             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT
 BERRY LIVINGSTON,                                )
                                                  )
                                  Respondent,     )
 v.                                               )    WD81789
                                                  )
                                                  )    OPINION FILED:
 MISSOURI DEPARTMENT OF                           )    July 28, 2020
 CORRECTIONS,                                     )
                                                  )
                                    Appellant.    )

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

                Before Division One: Thomas H. Newton, Presiding Judge, and
                      Mark D. Pfeiffer and Edward R. Ardini, Jr., Judges

       The Missouri Department of Corrections (“MDOC”) appeals from the judgment of the

Circuit Court of Cole County, Missouri (“circuit court”), granting Mr. Berry Livingston’s

(“Livingston”) motion for judgment on the pleadings in his declaratory judgment action, in which

he requested that the court retroactively apply the repeal of section 195.291 and declare him parole

eligible. We reverse the judgment of the circuit court and enter judgment in favor of the MDOC

pursuant to Rule 84.14.

                             Factual and Procedural Background

       In February of 2017, Livingston was convicted of possessing a controlled substance with

intent to distribute in violation of section 195.211.3 and unlawful use of drug paraphernalia in
violation of section 195.233.2 for offenses Livingston committed December 9, 2013. 1

Subsequently, the General Assembly repealed section 195.291, effective January 1, 2017. As a

result, the requirement that an offender found guilty of possessing a controlled substance with

intent to distribute in violation of section 195.211 must be sentenced to the authorized term of

imprisonment for a class A felony without probation or parole if the court finds the defendant is a

persistent drug offender was eliminated.

         In April of 2017, the court found Livingston was a persistent drug offender, and

accordingly sentenced him for the possession conviction to fifteen years without probation or

parole pursuant to section 195.291.2, and one year in county jail for the unlawful use of drug

paraphernalia, to be served concurrently. 2 Livingston appealed his convictions, which the Eastern

District of this Court affirmed. State v. Livingston, 547 S.W.3d 606, 607 (Mo. App. E.D. 2018).

         On November 29, 2017, Livingston filed a Petition for Declaratory Judgment in the circuit

court. Livingston asked the circuit court to declare him parole eligible. Thereafter, Livingston

filed a Motion for Judgment on the Pleadings. After filing an answer denying that Livingston was

entitled to a declaratory judgment, the MDOC filed a Cross-Motion for Judgment on the Pleadings

on May 14, 2018. On the same day, the circuit court entered its Judgment, granting Livingston’s

request for declaratory judgment and concluding that “[s]ection 195.291 is not applicable to

determining parole eligibility[,] and [the MDOC] is hereby ordered to apply existing laws

concerning [Livingston’s] parole eligibility.”




          1
            All references to sections 195.211 and 195.233 are to the REVISED STATUTES OF MISSOURI 2000, as updated
through the 2013 Cumulative Supplement, the version of the statute in effect on the date of Livingston’s offenses. See
State v. Sayles, 491 S.W.3d 271, 272 n.1 (Mo. App. W.D. 2016).
          2
            Because a defendant is sentenced according to the law in effect at the time the offense was committed,
Wagner v. Bowyer, 559 S.W.3d 26, 30 (Mo. App. E.D. 2018), all references to section 195.291 are to the REVISED
STATUTES OF MISSOURI 2000, as updated through the 2013 Cumulative Supplement.


                                                          2
         The MDOC timely appealed. 3 During the pendency of this appeal, Livingston was granted

parole and released from custody, and further, Governor Parson granted a limited commutation of

Livingston’s sentence to house arrest during his “term of parole ineligibility” pursuant to

section 217.541, noting that the Parole Board would still have discretion and authority to revoke

the house arrest and return him to the MDOC and that Livingston’s sentence duration of fifteen

years was not otherwise shortened.

                                              Standard of Review

         “The question presented by a motion for judgment on the pleadings is whether the moving

party is entitled to judgment as a matter of law on the face of the pleadings.” Mo. State Conference

of Nat’l Ass’n for Advancement of Colored People v. State, 563 S.W.3d 138, 146 (Mo. App. W.D.

