Parrish v. Wyrick

WASSERSTROM, Chief Judge. Petitioner, by pro se application for writ of habeas corpus, sought his release from the Missouri State Penitentiary. This court issued its writ and appointed counsel for the petitioner. It is fitting to remark that appointed counsel have performed that assignment with a high degree of professional skill. The issue made up by the pleadings and the briefs of the parties concerns the treatment which should be accorded to the “good time” which has accrued to petitioner’s benefit. Petitioner argues that he is entitled to have all of that good time credited against his sentence, that after such credit his sentence has been fully served, and that he is therefore entitled to release. Respondent admits the accrual of all of the good time claimed, but he resists the conclusion that petitioner has any absolute right for said time to be credited against the sentence, and he argues instead that giving effect to such a credit lies within the complete discretion of the Governor. Petitioner has experienced a tortuous, serpentine history of criminality and consequent litigation leading to his present situation. He entered the Missouri State Penitentiary on September 22, 1955, under sentences by the circuit court of the City of St. Louis on three charges of first degree robbery, the sentences being ten years on each charge, to run concurrently. On May 29, 1960, he escaped from the Penitentiary. Upon recapture he was charged with escape, two charges of robbery and two charges of auto theft. He pleaded guilty in the circuit court of Cole County and was sentenced to five years on the escape, five years on each charge of stealing and 25 years on each charge of robbery. On December 15, 1962, petitioner completed the St. Louis sentences and started serving the Cole County sentences. However, on August 5, 1968, the Cole County sentences were set aside, the guilty pleas were withdrawn, and new guilty pleas were entered under which petitioner was sentenced to seven years on each robbery charge and two years on each of the other charges. On April 9,1970, petitioner pleaded guilty to first degree murder for the homicide of another inmate, and he received a life sentence. Shortly thereafter a declaratory judgment was entered on April 23,1970, to the effect that the 1968 sentences were to be served consecutively. On December 11, 1972, another declaratory judgment was entered to the effect that petitioner should receive additional credit for jail time of five years, eight months and 27 days. Thereafter on November 15, 1974, petitioner was allowed to withdraw his plea of guilty to the charge of first degree murder, [76] and he entered a plea of guilty to murder in the second degree on which a new sentence of ten years was entered. Then, on July 16, 1975, a judgment was entered in a proceeding under Rule 27.26 holding that the 1960 escape and theft convictions (as modified in 1962) were nullities, that the two robbery convictions had begun to run in 1962 and became completed May 10, 1973, and that the latter date marked the commencement of service by petitioner under the murder conviction. By November, 1975, petitioner had accumulated credits for merit time, blood time and special time totaling 1,828 days, which if applied to his remaining sentence then being served would result in his release on November 6,1975. The responsible officials in the Division of Corrections did so report to the Governor, but the Governor declined to issue an order of commutation of sentence. Petitioner thereupon filed application for habeas corpus addressed to the circuit court of Cole County, but that petition was denied on November 24,1975. However, petitioner was admitted to parole on May 24, 1976, under which he remained at liberty until June 7, 1978, when the parole was revoked. Shortly thereafter petitioner again sought a writ of habeas corpus in the circuit court of Cole County, which was denied on September 6, 1978. That led to the institution of the present proceedings in this court on October 20, 1978. I. Respondent raises a threshold objection that the issue in this case has become moot. He points out that the new Missouri Criminal Code took effect on January 1, 1979, and that concurrently with the effective date of that new Code, the giving of all merit time has been discontinued. He points to the adoption of a new rule effective January 1,1979, which provides: “Merit time will be discontinued for both inmates convicted of criminal acts prior to and after January 1, 1979.” That regulation, supplementing the new concept of “conditional release” provided for in Sec. 558.011, subd. 4 of the Criminal Code, further provides that “Any person who shall serve %2ths of the time he/she was sentenced to serve in an orderly and peaceful manner without a serious violation, as later defined, will be eligible for consideration for release by commutation on that date.” Respondent’s argument in this respect is untenable. If petitioner’s basic position is correct, then he had fully earned sufficient merit time in November, 1975, to be entitled to release. This release date would have been more than three years before the effective date of the new criminal code and the subsequent