of our review, our options are to "either

quash the writ [of habeas corpus] or to uphold the actions of the habeas court," Jackson,

301 S.W.3d at 589, "in whole or in part."22 Swink, 256 S.W.2d at 827.

                                                      Analysis

         The State's petition for writ of certiorari contends that the habeas court exceeded

its authority or abused its discretion in issuing the writ of habeas corpus because: "(1) the

order purports to issue the writ of habeas corpus on an alleged due process violation that

was not raised by the parties and did not actually occur; (2) the court issued its order after

erroneously determining that the escape rule could not apply as a matter of law; and (3)

the habeas court purports to give Swickheimer jail-time credit." [Sugg. in Support of Pet.

for Writ of Cert., p. 1] We address these claims of error separately.

                                                           I.

  The Habeas Court's Reliance on Due Process Concerns to Issue the Writ of Habeas
         Corpus that were Either not Raised or that did not Actually Occur

                                                           A.

         We agree with the State that the habeas court relied on principles of due process to

grant Swickheimer's habeas relief. However, we disagree with the State's assertion that


         22
           "In certiorari, this Court is limited to either quashing or not quashing the record of the lower court." State
ex rel. Nixon v. Jaynes, 61 S.W.3d 243, 246 n.1 (Mo. banc 2001). Thus, an appellate opinion quashing the record of
a habeas court is not a denial of the writ by a higher court. Id. (citing Rule 91.04(a)(4); Rule 91.22; In re Breck,
158 S.W. 843, 849 (Mo. banc 1913)).

                                                           16
the habeas court did so "on a theory the court developed itself: that the lack of a transcript

of a [NGRI] plea was a due process violation." [Sugg. in Support of Pet. for Writ of

Cert., p. 5]

       We note first that the State's assertion mischaracterizes the habeas court's concern.

The State and Swickheimer agree that although the parties were present in court on

July 9, 2007, no on-the-record proceedings were conducted on that date. The habeas

court's reference to the lack of a transcript was ancillary to its principle concern that

Swickheimer's due process rights were violated because no on-the-record proceedings

were conducted to determine that Swickheimer had no defense other than NGRI, and that

the NGRI plea was knowingly and voluntarily entered. The State's contention that the

habeas court issued the writ of habeas corpus merely because there was no transcript, a

claim not expressly made by Swickheimer, is without merit because it misstates the basis

for granting the writ.

       Moreover, even were we to agree with the State's characterization of the habeas

court's ruling, which we do not, it is not necessary that a writ of habeas corpus be issued

based on a claim pled in a habeas petition. Rule 91.06 provides:

       Whenever any court of record, or any judge thereof, shall have evidence
       from any judicial proceedings had before such court or judge that any
       person is illegally confined or restrained of liberty within the jurisdiction of
       such court or judge, it shall be the duty of the court or judge to issue a writ
       of habeas corpus for the person's relief, although no petition be presented
       for such writ.

(Emphasis added.) A court's sua sponte obligation to issue a writ of habeas corpus

"although no petition be presented for such writ" negates the State's contention that


                                             17
habeas claims must be preserved in habeas pleadings as a condition of affording habeas

relief. The State's reliance on McClain v. Hartley, 320 S.W.3d 183 (Mo. App. E.D.

2010) is thus misplaced. In McClain, relief from a contract afforded to a plaintiff on a

theory not pled was deemed erroneous because a "trial court's authority is limited to such

questions as are presented by the parties in their pleadings." Id. at 185. That principle

has no application to habeas proceedings in light of Rule 91.06.

                                            B.

       The State alternatively argues that there was no due process violation attendant to

acceptance of Swickheimer's NGRI defense. In support of this contention, the State

raises four distinct arguments: (i) that the lack of a transcript does not merit automatic

reversal without proof of prejudice; (ii) that the habeas court's reliance on Rule 29.07(d)

was erroneous as this was not a guilty plea case; (iii) that there is no authority for the

proposition that a due process liberty interest is implicated when a defendant is acquitted

of charges; and (iv) that section 552.030 does not require an NGRI plea to be taken in

open court and on-the-record or for the defendant to personally sign a notice of

exclusivity of defense, and the only procedural requirements for accepting an NGRI plea

were satisfied. We address these arguments in turn.

       (i) Habeas relief was not granted because of the lack of a transcript

       The State argues that the lack of a transcript does not merit automatic reversal

without proof of prejudice. We have already explained that the habeas court did not grant

a writ of habeas corpus because there was no transcript. The habeas court granted a writ

of habeas corpus because there was no on-the-record inquiry of Swickheimer confirming

                                            18
that he had no other defense besides NGRI, and that his assertion of the NGRI defense

was knowing and voluntary. We address, infra, whether acceptance of Swickheimer's

NGRI plea without an on-the-record proceeding violated Swickheimer's due process

rights.

          (ii)  The habeas court did not conclude that Rule 29.07(d) applies to the NGRI
          defense

          The State asserts that the habeas court committed legal error because it relied on

Rule 29.07(d) to grant habeas relief when that Rule applies only to the withdrawal of

guilty pleas. It is true that the habeas court concluded that Swickheimer's "due process

rights were violated, a manifest injustice occurred and he is entitled to relief," and that the

habeas court then cited to Rule 29.07(d). It is also true that Rule 29.07(d) addresses the

standard for permitting withdrawal of guilty pleas, and does not apply by its plain terms

to NGRI pleas.

          However, the habeas court's reference to Rule 29.07(d) is being taken out of

context. After discussing the parallels between acceptance of the NGRI defense and

acceptance of a guilty plea, and the on-the-record colloquy which must be taken from an

accused to accept a guilty plea, the habeas court concluded that acceptance of

Swickheimer's NGRI defense without an on-the-record colloquy violated due process.

The habeas court's reference to Rule 29.07(d), which describes the standard for

withdrawing guilty pleas, was by analogy. The habeas court did not hold that Rule

29.07(d) describes the procedure to be followed to accept (or to permit the withdrawal of)

a NGRI plea.


                                              19
         (iii) A due process liberty interest is implicated when a defendant is acquitted
         following a NGRI plea

         The State asserts that there is no "authority for the proposition that a due process

liberty interest is implicated when a defendant is acquitted of charges." The State's

argument is specious, and ignores that "[w]hen an accused is tried and acquitted23 on the

ground of mental disease or defect excluding responsibility, the court shall order such

person committed to the director of the department of mental health for custody."

