            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

DIMETRIOUS WOODS,                               )
                                                )
                                Respondent,     )
                                                )
                                                     WD81266
v.                                              )
                                                )
                                                     OPINION FILED:
                                                )
                                                     January 8, 2019
MISSOURI DEPARTMENT OF                          )
CORRECTIONS,                                    )
                                                )
                                  Appellant.    )


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

                   Before Division Two: Alok Ahuja, Presiding Judge, and
                      Thomas H. Newton and Mark D. Pfeiffer, Judges

       The Missouri Department of Corrections (“DOC”) appeals the judgment of the Circuit

Court of Cole County, Missouri (“circuit court”), granting Mr. Dimetrious Woods’s (“Woods”)

motion for judgment on the pleadings in his declaratory judgment action. On appeal, the DOC

claims the circuit court erred in granting the motion because the amendments to the criminal

statutes governing Woods’s offense do not apply retroactively to his sentence pursuant to

section 1.160, RSMo 2016. We reverse; however, given that the issue presented in this case is of
general interest and importance and is likely to recur repeatedly, we exercise our discretion

pursuant to Rule 83.02 to order transfer of this case to the Missouri Supreme Court.1

                                  Factual and Procedural Background

          Following a traffic stop in May of 2006, Woods and a co-defendant were charged with

the offense of drug trafficking in the second degree in violation of section 195.223, RSMo Cum.

Supp. 2005. At the time of Woods’s offense, section 195.223, titled “Trafficking drugs, second

degree – penalty[,]” provided various manners of committing second-degree drug trafficking and

for each stated what class of crime that manner constituted (e.g., class A or B felony).

          Woods’s case proceeded to a bench trial in October of 2007, and Woods was found guilty

as charged. Finding that Woods was a prior drug offender pursuant to section 195.295.3, RSMo

2000, the court sentenced Woods to twenty-five years’ imprisonment without eligibility for

parole.       At the time of Woods’s sentencing, section 195.295, titled “Prior and persistent

offenders – trafficking drugs, second degree, imprisonment for[,]” provided the mandatory term

of imprisonment for repeat offenders convicted under each subdivision of section 195.223.

Section 195.295.3 required that Woods “shall be sentenced to the authorized term of

imprisonment for a class A felony, which term shall be served without probation or parole[.]”

Woods’s prior offender, second-degree drug trafficking sentence was ordered to run

consecutively to a four-year sentence Woods received in an unrelated case.

          Effective January 1, 2017, the Missouri Legislature, via Senate Bill 491, enacted the

Revised Criminal Code of 2017. For drug trafficking offenses, the Code retained the substance

of the offenses, but changed the quantity thresholds and made significant changes to sentencing,



          Contemporaneous to this Court’s ruling in the present case, we have also handed down Mitchell v. Jones,
          1

WD81049 (Mo. App. W.D. Jan. 8, 2019), in which this Court has addressed the identical issues in similar fashion to
our ruling in the present case, including the decision to immediately transfer Mitchell to the Missouri Supreme
Court.


                                                        2
substantially reducing punishments for drug offenses generally and eliminating sentences

without probation or parole for prior and persistent drug offenders. Section 195.223, defining

second-degree drug trafficking and its elements and classifications, was transferred to

section 579.068, and section 195.295, providing the mandatory term of imprisonment for prior

and persistent drug offenders convicted under section 195.223, was repealed.

       In May of 2017, Woods filed a petition for declaratory judgment arguing the repeal of

section 195.295 applied retroactively, and that accordingly, he should be deemed eligible for

parole on his twenty-five-year sentence.     Both parties filed motions for judgment on the

pleadings, and the circuit court granted Woods’s motion, entering its judgment holding that,

pursuant to State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc 2004), and Irvin v.

Kempker, 152 S.W.3d 358 (Mo. App. W.D. 2004), section 195.295 is not applicable in

determining Woods’s parole eligibility and ordering the Department of Corrections to apply the

existing laws in determining Woods’s parole eligibility. Woods received a hearing and was

paroled on March 23, 2018. The Department of Corrections timely appeals.

                                     Standard of Review

       Appellate review of the circuit court’s grant of a motion for judgment on the pleadings is

de novo. Fields v. Mo. Bd. of Prob. & Parole, 559 S.W.3d 12, 15 (Mo. App. W.D. 2018);

Barrett v. Greitens, 542 S.W.3d 370, 375 (Mo. App. W.D. 2017).

