                IN THE MISSOURI COURT OF APPEALS
                        WESTERN DISTRICT

DEREK MASTERS,                                              )
                                                            )
                                           Appellant,       )
                                                            )
                                                                  WD78232
v.                                                          )
                                                            )
                                                                  OPINION FILED:
                                                            )
                                                                  October 6, 2015
GEORGE LOMBARDI, DIRECTOR,                                  )
DEPARTMENT OF CORRECTIONS,                                  )
                                                            )
                                        Respondent.         )


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

                    Before Division Three: Karen King Mitchell, Presiding Judge,
                     and Lisa White Hardwick and Anthony Rex Gabbert, Judges

       Derek Masters appeals the trial court’s grant of the Department of Corrections’s motion

for judgment on the pleadings on his petition for declaratory judgment. Masters sought a

declaration that he was entitled to a sentence under § 559.115 1 (120-day shock incarceration,

recommended by the court) and that the Department misinterpreted the statute in determining

that Masters was ineligible for the sentence. We reverse the court’s grant of the Department’s

motion and remand for further proceedings consistent with this opinion.




       1
           All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise noted.
                                                   Background

       On October 4, 2010, Masters pled guilty to one count of the class A felony of first-degree

assault. The trial court sentenced him to ten years’ imprisonment, but suspended execution of

the sentence and placed Masters on probation for five years. Masters subsequently violated a

term of his probation, and the court revoked his probation on April 1, 2013. In revoking

Masters’s probation and ordering his previously imposed sentence executed, the court indicated

its intent that Masters be sentenced to 120 days of shock incarceration, pursuant to § 559.115.3,

and ordered the Department to provide a report and recommendation as to whether probation

should be granted thirty days before the release date.

       On May 17, 2013, the Department issued a memorandum, advising district administrators

that the Department had updated its policy position with respect to eligibility of certain offenders

for probationary release under § 559.115. Based upon the updated policy position, Masters was

no longer eligible for probation consideration under the 120-day shock incarceration program

because his conviction of first-degree assault constituted a dangerous felony, which rendered

Masters ineligible for parole under § 558.019 until he had served a minimum of 85% of his

ten-year sentence.

       On December 12, 2013, Masters filed a petition for a writ of mandamus, seeking to

compel the Department to comply with the sentencing court’s order that it issue a report and

recommendation as to whether Masters should be released on probation under § 559.115.

Thereafter, upon consent of the parties, the court chose to construe Masters’s petition as one for

declaratory judgment, rather than for a writ of mandamus.2 The Department filed a motion for

judgment on the pleadings, arguing that Masters was not entitled to probation under § 559.115

because his conviction of a dangerous felony made him ineligible for parole until he had served a


       2
           Because neither party questions the procedural posture of this case, we express no opinion on the matter.

                                                          2
minimum of 85% of his sentence; and because § 559.115 precluded probation for those

convicted of “any offense in which there exists a statutory prohibition against either probation or

parole,” Masters was thereby barred from receiving probation. The trial court agreed and

granted the Department’s motion. Masters appeals.

                                      Standard of Review

       “Review of a grant of judgment on the pleadings requires this Court to determine

‘whether the moving party is entitled to judgment as a matter of law on the face of the

pleadings.’” Shelter Mut. Ins. Co. v. MacVittie, 423 S.W.3d 252, 254 (Mo. App. W.D. 2013)

(quoting Emerson Electric Co. v. Marsh & McLennan Cos., 362 S.W.3d 7, 12 (Mo. banc 2012)).

“The non-moving party’s well-pleaded facts are treated as admitted for purposes of the motion.”

Id. “The trial court’s judgment will be affirmed only ‘if the facts pleaded by the petitioner,

together with the benefit of all reasonable inferences drawn therefrom, show that petitioner could

not prevail under any legal theory.’” Id. (quoting Emerson, 362 S.W.3d at 12).

                                            Analysis

       Masters raises two points on appeal, both arguing that the trial court erred in granting the

Department’s motion for judgment on the pleadings for the reason that the Department was

misconstruing § 559.115.8. Thus, we will address both points together.

       Section 559.115.2 allows a court to retain “the power to grant probation to an offender

anytime up to one hundred twenty days after such offender has been delivered to the department

of corrections but not thereafter.” Additionally, the court has the power under § 559.115.3 to

recommend placement of an offender into a 120-day program, such as the shock incarceration




                                                3
program.3 This power is limited only if “otherwise prohibited by subsection 8” of § 559.115.

§ 559.115.2. Subsection 8 states:

        Notwithstanding any other provision of law, probation may not be granted
        pursuant to this section to offenders who have been convicted of murder in the
        second degree pursuant to section 565.021; forcible rape pursuant to
        section 566.030 as it existed prior to August 28, 2013; rape in the first degree
        under section 566.030; forcible sodomy pursuant to section 566.060 as it existed
        prior to August 28, 2013; sodomy in the first degree under section 566.060;
        statutory rape in the first degree pursuant to section 566.032; statutory sodomy in
        the first degree pursuant to section 566.062; child molestation in the first degree
        pursuant to section 566.067 when classified as a class A felony; abuse of a child
        pursuant to section 568.060 when classified as a class A felony; an offender who
        has been found to be a predatory sexual offender pursuant to section 558.018; or
        any offense in which there exists a statutory prohibition against either probation
        or parole.

