# Lawrence G. Belk v. Missouri Department of Corrections

> Missouri Court of Appeals · April 30, 2024

URL: https://www.frixlaw.com/law-library/cases/11097941

## Case

- **Court:** Missouri Court of Appeals
- **Decided:** April 30, 2024
- **Precedential status:** Published
- **Opinion:** Opinion by Janet Sutton, Judge
- **Judges:** Witt, C.J., P.J., and Mitchell, J., concur.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

MISSOURI COURT OF APPEALS
WESTERN DISTRICT

LAWRENCE G. BELK, )
)
Appellant, ) WD86497
)
v. ) OPINION FILED:
)
MISSOURI DEPARTMENT OF ) April 30, 2024
CORRECTIONS, ET AL., )
)
Respondents. )
)

Appeal from the Circuit Court of Cole County, Missouri
Honorable Christopher Kirby Limbaugh, Judge

Before Division Four: Gary D. Witt, Chief Judge Presiding,
Karen King Mitchell, Judge, and Janet Sutton, Judge

Lawrence Belk (Belk) appeals the Cole County Circuit Court’s (circuit court) judgment

granting the Missouri Department of Corrections Board of Probation and Parole’s (the

Department) motion for judgment on the pleadings. On appeal, Belk argues the circuit court

erred in denying his petition for declaratory judgment because Belk alleged facts entitling him to

relief. Belk argues the circuit court wrongly interpreted how the armed criminal action statute,

section 571.015, interacts with the definition of “dangerous felony” under section 556.061 and

the mandatory minimum parole eligibility statute, section 558.019, thereby violating the U.S. and

Missouri Constitutional prohibitions on ex post facto laws. Further, Belk argues the circuit court
erred in concluding that Belk has no liberty interest in his parole eligibility. We affirm the

circuit court’s judgment, as modified.

Factual and Procedural Background 1

The following facts are taken from Belk’s initial petition for declaratory judgment and

the exhibits attached to that petition filed with the circuit court and supplemented, as necessary,

by the briefs filed in this Court.

Belk is currently incarcerated at the South Central Correctional Center in Licking,

Missouri. On December 1, 1994, a St. Louis County jury found Belk guilty of one count of first-

degree burglary, one count of kidnapping, one count of rape, two counts of sodomy, one count of

first-degree sexual abuse, one count of first-degree robbery, and seven counts of armed criminal

action for events that took place on December 23, 1992. On January 3, 1995, the trial court

sentenced Belk as a prior, persistent, and class X offender under section 558.019. Belk received

eleven consecutive terms of life imprisonment, two consecutive terms of thirty years’

imprisonment, and one consecutive term of twenty years’ imprisonment.

On January 5, 1995, Belk was delivered to the Department and, soon after, was scheduled

for a mandatory minimum parole hearing consideration date of December 2047. In 2007, in the

wake of this Court’s decisions in Johnson v. Missouri Department of Corrections, 166 S.W.3d

110 (Mo. App. W.D. 2005) and Talley v. Missouri Department of Corrections, 210 S.W.3d 212

(Mo. App. W.D. 2006), the Department removed the requirement that Belk serve at least eighty

percent of each of his life sentences for his seven armed criminal action convictions. The

1
Because Belk “appeals from the grant of judgment on the pleadings, the underlying facts are
derived from his petition; we assume those facts to be true for purposes of our review.”
Bernhardt v. McCarthy for Bd. of Prob. & Parole, 467 S.W.3d 348, 349 n.1 (Mo. App. W.D.
2015).

2
Department continued to use the December 2047 date until October 26, 2021. On October 26,

the Department recalculated Belk’s mandatory minimum parole consideration hearing date,

moving it to December 2065.

Belk protested this additional eighteen years first through an informal resolution request

in December 2021, and then in April 2022 through an offender grievance appeal within the

Department. In May 2022, the Department reviewed and denied Belk’s offender grievance

appeal, stating, “Offender Grievance matters concerning Probation and Parole are non-grievable”

and the Department found no policy and procedure violation.

In August 2022, Belk filed a petition for declaratory judgment with the circuit court. In

his petition, Belk asked the circuit court to: (1) declare the Department “violated the general rule

of retroactivity that turns on the issue of fundamental fairness” and the Ex Post Facto Clauses of

the Missouri and U.S. Constitutions; (2) order the Department to “use the guidelines governing

parole eligibility in place when Belk . . . committed the offense(s);” (3) order the Department to

pay his litigation costs and filing fees; and (4) appoint Belk a public defender in this case.

The Department filed its answer on October 11, 2022, and, that same day, also filed a

motion for judgment on the pleadings, arguing, “Belk’s ex post facto argument fails as a matter

of law, and he has no statutory right to earlier parole eligibility,” thus, the circuit court should

grant the Department’s motion for judgment on the pleadings and deny Belk’s petition for

declaratory judgment. Ten days later, on October 21, Belk responded to the Department’s

motion for judgment on the pleadings.