change in regulations. Those subsequent changes should not be permitted to operate so as to destroy a right which petitioner claims to have fully vested in 1975, if it did so vest. Of course, the fundamental question still remains to be answered, whether in fact petitioner did have a vested, protectable right to be released from confinement by reason of the accrued merit time.1 II. “Good time” in Missouri has been of two kinds. The first category is the so called “three-fourths time” granted under Section 216.355, RSMo 1969.2 The second category [77] of “good time” is set forth in administrative Rules and Regulations, and has been referred to in the administrative Rules and Regulations as “merit time.” This merit time is subdivided into basic merit time, administrative awards and special merit time. That merit time could be awarded at a rate not to exceed a specified number of days per month. At one time the administrative Rules and Regulations lumped together in legal theory the two categories just mentioned. Thus in the Inmate Informational Pamphlet — Rules and Procedures, dated September, 1967, it was stated: “Reduction of your sentence resulting from the three-fourths rule, institutional merit time, and blood time is a commutation of sentence.” That statement was erroneous as regards the three-fourths rule, although it would have been correct in that respect under the Laws of Missouri as it existed a hundred years ago. Under the Laws of 1865-1866, the predecessor to Section 216.355, the statute provided: “when any persen [sic], imprisoned in the Penitentiary of the State of Missouri shall have, during the whole time of his or her imprisonment, behaved according to the rules and regulations of that institution, to the full satisfaction of the Inspectors, then the said Inspectors, on the expiration of three-fourths of the time for which such person was sentenced, shall write and sign a testimony to that effect and present the same to the Governor of Missouri, with a recommendation that such person be pardoned; * *.” However, the statute was amended in 1879 so as to provide what has existed in substantially the same form from that date until January 1, 1979. Under the 1879 amendment, good conduct by a prisoner no longer triggered merely a recommendation to the governor. Instead, the amendment provided that the inmate “shall be discharged in the same manner as if said convict had served the full time for which sentenced, and in such case no pardon from the governor shall be required.” (Emphasis added.) See Ex parte Collins, 94 Mo. 22, 6 S.W. 345 (1887). Thus between 1879 and 1979, prisoner release under the three-fourths rule was not done pursuant to the governor’s power to pardon or commute sentence. Instead, the legal theory was that the three-fourths rule was referable to the legislature’s power to define punishment for crime, and “the conditions of the three-fourths rule * * * must be read into every judgment of conviction. They offer a reward in the form of diminished incarceration to every convict for obedience to the rules of the prison and laws of the same.” Ex parte Rody, 348 Mo. 1, 152 S.W.2d 657, 660 (banc 1941). As said in Ex parte Carney, 343 Mo. 556, 122 S. W.2d 888, 890 (banc 1938), these provisions “become a part of every judgment of conviction with as much effect as if actually written therein.” See also State v. Montgomery, 223 S.W.2d 463 (Mo.1949). The correct legal foundation for the three-fourths rule has been recognized by the more recent institutional rules and regulations. Thus, in Bulletin No. 45 (REVISED), adopted May 15,1974, the director clearly distinguished between statutory three-fourths time and the additional institutional merit time, and that bulletin stated in part: “By statute each person is released after having served ¾2⅛ of his sentence. In addition, each institution will submit a plan setting forth guidelines for the awarding of extra ‘basic’ merit time. * * * In addition to 9/i2th statutory release and basic merit time, special merit time may be awarded for diligence in work and study and for productive participation in correctional treatment programs.” The most recent rule effective January 1, 1979, is even more explicit on the subject when it states: “Inmates released on their ⅜2⅛ date or after will continue to be released [78] under the signature of the director of the Division of Corrections and not through the commutation process.” In contrast to the legal basis for allowing statutory good time under the above three-fourths rule, the basis for granting nonstatutory merit time is completely different. The grant of nonstatuto-ry good time has always been and continues to be a form of commutation under the governor’s constitutional power to grant pardons or commutations.3 Whitaker v. State, 451 S.W.2d 11 (Mo.1970) holds that commutation of sentence for good time falls within the authorization of that constitutional provision. Likewise, the more recent administrative rules and regulations spell out this same legal basis in unmistakable terms. So, the 1975 revision of Bulletin No. 45 provides: “Merit time is used as an objective standard in advising the Governor as to whether or not an inmate merits appropriate