Section 552.040.2 (emphasis added).

         The Due Process clause of the Fourteenth Amendment prohibits state
         governments from depriving 'any person of life, liberty, or property,
         without due process of law....' U.S. CONST. amend. XIV, § 1. Missouri
         courts have construed Missouri's due process clause, article I, section 10, to
         be congruent with the Fourteenth Amendment's guarantees.
Bromwell v. Nixon, 361 S.W.3d 393, 400 (Mo. banc 2012) (citing Doe v. Phillips, 194

S.W.3d 833, 841 (Mo. banc 2006)). "It is clear that 'commitment for any purpose

constitutes a significant deprivation of liberty that requires due process protection.'"

Jones v. United States, 463 U.S. 354, 361 (1983) (quoting Addington v. Texas, 441 U.S.

418, 425 (1979) (emphasis added)). Thus, "[c]ommitment proceedings, whether civil or

criminal, are subject to both the equal protection and due process clauses of the

Fourteenth Amendment." State v. Kee, 510 S.W.2d 477, 480 (Mo. banc 1974) (citing

Specht v. Patterson, 386 U.S. 605, 608 (1967) (other citations omitted)). It follows that

acceptance of the NGRI defense, which results in court-ordered commitment with the



         23
           The phrase "tried and acquitted" is defined by section 552.040.1(3) to include "both pleas of mental
disease or defect excluding responsibility that are accepted by the court and acquittals on the ground of mental
disease or defect excluding responsibility following the procedures set forth in section 552.030."

                                                         20
Department of Mental Health, implicates a due process liberty interest even though

acceptance of the defense yields an acquittal.

         Where an accused complains that his commitment pursuant to section 552.040

violates due process, a writ of habeas corpus is the appropriate remedy, as habeas corpus

affords redress for unlawful restraints of liberty. Rule 91.01; see Ex parte Kent, 490

S.W.2d at 650 (holding in a habeas corpus proceeding that the "question presented is

whether petitioner is being deprived of his liberty without due process of law"). The

State's contention that acceptance of the NGRI defense does not implicate due process is

thus troubling in light of the fact that section 552.040.3 expressly authorizes habeas

relief. Section 552.040.3 provides that "[t]he provisions of sections . . . 632.435 . . . shall

apply to persons committed pursuant to subsection 2 of this section." Section 632.435

provides that "[a]ny person detained under this chapter shall be entitled to apply for a writ

of habeas corpus." See State v. McKee, 39 S.W.3d 565, 569-70 (Mo. App. S.D. 2001).

Specifically, "habeas corpus is available as a remedy for a person confined pursuant to

Chapter 552 procedures if an application therefor is properly pleaded, filed in a court

having jurisdiction, and facts are proven showing entitlement to relief." 24 McKee, 39

S.W.3d at 569, n. 6.

         The State's contention that due process is not implicated because acceptance of the

NGRI defense results in an acquittal is without merit.




         24
            In addition to section 552.040.3, section 552.020.10 provides that "[a]ny person committed pursuant to
subsection 9 of this section [following a determination that the accused is not competent to proceed] shall be entitled
to the writ of habeas corpus upon proper petition to the court that committed him."

                                                          21
       (iv) The procedural requirements for accepting a NGRI plea were not
       followed by the State or the underlying trial court

       The State argues that section 552.030 does not require a NGRI plea to be taken in

open court and on-the-record or for an accused to sign a notice of exclusivity of defense.

The State also argues that the State and the trial court satisfied all of the procedural

requirements for accepting a NGRI plea.

       We agree that section 552.030 does not express the requirement that a NGRI plea

be taken in open court and on-the-record, or the requirement that a written notice of

exclusivity of defense be signed by the accused. However, we do not agree that the State

and the trial court satisfied all of the procedural requirements for accepting a NGRI plea.

The procedural requirements that were not satisfied in this case resulted in a violation of

Swickheimer's due process rights.

       The NGRI defense is a creature of statute. Section 552.030.1 provides that "[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." "However, section 552.030.6

establishes a rebuttable presumption that a criminal defendant is 'free of mental disease or

defect excluding responsibility.'" State v. Lewis, 188 S.W.3d 483, 487 (Mo. App. W.D.

2006). "This presumption is conclusive, unless 'substantial evidence of lack of such

responsibility' is introduced."   Id. (citing section 552.030.6).    "Both the burden of

injecting the issue and the burden of persuasion thereon are on the defendant." Id. (citing

section 552.030.6; MAI-CR 3d 306.2A, Note on Use 2).


                                            22
       "[T]o inject the issue of the NGRI defense in the case, [section 552.030.2] requires

the defendant to either plead NGRI, at the time of arraignment, or file a written notice of

his intent to rely on the defense within ten days of pleading not guilty, or a later date for

good cause shown.'" Id. "Hence, the NGRI defense, as provided in section 552.030.1, is

an affirmative defense that must be initiated and proven by the defendant." Id. (citing

Kee, 510 S.W.2d at 480; MAI-CR 3d 306.2A, Note on Use 2) (emphasis added). It is

thus reversible error for the State or a trial court to inject the defense of NGRI on an

accused's behalf.   Id. at 488, 490 (reversing a determination following trial that an

accused was NGRI where the defense had been injected by the State and the trial court,

noting that "the issue of the NGRI defense is not in the case for consideration by the trial

court, unless and until it is properly injected in the case [by the accused], in accordance

with section 552.030.2"); State ex rel. Proctor v. Bryson, 100 S.W.3d 775, 778 (Mo. banc

2003) (granting a writ of prohibition to prohibit trial court from ordering an accused to

submit to a criminal responsibility evaluation in connection with a possible NGRI

defense when the accused had not injected the defense on her own accord).

       The essence of the NGRI defense is that an accused "committed a criminal act,"

but "did not appreciate that what he did was wrong or, if he did know it was wrong, he

was incapable of conforming to the requirements of the law." Kee, 510 S.W.2d at 480.

See also Jones, 463 U.S. at 363 (holding that a verdict of NGRI establishes that the

accused committed a criminal offense because of mental illness). That said, an accused

who asserts the NGRI defense is not limited to that defense. Section 552.030.2 provides

that "a plea or notice [of intent to rely on the defense of NGRI] shall not deprive the

                                             23
accused of other defenses." [Emphasis added.] Thus, an accused is not foreclosed from

asserting defenses which could yield an outright acquittal while simultaneously asserting

NGRI, a defense which admits the commission of a crime, but nonetheless yields an

acquittal followed by confinement for an indeterminate period of time with the

Department of Mental Health. Section 552.040.