2018) (internal quotation marks omitted). Our review of the circuit court’s grant of a motion for

judgment on the pleadings is de novo. Id.

                                                     Analysis

         Initially, we must dispose of Livingston’s motion to dismiss this appeal, which was taken

with the case. “Before we consider the merits of [the MDOC’s] appeal, we must determine, as a

threshold question, whether the controversy is moot.” Gates v. State, 539 S.W.3d 90, 93 (Mo.

App. W.D. 2018). Livingston argues this appeal by the MDOC is moot because Livingston has

already actually been paroled and released from custody and has received a limited commutation

of his “term of parole ineligibility . . . to house arrest pursuant to Section 217.541” from Governor



         3
           This court previously ordered transfer of two other cases that also addressed the retroactive application of
the repeal of section 195.295: Mitchell v. Jones, No. WD81049, 2019 WL 8109959 (Mo. App. W.D. Jan. 8, 2019),
and Woods v. Missouri Department of Corrections, No. WD81266, 2019 WL 8109960 (Mo. App. W.D. Jan. 8, 2019).
Livingston moved for a stay of this appeal pending the decision of the Missouri Supreme Court in Woods v. Missouri
Department of Corrections, SC97633, which this Court granted. Opinions in both cases were filed on February 4,
2020. On March 31, 2020, the Supreme Court overruled motions for rehearing in both cases, and final mandates were
issued. See Mitchell v. Phillips, 596 S.W.3d 120 (Mo. banc 2020), and Woods v. Mo. Dep’t of Corr., 595 S.W.3d 504
(Mo. banc 2020). On our own motion, this Court lifted the stay of this appeal on April 17, 2020.


                                                          3
Parson on May 4, 2020. The MDOC argues in response that because the parties still disagree about

whether Livingston is eligible for parole, it is still entitled to have that controversy adjudicated.

The MDOC further argues that a decision from this court will have practical consequences, as it

will allow the MDOC to know whether it should correct Livingston’s erroneous release, and it will

affect the terms of Livingston’s commutation.

       “To exercise appellate jurisdiction, the case must present ‘an actual and vital controversy

susceptible of some relief.’” Gates, 539 S.W.3d at 93 (quoting State ex rel. Reed v. Reardon, 41

S.W.3d 470, 473 (Mo. banc 2001)). “[A] cause of action is moot when the question presented for

decision seeks a judgment upon some matter which, if the judgment was rendered, would not have

any practical effect upon any then existing controversy.” Id. (internal quotation marks omitted).

Even if the case was not moot at its inception, it may become so through an intervening event that

changes the situation of the parties such that “any judgment rendered merely becomes a

hypothetical opinion.” Id. (internal quotation marks omitted). In determining mootness, this court

may consider facts outside of the record. Id.

       Here, there is an actual and vital controversy:         the parties disagree about whether

Livingston is eligible for parole. This controversy is susceptible of relief in the form of a judgment

reversing the circuit court’s erroneous judgment as to Livingston’s parole eligibility having the

practical effects of giving the MDOC the ability to correct Livingston’s parole eligibility status

and ensure proper application of the commutation granted by Governor Parson. Because the case

presents an actual controversy susceptible of relief having a practical effect on that controversy, it

is not moot and we may exercise appellate jurisdiction addressing the merits of the MDOC’s

appeal. Id. Accordingly, Livingston’s motion to dismiss this appeal as moot is denied.




                                                  4
       In its sole point relied on, the MDOC asserts that the circuit court erred in granting

Livingston’s Motion for Judgment on the Pleadings because section 1.160 bars the retroactive

application to Livingston’s sentence of the General Assembly’s amendments to the criminal

statutes governing Livingston’s offenses.

       When Livingston committed the crime of possessing a controlled substance with intent to

distribute, in violation of section 195.211.3, the statute provided that “[a]ny person who violates

or attempts to violate this section with respect to any controlled substance, except five grams or

less of marijuana is guilty of a class B felony.” Livingston was found by the court to be a persistent

drug offender. Under section 195.291.2, “[a]ny person who has pleaded guilty to or been found

guilty of a violation of section 195.211, when punishable as a class B felony, 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 persistent drug offender.”

