                                         In the
                        Missouri Court of Appeals
                                 Western District
 GARY L. MITCHELL,                            )
                                              )
                Appellant,                    )   WD81049
                                              )
 v.                                           )   OPINION FILED: January 8, 2019
                                              )
 KENNY JONES,                                 )
                                              )
               Respondent.                    )

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

  Before Division Three: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge and
                            Anthony Rex Gabbert, Judge


       Gary L. Mitchell ("Mitchell") appeals from the trial court's judgment dismissing his

petition for declaratory judgment and entering judgment in favor of Kenny Jones

("Respondent"), the chairman of the Missouri Board of Probation and Parole. Mitchell

argues on appeal that the trial court erred in dismissing his petition and in entering

judgment in favor of the Respondent because the General Assembly's repeal of the prior

drug offender statute on January 1, 2017, applies retroactively to Mitchell, allowing him to
be considered for parole immediately. Finding no error, we affirm. However, we order

transfer of this matter to the Missouri Supreme Court pursuant to Rule 83.02.

                                                   Background

         In July 2013, a jury found Mitchell guilty of trafficking in the second degree in

violation of section 195.223.3(2), RSMo Supp. 2009,1 for his November 2009 possession

of twenty-four or more grams of a mixture or substance containing a cocaine base. The

trial court found that Mitchell was a prior drug offender pursuant to section 195.275.1(1),

RSMo 2000.2 As a result, pursuant to section 195.295.3, RSMo 2000, the trial court was

required to sentence Mitchell "to the authorized term of imprisonment for a class A felony,

which term shall be served without probation or parole." Mitchell received a sentence of

fifteen years' imprisonment without probation or parole.

         In 2014, the General Assembly passed Senate Bill 491, which became effective on

January 1, 2017. Senate Bill 491 overhauled Missouri's Criminal Code. Relevant to this

case, the statutory revisions made by Senate Bill 491 included the transfer of section

195.223 (defining second-degree trafficking) to section 579.068; the transfer of section

195.275 (defining and prescribing the felony classification for prior and persistent drug

offenders) to section 579.170; and the repeal of section 195.295 (prescribing the authorized

term of imprisonment for a second-degree trafficker found to be a prior or persistent drug



           1
             At issue in this appeal is the General Assembly's 2017 amendments to the criminal code. Resolution of
Mitchell's point on appeal requires discussion of several statutory provisions, in effect at differing dates. Thus, for
clarity's sake, we will indicate which version of each statutory provision to which we refer in the first instance.
           2
             In 2009, a "prior drug offender" was defined as a person "who has previously pleaded guilty to or has been
found guilty of any felony offense of the laws of this state, or of the United States, or any other state, territory or
district relating to controlled substances." Section 195.275.1(1).

                                                          2
offender). As a result, the requirement that prior or persistent drug offenders convicted of

trafficking in the second degree be sentenced to the authorized term of imprisonment for a

class A felony without probation or parole was repealed. The repeal of section 195.295

took effect on January 1, 2017.

         Mitchell filed a pro se petition for declaratory judgment ("Petition") against the

Respondent on May 11, 2017. The Petition asserted that the General Assembly's repeal of

section 195.295 in its entirety should be applied retroactively to Mitchell so that he should

be deemed eligible for parole on his fifteen-year sentence. Mitchell's petition asked the

trial court to "[d]eclare his right to a 'PAROLE HEARING' on his 2nd degree trafficking

offense after serving 25% of his 15 year sentence per to 14 CSR 80-2.010(1)(B)."3 The

Respondent filed a motion to dismiss ("Motion to Dismiss"), arguing that Senate Bill 491's

repeal of section 195.295 does not apply retroactively to eliminate Mitchell's ineligibility

for parole because, pursuant to section 1.160, RSMo 2016, a change in punishment does

not apply retroactively. Thus, the Motion to Dismiss asserted that Mitchell's Petition failed

to allege facts that entitle him to relief.