                                           Analysis

       In its sole point on appeal, the DOC challenges the circuit court’s determination that

retroactively applied “existing laws concerning [Woods’s] parole eligibility” to make Woods

immediately eligible for parole, rather than section 195.295, which governed Woods’s sentence

at the time of sentencing and was later repealed effective January 1, 2017. The DOC asserts that




                                               3
the circuit court’s decision incorrectly altered Woods’s final sentence in violation of

section 1.160.

       The effect of the repeal of a penal statute is expressly governed by section 1.160, RSMo

2016. This section reads:

       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.

Because the purpose of section 1.160 is “to fix the penalties under the criminal statutes as of the

date the offense was committed,” the general rule is that “even if a statute dealing with

sentencing, imprisonment, or probation is subsequently amended, the offender does not receive

the benefit of the amendment.” Prapotnik v. Crowe, 55 S.W.3d 914, 918 (Mo. App. W.D. 2001);

Fields, 559 S.W.3d at 17.

       Woods asserted below, and the circuit court agreed, that State ex rel. Nixon v. Russell,

129 S.W.3d 867 (Mo. banc 2004), requires us to conclude that the repeal of section 195.295 did

not affect the “penalty” or “punishment” imposed for his recidivist drug offense. Instead,

according to Woods and accepted by the circuit court, 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 disagree.

       In Russell, a new statute, section 558.016.8, 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. Id. at 870. The issue was whether section 1.160 prohibited the new statute from being




                                                 4
applied retroactively to 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

its 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.

       Woods and the circuit court read this part of Russell’s holding, in isolation, 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. This

reading oversimplifies the entire holding of Russell and 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 Woods’s case, the “law” creating his offense

(the commission of second-degree drug 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 Woods’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. Parole ineligibility was thus a factor in the imposition of sentence within the range

authorized for a class A felony. We held exactly that very recently in Fields, 559 S.W.3d at 19,




                                                5
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.” (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.

         Consequently, Russell is limited to the scenario where a “new” statute creates parole

eligibility without altering the law governing an offense.2 This reading of Russell is wholly

consistent with the Supreme Court’s subsequent precedent, Jones v. Fife, 207 S.W.3d 614 (Mo.

banc 2006), and Dudley v. Agneil, 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 “[t]he parole eligibility provision . . . [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 that a new or repealed statute eliminating parole

ineligibility or creating parole eligibility must be retroactively applied simply because parole

         2
            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 procedural scenario in Russell, it is 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. Relevant to our discussion today, in 2006 the General Assembly amended section 1.160 to remove
subsection (2).


                                                          6
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. Id.

       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

eighty-five 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 involuntary manslaughter, asserted that repeal

of the subsection of the statute that mandated serving a minimum prison term of eighty-five

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 eighty-five percent of a prison term before becoming eligible for parole affected

the penalty or punishment of involuntary manslaughter as it existed at the time of the appellant’s

offense. 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




                                                 7
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 found 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 and Fields are, indeed, instructive and controlling. Woods argued below, and the

circuit court agreed, 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

section 195.295 falls within the scope of section 1.160’s bar on retroactive application because

the repealed statute was a part of the substantive law governing Woods’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 repeal of section 195.295 by Senate Bill 491 thus falls within the scope of

section 1.160’s bar on retroactive application. Accordingly, the circuit court erred in granting

Woods’s motion for judgment on the pleadings.




                                                 8
                                           Conclusion

       For the reasons stated above, we reverse and vacate the judgment of the circuit court. In

lieu of remanding to the circuit court for further proceedings consistent with our ruling at this

time, we instead exercise our discretion pursuant to Rule 83.02 to order transfer of this case to

the Missouri Supreme Court. As pointed out by Judge Ahuja’s dissenting opinion, alternative

interpretations of State ex rel. Nixon v. Russell and its progeny may lead to some degree of fair

disagreement on the issue at hand.       Given that this issue is one of general interest and

importance, and it will certainly recur repeatedly in response to the General Assembly’s recent

overhaul of the criminal code, we believe clarity in the law on this topic by the Supreme Court is

vital and necessary to the courts of the State of Missouri moving forward.




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

Thomas H. Newton, Judge, concurs.
Alok Ahuja, Presiding Judge, dissents in a separate opinion.