         Because NGRI is an affirmative defense that only the accused has the authority to

raise, and because an accused is not required to assert the NGRI defense to the exclusion

of other defenses, Chapter 552 imposes strict procedural limits on the trial court's

authority to require an accused to submit to a NGRI mental evaluation, and on the State's

and the trial court's authority to accept a NGRI plea.25

         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." (Emphasis

added.) Section 552.030.2 also provides that "[t]he 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." (Emphasis added.)

         Section 552.030.2 provides that "[u]pon the 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. . . ." (Emphasis added.)

Though section 552.030.2 is written in absolute terms, a "trial court's power under

         25
           If the NGRI defense is asserted but not accepted by the State and the trial court, then the defense will be
determined by the fact finder at trial, presuming the accused introduces "substantial evidence of lack of [criminal]
responsibility." Section 552.030.6.

                                                          24
[section 552.030.2] to order commitment of an accused. . . predicated upon . . . a [NGRI]

plea or notice of intent to so plead, is dependent upon an acceptance thereof by the [State]

that is statutorily valid." Briggs v. State, 509 S.W.2d 154, 158 (Mo. App. K.C. Dist.

1974) (emphasis added). The conditional nature of the trial court's authority to enter an

order of commitment is also expressed in section 552.020.4 which provides that "[a] plea

of not guilty by reason of mental disease or defect shall not be accepted by the court in

the absence of any such pretrial evaluation which supports the defense." (Emphasis

added.)

         The "pretrial evaluation" referred to in both section 552.030.2 and section

552.020.4 is a criminal responsibility evaluation sufficient to support the NGRI defense.

Criminal responsibility evaluations are authorized by section 552.030.3 and section

552.020.4. Under both statutes, the essential predicate to the trial court's authority to

order a criminal responsibility evaluation is the accused's timely injection of the NGRI

defense pursuant to section 552.030.2. Bryson, 100 S.W.3d at 778.

         Section 552.030.3 provides that once an accused has pleaded NGRI or has given

written notice of the intent to do so, the court "shall, after notice and upon motion of

either the state or the accused, by order of record"26 appoint an authorized person to


         26
            Section 552.030.3 actually provides that "[w]henever the accused has pleaded mental disease or defect
excluding responsibility or has given the written notice provided in subsection 2 of this section, and such defense
has not been accepted as provided in subsection 2 of this section, the court shall, after notice upon motion of either
the state or accused, by order of record," appoint an evaluator to prepare a criminal responsibility report. The
emphasized language seems to suggest that the State may have already accepted the NGRI defense, negating the
need for a court ordered criminal responsibility report. However, we have already explained that pursuant to section
552.030.2, the State cannot accept the NGRI defense until it is timely raised by the accused, until the accused has no
other defense and files a written notice of exclusivity to that effect, and until a "pre-trial evaluation" as described in
section 552.030 or section 552.020 has been prepared. Moreover, the trial court has no authority to accept the NGRI
defense unless a "pre-trial evaluation" prepared as authorized by section 552.030 or section 552.020 supports the

                                                           25
conduct a criminal responsibility evaluation of the accused, which report shall include the

criminal responsibility findings required by section 552.020.4.                              (Emphasis added.)

Section 552.020.427 provides that if the accused pleads or files notice of the intent to

plead NGRI, the "court shall order" any competency to proceed report that has been

ordered to also determine "whether, at the time of the alleged conduct, the accused, as a

result of mental disease or defect, did not know or appreciate the nature, quality or

wrongfulness of such accused's conduct or as a result of mental disease or defect was

incapable of conforming such accused's conduct to the requirements of law."

Summarized, once an accused has timely asserted the NGRI defense, a trial court must

order of record, after notice and on motion, either an independent criminal responsibility

report, or the inclusion of criminal responsibility findings in a competency to proceed

report.

          The above referenced statutes combine to require the following before the State

and trial court are authorized to accept the NGRI defense: (i) the accused must first inject

the defense by timely pleading NGRI or by timely filing a notice of intent to rely on the

defense pursuant to section 552.030.2; (ii) thereafter, the trial court must order of record,

after notice and on motion, a criminal responsibility evaluation pursuant to either section

552.030.3 or section 552.020.4; (iii) the accused must have no other defense besides


defense--an evaluation the trial court has no authority to order until the accused has injected the NGRI defense of
her own accord. Thus, we see no practical way to avoid the conclusion that once an accused injects the NGRI
defense, a trial court is obligated by statute to order a criminal responsibility report, because the State has no
authority to accept the NGRI defense until a statutorily authorized criminal responsibility report supports the
defense.
         27
            The only difference between the two statutes authorizing the trial court to order a criminal responsibility
evaluation is that section 552.020.4 authorizes a combined criminal responsibility/competency to proceed evaluation
and report, while section 552.030.2 authorizes an independent criminal responsibility evaluation and report.

                                                          26
NGRI and must file a written notice of exclusivity to that effect pursuant to section

552.030.2; and (iv) the criminal responsibility report prepared pursuant to section

552.030.3 or section 552.020.4 must support the NGRI defense.             These statutory

requirements safeguard an accused's unilateral right to determine whether to assert the

NGRI defense at all, and the accused's unilateral right to determine whether to pursue the

NGRI defense to the exclusion of other defenses.

       These statutory procedures were not followed in Swickheimer's case. The July 9,

2007 order and judgment committing Swickheimer confirms that the State and the

underlying trial court relied on the April 9, 2007 criminal responsibility report to accept

Swickheimer's NGRI defense. However, the April 9, 2007 report was not an authorized

pre-trial evaluation pursuant to either section 552.030.3 or section 552.020.4 because it

was ordered off-the-record before Swickheimer had asserted the NGRI defense. In

addition, the April 9, 2007 report did not support the NGRI defense as it revealed that

Swickheimer vehemently claimed the shooting of M.J. was accidental, rendering the

report facially irreconcilable with Swickheimer's written notice of exclusivity of defense

filed on July 9, 2007, and raising an unresolved bona fide doubt that Swickheimer had

another defense he was not willing to waive.