         On August 14, 2017, the trial court entered a memorandum, order and judgment

("Judgment") granting the Motion to Dismiss and entering judgment in favor of the

Respondent. The Judgment concluded that the repeal of section 195.295 constituted a

change in punishment so that section 1.160 prohibits the retroactive application of the


          3
            The Petition's reference to 14 CSR 80-2.010(1)(B) is incorrect, as that provision sets forth parole eligibility
for offenders convicted of class C drug and non-violent C felony offenses. Mitchell was sentenced to a class A
felony offense. Under 14 CSR 80-2.010(1)(C), "[o]ffenders convicted of class A drug . . . felony offenses . . . are
eligible for release after twenty-five percent (25%) of the maximum sentence has been served, except where state
statute would require more time to be served."

                                                            3
statute's repeal. Thus, the Judgment concluded that the Petition failed to allege facts that

entitle Mitchell to relief.

        Mitchell appeals.

                                            Standard of Review

        The trial court's grant of a motion to dismiss is reviewed de novo. Williston v.

Vasterling, 536 S.W.3d 321, 330 (Mo. App. W.D. 2017). A motion that seeks dismissal

of a petition based on its failure to state a claim on which relief can be granted "'is solely a

test of the adequacy of a plaintiff's petition.'" Id. (quoting Smith v. Humane Soc'y, 519

S.W.3d 789, 797 (Mo. banc 2017)). "In determining whether a motion to dismiss should

have been granted, the appellate court reviews the petition 'in an almost academic manner,

to determine if the facts alleged meet the elements of a recognized cause of action, or of a

cause that might be adopted in that case.'" Foster v. State, 352 S.W.3d 357, 359 (Mo. banc

2011) (quoting City of Lake St. Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc

2010)).

                                                    Analysis

        In Mitchell's single point on appeal, he argues that the trial court erred in granting

the Motion to Dismiss and in entering judgment in favor of the Respondent because the

General Assembly's repeal of section 195.2954 applies retroactively to Mitchell. Mitchell

claims that Senate Bill 491's repeal of the statute did not alter the law governing the offense



        4
          Mitchell erroneously refers to section 195.295 in his point on appeal as section 217.295. Because Mitchell
correctly identifies the statute throughout the argument portion of his brief, we have elected to view Mitchell's
reference to the incorrect statute as inadvertent error and have elected to refer to section 195.295 when discussing
Mitchell's point on appeal.

                                                         4
for which he was convicted and did not change his sentence. Thus, Mitchell claims that

section 1.160 does not prohibit the retroactive application of the repeal of section 195.295.

         When Mitchell committed the crime of trafficking in the second degree in violation

of section 195.223.3(2), he was charged as and found to be a prior drug offender pursuant

to section 195.275.1(1) so that the range of authorized punishment described in section

195.295.3 was triggered. Section 195.295.3 provided:

         Any person who has pleaded guilty to or has been found guilty of a violation
         of . . . subdivision (2) of subsection 3 of section 195.223, . . . shall be
         sentenced to the authorized term of imprisonment for a class A felony,
         which term shall be served without probation or parole, if the court finds
         the defendant is a prior drug offender.

(Emphasis added.) The trial court followed section 195.295.3's mandate, sentencing

Mitchell to fifteen years without probation or parole. The question posed by Mitchell's

appeal is whether section 1.160 prohibits retroactive application of the repeal of section

195.295 to his sentence so as to render him eligible for parole.5

         Section 1.160 provides:

         No offense committed and no fine, penalty or forfeiture incurred, or
         prosecution commenced or pending previous to or at the time when any
         statutory provision is repealed or amended, shall be affected by the repeal
         or amendment, but the trial and punishment of all such offenses, and the
         recovery of the fines, penalties or forfeitures shall be had, in all respects, as
         if the provision had not been repealed or amended, except that all such
         proceedings shall be conducted according to existing procedural laws.