§ 559.115.8 (emphasis added).

        The Department (and the trial court) interpreted the italicized portion of the statute to

preclude granting probation to Masters because his first-degree assault conviction required,

under § 558.019.3, that he serve a mandatory minimum of 85% of his sentence before becoming

eligible for parole.      Thus, according to the Department’s interpretation, Masters’s offense

included a statutory prohibition against parole, and therefore, he was ineligible for probation

under § 559.115.8. We disagree.

        Though it is true that Masters’s conviction of first-degree assault constitutes a dangerous

felony under § 556.061(8), which would require that Masters serve a minimum of 85% of his

sentence before becoming parole eligible, these facts do not affect the court’s power to release

him on probation within his first 120 days in the Department under § 559.115. The same statute

that provides for the 85% mandatory minimum also explicitly states that it “shall not be

construed to affect . . . the provisions of section 559.115, relating to probation.” § 558.019.1.

        3
           “When the court recommends and receives placement of an offender in a department of corrections one
hundred twenty-day program, the offender shall be released on probation if the department of corrections determines
that the offender has successfully completed the program,” subject to certain exceptions not at issue in this case.
§ 559.115.3.

                                                        4
Thus, the plain language of the statute indicates that it does not override the court’s power to

grant an offender probation upon successful completion of a 120-day program.

       The Department argues that § 559.115.8’s preclusion of probation for “any offense in

which there exists a statutory prohibition against either probation or parole” controls because it

states that probation may not be granted to such offenders “[n]otwithstanding any other provision

of law.” There are two flaws in the Department’s reasoning. First, it misinterprets the effect of

the “notwithstanding” provision. And second, it is based upon a false premise that Masters’s

conviction involves an “offense in which there exists a statutory prohibition against either

probation or parole.”

       “[T]o say that a statute applies ‘notwithstanding any other provision of the law’ is to say

that no other provisions of law can be held in conflict with it.” State ex rel. City of Jennings v.

Riley, 236 S.W.3d 630, 632 (Mo. banc 2007). Contrary to the Department’s argument, “the

‘Notwithstanding’ clause does not create a conflict, but eliminates the conflict that would have

occurred in the absence of the clause.” Id. (emphasis added). Here, there is no conflict between

§ 558.019 and § 559.115.8 because Masters’s offense is not one “in which there exists a statutory

prohibition against either probation or parole.”      Thus, the “notwithstanding” provision of

§ 559.115.8 is irrelevant to the issue at hand.

       The Department relies upon the Eastern District’s decision in State ex rel. McCulloch v.

Schiff, 852 S.W.2d 392 (Mo. App. E.D. 1993), in support of its claim that Masters’s conviction

of first-degree assault is an “offense in which there exists a statutory prohibition against either

probation or parole.” This case, however, does not support the Department’s interpretation.

       In McCulloch, the defendant was convicted of armed criminal action, in violation of

§ 571.015. McCulloch, 852 S.W.2d at 393. The trial court expressed its intention to “sentence

defendant to imprisonment for three years . . . and to suspend execution of the sentence and,

                                                  5
pursuant to § 559.115, place defendant on probation on the armed criminal action conviction.”

Id. The State objected and sought a writ of prohibition. Id. at 393-94. The Eastern District

issued the writ prohibiting the court from placing the defendant on probation under § 559.115 on

the basis that his conviction of armed criminal action constituted an “offense in which there

exists a statutory prohibition against either probation or parole.” Id. at 395.

       The Department argues that there is a statutorily imposed mandatory minimum prison

term of three years required for armed criminal action, i.e., a prohibition on probation or parole

for at least three years; thus, the mandatory minimum for first-degree assault, as a dangerous

felony, is no different, and it, too, constitutes “an offense in which there exists a statutory

prohibition against either probation or parole.” The Department’s argument, however, ignores

that the basis for the court’s determination in McCulloch was found in the express language of

the armed criminal action statute. Id. Section 571.015.1, stating the penalties for the offense of

armed criminal action, provides: “No person convicted under this subsection shall be eligible for

parole, probation, conditional release or suspended imposition or execution of sentence for a

period of three calendar years.”      There is nothing akin to this language anywhere within

§ 565.050, the statute criminalizing first-degree assault. Thus, McCulloch is distinguishable and

does not support the Department’s claim.