In June 2023, the circuit court entered judgment in the Department’s favor, granting the

Department’s motion for judgment on the pleadings, and denying Belk’s petition for declaratory

judgment. The circuit court held that Belk’s claim failed “because no law has been retroactively

3
applied to him.” Further, the circuit court stated that Belk had “no right to enforce the Board’s

earlier interpretation where Missouri law requires otherwise,” because Belk “has no liberty

interest in early release” and “no constitutional or statutory right to parole.” Significantly, the

circuit court held, “Even if the [Department] failed to follow its own rules or regulations in

determining [Belk’s] release date, that would not violate due process or give Belk any right to

relief,” and cited to Blackburn v. Missouri Board of Probation & Parole, 83 S.W.3d 585, 587

(Mo. App. W.D. 2002) in support.

Before continuing with the merits of Belk’s appeal, we address a persistent confusion

about who is the Respondent in this case. In his initial petition for declaratory judgment, Belk

only named the “Missouri Department of Corrections, Division of Probation & Parole” in his

caption, and alleged in the body of his petition that the Department was the Respondent. In

September, the circuit court issued a summons to the Department, listing Julie Kempker

(Kempker) as the agent to accept service on its behalf as the Director of the Division of

Probation and Parole.

When the Department filed its answer and motion for judgment on the pleadings in

October 2022, the Department wrongly captioned both filings as “Missouri Department of

Corrections, et al.” In both its answer and motion, the Department stated the “Respondents”

included the Missouri Department of Corrections, the Division of Probation and Parole, and Julie

Kempker. In its answer, the Department specifically stated, “Respondents also note that this

Court has captioned Julie Kempker, the Director of the Division of Probation and Parole, as a

Respondent.” The Department was incorrect.

Likewise, the circuit court captioned its judgment “Missouri Department of Corrections,

et al.,” but referred to the singular “Respondent.” This confusion persisted through Belk’s filing

4
of his notice on appeal, where he only listed Julie Kempker as the Respondent, and in both

Belk’s brief and the Department’s brief before our Court, where both parties list the Respondent

as the “Missouri Department of Corrections, et al.”

Julie Kempker was never added as a party to the initial petition, nor was she properly

added to the action, in either her individual or official capacity. “In order to be a party, a person

‘must either be named as a party in the original pleadings, or be later added as a party by

appropriate trial court orders.’” Henson v. Merob Logistics, LLC, 670 S.W.3d 142, 150 (Mo.

App. W.D. 2023) (quoting F.W. Disposal S., LLC v. St. Louis Cnty. Council, 266 S.W.3d 334,

338 (Mo. App. E.D. 2008)). Kempker was not named in the original pleadings nor was Kempker

added by court order. Kempker was named in the summons to simply accept service on the

Department’s behalf. Therefore, Kempker was not a proper party to the case. Whether Kempker

should have been named as a party or had a right to become one, we do not decide. Further, we

do not separate the Department of Corrections from the Division of Probation and Parole, but

consider it one entity as listed in the initial petition. This in no way affects our analysis of the

appeal.

Belk appeals. Additional facts necessary to the disposition of the case are included below

as we address Belk’s point on appeal.

Standard of Review

“This Court reviews a circuit court’s ruling on a motion for judgment on the pleadings de

novo.” Dunn v. Mo. Dep’t of Corr., 645 S.W.3d 565, 568–69 (Mo. App. W.D. 2022). “In

reviewing a judgment on the pleadings for a defendant, the plaintiff’s ‘pleadings are liberally

construed and all alleged facts are accepted as true and construed in a light most favorable to the

pleader.’” Hickerson v. Mo. Bd. of Prob. & Parole, 475 S.W.3d 204, 206 (Mo. App. W.D. 2015)

5
(quoting Anderson v. Crawford, 309 S.W.3d 863, 866 (Mo. App. W.D. 2010)). “The moving

party admits, for the purposes of the motion, the truth of well-pleaded facts in the opposing

party’s pleadings.” Id. “[A] motion for judgment on the pleadings should be sustained if, from

the face of the pleadings, the moving party is entitled to judgment as a matter of law.” Dunn,

645 S.W.3d at 569 (quoting Woods v. Mo. Dep’t of Corr., 595 S.W.3d 504, 505 (Mo. banc

2020)).

Legal Analysis

In his sole point relied on, Belk argues:

The [c]ircuit [c]ourt erred in denying [Belk’s] [p]etition for [d]eclaratory
[j]udgment, because [Belk] alleged facts not conclusively refuted by the record
entitling him to relief, in that, the retroactive changes in the law regarding the
armed criminal action statute § 571.015 and its new relationship to statutes §
556.061 and § 558.019, that changed after February 2007, which in this case
violated the general rule of retroactivity and/or the ex post facto clause of the
United States Constitution, Article I, §§ 9 and 10 and the Missouri Constitution,
Article I, § 13, in that, the motion court’s denial was on an incorrect
misinterpretation of § 217.690.5 after 2007, with no forethought to the repeat
offender statute and dangerous felony statute that was in effect at the time the
alleged offenses were committed. The court’s conclusion that [Belk] is not
entitled to relief because he has no liberty interest in parole eligibility is also in
error, because § 558.019.2(3) and § 558.019.4(5) declare substantive rights under
existing law before 2007, which entitles class X offenders to serve eighty percent
of their time and consecutive sentences that are committed at or near the same
time that are over seventy[-]five years shall be calculated to be seventy[-]five
years, which makes the December 2047 parole consideration date the correct date
and not December 2065.