              (a) The April 9, 2007 report was not statutorily authorized

       Swickheimer was arraigned, entered a plea of NGRI, and filed a notice of intent to

rely on the NGRI defense, during the same proceeding on July 9, 2007. The affirmative

defense of NGRI was thus initiated by Swickheimer pursuant to section 552.030.2 on

July 9, 2007. Lewis, 188 S.W.3d at 487. The underlying trial court had no authority to

                                            27
order Swickheimer to submit to a criminal responsibility evaluation before July 9, 2007.

Bryson, 100 S.W.3d at 778. And pursuant to section 552.030.3, the underlying trial court

was required, once Swickheimer asserted the NGRI defense on July 9, 2007, to thereafter

"order of record" a criminal responsibility report, after notice and by motion of either the

State or the accused. That did not occur. As a result, the statutorily required "pre-trial

evaluation" essential to afford the State and the trial court the authority to accept

Swickheimer's NGRI defense was never ordered or prepared. Section 552.030.2; section

552.020.4.

       Instead, the State and the trial court relied on the April 9, 2007 criminal

responsibility report to accept Swickheimer's NGRI defense. The April 9, 2007 criminal

responsibility report was not an authorized section 552.030.3 or 552.020.4 pre-trial

evaluation.   It was prepared 3 months before the NGRI defense was asserted by

Swickheimer pursuant to section 552.030.2, and it was prepared without an "order of

record" after notice and on motion as required by section 552.030.3.

       Though no "order of record" directed preparation of the April 9, 2007 criminal

responsibility report, the docket sheet nonetheless indicates that the report was ordered by

the trial court. There is a "Judge/Clerk - Note" docket entry on April 10, 2007 which

provides: "Checked with Dept of Mental Health, Peggy. Responsibility evaluation is

being dictated." There is an earlier "Judge/Clerk - Note" docket entry on February 21,

2007 which provides that the underlying trial court granted the Department of Mental

Health a 30 day extension of time based on a "letter from Dr. Maddox." Finally, there is

a "Correspondence Filed" entry on February 20, 2007. The referenced correspondence is

                                            28
a letter from Dr. Maddox with Fulton State Hospital which provides, in pertinent part:

"We received the court order for a Pre-Trial Psychiatric Examination for [Swickheimer]

pursuant to Chapter 552 RSMo. . . . It is necessary that we request an extension of thirty

(30) days in order that we may complete the examination report in a thorough fashion."

(Emphasis added.)            The only report prepared by Fulton State Hospital regarding

Swickheimer dated after Dr. Maddox's continuance request is the April 9, 2007 criminal

responsibility report. 28

         We do not know what precipitated the underlying trial court's off-the-record

request for a criminal responsibility report.29 Regardless, the underlying trial court acted

in excess of its statutory authority in ordering the report. Bryson, 100 S.W.3d at 778

(prohibiting trial court from ordering an accused to submit to a criminal responsibility

evaluation when the accused had not injected the defense in the manner required by

section 552.030.2); Lewis, 188 S.W.3d at 487 (holding that "there is nothing in section

552.030 that would allow the trial court or the State to assert a defense of NGRI on behalf

of the defendant"). By requiring Swickheimer to submit to a criminal responsibility

evaluation before he had asserted the NGRI defense, the underlying trial court

erroneously injected the defense on Swickheimer's behalf.

         "Neither section 552.020.2 nor 552.020.4 allows the court, or the State, to
         assert a defense of mental disease or defect on behalf of the defendant.
         When the defendant does not on her own accord assert the mental disease
         28
             The habeas court found that acceptance of Swickheimer's NGRI defense was infected by "intentional off-
the-record" proceedings. The habeas record supports this conclusion.
          29
             Swickheimer testified during the habeas proceedings that he had no idea why he was required to submit to
the criminal responsibility evaluation which led to the April 9, 2007 criminal responsibility report, and that he never
consented to assertion of the NGRI defense on his behalf. The habeas record neither establishes nor discredits the
possibility that the underlying trial court ordered Swickheimer to submit to a criminal responsibility evaluation off-
the-record with Swickheimer's trial counsel's knowledge.

                                                         29
       or defect defense, the court has no authority to require her to submit to an
       examination relating to her mental state at the time of the alleged crime."

Lewis, 188 S.W.3d at 487 (quoting Bryson, 100 S.W.3d at 778). "[T]his same reasoning

would apply to section 552.030." Id. "[I]f the defendant has not injected the defense in

the case, as provided in section 552.030.2, neither the State nor the trial court can inject

or assert it for him." Id. at 487-88.

       Here, the premature, unauthorized, criminal responsibility report positioned the

State and the trial court to accept Swickheimer's NGRI defense on the very day it was

asserted--a procedural impossibility if sections 552.020.4 and 552.030.3 are followed, as

both sections mandate (and only authorize) the preparation of a criminal responsibility

report after the NGRI defense is timely asserted by the accused.           Reliance on an

unauthorized criminal responsibility report to accept Swickheimer's NGRI defense is thus

not a mere technicality that can be overlooked. Avoidance of the risk of erroneous

deprivation of a due process liberty interest is at the very heart of the procedures

prescribed by the General Assembly in sections 552.020 and 552.030. "In placing the

burden on the defendant to inject the issue of the NGRI defense in the case, the

legislature's intent is clear---the issue of the NGRI defense is not in the case for

consideration by the trial court, unless and until it is properly injected in the case, in

accordance with section 552.030.2." Id. at 488. "[U]nless the affirmative defense of

NGRI is injected by the defendant, in accordance with section 552.030.2, the trial court

has no authority to acquit him of the crime charged on that ground, as provided in




                                            30
section 552.030.7, and commit him to the custody of the DMH, as provided in section

552.040." Id. (emphasis added).

         We thus cannot ignore the statutory violations which subjected Swickheimer to a

criminal responsibility evaluation before he had lawfully asserted the defense of NGRI;

which resulted in the State and the trial court relying on a criminal responsibility report

that was not the statutorily authorized pre-trial evaluation required to afford them the

authority to accept the NGRI defense; and which resulted in the collapse of temporal

statutory protections as Swickheimer's assertion of the NGRI defense, the State's and the

underlying trial court's acceptance of the defense, and the entry of a judgment of acquittal

and confinement, all occurred on the same day.

         The State and the trial court had no authority to accept Swickheimer's NGRI

defense in reliance on the April 9, 2007 report, and the trial court had no authority to

commit Swickheimer to the custody of the Department of Mental Health. Id. On this

record, Swickheimer is being constrained of his liberty without authority and in violation

of due process.30 Habeas relief is appropriate.

