                In the Missouri Court of Appeals
                                   Western District

 RICHARD BROWN,                    )
                        Appellant, )
 v.                                )                   WD79139
                                   )
 MISSOURI BOARD OF PROBATION       )
 AND PAROLE,                       )                   FILED: December 20, 2016
                      Respondent. )

          APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
                  THE HONORABLE DANIEL R. GREEN, JUDGE

          BEFORE DIVISION THREE: VICTOR C. HOWARD, PRESIDING JUDGE,
           LISA WHITE HARDWICK AND EDWARD R. ARDINI, JR., JUDGES

      Richard Brown appeals the grant of judgment on the pleadings in favor of the

Missouri Board of Probation and Parole ("the Board") on his declaratory judgment

petition. Brown had sought a judgment declaring that his second-degree assault

conviction should be reclassified as a nonviolent felony for purposes of parole

eligibility and that he should be eligible for parole after serving fifteen percent of his

second-degree assault sentence. He argues that the court misapplied the law in

denying his request for declaratory judgment. For reasons explained herein, we

affirm.
                          FACTUAL AND PROCEDURAL HISTORY

      In January 1998, Brown was sentenced to consecutive terms of twenty-five

years in prison for second-degree murder and five years in prison for second-degree

assault. The Department of Corrections calculated Brown's sentences as starting

on November 3, 1997.

      The Board determined that Brown must serve eighty-five percent of his

murder sentence, or approximately twenty-one years and three months, before

becoming parole eligible. After serving the minimum term for murder, Brown must

then serve the minimum term for second-degree assault before becoming parole

eligible. The Board determined that Brown's minimum term for second-degree

assault is twenty months. Pursuant to the Board's calculation, Brown would

become parole eligible in October 2020.

      In July 2014, Brown filed a petition for declaratory judgment. In his petition,

he asked the court to order the Board to reclassify his assault offense as a

nonviolent felony and to recalculate his parole eligibility accordingly. He argued

that the Board's regulations classifying second-degree assault as a violent felony

for purposes of parole eligibility are contrary to statute and the Supreme Court's

opinion in State ex rel. Matthews v. Maloney, 155 S.W.3d 62 (Mo. banc 2005).

He asserted that second-degree assault should be classified as a nonviolent felony,

which would require him to serve only fifteen percent of the maximum sentence

before becoming parole eligible.




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       In its answer, the Board argued that Section 217.6901 authorizes it to adopt

regulations governing parole eligibility and that, under these valid regulations,

second-degree assault is a violent felony requiring an offender to serve thirty-three

percent of the maximum sentence before becoming parole eligible.

       The Board filed a motion for judgment on the pleadings, and Brown filed

suggestions in opposition. The court granted the motion and entered judgment on

the pleadings in favor of the Board, finding that the Board's classification of

second-degree assault was not contrary to statute and that the Board correctly

calculated Brown's parole eligibility. Brown appeals.

                                         STANDARD OF REVIEW

       On appeal from a grant of judgment on the pleadings, "we review the

allegations of the petition to determine whether the pleaded facts were insufficient

as a matter of law." Kaczynski v. Mo. Bd. of Prob. & Parole, 349 S.W.3d 354,

356 (Mo. App. 2011). We will affirm the grant of judgment on the pleadings if,

taking the facts alleged in the plaintiff's petition as true, we find that the moving

party was entitled to judgment as a matter of law. Id.

                                            ANALYSIS

       In his sole point on appeal, Brown contends the court misapplied the law

when it found that the Board did not exceed its authority by classifying second-

degree assault as a violent felony for parole eligibility purposes. The Board



1
 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
Cumulative Supplement, unless otherwise indicated.

                                                3
classifies felonies as violent or nonviolent in Appendix C of its Procedures

Governing the Granting of Paroles and Conditional Releases. These classifications

are then used to determine an offender's minimum parole eligibility under 14 C.S.R.

80-2.010(1). Regulation 14 C.S.R. 80-2.010(1)(D) provides that offenders

convicted of felonies classified as violent are eligible for parole after serving thirty-

three percent of the maximum sentence, while 14 C.S.R. 80-2.010(1)(A) provides

that offenders convicted of felonies classified as nonviolent are eligible for parole

after serving fifteen percent of the maximum sentence.

       Brown first argues that the Board's classification of second-degree assault as

a violent felony is contrary to statute. "'It is well-settled that a regulation may not

conflict with a statute and if it does the regulation must fail.'" Pulitzer Pub. Co. v.

Mo. State Emps. Ret. Sys., 927 S.W.2d 477, 480 (Mo. App. 1996) (citation

omitted). "'Rules are void if they are beyond the scope of the legislative authority

conferred upon the state agency or if they attempt to extend or modify statutes.'"

Id. (citation omitted).