Belk’s point relied on does not comply with Rule 84.04’s formula for points relied on and

Belk’s point is impermissibly multifarious. 2 “Rule 84.04 plainly sets forth the required contents

of briefs filed in all appellate courts” and its requirements are mandatory. Lexow v. Boeing Co.,

2
All rule references are to the Missouri Supreme Court Rules and all statutory references are to
the Revised Statutes of Missouri.

6
643 S.W.3d 501, 505 (Mo. banc 2022). Rule 84.04(d)(2) 3 “provides a simple template for an

appellant to follow to ensure compliance with the rule[.]” Id. Further, “Rule 84.04(d) also

requires separate points to challenge separate rulings or actions” and consolidating multiple,

independent claims in a single point is multifarious and not permitted.” Id. at 505–06. We may,

however, exercise our discretion and “review noncompliant points gratuitously, overlooking the

technical deficiencies in the points relied on, when the deficiencies do not impede review on the

merits.” Id. at 508. Pro se litigants are “held to the same standard as attorneys” and are “subject

to Rule 84.04’s mandatory appellate briefing requirements.” R.M. v. King, 671 S.W.3d 394, 397

(Mo. App. W.D. 2023).

Belk’s point relied on does not follow 84.04’s formula and Belk raises at least two

separate arguments in his sole point. Nonetheless, because we can discern Belk’s argument, we

exercise our discretion and review Belk’s appeal on the merits.

Belk argues on appeal that the circuit court erred in denying his petition for declaratory

relief. First, as best we can discern, Belk argues the Department erroneously recalculated his

minimum parole eligibility date by applying Johnson and Talley to separate Belk’s armed

criminal action sentences from his remaining sentences in order to recalculate his minimum

parole eligibility. Johnson v. Missouri Department of Corrections, 166 S.W.3d 110 (Mo. App.

W.D. 2005); Talley v. Missouri Department of Corrections, 210 S.W.3d 212 (Mo. App. W.D.

2006). 4 Second, Belk argues that the Department erred in recalculating his minimum parole

3
Rule 84.04(d)(2) requires a point relied on to be substantially in the following form: “The trial
court erred in [identify the challenged ruling or action], because [state the legal reasons for the
claim of reversible error], in that [explain why the legal reasons, in the context of the case,
support the claim of reversible error].”
4
As discussed later in this opinion, Johnson and Talley held that section 558.019 does not apply
to armed criminal action convictions and courts should instead use section 571.015 to calculate

7
eligibility date by applying the Edger v. Missouri Board of Probation & Parole, 307 S.W.3d 718

(Mo. App. W.D. 2010) holding. 5 He contends the Department wrongly stacked the minimum

parole eligibility terms for Belk’s armed criminal action sentence under section 571.015 and the

minimum parole eligibility terms for Belk’s remaining sentences under section 558.019.

Because of this alleged erroneous calculation, Belk argues the Department misinterpreted

the retroactive changes in the law and thereby violated the Ex Post Facto Clauses of the U.S. and

Missouri Constitutions. Finally, Belk also argues the circuit court erred in declaring Belk has no

liberty interest in parole eligibility. We disagree, and find the Department correctly applied

Johnson, Talley, and Edger in recalculating Belk’s minimum parole eligibility date under

sections 571.015 and 558.019.

In his brief to this Court, Belk argues:

Both Johnson and Talley addressed the relationship between the
mandatory minimum prison terms specified for certain recidivist offender[s] in §
558.019 and the three-year minimum prison term established by § 571.015.1.
Both of these cases changed the judicial jurisprudence of years of misapplication
of law, and in this case the new change in the law retarded [Belk]’s sentence
affecting his mandatory minimum parole hearing consideration date by adding an
additional eighteen years to the date of December 2047.

Further, Belk argues “that all his multiple consecutive sentences, applied the law as it

stood prior to 1994 when armed criminal action was classified as a ‘dangerous felony’ under §

556.061.8” and, therefore, his armed criminal action sentences should have been “subject to the

mandatory minimums for such convictions. Johnson, 166 S.W.3d at 113; Talley, 210 S.W.3d at
216; Mozee v. Mo. Bd. of Prob. & Parole, 401 S.W.3d at 505 (Mo. App. W.D. 2013).
5
Also as discussed later in this opinion, Edger held that, for an inmate serving consecutive
sentences, the Department must add the minimum terms for each individual sentence to calculate
the inmate’s parole eligibility date. Edger v. Missouri Board of Probation & Parole, 307 S.W.3d
718 (Mo. App. W.D. 2010); Mozee, 401 S.W.3d at 502 n.2.

8
general mandatory minimum prison terms of both § 558.019.2(3) 6 and § 558.019.4(5).” 7 Belk

contends the Department wrongly modified his sentence “retroactively” to reflect the change in

statutory interpretation as addressed in Johnson and Talley.

Belk is correct in that his minimum parole eligibility date was extended by the statutory

interpretations in Johnson and Talley. But, Belk is incorrect that the Department wrongly

applied this statutory interpretation or that the retroactive application of this statutory

interpretation violated the Ex Post Facto Clauses of the U.S. and Missouri Constitutions.