                                                9
                IN THE MISSOURI COURT OF APPEALS
                        WESTERN DISTRICT
DIMETRIOUS WOODS,            )
                 Respondent, )
                             )
v.                           )                 WD81266
                             )
MISSOURI  DEPARTMENT    OF )                   FILED: JANUARY 8, 2019
CORRECTIONS,                 )
                  Appellant. )
                               DISSENTING OPINION
       Although the General Assembly has repealed the statute which prevented

Dimetrious Woods from being released on parole, the majority holds that Woods

remains ineligible for parole. The majority opinion fails to fully implement the

legislature’s decision to allow offenders like Woods to be considered for parole. I

respectfully dissent.

       Woods was convicted of second-degree drug trafficking in 2007. Woods was a

prior drug offender. At the time of his conviction, § 195.295.3, RSMo 20001 required

that he serve his sentence “without probation or parole.” In 2014, the General

Assembly repealed this parole-ineligibility provision, effective January 1, 2017.

Under controlling decisions of the Missouri Supreme Court and prior decisions of

this Court, Woods is entitled to the benefit of the repeal of the parole-ineligibility

statute.

       The majority holds that the repeal of § 195.295.3 does not apply retroactively

to Woods because of § 1.160. Section 1.160 provides:

       1     Unless otherwise indicated, statutory citations refer to the 2016 edition of the
Revised Statutes of Missouri, updated by the 2017 Supplement.
             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 Fields v. Missouri Board of Probation and Parole, 559 S.W.3d 12 (Mo. App.

W.D. 2018), we recently explained the operation of § 1.160:

             In determining whether § 1.160 bars retroactive application of
      an existing statute, courts use a two-prong inquiry. First, we must
      determine whether the existing statute is a new provision or if it
      repealed or amended a previously existing provision. . . . [I]f the
      existing statute repealed or amended a previously existing provision,
      then we must determine whether the repealed or amended provision
      affects the prosecution, penalty, or punishment of the offense at issue.
      If the repealed or amended provision does not affect the prosecution,
      penalty, or punishment, then it . . . falls outside the scope of § 1.160,
      and retroactive application is not barred by § 1.160. If, on the other
      hand, the repealed or amended provision does affect the prosecution,
      penalty, or punishment of the offense at issue, then it is within
      § 1.160’s bar on retroactive application and cannot be applied
      retroactively unless it is merely procedural.
Id. at 17-18 (citations and footnote omitted).

      Here, the statutory enactment at issue is plainly a “repeal,” so the only

question is whether the repeal of § 195.295.3 “affect[s] the prosecution, penalty, or

punishment” for the offense.
      Missouri courts – and most importantly, the Missouri Supreme Court – have

repeatedly held that statutes addressing parole eligibility do not affect the

“punishment” for a criminal offense, and therefore are not subject to the

retroactivity bar of § 1.160. In State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo.

banc 2004), the Supreme Court addressed a new statute permitting offenders to

petition the court for release on parole following service of at least 120 days of their

sentences. The Court held that this new statute applied to previously convicted




                                            2
offenders, notwithstanding § 1.160’s bar on retroactive application of certain

criminal statutes. The Court declared that § 1.160 was not applicable because:

             The granting of parole does not reduce the sentence
      imposed. Section 558.016.8 does not shorten Estes’ sentence; its
      application may, however, change the location or circumstances under
      which the sentence is served. . . . [N]ew provisions regarding
      parole d[o] not increase the offender’s punishment . . . . As long
      as the new statute does not increase the length of an offender’s
      sentence, the changes it makes are a fit subject for legislation.
Id. at 870-71 (emphasis added; citations omitted).

      The Supreme Court again held that previously convicted offenders were

subject to statutory amendments which relaxed the requirements for parole

eligibility in Jones v. Fife, 207 S.W.3d 614 (Mo. banc 2006), and Dudley v. Agniel,

207 S.W.3d 617 (Mo. banc 2006). Jones and Dudley involved the operation of

§ 558.019, which specifies that offenders with “previous prison commitment[s]”

must serve certain minimum terms before becoming eligible for parole. Section

558.019.2 provides that a “‘prison commitment’ means and is the receipt by the

department of corrections of an offender after sentencing.” The definition of a prior

“prison commitment” in § 558.019.2 was altered by a 2003 amendment to

§ 559.115.7, which specified that

      [a]n offender’s first incarceration for one hundred twenty days for
      participation in a department of corrections program prior to release
      on probation shall not be considered a previous prison commitment for
      the purpose of determining a minimum prison term under the
      provisions of section 558.019, RSMo.
§ 559.115.7, RSMo Cum. Supp. 2003. Because it would reduce the number of

“previous prison commitment[s]” counted against certain offenders, the enactment

of § 559.115.7 had the effect of reducing the minimum term those offenders would

be required to serve before becoming parole eligible.