                  (b)      The April 9, 2007 report does not support the NGRI defense

         The April 9, 2007 criminal responsibility report suffers a second serious flaw. The

April 9, 2007 report is facially irreconcilable with the notice of exclusivity of defense

filed on Swickheimer's behalf on July 9, 2007, creating a bona fide doubt unresolved by
         30
           We are not suggesting that an accused is unable to waive the procedural irregularity of a premature,
unauthorized criminal responsibility report. However, the habeas court was within its discretion to conclude that did
not occur here. If the State and a trial court rely on a premature, unauthorized criminal responsibility report to
accept a NGRI defense, they bear the risk that acceptance of the defense will be successfully challenged as
unauthorized in a later habeas proceeding. It is thus incumbent on the State and the trial court to insure that an
accused's knowing, intelligent and voluntary waiver of the procedural irregularity of a premature, unauthorized
criminal responsibility report is demonstrated in the record before the NGRI defense is accepted.

                                                         31
the record as to whether Swickheimer had another defense. As a result, the April 9, 2007

criminal responsibility report did not support the NGRI defense as required by section

552.030.2 and section 552.020.4.

       We have already explained that the State had no authority to accept Swickheimer's

NGRI defense unless Swickheimer "ha[d] no other defense and file[d] a written notice to

that effect." Section 552.030.2 (emphasis added). And the State and the trial court had

no authority to accept Swickheimer's NGRI defense in the absence of an authorized

criminal responsibility report that supported the defense. Section 552.030.2, section

552.020.4.

       Here, Swickheimer filed a written notice of exclusivity of defense on July 9, 2007,

the same day the NGRI defense was pled. Swickheimer's written notice of exclusivity of

defense constituted the "written notice to that effect" required by section 552.030.2.

Ordinarily, an accused's written notice of exclusivity will also be sufficient to establish

that "the accused has no other defense," the additional requirement specified by section

552.030.2. The phrase "the accused has no other defense" contemplates both the literal

lack of other defenses, as well as an accused's knowing and voluntary waiver of other

defenses, whether or not previously asserted. See Kee, 510 S.W.2d at 480 (holding that

criminal commitment under sections 552.030 and 552.040 cannot be had unless the . . .

defendant waives all other defenses and seeks acquittal on mental disease or defect and

the state accepts the plea") (emphasis added).

       However, a written notice of exclusivity is not sufficient to per se establish that an

accused has no other (or has waived all other) defenses when the criminal responsibility

                                             32
report that is also essential to authorize acceptance of the NGRI defense creates a bona

fide doubt on that issue. Here, even if we assume, arguendo, that the April 9, 2007

criminal responsibility report was a statutorily authorized report (which it was not), the

report observes:

       It is clear that the actions [Swickheimer] took on that day were fueled by
       his perception that he was under the control of another. It should also be
       noted though Mr. Swickheimer does deny the fundamental acts for which
       he is charged, the intentional pulling of the trigger and shooting M.J. in
       the chest with the BB gun. He has been clear across several interviews
       with this examiner in outlining the events and clearly indicating that he
       never had the intent to shoot her in the chest, that his intent was only to
       shoot himself and it was her actions, pulling the gun toward herself, that
       led to the shooting. He indicated to this examiner that he did not feel that
       she was intentionally shooting herself, which he has suggested in the past;
       rather he indicated that he thought it was an unintentional act.

(Emphasis added.) The April 9, 2007 criminal responsibility report is irreconcilable with

Swickheimer's written notice of exclusivity, and creates a bona fide doubt as to whether

Swickheimer had knowingly and voluntarily waived all other defenses. Unless the bona

fide doubt created by the April 9, 2007 criminal responsibility report was resolved by the

record available to the State and the trial court on July 9, 2007, the April 9, 2007 criminal

responsibility report did not support Swickheimer's NGRI defense, and could not have

been relied on to accept the defense.

       The bona fide doubt created by the April 9, 2007 criminal responsibility report is

not resolved by the record available to the State and the trial court on July 9, 2007. First,

Swickheimer did not personally sign his written notice of exclusivity. We agree with the

State that section 552.030.2 does not require an accused to sign the statutorily required



                                             33
notice of exclusivity.31 However, a pleading of such significance that is not signed by the

accused cannot, standing alone, resolve a bona fide doubt created when the required

criminal responsibility report indicates the accused is taking a position that conflicts with

the notice of exclusivity.

         Second, the only other materials of potential relevance that were available in the

record on July 9, 2007 were Swickheimer's several competency to proceed reports.

Those reports do not resolve the bona fide doubt as to whether Swickheimer had another

defense he was not willing to waive.

         The January 20, 2005 competency to proceed report, (which concluded that

Swickheimer was competent to proceed--an opinion the underlying trial court did not

accept), observed the following:

         Mr. Swickheimer was generally aware of the charges and allegations
         against him. He was aware of the seriousness of the charges and showed an
         understanding of the adversarial nature of the legal proceedings. Mr.
         Swickheimer was asked what defense he intended to offer to assess his
         capacity to understand or assist in developing a defense strategy, stemming
         logically from the facts of his case without gross distortion due to a mental
         disorder. He was aware of the range of possible plea options open to him.
         Mr. Swickheimer presented ideas that could be used in his defense that
         incorporated his knowledge of the law and his understanding of factors
         considered in sentencing decision. Mr. Swickheimer was able to discuss

         31
            Swickheimer complains that the notice was not signed by him personally, but was instead signed by
counsel on his behalf. However, section 552.030.2 does not require a written notice of exclusivity of defense to be
signed by the accused. And we perceive no reason to conclude that the legislature intended such a restriction to be
implied sub silentio. See Briggs v. State, 509 S.W.2d 154, 155 (Mo. App. K.C. Dist. 1974) (observing that in the
case before it, no written notice of exclusivity of defense had "been filed by petitioner or anyone on his behalf"). Of
course, that does not mean a defendant's trial counsel is authorized to sign a notice of exclusivity of defense on his
client's behalf without his client's knowledge and consent. See United States v. Olano, 507 U.S. 725, 733 (1993)
("Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether
certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or
voluntary, all depend on the right at stake.") (citing 2 W. LaFave & J. Israel, Criminal Procedure section 11.6 (1984)
(addressing the allocation of authority between a criminal defendant and counsel); Dix, Waiver in Criminal
Procedure: A Brief for More Careful Analysis, 55 Texas L.Rev. 193 (1977) (addressing waivability and standards
for waiver)).

