                    In the Missouri Court of Appeals
                            Eastern District
                                                   Writ Division I
State Ex Rel. John Cullen,                                  )    No. ED107388
                                                            )
           Relator,                                         )
                                                            )    Writ of Mandamus
                                                            )
           vs.                                              )    Jefferson County Circuit Court
                                                            )    Cause No. 16JE-CR00284-012
The Honorable Troy A. Cardona,                              )
Judge of the Circuit Court of the County of                 )
Jefferson, 23rd Judicial Circuit                            )
                                                            )
           Respondent.                                      )    Filed: January 29, 2019

                                                      OPINION

           John Cullen (“Relator”) seeks a writ of mandamus compelling the Honorable Troy A.

Cardona (“Respondent”) to release Relator from the custody of the Missouri Department of

Corrections and place him on probation pursuant to § 217.362.1 Relator argues that he should be

released on probation because he successfully completed the long-term substance abuse

treatment program established by § 217.362. We hold that the evidence upon which Respondent

based the denial of Relator’s probation was insufficient to support Respondent’s conclusion that

Relator was unfit for probation, and mandamus relief is therefore proper.




1
    All references are to Mo. Rev. Stat. Cum. Supp. 2016, unless otherwise specified.

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                              I.      Factual and Procedural Background

        Relator pleaded guilty to three counts of tampering in the first degree, one count of

assault in the second degree, and two counts of felony leaving the scene of a motor vehicle

accident. On November 28, 2016, Relator was sentenced to 15 years’ imprisonment pursuant to §

217.362, which allows an offender to be released on probation upon successful completion of the

long-term treatment program.2 On March 23, 2017, Relator began the long-term treatment

program. On January 24, 2018, the Missouri Board of Probation and Parole (the “Board”)

submitted an investigation report, which outlined Relator’s assessment and program

participation. The report stated that Relator successfully completed the requirements of the long-

term treatment program; Relator

        [W]as rated satisfactorily in all aspects of the treatment program, turned in
        [homework] and written assignments in a timely manner, attended the required
        number of treatment classes and [self-help] groups, and was cooperative and
        respectful when dealing with staff and peers.… He was engaged in his program,
        and maximized his time, taking all classes that were recommended.

Relator also undertook two positions (Conflict Resolution Department Head and Housing Unit

One Coordinator) within the long-term treatment program’s therapeutic community. Further, the

report included Relator’s home, employment, and counseling plans that he was prepared to

execute upon his release. In regards to disciplinary violations, the report indicated that Relator

received a conduct violation for disregarding an instruction “to move his chair during tighthouse

intervention from the main group to the Strike 1 group” and leaving to use the restroom instead.

This was Relator’s sole conduct violation and it was “self-corrected.”




2
 The long-term treatment program is an intensive program “for the treatment of chronic nonviolent offenders with
serious substance abuse addictions who have not pleaded guilty to or been convicted of a dangerous felony.” Section
217.362.1

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       On January 29, 2018, Respondent determined that Relator was “not amenable to

probation and that it would be an abuse of discretion to release him based upon his conduct

violation” cited in the Board’s report. Accordingly, Respondent ordered execution of the 15-year

sentence previously imposed. Relator subsequently filed a petition for writ of mandamus with

our Court. We issued a preliminary order in mandamus. We dispense with further briefing as

permitted by Rule 84.24(i). The preliminary order is made permanent.

                                    II.     Standard of Review

       The procedural means for challenging the denial of probation is through a writ of

mandamus. Prewitt v. State, 191 S.W.3d 709, 711 (Mo. App. W.D. 2006). “Mandamus is a

discretionary writ that is appropriate when a court has exceeded its jurisdiction or authority, and

where no remedy exists through appeal.” State ex rel. Kizer v. Mennemeyer, 421 S.W.3d 558,

559 (Mo. App. E.D. 2014). “Ordinarily mandamus is the proper remedy to compel the discharge

of ministerial functions, but not to control the exercise of discretionary powers.” State ex rel.

Taylor v. Russell, 449 S.W.3d 380, 381 (Mo. banc 2014). However, if a respondent’s actions are

incorrect as a matter of law, then he “has abused any discretion [he] may have had, and

mandamus is appropriate.” State ex rel. Valentine v. Orr, 366 S.W.3d 534, 538 (Mo. banc 2012).