      The question in Jones and Dudley was whether the 2003 amendment to the
definition of a prior “prison commitment” would be applied to offenders convicted



                                          3
prior to 2003. The Supreme Court held that previously convicted offenders should

receive the benefit of § 559.115.7, and that § 1.160 did not prevent the new statute

from being applied retroactively. The Court explained:

             In State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc
      2004), this Court held that section 558.016.8, a new parole eligibility
      statute enacted simultaneously with the statutes at issue in this case,
      could be applied retroactively to an offender who was sentenced prior
      to the effective date of the statute. As in this case, the State argued
      that retroactive application of the statute was prohibited by section
      1.160. This Court rejected the State’s argument because “[t]he
      granting of parole does not reduce the sentence imposed,” but
      “may, however, change the location or circumstances under
      which the sentence is served.” Id. Because the parole eligibility
      provisions of 558.016.8 did not repeal or amend any previously existing
      statute and did not shorten the defendant’s sentence, section 1.160 did
      not bar the retroactive application of the statute. Id. at 871.
             The rationale of the Russell case applies to this case. The
      parole eligibility provisions of section 559.115.7 and section
      217.362.5 do not alter a substantive law governing Jones’ offense
      or shorten his sentence. Instead, retroactive application of the
      statutes would only result in a potential change of the location
      or circumstances under which Jones serves the remainder of his
      sentence. Therefore, section 1.160 does not bar retroactive application
      of the parole eligibility provisions of section 559.115.7 or section
      217.362.5.
Jones, 207 S.W.3d at 616-17 (emphasis added; footnotes omitted); see also Dudley,

207 S.W.3d at 618-19 (same).
      Following Russell, this Court has held on numerous occasions that statutory

changes which have the effect of relaxing parole-eligibility requirements apply to

previously convicted offenders. We have explained that “Russell held that . . . a new

parole eligibility statute . . . applied retroactively because it did not change the

offender’s punishment. The Court affirmed that Section 1.160 is inapplicable to any

new statute that does not shorten or increase the length of an offender’s sentence.”

Carlyle v. Mo. Dep’t of Corrections, 184 S.W.3d 76, 79 (Mo. App. W.D. 2005)

(citations omitted). We have also stated that Russell and related case law “makes it
clear that any changes in the law with regard to the minimum prison term can be


                                            4
retroactively applied” to previously convicted offenders. Talley v. Mo. Dep’t of

Corrections, 210 S.W.3d 212, 216 (Mo. App. W.D. 2006). See also Bantle v. Dwyer,

195 S.W.3d 428, 432 (Mo. App. S.D. 2006); Ridinger v. Mo. Bd. of Probation &

Parole, 189 S.W.3d 658, 663 (Mo. App. W.D. 2006); Neiuwendaal v. Mo. Dep’t of

Corrections, 181 S.W.3d 153, 154-55 (Mo. App. W.D. 2005); Irvin v. Kempker, 152

S.W.3d 358, 362 (Mo. App. W.D. 2004); Powell v. Mo. Dep’t of Corrections, 152

S.W.3d 363, 366 (Mo. App. W.D. 2004).2

       Thus, under Russell and its progeny, “Section 1.160 is inapplicable to any

new statute that does not shorten or increase the length of an offender’s sentence,”

Carlyle, 184 S.W.3d at 79, and “[t]he granting of parole does not reduce the sentence

imposed.” Russell, 129 S.W.3d at 870. Notably, prior to this Court’s decision a few

months ago in the Fields case, no Missouri decision of which I am aware had denied

a previously-convicted defendant the benefit of a new statute which relaxed the

requirements for parole eligibility. Under the straightforward principle established

in Russell and the cases following it, Woods is plainly entitled to the benefit of the

General Assembly’s repeal of § 195.295.3 RSMo 2000, because the repeal of this

parole-ineligibility provision does not alter his underlying sentence. That should be

the end of the matter.
       The majority holds that Russell and similar cases are inapplicable here,

because in this case, the repeal of § 195.295.3 has the effect of “altering the law

creating the offense” of second-degree drug trafficking. I disagree. Russell held

that § 1.160 only “applies to retroactive applications of substantive laws governing


       2        In addition to holding that a statutory amendment which relaxed parole-
eligibility requirements did not increase the offender’s punishment, Niewendaal also held
that such an amendment was “procedural” rather than “substantive,” because “[i]t clarifies
the procedure by which minimum prison terms are determined.” 181 S.W.3d at 155. If
statutory amendments reducing parole-eligibility requirements are properly denominated
“procedural,” this provides an additional basis to hold that such amendments should be
applied to previously convicted offenders like Woods.