relief under the Governor’s statutory [sic] power to grant reprieves, commutations and pardons.” Further, the 1976 Inmate Rule Book defines Merit Time as: “time awarded to an inmate for satisfactory or outstanding conduct and work performance. The amount of time awarded shall be used as criteria for recommendation for commutation of sentence by the Governor.” Even more pointedly, the 1976 published rules of the Division of Corrections said with respect to Merit Time: “ . . . The amount of time awarded shall be used as criteria for recommendation for commutation of sentence by the Governor; but is in no way binding on the Governor. Commutation is a constitutional power and many factors must be taken into consideration in determining the actual release date of an inmate.” The power of commutation is a matter of grace resting purely within the discretion of the governor. Whitaker v. State, supra; Ex parte Webbe, 322 Mo. 859, 30 S.W.2d 612 (banc 1929); Ex parte Reno, 66 Mo. 266, 269 (1877). The case last cited holds: “a pardon or commutation is a mere matter of grace, and until this act of clemency is fully performed, neither benefit nor rights can be claimed under it.” Inasmuch as nonstatutory good time is granted under the power of commutation, that grant likewise rests within the sole discretion of the governor. Whitaker v. State, supra; Ex parte Collins, supra. The facts and ruling in the case last cited are particularly pertinent. In that case a prisoner had accrued sufficient good time to warrant his release.. However, that was under the old 1865-66 statute, by the terms of which the penitentiary officials merely certified those facts to the Governor and it was up to the Governor to give effect to the good time by way of a pardon. The penitentiary officials did certify the facts, but the Governor declined to issue a pardon. Thereupon the prisoner petitioned for habe-as corpus. The Supreme Court held that the matter of release was purely within the discretion of the Governor and no relief could be granted by the court: “The status of the petitioner, then, is that he, so far as in him lay, has fully complied with the condition annexed to his case, when he entered the walls of the penitentiary. It may be conceded that he became entitled to whatever benefit an observance of those conditions gave him; but what benefit was that? Simply this: that he became entitled to be recommended to the governor as a fit subject of pardon. This benefit he has received. His right to a pardon does not lie in the terms of the statute. * * * Equitably, the prisoner is perhaps entitled to his discharge; but that is a subject which lies entirely in the discretion of the executive. By virtue of the writ which has been issued, we can only make inquiry into his legal rights in the premises. The result is that he must be remanded to the custody of the warden, and it is thus ordered. (Emphasis in the original.) [79] To summarize, petitioner is absolutely entitled to credit for statutory good time under Section 216.355 which was in effect at the date he committed murder for which he is now serving time.4 However, that entitlement does not avail him presently since his statutory three-fourths time will not expire until March 21, 1981. To obtain any earlier release as a matter of right, he must rely upon the accrual of nonstatutory good time; but as already shown, that non-statutory time does not constitute an absolute credit which can constitute an automatic reduction of sentence. Accordingly, under the Missouri statutes and administrative rules, regulations and practices, he was not entitled to release in November, 1975, and he is not entitled to release now. The dissenting opinion offers two theories (neither of which was ever advocated by the able counsel for relator) upon which to say that relator has obtained an absolute right to the credit for merit time and therefore that he accrued an absolute right to immediate release. The first theory is that the Governor is bound upon contractual principles. One major trouble with this suggestion stems from Section 222.010, RSMo 1978, which suspends all civil rights of a convict during the term of his sentence. That statute disenables a penitentiary inmate from entering into any valid contract. Jandro v. Jandro, 246 S.W. 609 (Mo.App.1923). Therefore, the contract postulated by the dissent would be void and unenforceable.5 Moreover, even if relator were legally competent to contract, the contract would be void for want of consideration. In obeying the rules of the penitentiary, relator would be doing only what he was already otherwise obligated to do. Missouri Digest, Contracts, The foregoing objections make it unnecessary to deal at any length with a still further problem: that is, whether the philosophy of prisoner rights should be extended to a pronouncement that management and supervision of the state’s correctional institutions are to be subjected to a concept of a contractual relation between the inmates and the supervisory staff. Significantly, no existing authority has been cited so holding or even so suggesting. The dissent’s second theory is that relator was given a “conditional commutation” of sentence as soon as he entered the penitentiary