This Court will “defer to the trial court’s factual findings so long as they are supported by

competent, substantial evidence, but will review de novo the application of the law to those

facts.” State ex rel. Winkler v. Goldman, 485 S.W.3d 783, 789 (Mo. App. E.D. 2016).

                                          III.   Discussion

       Relator argues that Respondent abused his discretion in refusing to release Relator on

probation because Relator successfully completed the long-term treatment program and a single

conduct violation has not been found to merit the execution of a sentence.



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        Section 217.362.2 states that:
        [T]he court may sentence a person to the [long-term treatment] program which shall
        consist of institutional drug or alcohol treatment for a period of at least twelve and
        no more than twenty-four months, as well as a term of incarceration.… Execution
        of the offender’s term of incarceration shall be suspended pending completion of
        said program.
Upon an offender’s successful completion of the long-term treatment program, “the trial court

must: (1) allow the offender to be released on probation; or (2) determine that probation is not

appropriate and order the execution of the offender’s sentence.” State ex rel. Salm v.

Mennemeyer, 423 S.W.3d 319, 321 (Mo. App. E.D. 2014).

        When determining whether probation was appropriate, Respondent was not required to

conduct a hearing under the applicable version of § 217.362.3 See id. at 321–22. Nonetheless,

Respondent’s determination that probation was not appropriate must be supported by evidence.

See id. at 322. For that reason, the issue before this Court is whether there was competent

evidence in the record to support Respondent’s conclusion that Relator was unfit for probation.

See State ex rel. Dane v. State, 115 S.W.3d 879, 881 (Mo. App. W.D. 2003).

        In the present case, the Board’s report noted that “[Relator] ha[d] successfully completed

the requirements of the Long Term Drug Program” by timely completing course work, attending

and participating in all of the required courses and self-help groups, maximizing his time by

taking recommended classes, being respectful to all staff and peers, and undertaking two

leadership positions in the program’s community. Throughout his entire participation in the long-

term treatment program, Relator’s sole conduct violation was failing to move a chair, which the

Board characterized as “self-corrected.” Respondent determined that Relator should not be




3
  Prior to § 217.362 being amended in 2003, courts deciding whether to release an offender on probation under the
statute were required to hold a hearing on whether probation was appropriate.

                                                         4
released on probation based solely upon Relator’s one conduct violation. Respondent did not cite

any other evidence to support his conclusion that Relator was unfit for probation.

       When examining the evidence in the record, it is apparent that Respondent’s conclusion

that probation was inappropriate was unsupported by competent evidence. The Board’s report

highlighted that Relator completed all of the required objectives, took additional courses that

were recommended by his counselor, met the goals he set for himself, established home,

employment, and counseling plans for when he is released, and made a good faith effort to fully

participate in the long-term treatment program. One minor conduct violation (in this instance, for

failing to move a chair when directed) is insufficient by itself to support the denial of probation

under § 217.362. See State ex rel. Dane, 115 S.W.3d at 882 (finding that the trial court erred in

denying relator’s probation and executing his sentence because the evidence, which included two

minor conduct violations, did not support respondent’s conclusion that relator was unfit for

probation after completion of the long-term treatment program); see also State ex rel. Beggs v.

Dormire, 91 S.W.3d 605, 606–07 (Mo. banc 2002) (granting a writ of mandamus upon holding

that the denial of probation under § 217.362 was unsupported by evidence demonstrating that the

relator was unfit for probation). Therefore, because Relator successfully complied with all of the

requirements of the long-term treatment program and his only conduct violation was minor and

“self-corrected,” we find that the evidence does not support Respondent’s determination that

Relator was unfit for probation due to his sole conduct violation.

                                        IV.     Conclusion

       Based on the foregoing, we find that Respondent’s refusal to place Relator on probation

upon his successful completion of the long-term treatment program was unsupported by




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competent evidence. Therefore, the preliminary order in mandamus is made permanent.

Respondent is directed to enter an order placing Relator on probation, pursuant to § 217.362.




                                             _______________________________
                                             Colleen Dolan, Presiding Judge

Lawrence E. Mooney, J., concurs.
Mary K. Hoff, J., concurs.




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