(Emphasis added.) "[Section] 1.160 is designed to have sort of an 'ex post facto' effect in

behalf of the state, protecting the state against claims that the offender is entitled to the


         5
          Section 195.223.3(2) would otherwise have required the sentencing court to sentence Mitchell within the
authorized range of punishment for a class A felony. Mitchell's determined status as a prior drug offender required
that sentence to be served without probation or parole. Section 195.295.3.

                                                         5
benefit of any changes in the law after the date of the offense." Prapotnik v. Crowe, 55

S.W.3d 914, 918 (Mo. App. W.D. 2001). The statute's "purpose was to fix the penalties

under the criminal statutes as of the date the offense was committed, so that as a general

rule, even if a statute dealing with sentencing, imprisonment, or probation is subsequently

amended, the offender does not receive the benefit of the amendment." Id.

       Here, the statute that was repealed, section 195.295, fixed the penalty for a prior

offender convicted of second-degree trafficking pursuant to section 195.223.3(2) as of the

date the offense was committed, and required imposition of a sentence within the range

authorized for a class A felony without probation or parole. By the plain and unambiguous

terms of section 1.160, the repeal of section 195.295 cannot be retroactively applied

because to do so would affect a penalty or punishment imposed prior to the repeal. Our

analysis need proceed no further than this plain reading of section 1.160.

       Mitchell disagrees and asserts that State ex rel. Nixon v. Russell, 129 S.W.3d 867

(Mo. banc 2004), requires us to conclude to the contrary because the repeal of section

195.295 did not affect the "penalty" or "punishment" imposed for his recidivist drug

offense. Instead, according to Mitchell, because the repeal of section 195.295 merely

repealed a recidivist offender's ineligibility for probation or parole, Russell holds that

section 1.160 is not implicated. We do not agree with Mitchell's reading of Russell.

       In Russell, a new statute, section 558.016.8, RSMo Supp. 2003, was enacted which

allowed offenders convicted of nonviolent class C or D felonies with no prior prison

commitments to petition the trial court to serve the remainder of the sentence on probation,

parole, or other court-approved sentence. 129 S.W.3d at 870. The issue was whether

                                             6
section 1.160 prohibited the new statute from being applied retroactively to benefit

offenders sentenced before the new statute's effective date. Id. Russell noted that "section

1.160 . . . applies to retroactive applications of substantive laws governing offenses." Id.

Russell concluded that the new statute could be applied retroactively notwithstanding

section 1.160 because "application of section 558.016.8 [would] not shorten [the

offender's] sentence, nor does it alter the law creating the offense" as it is "a new statutory

provision [that] does not repeal or amend any previously existing statute." Id. (citing State

ex rel. Nixon v. Kelly, 58 S.W.3d 513, 518 (Mo. banc 2001)). With respect to the first

aspect of this holding, that is, Russell's reference to whether the new statute shortened the

offender's sentence, the Supreme Court observed that "[t]he granting of parole does not

reduce the sentence imposed." Id. Instead, application of the statute merely "change[d]

the location or circumstances under which the sentence is served." Id. at 870-71.

       Mitchell reads this part of Russell's holding to require retroactive application of any

repealed or amended statute eliminating probation or parole ineligibility, or creating

probation or parole eligibility where it did not previously exist. Mitchell's argument

ignores Russell's corollary holding that statutes "alter[ing] the law creating the offense"

cannot be retroactively applied, even if they address parole eligibility. Id. at 870. Plainly,

in Mitchell's case, the "law" creating his offense (the commission of second-degree

trafficking by a prior offender) and defining the required punishment for his offense is the

collective reading of sections 195.223.3(2), 195.275.1(1), and 195.295.3. The punishment

imposed for Mitchell's offense was mandated by statute--a term of years within that

authorized for a class A felony to be served without eligibility for probation or parole.