Here, Talley v. Missouri Department of Corrections is dispositive. In Talley, the

defendant was convicted in 1992 of one count of first-degree robbery under section 569.020 and

one count of armed criminal action under section 571.015. 210 S.W.3d at 213. The defendant

was sentenced “as a prior and persistent class X offender, to consecutive prison terms of fifteen

years for robbery and twenty-one years for armed criminal action.” Id. The Department applied

the provisions in section 558.019 to both sentences and thus required the defendant to serve

eighty percent of both sentences before becoming eligible for parole. Id. We disagreed with this

calculation. Id. at 216.

When the defendant in Talley was convicted and sentenced before 1994, a notable

6
In 1992, section 558.019.2(3) stated, “If the defendant is a class X offender, the minimum
prison term which the defendant must serve shall be eighty percent of his sentence.” A class X
offender was defined as an offender who has previously pleaded guilty to or been found guilty of
three felonies committed at different times. 558.019.4(3). Currently, as amended in 2019,
section 558.019.2(3) no longer provides for the designation of a class X offender status, but the
provision that an offender who has three or more previous prison commitments be required to
serve eighty percent of his or her sentence remains.
7
In 1992, section 558.019.4(5) read, “Any sentence either alone or in the aggregate with other
consecutive sentences for crimes committed at or near the same time which is over seventy-five
years shall be calculated to be seventy-five years.” Currently, section 558.019.4(2) contains this
same provision.

9
conflict existed in the Missouri statutes that Johnson and Talley resolved. In 1992, section

571.015.1 read:

Except as provided in subsection 4 of this section, any person who commits any
felony under the laws of this state by, with, or through the use, assistance, or aid
of a dangerous instrument or deadly weapon is also guilty of the crime of armed
criminal action and, upon conviction, shall be punished by imprisonment by the
department of corrections and human resources for a term of not less than three
years. The punishment imposed pursuant to this subsection shall be in addition to
any punishment provided by law for the crime committed by, with, or through the
use, assistance, or aid of a dangerous instrument or weapon. 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. 8

See § 571.015 (1986); § 571.015 (2020).

Likewise, in 1992, section 556.061, the definitions section, explicitly listed armed

criminal action as a “dangerous felony.” § 556.061.8 (1992). This designation of “dangerous

felony” mattered because, in 1992, this also implicated section 558.019.

At the time, section 558.019 included two subsections of note. First, section 558.019.1

stated, in part, “This statute shall not affect those provisions of sections . . . 571.015 RSMo,

which set minimum terms of sentences . . . .” Second, section 558.019.2, stated that “[t]he

8
Section 571.015.1, as made effective in August 2020, now reads:

Any person who commits any felony under the laws of this state by, with, or
through the use, assistance, or aid of a dangerous instrument or deadly weapon is
also guilty of the offense of armed criminal action and, upon conviction, shall be
punished by imprisonment by the department of corrections for a term of not less
than three years and not to exceed fifteen years, unless the person is unlawfully
possessing a firearm, in which case the term of imprisonment shall be for a term
of not less than five years. The punishment imposed pursuant to this subsection
shall be in addition to and consecutive to any punishment provided by law for the
crime committed by, with, or through the use, assistance, or aid of a dangerous
instrument or deadly weapon. 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.

10
provisions of this section shall be applicable only to class A and B felonies committed under the

following Missouri laws,” including chapter 571, and “dangerous felonies as defined in

subdivision (8) of section 556.061, RSMo.” 9 Because armed criminal action simultaneously fell

under chapter 571 but was also classified as a “dangerous felony” at the time, it was unclear

whether section 571.015 or section 558.019 governed the general minimum prison term that

could be applied to an armed criminal action sentence.

Johnson and Talley clarified which statute controlled the general minimum prison term

that applied to a sentence for armed criminal action. As Talley states:

In Johnson, we determined that the general minimum prison term provisions of
[s]ection 558.019 could not be applied to a sentence for armed criminal action,
regardless of whether such application would result in an increase or decrease of
the minimum time served. Id. at 112–13. Based on a statutory analysis of the
relevant subsections of [s]ection 558.019 in pari materia, we concluded that the
legislature intended to exclude armed criminal action from the general minimum
prison term provisions because the armed criminal action statute sets forth it[s]
own minimum standards in [s]ection 571.015. Id. at 113.

210 S.W.3d at 215–16.

In Talley, our Court applied this new statutory interpretation to the defendant’s armed

criminal action sentence, holding the armed criminal action sentence was exempt from the

general minimum prison term provisions of section 558.019. Id. at 215–16. Further, Talley

clarified that this new statutory interpretation of sections 571.015 and 558.019 would be

“retroactively applied” to armed criminal action sentences. Id. at 216. Therefore, our Court

retroactively applied section 571.015’s statutory minimum sentence requirements instead to the

defendant’s armed criminal action sentence. Id.

9
In 1992, section 558.019.2 read, in relevant part, “The provisions of this section shall be
applicable to only class A and B felonies committed under the following Missouri laws: chapters
195, 491, 564, 565, 566, 567, 568, 569, 570, 571, 573, 575, RSMo, and dangerous felonies as
defined in subdivision (8) of section 556.061, RSMo.”

11
The same 1992 statutory conflict between sections 571.015 and 558.019 present in Talley

also existed when Belk committed his underlying offenses. 10 Just as we retroactively applied

Johnson’s statutory interpretation of sections 571.015 and 558.019 to the defendant’s armed

criminal action minimum parole eligibility in Talley, we do likewise in Belk’s case.