       Brown asserts that the Board's classification of second-degree assault as a

violent felony is contrary to Section 217.010. Section 217.010 provides, in

pertinent part:

       As used in this chapter and chapter 558, unless the context clearly
       indicates otherwise, the following terms shall mean:

                                       ...

        (11) "Nonviolent offender", any offender who is convicted of a crime
       other than murder in the first or second degree, involuntary
       manslaughter, kidnapping, rape in the first degree, forcible rape,

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      sodomy in the first degree, forcible sodomy, robbery in the first degree
      or assault in the first degree.

Section 217.010(11) defines the term "nonviolent offender" as "any offender

convicted of a crime other than" the list of offenses. Brown argues that, because

second-degree assault is not one of the listed offenses, the Board is precluded from

classifying second-degree assault as a violent felony. We disagree.

      Section 217.010 expressly states that its definitions apply to terms "as used

in this chapter and chapter 558." Thus, by its plain language, Section

217.010(11) defines the term "nonviolent offender" only for the statutory

provisions contained within Chapters 217 and 558. Section 217.010(11) does not

extend to preclude the Board from classifying second-degree assault as a violent

felony within its own regulations.

      Brown cites Matthews, 155 S.W.3d 62, to support his contention that

Section 217.010(11) contains the exclusive list of violent offenses for all purposes.

The issue in Matthews was whether a conviction for attempted second-degree

assault was a "nonviolent class C or D felony" for purposes of Section 558.016.8,

RSMo Supp. 2003, a provision that allowed an offender convicted of a nonviolent

felony to petition the court for early release under certain circumstances. Id. at 63.

Analyzing Section 217.010(11), the Court in Matthews found that, in defining the

term "nonviolent offender," "the statute necessarily defines the universe of

nonviolent offenses." Id. at 64. The Court concluded that "'a nonviolent class C

or class D felony,' as those words are used in section 558.016.8," is any felony



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not specifically listed in Section 217.010(11). Id. Because attempted second-

degree assault was not listed among the offenses in Section 217.010(11), the

Court held that it was a nonviolent felony for purposes of Section 558.016.8,

RSMo Supp. 2003. Id.

      Section 217.010 expressly required the Court in Matthews to apply Section

217.010(11)'s definition of "nonviolent offender" because Section 558.016.8,

RSMo Supp. 2004, was a provision in Chapter 558. Id. Matthews does not stand

for the proposition that Section 217.010(11)'s definition of the term "nonviolent

offender" applies to all statutory provisions -- whether in Chapters 217 and 558 or

not -- and regulatory provisions in which the word "nonviolent" is used, including in

the Board's regulations concerning parole eligibility.

      Brown next argues that Section 558.011, the statute governing conditional

release, supports his contention that second-degree assault is not a violent felony.

Section 558.011.4 divides most sentences into prison terms and conditional

release terms. However, the statute excludes sentences for dangerous felonies, as

defined in Section 556.061, from eligibility for conditional release. Id. Brown

argues that, because second-degree assault is not listed among the dangerous

felonies in Section 556.061 for conditional release purposes in Section 558.011, it

cannot be classified as a violent felony for parole eligibility purposes. We disagree.

      "While conditional release is akin to parole, the two are not identical or

interchangeable terms." Edger v. Mo. Bd. of Prob. & Parole, 307 S.W.3d 718, 721

(Mo. App. 2010). "The operation of conditional release is specifically dictated by

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statute, while parole is almost entirely left to the discretion of the Parole Board."

Id. Thus, Section 558.011 has no bearing on the Board's classification of second-

degree assault as a violent felony for parole eligibility purposes.

      "[T]he plain language of [Section 217.690.4] clearly establishes that the

Board has the authority to create eligibility requirements for parole." Anselmo v.

Mo. Bd. of Prob. & Parole, 27 S.W.3d 831, 833 (Mo. App. 2000). Indeed, the

provisions of Section 217.690 give the Board "'almost unlimited discretion.'" Cole

v. Mo. Bd. of Prob. & Parole, 947 S.W.2d 124, 125 (Mo. App. 1997) (quoting

State ex rel. Cavallaro v. Groose, 908 S.W.2d 133, 135 (Mo. banc 1995)). This

includes the ability to determine when an offender may become eligible for parole.

Edger, 307 S.W.3d at 721. The Board did not exceed its authority in classifying

second-degree assault as a violent felony for purposes of determining Brown's

parole eligibility under 14 C.S.R. 80-2.010(1). Consequently, the court did not

misapply the law in granting judgment on the pleadings in favor of the Board on

Brown's declaratory judgment petition. Brown's point on appeal is denied.

                                      CONCLUSION

      The judgment is affirmed.


                                               ______________________________
                                               LISA WHITE HARDWICK, JUDGE
ALL CONCUR.




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