                                              7
Parole ineligibility was thus a factor in the imposition of sentence within the range

authorized for a class A felony. We held exactly that in Fields v. Missouri Board of

Probation & Parole, where we found that if "the statute defining the offense precludes

parole eligibility for a mandatory period of time, 'it is implicit in the terms of the sentence'

and, thus, affects the prosecution." 559 S.W.3d 12, 19 (Mo. App. W.D. 2018) (quoting

Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 658 (1974)).

        [B]ecause it [cannot] be seriously argued that sentencing decisions are made
        without regard to the period of time a defendant must spend in prison before
        becoming eligible for parole, or that such decisions would not be drastically
        affected by a substantial change in the proportion of the sentence required to
        be served before becoming eligible, parole eligibility can be properly viewed
        as being determined--and deliberately so--by the sentence of the [trial] judge.

Warden, Lewisburg Penitentiary, 417 U.S. at 658.

        We thus read Russell as limited to the scenario where a "new" statute creates parole

eligibility without repealing or amending the substantive law governing an offense.6 This

reading of Russell is wholly consistent with Jones v. Fife, 207 S.W.3d 614 (Mo. banc

2006), and Dudley v. Agniel, 207 S.W.3d 617 (Mo. banc 2006). In both cases, our Supreme

Court discussed the rationale of Russell, and concluded that section 1.160 will not bar

retroactive application of a parole eligibility statute if "the parole eligibility provision[] . .



        6
           Section 1.160, RSMo 2000, in effect at the time Russell was decided in 2005 included subsection (2),
which excepted from the prohibition against retroactive application of substantive laws governing offenses repealed
or amended statutes where "the penalty or punishment for any offense is reduced or lessened by any alteration of
the law creating the offense prior to original sentencing." (Emphasis added.) Though by its terms, section 1.160(2)
is limited in its application to amendatory laws taking effect "prior to original sentencing," and though that was
plainly not the scenario in Russell, it is both curious and noteworthy that Russell's analysis about the retroactive
application of a new parole eligibility statute drew from language in then section 1.160(2), and cited with approval
State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 518 (Mo. banc 2001), a case which applied section 1.160(2). Russell,
129 S.W.3d at 870-71. It is not lost on this court that in 2006, the General Assembly amended section 1.160 to
remove subsection (2). Section 1.160 in effect today does not include the phrase "reduced or lessened by any
alteration of the law creating the offense."

                                                         8
. [does] not alter a substantive law governing [the offender's] offense or shorten his

sentence." Jones, 207 S.W.3d at 616; Dudley, 207 S.W.3d at 619 (emphasis added).

       Thus, it is not enough to argue, as Mitchell does, that a new or repealed statute

eliminating parole ineligibility or creating parole eligibility must be retroactively applied

simply because parole does not shorten a sentence. Instead, to overcome the bar of section

1.160, a statute addressing parole eligibility must also be demonstrated not to "repeal or

amend any previously existing statute" that is a part of the substantive law governing an

offense. Jones, 207 S.W.3d at 616; Dudley, 207 S.W.3d at 619.

       We reached the same conclusion under similar circumstances in Fields. Fields

addressed whether Senate Bill 491's repeal of a statute that had required a mandatory

minimum of 85 percent of a sentence to be served before parole eligibility affected the

prosecution, penalty, or punishment of an offense for purposes of section 1.160. 559

S.W.3d at 15-17.     In Fields, the appellant, who had been convicted of first-degree

involuntary manslaughter, asserted that repeal of the subsection of the statute that mandated

serving a minimum prison term of 85 percent should be retroactively applied to his

sentence to render him eligible for parole. Id. at 15. This court applied the framework

outlined in Russell. Id. at 17. Using that framework, Fields observed that the appellant

was seeking "to take advantage of the [General Assembly's] decision to repeal an existing

provision," which automatically cautions against retroactive application of the repeal. Id.

at 18. Fields then addressed whether the former statutory mandate for service of 85 percent

of a prison term before becoming eligible for parole affected the penalty or punishment of

first-degree involuntary manslaughter as it existed at the time of the appellant's offense.