In 1994, the Missouri Legislature removed armed criminal action from the definition of

“dangerous felony” in section 556.061(8), thereby resolving the conflict between sections

571.015 and 558.019. § 556.061(8) (1992); § 556.061 (1994). This statutory amendment

solidified Johnson and Talley’s holdings that “[section] 558.019 does not apply to armed

criminal convictions because [sections] 558.019.1 and .2 expressly exclude armed criminal

action convictions from the operation of [section] 558.019 . . . .” Mozee v. Mo. Bd. of Prob. &

Parole, 401 S.W.3d at 505 (Mo. App. W.D. 2013); Talley, 210 S.W.3d at 216. 11

10
In general, “[p]ursuant to [s]ection 1.160 a defendant will be sentenced according to the law
in effect at the time the offense was committed . . . .” Watkins v. State, 660 S.W.3d 673, 674 n.2
(Mo. App. E.D. 2023) (quoting Edwards v. State, 215 S.W.3d 292, 294 (Mo. App. S.D. 2007)).

Belk alleged he committed these offenses in 1992. Thus, as agreed by Belk in his brief to our
Court, we use the Revised Statutes of Missouri (RSMo) 1992 as the statutes governing Belk’s
original convictions. Belk, however, also alleges that section 217.690 was not in effect in
December 1992, which is incorrect.
11
We also note a recent statutory change may influence future interpretation of Johnson and
Talley’s holdings. In 2020, the Missouri Legislature amended section 556.061, adding “armed
criminal action” back into the definition of “dangerous felony.” § 556.061(19). Section
558.019, meanwhile, continues to include the conflicting subsections as discussed in Talley.
Section 558.019.1 states, “This statute shall not affect those provisions of . . . section 571.015,
which set the minimum terms of sentences . . . .” Section 558.019.3, however, states:

Other provisions of the law to the contrary notwithstanding, any offender who has
been found guilty of a dangerous felony as defined in section 556.061 and is
committed to the department of corrections shall be required to serve a minimum
prison term of eighty-five percent of the sentence imposed by the court or until
the offender attains seventy years of age, and has served at least forty percent of
the sentence imposed, whichever occurs first.

12
The Department also correctly recalculated Belk’s minimum parole eligibility date as

required by Edger and section 217.690. See Edger, 307 S.W.3d 720–21; § 217.690 (1992).

Section 217.690 constitutes the general parole statute both in 1992 and at present. § 217.690

(1992); § 217.690 (2021). See Edger, 307 S.W.3d at 720. Section 217.690 “authorizes the

Parole Board to adopt rules regarding parole eligibility and hearings” and “to determine if and

when an offender may be released on parole.” Edger, 307 S.W.3d at 720–21; § 217.690 (2021).

The Missouri Legislature explicitly provided in section 217.690.4, now section 217.690.5, “a

method for calculating parole eligibility for an offender with consecutive sentences by adding

together the minimum terms for parole eligibility for each consecutive sentence.” Id. at 721.

Specifically, in 1992, section 217.690 provided the following formula for calculating the

minimum term of parole eligibility for an offender with consecutive sentences:

When considering parole for an offender with consecutive sentences, the
minimum term for eligibility for parole shall be calculated by adding the
minimum terms for parole eligibility for each of the consecutive sentences, except
the minimum term of parole eligibility shall not exceed the minimum term for
parole eligibility for an ordinary life sentence.

§ 217.690.4 (1992). This same provision currently appears in section 217.690.5 (2021). See

Dunn, 645 S.W.3d at 569. Further, section 217.690.5’s plain language “requires that the

minimum prison term on each consecutive sentence be added together to reach an aggregate

minimum prison term prior to parole eligibility with the limitation that no individual minimum

prison term added into the total can itself be greater than the minimum prison term for a life

sentence.” Langston v. Mo. Bd. of Prob. & Parole, 391 S.W.3d 473, 476 (Mo. App. W.D. 2012).

“[T]he plain language of [Section 217.690.4] clearly establishes that the Board has the

(Emphasis added). Thus, whether section 571.015 or section 558.019 governs the
minimum prison term required for armed criminal action sentences is yet again
called into question but the issue is not before us in this appeal.

13
authority to create eligibility requirements for parole.” Brown v. Mo. Bd. of Prob. & Parole, 517

S.W.3d 24, 28 (Mo. App. W.D. 2016) (quoting Anselmo v. Mo. Bd. of Prob. & Parole, 27

S.W.3d 831, 833 (Mo. App. W.D. 2000)). “Indeed, the provisions of Section 217.690 give the

Board ‘almost unlimited discretion,’” and includes the Parole Board’s “ability to determine when

an offender may become eligible for parole.” Id. (citation omitted).

Further, section 217.690 goes hand-in-hand with 14 CSR 80–2.010 that “sets forth the

guidelines under which the Parole Board is to determine the parole eligibility of an offender.”

Edger, 307 S.W.3d at 720; Mo. Code Regs. Ann. tit. 14, § 80–2.010. In 1992 and now, 14 CSR

80–2.010, as outlined in a “purpose” section, “sets forth factors regarding parole eligibility, the

purpose and procedures for parole hearings, and the possible results.” Mo. Code Regs. Ann. tit.