                                                          34
      his case using concepts such as intent, mental state, alternative suspects,
      witness motives, and witness reliability. Mr. Swickheimer showed a
      rational understanding of how investigations are conducted and could
      weigh the relative strength of evidence, including physical and witness
      evidence. Mr. Swickheimer understood the relative negative and positive
      implications of various plea options and was able to apply these to his case.
      He understood that a Not Guilty by Reason of Mental Disease or Defect is
      a rare defense used in cases of severe mental disorder, and that such an
      outcome would mean an indeterminate sentence and conditional release.

      Mr. Swickheimer was asked a number of questions to assess his capacity to
      deal with his attorney. He expressed concern that his attorney may not
      accept his arguments that the "case is not what it appears to be," and
      may not be willing to assist him in presenting alternative explanations for
      events. . . . One issue remaining is that he has little insight into his mental
      state on admission to Fulton State Hospital. He made it clear that
      irrespective of what his mental state may or may not have been, he would
      not consider a Not Guilty by Reason of Mental Disease of Defect type
      plea at this time.

(Emphasis added.)

      The December 7, 2005 competency to proceed report, (which oddly found

Swickheimer competent because he understood the proceedings, but not competent to

assist with his own defense), made the following observation:

      Mr. Swickheimer indicated that he cannot take the advice of his attorney
      because his attorney is fundamentally wrong to focus on issues surrounding
      Mr. Swickheimer's mental illness.        In a lengthy discussion Mr.
      Swickheimer could not conceptualize of even the possibility that his
      attorney may be giving him adequate legal advice. He could not even
      consider a plea of Not Guilty By Reason of Mental Disease or Defect
      because it would be a "lie." . . . .

      With these issues in mind, it appears that Mr. Swickheimer is unable to
      fully assist in his own defense because he is unable to consider rationally
      his legal options. While he has the right to make poor legal decisions and
      to present a defense that may be inadequate and may be inaccurate, his
      desire to do this at this time appears to be the direct result of his mental
      illness rather than a rationale decision on his part.


                                            35
(Emphasis added.) In effect, Swickheimer was found not competent to assist in his own

defense because he would not consider the NGRI defense.

       The June 8, 2006 competency to proceed report found Swickheimer competent to

proceed, and in the process observed the following:

       Mr. Swickheimer continued to deny the presence of a mental illness. He is
       currently compliant with medications and while he denies the presence of a
       mental illness, he is able to conceptualize the possibility of discussing with
       his attorney a plea of Not Guilty by Reason of Insanity (NGRI).

       Mr. Swickheimer indicated that he felt that he could take advice of his
       attorney, and even though he feels that his past attorney's focus on an NGRI
       plea is inappropriate, he feels that he can at least consider the possibility
       and discuss it with his attorney as necessary. He indicated that he has
       concerns about a plea of NGRI but felt it might be in his best interest. He
       did express concerns that he would not be successful in the legal arena, but
       considered that there were some various alternative situations where
       various plea options might be beneficial to him. While he does not have a
       great deal of confidence that he will be successful in any form of legal
       challenge, and has resigned himself to a period of time in custody either
       with the Department of Mental Health of the Department of Corrections,
       his understanding of the situation appears to be accurate and not as a result
       of a delusional belief system.

Despite noting an apparent softening on the subject of the NGRI defense, the examiner

who prepared the June 8, 2006 competency to proceed report subsequently emphasized in

the April 9, 2007 criminal responsibility report that Swickheimer continued to insist that

he had a defense to the underlying charge other than NGRI.

       The competency reports, though not the basis for concluding that a bona fide

doubt existed as to Swickheimer's waiver of all defenses other than NGRI, do nothing to

resolve that doubt, and at best muddle the issue.




                                            36
         In short, because nothing in the record as of July 9, 2007 resolved the bona fide

doubt created by comparing the April 9, 2007 criminal responsibility report 32 to the

written notice of exclusivity of defense, the habeas court was free to conclude that

Swickheimer did not knowingly and voluntarily agree to waive all other defenses. As a

result, the April 9, 2007 criminal responsibility report did not support the NGRI defense

as required by section 552.030.2 and section 552.020.4, leaving the State and the trial

court without the authority to accept Swickheimer's NGRI defense, and the trial court

without the authority to acquit on that basis and to commit Swickheimer to the custody of

the Department of Mental Health.

         We agree with the State that section 552.030 does not require an on-the-record

hearing before the NGRI defense can be accepted.33 However, an on-the-record hearing

wherein appropriate inquiry could have been made of Swickheimer34 represented the only



         32
             We reiterate that the April 9, 2007 criminal responsibility report was not an authorized pre-trial evaluation
sufficient to authorize acceptance of the NGRI defense.
          33
             In State v. Kee, 510 S.W.2d 477, 479 (Mo. banc 1974), the Missouri Supreme Court addressed a
challenge to the constitutionality of section 552.040 which argued that committing an accused after an NGRI plea is
accepted or adjudicated by a fact finder without a hearing to determine that the accused still suffers from a mental
disease or defect on the date of commitment violates the due process clause of the Fourteenth Amendment. The
Supreme Court disagreed, noting that section 552.040 affords a committed individual sufficient due process via the
right to petition for re-examination immediately following confinement. Id. at 483-84. In that context, the Supreme
Court acknowledged that section 552.030 does not require a hearing before the NGRI defense is accepted. Id.
          The due process issue presented here is very different from the issue in Kee. Here, we are addressing
whether the State's and the trial court's acceptance of an accused's NGRI defense without the statutory authority to
do so violates an accused's due process. The even broader due process issue not addressed in Kee, and that we need
not resolve in this case, is whether, though section 552.030 does not require same, fundamental principles of due
process require an on-the-record hearing before acceptance of a NGRI defense to assure that the NGRI defense is
being knowingly and voluntarily asserted to the exclusion of all other defenses in light of the fact that an accepted
NGRI defense will yield confinement for an indeterminate period of time.
          34
             Because section 552.020.1 provides that criminal proceedings cannot proceed against an accused unless
the accused is deemed competent to proceed, an accused will necessarily be competent to proceed, and could
meaningfully participate in an on-the-record hearing, when the State and the trial court accept an accused's NGRI
defense. See Grantham, 519 S.W.2d at 20 n.1 (noting in discussing whether State properly accepted accused's
NGRI plea that the accused had been determined competent to proceed pursuant to section 552.020.1); Ex Parte
Kent, 490 S.W.2d at 651 (holding that accused who was not competent to proceed could not be committed based on