       The Missouri Supreme Court’s recent opinions in Mitchell v. Phillips, 596 S.W.3d 120

(Mo. banc 2020), and Woods v. Missouri Department of Corrections, 595 S.W.3d 504 (Mo. banc

2020), govern our disposition of this appeal. In those cases, the Court considered the applicability

of section 1.160, the retroactive effect of the repeal of a statute (§ 195.295) requiring an offender

to be sentenced to the authorized term of imprisonment without probation or parole, and whether

parole ineligibility under that section is a condition of an offender’s sentence.

       The issue raised by MDOC’s appeal is whether section 1.160 prohibited the retroactive

application of the repeal of section 195.291 to Livingston’s sentence so as to render him eligible

for parole.




                                                  5
       Section 1.160 4 governs the effect of the repeal of a penal statute and 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.

In Mitchell, the Missouri Supreme Court addressed the scope of section 1.160.                           “While

section 1.160 prohibits the retroactive application of a statute’s repeal or amendment under certain

circumstances, its scope is limited. It is a general savings statute and serves a narrow purpose.”

Mitchell, 596 S.W.3d at 125. As the Court explained:

       This section preserves: (1) liability for offenses committed previous to or at the
       time a statutory provision is repealed or amended; (2) liability for fines, penalties,
       and forfeitures incurred previous to or at the time a statutory provision is repealed
       or amended; and (3) the authority to continue prosecutions commenced or pending
       before a statutory provision is repealed or amended.

Id. According to the Court, “[w]hen a case has been reduced to final judgment and direct review

exhausted, . . . the preservation afforded by section 1.160 is unnecessary because the repeal does

not affect final adjudications in the first instance.” Id. at 125-26. “It is only when a statutory

provision is repealed or amended before adjudication is complete and direct review exhausted that

section 1.160 saves the liability, punishment, and prosecution arising under the repealed provision

and continues the statute in force until proceedings commenced thereunder, regardless of their

nature, might be completed.” Id. at 126 (internal quotation marks omitted). “‘[S]ection 1.160

authorizes a defendant to move for a reduction of sentence if the penalty for his offense of

conviction has been reduced subsequent to the commission of the offense but before the conviction




       4
           All references to section 1.160 are to the REVISED STATUTES OF MISSOURI 2016, as supplemented.


                                                        6
becomes final.’” Id. (quoting State v. Sumlin, 820 S.W.2d 487, 492 (Mo. banc 1991)) (emphasis

added). Accordingly, section 1.160 “is inapplicable to sentences in final judgments.” Id.

       For the offense of possessing a controlled substance with intent to distribute, the court was

required to sentence Livingston to a class B felony term. § 195.211.3. And because the circuit

court found that Livingston committed possession of a controlled substance with intent to

distribute as a persistent drug offender, the court was required to sentence him to a class A felony

term to be served without probation or parole. § 195.291.2. “[Livingston’s] parole ineligibility

was mandated as part of the punishment within the particular statute designating the permissible

penalty for his offense. Therefore, parole ineligibility is part of his sentence.” Mitchell, 596

S.W.3d at 123. Any application of the repeal of section 195.291 to Livingston retroactively would

change his sentence.      Consequently, the repeal of section 195.291 can have no effect on

Livingston’s parole eligibility. “He remains ineligible for parole in accordance with the terms of

his sentence[s].” Id. at 126-27. Accordingly, the circuit court erred in granting Livingston’s

Motion for Judgment on the Pleadings.

       The MDOC’s point is granted.

                                           Conclusion

       The circuit court’s judgment is reversed, and this court enters judgment in favor of MDOC

pursuant to Rule 84.14.

                                              /s/Mark D. Pfeiffer
                                              Mark D. Pfeiffer, Judge

Thomas H. Newton, Presiding Judge, and Edward R. Ardini, Jr., Judge, concur.




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