14, § 80–2.010 (2024). Regardless whether in 1992 or today, 14 CSR 80–2.010 “simply

specified the minimum amount of time an offender was required to serve before becoming

eligible for parole on an armed criminal action conviction; it did not specify the maximum period

before parole eligibility.” Dunn, 645 S.W.3d at 571 (referring to a version of 14 CSR 80–2.010

prior to 2008). Thus, “the regulation merely set a floor on an offender’s parole eligibility on an

armed criminal action sentence[.]” Id.

Edger interpreted section 217.690 and its application calculating parole eligibility.

Edger, 307 S.W.3d at 720–21 (interpreting § 217.690.5 RSMo Cum. Supp. 2009). In Edger, the

defendant was sentenced to concurrent sentences totaling fifteen years and a consecutive eight-

year sentence. Id. at 719. See Short v. Mo. Bd. of Prob. & Parole, 456 S.W.3d 72, 77 (Mo. App.

W.D. 2015) (summarizing Edger). The Board of Probation and Parole argued that Edger was

ineligible for parole until after he served the entire prison term portion of his fifteen-year

sentence, as set forth in the conditional release statute, plus the minimum parole eligibility term

14
of his eight-year sentence. Id. at 721; Short, 456 S.W.3d at 77.

We held that “[s]ection 217.690 and 14 CSR 80–2.010 govern the calculation of parole

eligibility and not Section 558.011, which governs conditional release.” Short, 456 S.W.3d at 77

(citing Edger, 307 S.W.3d at 721). Therefore, “[w]e directed the Board to calculate Edger’s

parole eligibility pursuant to [s]ection 217.690.5 by simply adding together the minimum parole

eligibility term for the [fifteen]–year sentence, which was three years and nine months under 14

CSR 80–2.010(1)(B), and the minimum parole eligibility term for the eight-year sentence, which

was four years under Section 558.019.2(2).” Id. (citing Edger, 307 S.W.3d at 721). Thus, Edger

stands for the principle that “for an inmate serving consecutive sentences, the Board must add the

minimum terms for each individual sentence to calculate the inmate’s parole eligibility date.”

Mozee, 401 S.W.3d at 502 n.2 (citing Edger, 307 S.W.3d at 721); § 217.690.5.

Here, section 217.690.4 properly provided the formula for calculating Belk’s minimum

parole eligibility. 12 See § 217.690.4 (1992); Edger, 307 S.W.3d at 720. The Department

correctly states in its brief that “[a]ll relevant statutes governing Belk’s mandatory minimum

parole eligibility calculation were in effect at the time he committed these offenses. See RSMo §

571.015 (1986); RSMo § 558.019 (1992); RSMo § 217.690 (1992)[.]” Thus, under Edger and

section 217.690.4, because Belk is serving consecutive sentences, the Department added the

minimum terms for parole eligibility for each sentence under sections 571.015 and sections

558.019.

We now examine Belk’s parole eligibility date in light of Johnson and Talley’s

interpretation of sections 571.015 and 558.019 and Edger’s formula adding consecutive terms.

12
While in his brief, Belk argues the Department “misinterpreted” section 217.690.5, this does
not change our analysis because both sections 217.690.4 and 217.690.5 contain identical
language. § 217.690.4 (1992); § 217.690.5 (2019). Thus, this error is not dispositive.

15
We find the Department correctly applied statutory interpretation to recalculate Belk’s minimum

parole eligibility date because section 217.690 requires the adding of Belk’s armed criminal

action minimum sentences under section 571.015 on top of the mandatory minimum sentences of

Belk’s other convictions that use section 558.019 for their calculation. Again, adding the

minimum sentences for an armed criminal action conviction under section 571.015 to those

minimum sentences under section 558.019, as did the Department here, is not a “new”

application of Missouri law as Belk argues. See Johnson, 166 S.W.3d 110; Talley, 210 S.W.3d

at 215–16.

As stated in his initial petition and in the briefs filed in this Court, Belk was convicted in

1995 of kidnapping, rape, first-degree burglary, two counts of sodomy, one count of first-degree

sexual abuse, one count of first-degree robbery, and seven counts of armed criminal action for

events that took place in December 1992. Altogether, Belk’s convictions, except his seven

armed criminal action convictions, were subject to the eighty-percent provisions of section

558.019 and combined for a total 280-year sentence 13 for the purposes of parole eligibility.

In 1992, section 558.019.4(5) stated, “Any sentence either alone or in the aggregate with

other consecutive sentences for crimes committed at or near the same time which is over

seventy-five years shall be calculated to be seventy-five years.” Further, because Belk was

sentenced as a “class X offender,” “the minimum prison term which [Belk] must serve shall be

13
As further detailed in the Department’s brief, Belk received consecutive sentences of thirty
years for first-degree burglary, thirty years for kidnapping, one life sentence for rape, two life
sentences for each count of sodomy, twenty years for first-degree sexual abuse, and one life
sentence for robbery, in addition to his seven life sentences for his seven counts of armed
criminal action. Thus, excepting his charges of armed criminal action, Belk was to serve eighty
years plus four life sentences. Under 1992’s section 558.019.4(4), “A sentence of life shall be
calculated to be fifty years.” Thus, under section 558.019, Belk was sentenced to 280 years’
imprisonment.