                                                           37
means to resolve the bona fide doubt that existed on July 9, 2007 as to whether

Swickheimer was knowingly and voluntarily asserting the NGRI defense to the exclusion

of all other defenses. Under the facts and circumstances of this case, the habeas court

was thus free to conclude that the failure to conduct an on-the-record proceeding to

resolve that bona fide doubt before accepting the NGRI defense violated Swickheimer's

due process rights. State ex rel. Nixon v. Peterson, 253 S.W.3d 77, 82 (Mo. banc 2008)

("'[D]ue process is flexible and calls for such procedural requirements as the particular

situation demands.'") (quoting Jamison v. Dept. of Soc. Servs., Div. of Family Servs., 218

S.W.3d 399, 405 (Mo. banc 2007)).

         We reached a similar result in Briggs, where a "competency to proceed" report

was in irreconcilable conflict when it concluded on the one hand that an accused had the

capacity to understand the proceedings, while it also concluded that the accused suffered

a mental disease or defect at the time of the offense requiring continuous psychiatric

hospitalization. 509 S.W.2d at 157. Though we acknowledged that section 552.020 does

not require a hearing to determine competency to proceed unless a competency report is

contested, we nonetheless found that the trial court abused its discretion by not

conducting a hearing because the competency report "raised a 'bona fide doubt' and cast

substantial suspicion upon [the accused's] mental fitness to proceed." Id. "[D]ue process


acceptance on a NGRI plea, and that matter should be remanded for proceedings until such time as accused became
competent to proceed).
          If an accused is not competent to proceed pursuant to section 552.020.1, and if there is no substantial
probability that the accused will attain such capacity in the foreseeable future, the accused will be unable to
effectively plead NGRI, and the State and the trial court will be unable to accept the defense. Instead, in such a
case, the "court shall dismiss the charges without prejudice and the accused shall be discharged, but only if proper
proceedings have been filed" to institute civil commitment proceedings against the accused. Section 552.020.11(6);
see Ex Parte Kent, 490 S.W.2d at 651-53.

                                                        38
of law require[d] [the] trial court sua sponte to conduct a hearing and adjudicate the

question." Id. (citing Pate v. Robinson, 383 U.S. 375, 384-85 (1966)).35 "The statutory

discretion possessed by the trial court of whether to hold a hearing . . . is impressed with

a basic constitutional dimension for determining whether the granted statutory discretion

is abused." Id. See also Brizendine v. Swenson, 302 F.Supp. 1011, 1019 (W.D. Mo.

1969) (holding that defendant was entitled to habeas relief where the record established a

bona fide doubt on the subject of his competency to proceed to trial and no hearing was

conducted to resolve the issue). "[T]he conviction of an accused person while he is

legally incompetent violates due process, and . . . state procedures must be adequate to

protect this right." Pate, 383 U.S. at 378 (citation omitted). We similarly conclude that

the criminal commitment of an accused person violates due process where a bona fide

doubt about the presence of other defenses exists after comparing the statutorily required

notice of exclusivity and criminal responsibility report, and where that doubt is not

resolved by or on the record before the NGRI defense is accepted.

         Here, the habeas court concluded that Swickheimer's due process rights were

violated because his NGRI defense was accepted without an on-the-record proceeding to

determine that the defense was being knowingly and voluntarily asserted and relied on to

the exclusion of other defenses. We need not go so far as to conclude that due process

requires an on-the-record hearing in every case before the NGRI defense can be
         35
            The Missouri Supreme Court held in Harkins v. State, 494 S.W.2d 7, 14 (Mo. 1973) that Pate requires a
trial judge "to resolve a pretrial question of competence . . . 'where the evidence raises a "bona fide doubt" as to a
defendant's competence.'" (quoting Pate, 383 U.S. at 385) (emphasis added). As our Opinion makes clear, an on-
the-record hearing is not the only means by which a bona fide doubt can be resolved. See State v. Mette-Njuldnir,
465 S.W.3d 521, 530 n.12 (Mo. App. W.D. 2015). In this case, we conclude that an on-the-record hearing was
required because the record did not otherwise resolve the bona fide doubt as to whether Swickheimer had waived all
other defenses.

                                                         39
accepted.36 We agree, however, that due process required an on-the-record hearing in

this case before Swickheimer's NGRI defense could be accepted. In the absence of an

on-the-record hearing resolving the bona fide doubt about whether Swickheimer had

waived all defenses other than NGRI, the April 9, 2007 criminal responsibility report did

not support the defense and could not be relied on to accept the defense. As a result,

Swickheimer is confined in constraint of his liberty without authority and in violation of

due process. Habeas relief is appropriate.

         For the reasons herein explained, Swickheimer is being confined in constraint of

his liberties and in violation of his due process rights. The habeas court's record granting

a writ of habeas corpus to release Swickheimer from confinement with the Department of

Mental Health is not quashed.

                                                         II.

              The Habeas Court did not Err in Refusing to Apply the Escape Rule

         The State contends that even if Swickheimer established a violation of Chapter

552 sufficient to support habeas relief, he is barred from securing that relief because he

escaped from confinement. We disagree.

         36
           Though we need not decide whether due process requires an on-the-record inquiry of an accused in every
case as a condition of accepting the NGRI defense, we strongly encourage the practice. An accused who pleads
NGRI and files a written notice of exclusivity of defense is necessarily admitting to the commission of a crime. If
the defense is accepted, the accused will be acquitted, but confined with the Department of Mental Health for an
indeterminate period of time, potentially in excess of the sentence the accused would have received if convicted.
We agree with the habeas court that the parallels with acceptance of a guilty plea are obvious.
         The State's and a trial court's authority to accept the NGRI defense is statutorily limited, leaving accepted
NGRI defenses subject to habeas challenge on the basis that said authority has been exceeded. The State and trial
courts are well-advised, therefore, to take every precaution to ensure that the record at the time a NGRI defense is
accepted plainly demonstrates that each possessed the requisite statutory authority to accept the defense. An on-the-
record inquiry of an accused at the time a NGRI defense is accepted, which addresses the accused's knowing and
voluntary assertion of the defense to the exclusion of all other defenses, and the accused's awareness that
confinement with the Department of Mental Health is indeterminate and may exceed the term of sentence imposed
upon conviction, is a best practice that should be followed in every case.