       Unlike armed criminal action, a person convicted of first-degree assault may initially be

placed on probation instead of being sent to the Department. And, indeed, Masters is an example

of that very scenario; as he was initially placed on probation and was ordered to the Department

of Corrections only after his probation was revoked. A person charged with armed criminal

action, however, must be sent to the Department upon conviction; “the statute prohibits any form

of judicial clemency.” McCulloch, 852 S.W.2d at 395; § 571.015.1. Thus, because § 565.050

states nothing about probation or parole, the only possible source of a prohibition on probation or

                                                  6
parole for first-degree assault is § 558.019.3, mandating that an offender serve a minimum of

85% of his or her sentence before becoming parole eligible. But § 558.019.1 plainly states that

the statute “shall not be construed to affect . . . the provisions of section 559.115, relating to

probation.”

       Taking the Department’s argument to its logical conclusion would mean that no felony

offender would ever be eligible for probation under the provisions of § 559.115 because every

felony has an associated mandatory minimum term of imprisonment that must be served before

the offender becomes parole eligible.      See § 558.019.2 (identifying minimum prison terms

required to be served for those with prior prison commitments); § 558.011.4 (defining the

conditional release terms for all other sentences not addressed by § 558.019). Thus, according to

the Department’s position, every offense would have a statutory prohibition on parole,

precluding probation under § 559.115.8. This is an absurd result that eviscerates the authority

granted a sentencing court by § 559.115 to engage in judicial clemency.

       Furthermore, § 559.115.8 identifies specific crimes to which it applies: second-degree

murder under § 565.021; forcible rape under the pre-August 28, 2013 version of § 566.030;

first-degree rape under § 566.030; forcible sodomy under the pre-August 28, 2013 version of

§ 566.060; first-degree sodomy under § 566.060; first-degree statutory rape under § 566.032;

first-degree statutory sodomy under § 566.062; class A felony first-degree child molestation

under § 566.067; and class A felony child abuse under § 568.060. The statute also precludes

probation under § 559.115 for those who have been found to be predatory sexual offenders under

§ 558.018.

       The Department argues that the final category identified in § 559.115.8 (“any offense in

which there exists a statutory prohibition against either probation or parole”) is a catch-all meant

to capture the ever-changing list of “dangerous felonies.” Though we agree with the Department

                                                 7
that the final category is certainly a “catch-all,” we disagree that it was meant to capture

unidentified “dangerous felonies.”             First, though there is overlap between the offenses

specifically identified and those defined as “dangerous felonies,” had the legislature meant for

the final category to be a catch-all for as-yet-unnamed dangerous felonies, the legislature would

have said “any other offense defined as a ‘dangerous felony’ under § 556.061(8).” But the

legislature did not do so, and we do not believe that the intent behind the final category of

§ 559.115.8 was meant to capture only dangerous felonies. In fact, if the Department’s argument

were correct, then we would have to find that McCulloch was wrongly decided, as armed

criminal action is not identified as a “dangerous felony,” but it was held to be an “offense in

which there exist[ed] a statutory prohibition against either probation or parole.” We see no

reason, however, to question the holding in State ex rel. McCulloch, as the offense at issue there

clearly had a statutory prohibition against both probation and parole.

        Though we disagree with the Department’s interpretation, we also disagree to some

extent with Masters’s interpretation as well. Masters argues that the 85% mandatory minimum

required by § 558.019.3 does not constitute a prohibition on parole; rather, he claims it is merely

a restriction. In other words, because parole is possible at some point in the future, it cannot be

said to be prohibited. Thus, under Masters’s interpretation, parole or probation is prohibited

only if it is never available for the offense at issue. This interpretation is also at odds with

McCulloch, as parole is plainly available for an armed criminal action conviction—at the

earliest—once the minimum three years have been served.4 Masters’s interpretation would mean

that the sentencing court in McCulloch should have had the option of recommending the

defendant to a 120-day program. But that was plainly not an option under the express language

        4
          We recognize that the parole eligibility date may be affected by the length of the sentence actually given
for an armed criminal action conviction, as well as by any prior Department commitments the particular offender
may have, along with any other sentences he or she may receive. See § 558.019.2, .4; § 558.011.4, .5; 14 C.S.R.
§ 80-2.010.

                                                         8
of § 571.015.1, which “prohibits any form of judicial clemency.” McCulloch, 852 S.W.2d at

395.

       The true meaning of the phrase, “any offense in which there exists a statutory prohibition

against either probation or parole,” lies somewhere between the parties’ interpretations. It does

not mean offenses subject to mandatory minimum terms under § 558.019. Nor does it mean

solely offenses for which probation or parole are indefinitely precluded, such as first-degree

murder. Rather, as determined by the Eastern District in McCulloch, it means offenses subject to

a prohibition on either probation or parole arising from a statute other than § 558.019. And

because first-degree assault does not have a prohibition on probation or parole outside of

§ 558.019, the trial court erred in granting the Department’s motion for judgment on the

pleadings.

       Masters’s points on appeal are granted.

                                          Conclusion

       The trial court erred in granting the Department’s motion for judgment on the pleadings.

Its judgment is reversed and the matter remanded for further proceedings consistent with this

opinion.



                                            Karen King Mitchell, Presiding Judge

Lisa White Hardwick and Anthony Rex Gabbert, Judges, concur.




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