16
eighty percent of his sentence.” § 558.019.2(3). Under 1992’s section 558.019, Belk’s 280-year

aggregate sentence, therefore, was treated as seventy-five years, and Belk was required to serve

eighty percent of those seventy-five years. Thus, for all sentences excepting Belk’s seven armed

criminal action convictions, Belk must serve sixty years before becoming eligible for parole.

As mandated by Johnson and Talley and required by Edger and section 217.690.4’s

formula, Belk’s mandatory minimum sentence for his seven armed criminal action convictions

under section 571.015 must be added in addition to the sixty years under section 558.019. For

his seven counts of armed criminal action under section 571.015, Belk was sentenced to seven

life sentences, one for each count. Because Belk’s commission of the seven armed criminal

action counts were his first offenses of this nature, 1992’s section 571.015.1 applies and requires

Belk to serve not less than three years on each count. § 571.015.1 (“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.”). Thus, Belk would

need to serve twenty-one years’ time in addition to the sixty years under section 558.019 before

becoming eligible for parole.

We find that under the 1992 statutes, Belk must serve eighty-one years before becoming

eligible for parole. We do this knowing that our retroactive application of Talley’s statutory

interpretation of sections 571.015 and 558.019 increases Belk’s mandatory minimum sentence

even though both defendants’ mandatory minimums in Johnson and Talley were decreased.

Johnson, 166 S.W.3d at 113; Tally, 210 S.W.3d at 213, 216. But, as we recognized in Talley, the

general minimum prison term provisions of section 558.019 cannot be applied to an armed

criminal action sentence regardless “whether such application results in an increase or decrease

of the minimum time served.” Talley, 210 S.W.3d at 215–16 (citing Johnson, 166 S.W.3d at

17
112–13).

Furthermore, we find that the Department did not violate the Ex Post Facto Clauses of the

U.S. and Missouri Constitutions because the Department’s recalculation did not apply any new

law to increase Belk’s sentence. “The constitutions of the United States and Missouri forbid ex

post facto laws.” Miller v. Mitchell, 25 S.W.3d 658, 663 (Mo. App. W.D. 2000) (quoting Fults

v. Missouri Bd. of Probation and Parole, 857 S.W.2d 388, 390 (Mo. App. 1993)); U.S. CONST.

art. I § 9, cl. 3, and art. I, § 10 cl. 1; Mo. CONST. art. I, § 13. “An ex post facto law is a law that

‘provides for punishment for an act that was not punishable when it was committed or that

imposes an additional punishment to that in effect at the time the act was committed.’” State v.

Harris, 414 S.W.3d 447, 449–50 (Mo. banc 2013) (quoting R.W. v. Sanders, 168 S.W.3d 65, 68

(Mo. banc 2005)).

We apply a “two-part test” to an ex post facto challenge. Id. at 450. “The statute is an ex

post facto law if: (1) it applies to conduct completed before the statute’s enactment, and (2) it

increases the penalty for the crime beyond what the law provided when he acted.” Id.; Mitchell,

25 S.W.3d at 663 (“Ex post facto laws are laws which are retrospective and which disadvantage

the affected offender ‘by altering the definition of criminal conduct or increasing the punishment

for the crime[.]’”).

The purposes of the ex post facto clauses are to “curtail legislative vindictiveness
and provide fair notice of criminal laws and their punishments.” Fults, 857
S.W.2d at 390 (citing Weaver v. Graham, 450 U.S. 24, 28–29, 101 S. Ct. 960,
963–64, 67 L. Ed. 2d 17 (1981)).
The prohibition against ex post facto laws is “directed to the legislature
rather than to other branches of government.” Fults, 857 S.W.2d at 390. Thus,
the [E]x [P]ost [F]acto clauses apply to laws enacted by the legislature. Id. at
390–91.

Mitchell, 25 S.W.3d at 663.

Here, Belk’s ex post facto challenge fails both prongs of the two-part test. First, sections

18
571.015, 558.019, 556.061, and 217.690 all existed and applied when Belk committed the

offenses in December 1992. In applying Talley, Johnson, and Edger, the Department did not

apply a new or amended portion of a statute nor was Belk punished for an act not yet made

criminal under Missouri law. Again, the ex post facto prohibition “is directed to the legislature,”

not to this Court’s interpretations of existing law. See Mitchell, 25 S.W.3d at 663. The

Department only applied a retroactive interpretation of laws already existing at the time of

Belk’s offense. No new statute was enacted.

Second, Belk’s sentence remains unchanged before and after the Department’s

recalculation. Since all the relevant statutes were in effect at the time Belk committed the

offenses, there was no “increase” in Belk’s sentence beyond what the law already provided.

Thus, the Department did not violate the Ex Post Facto Clauses of the U.S. or Missouri

Constitutions.

Additionally, in his point relied on, Belk also argues the circuit court erred in concluding

that Belk was not entitled to relief because he has no liberty interest in his parole eligibility. In

its brief, the Department argues, “Belk does not have a liberty interest in a miscalculated parole

eligibility date” and that, even if he did, the possible liberty interest is “irrelevant” here because

Belk did not raise a Due Process violation claim. We agree with the Department.