                                                         40
       "'The escape rule is a judicially-created doctrine that operates to deny the right of

appeal to a criminal defendant who escapes justice.'" Parsons v. State, 383 S.W.3d 71,

73 (Mo. App. E.D. 2012) (quoting Crawley v. State, 155 S.W.3d 836, 837 (Mo. App.

E.D. 2005)). "The escape rule is applicable to both [direct] appeals on the merits and

[from] motions for post-conviction relief under Rules 29.15 and 24.035." Id. "However,

the escape rule only applies to errors that occurred prior to and up to the time of escape."

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

whether to invoke the escape rule is left to the sound discretion of the appellate court."

Id. "In applying the escape rule, the relevant inquiry is whether the escape adversely

affected the criminal justice system." Nichols, 131 S.W.3d at 865.

       The habeas court did not commit legal error by refusing to apply the escape rule to

bar Swickheimer's habeas petition.      The escape rule "operates to deny the right of

appeal" if deemed appropriate in the exercise of an appellate court's discretion. Id.

(emphasis added). The habeas court was not an appellate tribunal. The State cites no

authority for applying the escape rule to dismiss a petition for writ of habeas corpus.

"'[A]n appellant is required to provide relevant and available legal authority in the

argument or explain why such authority is not available.'" WCT & D, LLC v. City of

Kansas City, 476 S.W.3d 336, 343 (Mo. App. W.D. 2015) (quoting Moseley v. Grundy

Cty. Dist. R-V Sch., 319 S.W.3d 510, 513 (Mo. App. E.D. 2010)).

       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. The habeas

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

                                            41
Swickheimer's petition for writ of habeas corpus given the facts and circumstances of this

case. 37 See State v. White, 81 S.W.3d 561, 565-66 (Mo. App. W.D. 2002) (refusing to

exercise discretion to apply the escape rule to dismiss an appeal where the record

demonstrated that defendant's due process rights were violated by the State's

nondisclosure of a romantic relationship between detective and defendant's ex-wife).

There is no indication that Swickheimer's escape "adversely affected the criminal justice

system." Nichols, 131 S.W.3d at 865.

         The habeas court did not erroneously refuse to apply the escape rule to bar

Swickheimer's petition for writ of habeas corpus.

                                                        III.

The Habeas Court Exceeded its Authority and Abused its Discretion in Awarding Jail-
                                  time Credit.
         After granting Swickheimer a writ of habeas corpus, the habeas court's order and

judgment held as follows:

         In the event [Swickheimer] is subsequently prosecuted based on the crime[]
         charged in this matter and [Swickheimer] shall be sentenced to the
         Department of Corrections, [Swickheimer] shall receive credit for all time
         held in jail prior to the hearing on July 9, 2007, for all time in the custody
         of the Department of Mental Health and for all time held in the Department
         of Corrections (predicated upon [Swickheimer's] 43 day escape conviction).
         Movant shall not receive credit for the 43 days of his escape.

The habeas court's calculation of jail-time credit was in excess of its authority and an

abuse of discretion.



         37
            Because habeas relief is the only means by which a person can challenge the legality of confinement
following acceptance of a NGRI defense, application of the escape rule could leave a person confined for the rest of
his or her life with no recourse for the unlawful confinement.

                                                        42
      The subject of jail-time credit is not a current case or controversy ripe for

determination. Swickheimer has not been convicted of the underlying charged crime, and

has not been sentenced or received into the custody of the Department of Corrections,

necessary conditions to the obligation to calculate jail-time credit pursuant to section

558.031. "[I]t is premature to render a judgment or opinion on a situation that may never

occur." Local Union 1287 v. Kansas City Area Transportation Authority, 848 S.W.2d

462, 463 (Mo. banc 1993).

      Moreover, section 558.031 "contemplates an administrative and not a judicial

determination of the jail time to be credited." Murphy v. State, 873 S.W.2d 231, 232

(Mo. banc 1994) (quoting State ex rel. Jones v. Cooksey, 830 S.W.2d 421, 425 (Mo. banc

1992)). "As a matter of law, the sentencing court has no discretion in crediting jail time

and it is the sheriff and the department of corrections, not the court, that calculate and

record time served." Id. "Therefore, a prisoner must request credit from the executive

branch's department of corrections; administrative remedies and extraordinary writs of

habeas corpus and mandamus are available to compel the executive to perform its duty to

credit jail time." Id.; see also Roy v. Missouri Dept. of Corrections, 23 S.W.3d 738, 743-

44 (Mo. App. W.D. 2000) (holding that a declaratory judgment action seeking a

determination of jail-time credit is also an available remedy in lieu of seeking habeas

relief) (citing Goings v. Missouri Dept. of Corrections, 6 S.W.3d 906, 907-08 (Mo. banc

1999)).




                                           43
         The habeas record's calculation of jail-time credit is quashed.38

                                                  Conclusion

         The habeas record's grant of a writ of habeas corpus ordering Swickheimer

released from confinement with the Department of Mental Health is not quashed. Within

five days of the issuance of our mandate, the Department of Mental Health shall deliver

Swickheimer into the custody of the Sheriff of Polk County, Missouri, where

Swickheimer shall be held on the pending charge of Assault 1st Degree, subject to further

proceedings. The import of our disposition is to vacate Swickheimer's assertion of, and

the State's and the underlying trial court's acceptance of, the NGRI defense; to vacate the

underlying trial court's July 9, 2007 order and judgment of commitment; and to return

Swickheimer to the procedural position he was in immediately prior to July 9, 2007. 39

         The habeas record's calculation of jail-time credit is quashed.



                                                      __________________________________
                                                      Cynthia L. Martin, Judge

All concur




         38
            We express no opinion about the accuracy of the calculated jail-time credit. We hold only that the habeas
court had no authority to determine jail-time credit.
         39
            Prior to July 9, 2007, Swickheimer had been determined competent to proceed to trial. There must be
"reasonable cause to believe that [Swickheimer] lacks fitness to proceed" to again subject Swickheimer to a
competency to proceed evaluation. Section 552.020.1.

                                                         44
