                                             In the
                          Missouri Court of Appeals
                                    Western District

                                                  
 KEVIN E. RILEY,                                  
                                                     WD81743
                 Respondent,                         OPINION FILED:
 v.                                               
                                                     April 28, 2020
 MISSOURI DEPARTMENT OF                           
 CORRECTIONS,                                     
                                                  
                  Appellant.                      
                                                  


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

                                   Before Division Four:
                       Karen King Mitchell, Chief Judge Presiding,
                     Mark D. Pfeiffer and Thomas N. Chapman, Judges

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

Court of Cole County, Missouri, which granted Kevin Riley’s (Riley) motion for judgment on

the pleadings. In his motion, Riley sought a declaration that he be considered eligible for parole.

Riley had been sentenced in 2007 as a prior and persistent drug offender under § 195.291.2,

which required his sentence to be served without the possibility of probation and parole. That

provision was subsequently repealed. Riley argued that the general assembly’s repeal of §

195.291 must be applied retroactively so as to render him immediately parole eligible. The

circuit court agreed and the DOC appeals. For the reasons explained herein, we reverse and

enter judgment in favor of the DOC.
                                    Factual and Procedural Background

           In February 2004, Riley was charged with the class B felony of manufacturing a

controlled substance as defined by § 195.211, RSMo Cum. Supp. 2004.1 Following a jury trial,

he was found guilty in April 2007.2 Because Riley was found to be a prior and persistent

offender, he was required to “be sentenced to the authorized term of imprisonment for a class A

felony.” § 195.291.2, RSMo 2000.3 Riley was sentenced to a term of twenty-five years’

imprisonment. At the time of his sentencing, § 195.291.2 further provided that a defendant

convicted of an offense set out under § 195.211 and found to be a persistent drug offender was

required to serve his sentence without the possibility of probation or parole.

           Effective January 1, 2017, Senate Bill 491, revised Missouri’s Criminal Code and

“became law by virtue of the Missouri Constitution, Article III, § 31.”4 Under the revised

criminal code, § 195.211 (defining the offense of manufacturing a controlled substance and

prescribing its penalties) was transferred to § 579.055, RSMo. Section 195.291 (requiring Riley

to serve his sentence without eligibility for probation or parole) was repealed by operation of

Senate Bill 491.

           On December 20, 2017, Riley filed a Petition for Declaratory Judgment in the Circuit

Court of Cole County, requesting that the circuit court “declare [him] probation and parole

eligible[.]” After the DOC filed its Answer, Riley moved for judgment on the pleadings. Riley

argued that Senate Bill 491’s repeal of § 195.291 should be applied retroactively, rendering him



1
    State v. Riley, 213 S.W.3d 80, 85 (Mo. App. W.D. 2006).
2
 “[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) (citation omitted).
3
    All references to § 195.291 are to RSMo 2000. All references § 195.211 are to RSMo Cum. Supp. 2004.
4
    See Fields v. Missouri Bd. of Prob. & Parole, 559 S.W.3d 12, 14 (Mo. App. W.D. 2018).

                                                          2
eligible for parole. The DOC filed a cross-motion for judgment on the pleadings, arguing that

retroactive application of § 195.291’s repeal was barred under § 1.160, RSMo 2016.

        On April 23, 2017, the circuit court granted Riley’s motion for judgment on the

pleadings, ruling that “[p]ursuant to State ex rel Nixon v. Russell, 129 S.W.3d 867, 879-871 [sic]

(Mo. banc 2004) and Irvin v. Kempker, 152 S.W.3d 358, 361-62 (Mo. App[.] 2004) … Section

195.291 is not applicable to determining parole eligibility and [the DOC] is hereby ordered to

apply existing laws concerning [Riley’s] parole eligibility.” The DOC appealed the circuit

court’s judgment.

        This Court stayed the DOC’s appeal pending decisions from the Supreme Court of

Missouri in two cases discussing the impact of the general assembly’s repeal of parole

ineligibility provisions in cases like the one at issue here. See Mitchell v. Phillips, No. SC 97631,

2020 WL 547402 (Mo. banc Feb. 4, 2020); Woods v. Missouri Dep't of Corr., No. SC 97633,

2020 WL 548567 (Mo. banc Feb. 4, 2020).5 Mitchell and Woods require this Court to reverse the

circuit court’s judgment and enter judgment in favor of the DOC.

                                                   Discussion

        “The trial court's judgment on the pleadings addresses only issues of law. Accordingly,

our review is de novo and without deference to the trial court's judgment.” State ex rel Koster v.

Charter Commc'ns, Inc., 461 S.W.3d 851, 854 (Mo. App. W.D. 2015). “A motion for judgment

on the pleadings is properly granted if, from the face of the pleadings, the moving party is

entitled to judgment as a matter of law.” Hill v. Missouri Dep't of Corr., 570 S.W.3d 95, 99 (Mo.

App. W.D. 2018).


5
  In Woods, the Supreme Court entered judgment in favor of the DOC “[f]or the reasons fully set forth in Mitchell,”
without additional analysis. Thus, while both Woods and Mitchell require this Court to reverse the circuit court’s
judgment and enter judgment in favor of the DOC, our discussion focuses on Mitchell where the Supreme Court’s
reasoning is fully explained.