                                             9
Id. Fields recognized that "[n]umerous decisions indicate that a mandatory-minimum-

prison-term provision located within the statute defining the offense that bars parole

eligibility for a definite period of time--like the one at issue [in Fields]--is part of the

penalty or punishment for that offense." Id. (citing State v. Pribble, 285 S.W.3d 310, 314

(Mo. banc 2009); McDermott v. Mo. Bd. of Prob. & Parole, 61 S.W.3d 246, 248 (Mo. banc

2001); Short v. Mo. Bd. of Prob. & Parole, 456 S.W.3d 72, 78 (Mo. App. W.D. 2015)).

Fields concluded that when parole eligibility for a mandatory period of time is precluded

by the statute defining the offense, sentencing decisions are likely made with those parole

eligibility restrictions in mind. Id. at 19. As such, Fields concluded that "because [the

appellant's] claim [was] premised upon an amended statute that repealed a provision

dealing with punishment for his offense, it falls squarely within the scope of [section]

1.160's bar on retroactive application." Id.

         Russell (properly read) and Fields are instructive and controlling.7 Mitchell urges

that the repeal of section 195.295 should be retroactively applied to make him eligible for

parole when he was not at the time of his sentencing. However, the repeal of 195.295 falls

within the scope of section 1.160's bar on retroactive application because the repealed



         7
           Fields's discussion of Russell afforded an alternative basis for our holding. In Fields, the offense of which
Fields was convicted, section 565.024.1(3) RSMo Supp. 2008, defined involuntary manslaughter in the first degree
by driving a motor vehicle in an intoxicated condition. 559 S.W.3d at 16. That offense was eliminated all together
by Senate Bill 491 in lieu of adoption of a version of section 565.024, RSMo Supp. 2017 that combines several
specific first-degree involuntary manslaughter statutes into a single offense criminalizing recklessly causing the
death of another. Id. In doing so, the General Assembly altered the elements of the offense of which Fields had
been convicted by, among other things, imposing a higher culpable mental element, and reclassified the offense as a
class C felony instead of a class B felony. Id. at 16-17. We therefore questioned Fields's retroactive application
argument, as the offense to which Fields pleaded guilty no longer exists, appearing plainly to implicate section
1.160's bar against retroactive application of "repealed" statutes altering substantive offenses. Id. at 17. Stated
another way, even if Fields's analysis of Russell is incorrect (which we do not believe it to be), the outcome in
Fields would have been the same.

                                                          10
statute was a part of the substantive law governing Mitchell's offense. Section 195.295

described the authorized term of imprisonment to be imposed for a person found to be a

prior drug offender and convicted of one of the specifically enumerated offenses therein

described, and required the sentence imposed within that authorized range to be served

without eligibility for probation or parole. Although the sentencing enhancement provision

in section 195.295 was not located within section 195.223.3(2) (the statute which described

the elements of the offense of trafficking in the second degree), because section

195.223.3(2) is expressly referenced in section 195.295, that statute defines the offense of

trafficking in the second degree, and the required punishment for same, when the accused

is determined to be a prior drug offender.

        The trial court did not err in granting the Motion to Dismiss and entering judgment

in favor of the Respondent. Mitchell's point on appeal is denied.

                                                  Conclusion

        The Judgment is affirmed. However, we are mindful that the issue presented in this

case is of general interest and importance, and is one that is likely to repeatedly recur given

Senate Bill 491's overhaul of the criminal code. We therefore exercise our discretion

pursuant to Rule 83.02 to order transfer of this case to the Missouri Supreme Court.8



                                                     __________________________________
                                                     Cynthia L. Martin, Judge
All concur

        8
         We are concurrently ordering transfer of Woods v. Missouri Department of Corrections, No. WD81266
(Mo. App. W.D. January 8, 2019), a case which also addresses the retroactive application of the repeal of section
195.295. Ironically, the same trial judge entered judgment in Woods and in the instant case, though the judgments
reached opposite and thus inconsistent conclusions about the retroactive application of repeal of section 195.295.

                                                        11