or at least when he received a copy of the rule book. No authority is cited nor has any been found to support such a result. A commutation of sentence implies a present release from or modification of -the sentence. If there is a condition imposed, that simply means that a breach of the condition will result in reinstatement of the original sentence in its full vigor. Whether conditional or unconditional, an effective commutation must act presently. If the supposed commutation does no more than promise to commute in the future, then we are back to the contract theory already discussed and which is subject to the fatal objections already pointed out. So the imaginative suggestion of a conditional commutation cannot avail anything to relator here. The dissent endeavors to brush aside the opinion of the Missouri Supreme Court in Ex parte Collins, supra, on the ground that Collins is an old case decided in a bygone era in which a different philosophy prevailed as to prisoner rights. The Supreme Court may, if it so chooses, declare that the [80] philosophy of Collins is now obsolete and overrule it on that basis. This court, however, does not have that option. III. Petitioner argues that respondent is guilty of “taking away” his merit time without notice and hearing and that such action deprives petitioner of his constitutional rights. In support of this argument petitioner relies on Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) in which it was held that no part of accumulated statutory good time may be disallowed by prison authorities, except in accordance with due process of law, which requires notice and hearing. The rule of Wolff v. McDonnell has no application here. That rule has been more recently discussed by the United States Supreme Court in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, - U.S. -, 99 S.Ct. 2100, 60 L.Ed.2d 668, decided May 29, 1979. Greenholtz holds that constitutional protection was accorded in Wolff v. McDonnell only because the Nebraska statute granting good time credits was intended to and did create “a liberty interest protected by due process guarantees.” Greenholtz further emphasizes that each such statute has a unique status “and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” In the present situation, unlike Wolff v. McDonnell, there is no statute at all granting the good time credit claimed. However, even if we assimilate the administrative rules and practices to a statute, it is plain that those rules and practices do not create a protectible entitlement. The reasons for that conclusion have already been fully discussed under part II of this opinion. The writ of habeas corpus is quashed and the petitioner is remanded to the custody of the respondent. PRITCHARD, SWOFFORD, SOMERVILLE and KENNEDY, JJ., concur. SHANGLER, J., dissents in separate dissenting opinion, in which CLARK, J., concurs. Footnotes [1] Subsequent to the submission of this case, the Attorney General has furnished information that petitioner received a commutation of sentence by act of the Governor dated June 19, 1979. Based on that, the Attorney General asks that this proceeding be dismissed as moot. Although the commutation may solve petitioner’s particular problem, the issue nevertheless is not moot because it is a matter of substantial public concern which is likely to recur and unless dealt with here could evade judicial review. O_H_ v. French, 504 S.W.2d 269 (Mo.App.1973); State ex rel. Utility Consumers Council of Missouri, Inc., et al. v. Public Service Commission of Missouri et al., 585 S.W.2d 41 (Mo. banc 1979). [2] Section 216.355 was repealed by Laws 1977 which enacted the Criminal Code, effective January 1, 1979. The section as it stood prior to that date read in pertinent part as follows: “1. Any person who is now or may hereafter be confined in any institution within the [77] division and who shall serve three-fourths of the time for which he was sentenced in an orderly and peaceable manner, without having any infraction of the rules or laws of the institution recorded against him, shall be discharged in the same manner as if he had served the full time for which sentenced. In such case no pardon from the governor shall be required.” [3] Article 4, Section 7 of the Missouri Constitution of 1945 provides: “The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper [4] Section 556.031, RSMo 1978, part of the new Criminal Code, provides that “any offense committed prior to January 1, 1979 * * * must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this code had not been enacted * * [5] In Thompson v. Bond, 421 F.Supp. 878 (D.C. Mo. 1976) a federal three-judge court held Section 222.010 unconstitutional. However, the attack in that case focused on the right of inmates of access to the courts, and there seems a serious question whether Thompson should be construed as declaring Section 222.-010 unconstitutional in any sense other than as it prohibits a convict to bring suit. In any event, this court is not bound by decisions of the lower federal courts, that being subject to acquiescence of the Missouri Supreme Court. Hughes v. Dwyer, 546 S.W.2d 733, 736 n. 1 (Mo.App.1977). See Seales v. State, 580 S.W.2d 733 (Mo. banc 1979).