                                             5
offenses.” 129 S.W.3d at 870 (emphasis added). And in Russell, Jones and Dudley,

the Supreme Court distinguished the “substantive law governing offenses” (or “the

law creating the offense”) from the statutes specifying criminal sentences, and from

the statutes specifying parole eligibility. See Jones, 207 S.W.3d at 616 (new

enactments “do not alter a substantive law governing Jones’ offense or shorten his

sentence” (emphasis added); Dudley, 207 S.W.3d at 619 (same); Russell, 129 S.W.3d

at 870 (new statutory enactment “does not shorten [the offender’s] sentence, nor

does it alter the law creating the offense” (emphasis added)). Plainly, what the

Supreme Court meant by “the law creating the offense” or “the substantive law

governing an offense” was the statute which actually specifies the substantive

elements of the offense, and the offense’s classification in a tiered offense

hierarchy.3

       In this case, the repealed parole-ineligibility provision did not appear in the

substantive law creating the offense of second-degree drug trafficking. At the time

of Woods’ offense, second-degree drug trafficking was defined in § 195.223, RSMo

2000. As relevant here, § 195.223.2(2) provided that, if an individual possessed

more than 450 grams of certain cocaine derivatives or analogs, “the person shall be



       3        As the majority opinion observes in footnote 2, the phrase “the law creating
the offense” previously appeared in a provision of § 1.160. See § 1.160(2), RSMo 2000.
When interpreting that now-repealed provision, the courts drew a distinction between the
law actually specifying the conduct which constituted a particular crime – namely, “the law
creating the offense” – and the law specifying the punishment for a particular crime. See,
e.g., Watkins v. Mo. Dep’t of Corrections, 349 S.W.3d 423, 427 (Mo. App. W.D. 2011);
Edwards v. State, 215 S.W.3d 292, 294 (Mo. App. S.D. 2007); Emerick v. State, 172 S.W.3d
867, 869 (Mo. App. S.D. 2005); State v. Regot, 172 S.W.3d 485, 490–91 (Mo. App. E.D. 2005);
State v. Guyton, 158 S.W.3d 252, 256 (Mo. App. E.D. 2005); State v. Johnson, 150 S.W.3d
132, 138–39 (Mo. App. E.D. 2004); see also State ex rel. Nixon v. Kelley, 58 S.W.3d 513, 518
(Mo. banc 2001) (amendment to statute specifying the credit which an offender should
receive against his or her sentence for time spent in pre-trial detention did not change “the
law creating the offense”). This caselaw further confirms that laws which merely address
parole eligibility for a particular crime or class of crimes cannot properly be considered part
of “the law creating the offense.”


                                              6
guilty of a class A felony.” Section 195.223.2 fully defined the relevant offense. It

laid out all of the elements of the offense:

       (1)    the prohibited actions (“possesses or has under his control, purchases
              or attempts to purchase, or brings into this state”);
       (2)    the prohibited substances (various specifically described cocaine-
              related substances); and
       (3)    the prohibited quantity (“four hundred fifty grams or more”).
Section 195.223.2(2) also specified the classification of the relevant offense (“shall be

guilty of a class A felony”). Thus, the relevant offense of second-degree drug

trafficking was fully defined by § 195.223.2 – there was no reason to look to the

repealed statute (§ 195.295) to define the offense of which Woods was convicted.4

       All that § 195.295.3 did was specify that, “if the court finds the defendant is a

prior drug offender,” then the defendant’s sentence “shall be served without

probation or parole.” All that § 195.295.3 did was to make certain recidivist

offenders convicted of second-degree drug trafficking ineligible for parole. It did not

“create the offense” – it only specified parole ineligibility for recidivist offenders.5