“An inmate does not have a constitutional or inherent right to parole before the expiration

of a valid sentence.” Kelly v. Gammon, 903 S.W.2d 248, 251 (Mo. App. W.D. 1995); State ex

rel. Cavallaro v. Groose, 908 S.W.2d 133, 134 (Mo. banc 1995) (“There is no constitutional or

inherent right to early release from prison.”). A state, however, “may create a ‘protected liberty

interest in parole through language in statutory or regulatory measures.’” Kelly, 903 S.W.2d at

251 (quoting Fults v. Mo. Bd. of Prob. & Parole, 857 S.W.2d 388, 392 (Mo. App. W.D. 1993));

19
Cavallaro, 908 S.W.2d at 134 (“[A] state’s parole statute may create a protected liberty interest

in parole.”). “A liberty interest is created where the statute or regulation contains ‘specific

substantive predicates’ and ‘explicitly mandatory language.’” Kelly, 903 S.W.2d at 251 (quoting

Ingrassia v. Purkett, 985 F.2d 987, 988 (8th Cir. 1993)). Further:

“Due process protects liberty interests.” Fults v. Mo. Bd. of Prob. & Parole, 857
S.W.2d 388, 392 (Mo. App. W.D. 1993) (citing U.S. Const. amend XIV, § 1; Mo.
Const. art. 1, § 10). A prisoner does not have a protectable “expectation of parole
by virtue of the mere existence of a parole system.” Id. “Nevertheless, a state
may create a protected liberty interest in parole” by use of mandatory language,
such as “shall,” in statutes or regulations, which “creates a legitimate expectation
that parole will be granted when designated conditions occur.” Id. at 392–93.
Section 217.690.4 authorizes the Board to adopt rules regarding parole eligibility
and hearings, and 14 CSR § 80–2.010 sets forth the guidelines under which the
Board is to determine the parole eligibility of an offender. Edger v. Mo. Bd. of
Prob. & Parole, 307 S.W.3d 718, 720 (Mo. App. W.D. 2010). Section 217.690.1
“creates no justifiable expectation of release, giving the Board ‘almost unlimited
discretion’ in whether to grant parole release.” State ex rel. Cavallaro v. Groose,
908 S.W.2d 133, 135 (Mo. banc 1995) (quoting Ingrassia v. Purkett, 985 F.2d
987, 988 (8th Cir. 1993)). Section 217.690.1 “creates no protected liberty interest
in parole release for due process purposes because the statute uses discretionary
language, ‘the board may in its discretion release or parole.’” Fults, 857 S.W.2d
at 393. Similarly, the regulations promulgated under the authority of section
217.690 do not create a liberty interest in parole. Kaczynski v. Mo. Bd. of Prob. &
Parole, 349 S.W.3d 354, 357 (Mo. App. W.D. 2011).

Miller v. Mo. Dept. of Corr., 436 S.W.3d 692, 699 (Mo. App. W.D. 2014). Additionally:

[T]he mere setting of a presumptive release date does not create a protectable
liberty interest because the Board retains its discretion to modify its decision.
There is no language in the Missouri statutes or rules which requires the Board to
adhere to its presumptive release date. On the contrary, the rules state that [the]
Board “may in its discretion” release or parole an inmate.

Kelly, 903 S.W.2d at 251 (citing § 217.690.1) (emphasis added).

Belk does not have a protected liberty interest in the 2047 parole eligibility date, which

was based on a miscalculation and mis-reading of the relevant statutes. Nothing prevents the

Department from correcting an erroneously calculated parole eligibility date. Section 217.690

grants the Department nearly unlimited discretion over whether to grant parole release. Even

20
after Belk serves the statutory minimum sentence, Belk has no liberty interest in parole release

under Missouri law. See Miller, 436 S.W.3d at 699.

While the circuit court did not err on the principles of law in granting the Department’s

motion for judgment on the pleadings, we do find the circuit court erred in its judgment

confirming the 2065 date. This error was not readily apparent nor argued by either party to the

circuit court. On appeal, the Department admitted that it “mistakenly applied its regulatory 45-

year rule in violation of statutes” when it recalculated Belk’s parole eligibility date for 2065.

The Department has since, while this appeal was pending, modified Belk’s parole eligibility date

to reflect the proper mandatory minimum calculation of eighty-one years, making December

2073 Belk’s correct eligibility date under the current state of the law.

We affirm the judgment granting the Department’s motion for judgment on the pleadings

as modified by the Department’s most recent recalculation of his minimum parole eligibility

date. “Rule 84.14 permits the appellate court to award or give judgment as the court ought to

have given in th[e] situation.” Steinmeyer v. Steinmeyer, 669 S.W.2d 65, 68 (Mo. App. E.D.

1984); Rule 84.14 (“The appellate court shall award a new trial or partial new trial, reverse or

affirm the judgment or order of the trial court, in whole or in part, or give such judgment as the

court ought to give.”). “Consequently, we will exercise our discretion pursuant to Rule 84.14

and modify the circuit court’s judgment to ‘give such judgment as the court ought to give.”

Integra Healthcare, Inc. v. Mo. State Bd. of Mediation, 655 S.W.3d 604, 617 (Mo. App. W.D.

2022) (citation omitted). Thus, we affirm the circuit court’s judgment and modify the judgment

only to affirm the current recalculation as to Belk’s minimum parole eligibility.

21
Conclusion

As modified, the judgment is affirmed.

_____________________________
Janet Sutton, Judge

Gary D. Witt, C.J., and Karen King Mitchell, J. concur.

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11097941. Public record. Not legal advice.