                                                         3
       Here, Riley was convicted of the class B felony of manufacturing a controlled substance

under § 195.211. Riley was found to be a prior and persistent drug offender, and the circuit court

was therefore required to sentence him for a class A felony term of imprisonment without the

possibility of probation or parole. § 195.291.2. Effective January 1, 2017, § 195.211 was

transferred to § 579.055 (which now prescribes the felony classifications for the offense of

manufacturing a controlled substance); and § 195.291 was repealed. Riley sought a declaration

from the circuit court that he must be considered parole eligible because the repeal of the parole

ineligibility provision in § 195.291.2 applies retroactively to his sentence.

       The DOC argues that retroactive application of § 195.291’s repeal is prohibited by §

1.160, RSMo 2016, which provides as follows:

       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.

The Supreme Court explained in Mitchell that “[w]hile 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.” 2020 WL 547402, at *3. Application

of § 1.160 is confined to those cases where “a statutory provision is repealed or amended before

adjudication is complete and direct review exhausted[.]” Id. at *4 (emphasis added). When

that is the case, the statute “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. (citation and internal quotation marks

omitted). Section 1.160 “is inapplicable” in cases (like the one we consider here) involving



                                                  4
“sentences in final judgments.” Id. at *5. Regardless of the inapplicability of § 1.160, the

repeal of § 195.291 cannot be used to retroactively allow Riley consideration for parole, as

parole ineligibility was part of his punishment when sentence was imposed. Id. at *3.

         In Mitchell, the inmate had been found guilty of drug trafficking in the second degree

pursuant to § 195.223.3(2), RSMo Supp. 2010. Id. at *1.6 Mitchell was also found to be a prior

drug offender. Id. Under § 195.295.3, RSMo 2000, the circuit court was required to sentence

him “to the authorized term of imprisonment for a class A felony, which term shall be served

without probation or parole[.]” Id. (citation omitted). Following the repeal of § 195.295,

Mitchell filed a declaratory judgment action against the chairman of the Missouri board of

probation and parole. Id. Mitchell sought a determination that he was eligible for parole because

the statute that had rendered him ineligible had been repealed. Id. The chairman moved to

dismiss Mitchell’s petition and the circuit court sustained the motion. Id.

         On appeal, the Supreme Court began by observing that “Mitchell’s parole ineligibility

was mandated as part of the punishment within the particular statute [§ 195.295.3] designating

the permissible penalty for his offense. Therefore, parole ineligibility is part of his sentence.” Id.

at *2. The Court then distinguished several precedents relied upon by Mitchell, including State

ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc 2004); Jones v. Fife, 207 S.W.3d 614 (Mo.

banc 2006); and Dudley v. Agniel, 207 S.W.3d 617 (Mo. banc 2006). Id. at *2. In those cases,

the Court reasoned, “general parole statutes were adopted or amended, and the offenders’

sentencing statutes lacked restrictions on parole eligibility.” Id. (emphasis added). By contrast,




6
  Mitchell and Woods involved the repeal of sentencing statutes pertaining to offenses for drug trafficking. Here,
Riley was convicted of manufacturing a controlled substance in violation of § 195.211. Although the type of
offense differs from the ones at issue in Mitchell and Woods, the Missouri Supreme Court’s holding with respect to
the retroactive application of the repeal of a parole ineligibility provision controls the disposition in this case.


                                                          5
“the statute designating the permissible penalty for Mr. Mitchell’s offense expressly mandated

his term of imprisonment be served without probation or parole.” Id. at *3. Because the statute

prescribing the penalty for Mitchell’s offense specifically stated that his sentence was to be

served without parole, parole ineligibility was a part of his punishment and the circuit court was

not permitted to change his sentence retroactively. Id. at *3, *5.

       The Supreme Court’s holding controls the outcome in the instant matter. Riley contends

that granting him parole eligibility would not change his sentence, but would only result in a

potential change in the location or circumstances under which his sentence is served. See

Russell, 129 S.W.3d at 871. Like the inmate in Mitchell, Riley therefore argues that retroactive

application of § 195.291’s repeal is permissible in this case under the Supreme Court’s opinions

in Russell, Jones, and Dudley. Riley’s reliance on those cases is unavailing for the reasons

elucidated by our Supreme Court in Mitchell. The statute designating the permissible penalty for

Riley’s offense mandated that his twenty-five-year prison term be served without the possibility

of probation or parole. The sentencing statutes at issue in Russell, Jones, and Dudley contained

no such restrictions regarding parole eligibility, rendering those precedents inapposite. Parole

ineligibility was a part of Riley’s punishment and the circuit court was not authorized to change

Riley’s sentence retroactively.

       Because the parties’ disagreement concerns only the legal effect that § 195.291’s repeal

has on Riley’s eligibility for parole, “further proceedings in the circuit court are unnecessary,

and, under Rule 84.14, this Court may enter judgment for the [DOC] on its cross-motion for

judgment on the pleadings.” Woods, 2020 WL 548567, at *1.




                                                  6
                                         Conclusion

       The circuit court’s judgment is reversed, and judgment is entered in favor of the DOC

pursuant to Rule 84.14.


                                                   /s/Thomas N. Chapman
                                                   Thomas N. Chapman, Judge


All concur.




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