       4        This case is thus distinguishable from Fields, 559 S.W.3d 12, in which a
minimum-term provision appeared in the same statute as the one which specified the
elements of the relevant offense, and in the same sub-section which specified the offense’s
classification as a class B felony. §§ 565.024.1(3)(a), .2, RSMo Cum. Supp. 2008. While
Fields is distinguishable, I seriously question whether it can be reconciled with Russell and
the other cases discussed in the text, which plainly hold that statutory provisions specifying
parole eligibility do not affect the length of an offender’s sentence, and are therefore not
subject to the retroactivity bar of § 1.160. I also note that the discussion of this issue in
Fields is plainly dictum, since the Court separately found that the specific offense of which
the offender had been convicted in that case had been wholly repealed. See Fields, 559
S.W.3d at 17. Fields was not a case – like this one – in which a later statutory amendment
merely affected a parole-eligibility provision, but otherwise retained the definition of the
earlier offense.
        5       The majority suggests that the repealed § 195.295.3 specified the punishment
for second-degree drug trafficking because it classified particular drug offenses, when
committed by a prior offender, as class A felonies. But each of the specific offenses listed in
§ 195.295.3 was already classified as a class A felony by virtue of the relevant provisions of
§ 195.223. Section 195.295.3 did not classify particular offenses; all that it did was specify
that certain recidivist offenders would not be eligible for parole.


                                               7
       Here, the repealed parole ineligibility provision appears in a separate

statutory section from the one creating the offense. In addition, the repealed

provision in this case does not affect all people who commit second-degree drug

trafficking, or even all people who commit second-degree drug trafficking in a

particular manner. It only affects repeat offenders who are convicted of committing

particular forms of second-degree trafficking. Section 195.295 does not “create the

offense” of second-degree trafficking in any meaningful sense.6

       Even if there is some ambiguity as to whether the parole-ineligibility

provision at issue in this case constitutes part of the “punishment” for Woods’

offense, and is therefore subject to the retroactivity bar of § 1.160, that ambiguity

should be resolved in Woods’ favor under the “rule of lenity.” “‘[W]here there is

ambiguity, the rule of lenity requires that the court strictly construe a criminal

statute against the state.’” State v. Pribble, 285 S.W.3d 310, 315 (Mo. banc 2009)

(quoting State v. Johnson, 244 S.W.3d 144, 168 (Mo. banc 2008)). Because § 1.160

applies solely to the interpretation and application of criminal statutes, it is subject




        In any event, even if § 195.295.3 specified the punishment for Woods’ offense, that
did not make it part of “the law creating the offense,” for reasons discussed in the text.
        6       The majority opinion also suggests that Russell is only applicable where a
new statutory provision (as opposed to a statutory repeal or amendment) affects parole
eligibility. As explained in the text, however, Jones and Dudley involved an enactment
which had the effect of modifying § 558.119.2’s definition of a “prison commitment,” by
excluding participation in a 120-day program from the definition. Likewise, in Talley, we
applied Russell to a statutory amendment which repealed a portion of § 556.061.8, by
removing armed criminal action from the list of “dangerous felonies.” This statutory repeal
had the effect of removing armed criminal action from the requirement in § 558.019.2 that
persons convicted of a dangerous felony serve a minimum of 85% of their sentence. Russell
is plainly applicable to the repeal or amendment of previously-existing statutes, not just to
new statutory provisions.
        I also note that the majority is incorrect when it suggests (Op. at 2) that the
statutory revisions effective in 2017 “changed the quantity thresholds” (and thus one of the
critical elements) of Woods’ crime. To the contrary, the post-2017 statute retains the 450-
gram threshold for the offense of which Woods was convicted. Compare § 579.068.3(2) with
§ 195.223.2(2), RSMo 2000.


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to the rule of lenity, and that rule should be applied here to resolve any doubt in

Woods’ favor as to whether the repeal of § 195.295.3 affected his “punishment.”

                                     Conclusion
      Multiple Missouri Supreme Court decisions – and numerous subsequent

decisions of this Court – announce the simple, clear rule of law which should govern

here: statutory amendments relaxing the requirements for parole eligibility apply

to previously convicted offenders. We should apply that straightforward principle

here, and affirm the judgment of the circuit court. The General Assembly has

chosen to remove the prohibition on parole for persons convicted of non-violent drug

offenses like the one Woods committed. We should fully implement this legislative

decision by recognizing that all persons convicted of the relevant offenses are now

parole-eligible, whether their offenses occurred before or after 2017.

      While I disagree with the majority’s disposition of this case, I appreciate my

colleagues’ willingness to transfer this case to the Supreme Court on our own

motion. The issues raised in this case are important and recurring, and should be

resolved on an authoritative and State-wide basis at the earliest opportunity.




                                               Alok Ahuja, Presiding Judge




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