Petition for Writ of Certiorari — Earnest Lee Langston, Petitioner v. Don Phillips, Chairman, Missouri Board of Probation and Parole

Supreme Court briefNov 23, 2021

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INDEX TO APPENDIX

APPENDIX A: DECISION/ JUDMENT AND ORDER OF THE COLE COUNTY

CIRCUIT COURT/ which was proposed by the Asst

Attorney General (after misleading the Court)

APPENDIX B: ORDER OF THE MISSOURI COURT OF APPEALS/ SUMMARILY

DENYING PETITION FOR MANDAMUS RELIEF

APPENDIX C:

MANDATE AND JUDGMENT OF MISSOURI SUPREME COURT/

Which also summarily denied petition for Mandamus

APPENDIX D:

2005 LETTER FROM DEPT OF CORRECTIONS VERIFYING THAT

THE BOARD WAS CONVERTING CXONSECUTIVE SENTENCES TO

CONCURRENT/ Based on Sec. 558.019.5

APPENDIX E:

IS A COPY OF SAID STATUTE/ SECTION 558.019.5

APPENDIX F:

IS MISSOURI CODE OF STATE REGULATIONS GOVERNING

PAROLE RELEASE OF SENTENCES THAT TOTAL MORE THAN

45-YEARS/ WHETHER CONSECUTIVE OR CONCURRENT, ANY

SENTENCE$S) MORE THHAN 45-YEARS IS TREATED AS

45-YEARS, UNDER 14 CSR 80-2.010

APPENDIX G:

SHOWS THAT PAROLE IS CALCULATED ON A SINGLE

SENTENCE . . . ALONE WITH CONSECUTIVE PAROLE

ON THE REMAINING CONSECUTIVE SENTENCES

G-2:

IS A PORTION OF THE WOLFE CASE, WHEREIN THE APPEL

LATE COURT IS CRITICIZING THE DEPT OF CORRECTIONS'

USE (IN USING SECTION 558.019.4(2) 75 YEAR RULE)

TO CALCULATE PAROLE ELGIBILITY ON LIFE SENTENCES

G-3:

IS A CASE SHOWING THAT NO SENTENCE(S) CONSECUTIVE

TO A LIFE SENTENCE CAN NULLIFY PAROLE ELGIBILITY

ON A LIFE SENTENCE, THAT ALL THE SENTENCES MUST

BE TREATED AS ONE . . . AND THAT NO MANDATORY*

MINIMUMS CAN BE GREATER THAN THAT OF A LIFE

SENTENCE

G-4:

NEWSPAPER CLIPPING OF REGINALD CLEMONS' CASE

WHERE HE RECIEVED 5-CONSECUTIVE LIFE SENTENCES, AND

WAS GRANTED A 2020 PAROLE HEARING

G-5:

Board's Calculation of petitioner's parole

elgibility (or, miscalculation)

*tt(/*tLMlf 0

IN THE CIRCUIT COURT OF COLE COUNTY

STATE OF MISSOURI

EARNEST LANGSTON,

Petitioner,

)

09AC-CC00541-01

)

MISSOURI BOARD OF PROBATION )

)

AND PAROLE,

)

Respondent

DECISION JUDGMENT AND ORDER

Earnest Langston raises statutory, regulatory, and constitutional challenges

& ^

c, t0 the Parole Board’s determination of his parole eligibility date. All of these

challenges are based misinterpretations of Missouri law. Langston’s parole

eligibility date has been correctly calculated by aggregating fee ineligibility

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periods on his consecutive sentences, and where applicable giving him the benefit

of fee 75-year rule of 558.019.4(2). Wolfe v. Missouri Dept Of Corrections, 199

S.W.3d 219 (Mo. App. W.D. 2005); Edger v. Missouri Bd. of Probation and

'b Parole, 307 S.W.3d 718 (Mo. App. W.D. 2010). Langston has no entitlement

°* ^d %3 v,3

under Missouri law to have his numerous consecutive sentences all treated as a

^ single 30-year sentence or a single 50-year sentence, for purposes of analyzing

parole eligibility, and no right to have all his consecutive sentences converted to

concurrent sentences.

Langston’s Due Process Clause, Equal Protection Clause, and Ex Post

Facto Clause claims are all without legal merit, as are his claims under Missouri

statutes and parole regulations. Langston has not been disadvantaged by fee use of

Respondent's Exhibit A

Langston v. Godert

•

current parole statutes or regulations and he has no liberty interest in,the use of

earlier versions of the parole statutes or regulations. See State ex. rel. Cavallaro v.

Groose, 908 S.W.2d 133 (Mo. banc 1995). He fails to set out an Equal Protection

Ciiuse claim by alleging that two inmates with Kfe sentences or sentences more

than 45 years had parole hearings after 13 years. Langston has many consecutive

sentences with statutory or regulatory mandatory-minimum prison, terms, and

those sentences make his case distinguishable from inmates who become parole

•: 4

eli gible after 15 years and therefore receive a hearing after 13 years.

Because all Langston’s claims fail as a matter of law and there are no

genuinely disputed facts material to that determination summary Judgment is

granted for the Missouri Board of Probation and Parole.

nr*

Dalte

Circuit Judge

»*

; :

Respondent's Exhibit A

Langston v. Godert

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MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI EX REL.,

EARNEST LEE LANGSTON #23783,

SOUTH CENTRAL CORRECTIONAL

CENTER, 255 W. HWY 32

LICKING, MISSOURI 65542,

)

WD84610

)

Relator,

MISSOURI BOARD OF

PROBATION AND PAROLE,

'Respondent.

ORDER

Relator’s Petition for Writ of Mandamus with Suggestions in Support filed on June 24,2021,

is taken up and considered. The Court being fully advised in the premises hereby denies the petition.

Dated this 24"1 day of June 2021.

’' I &YV

Thomas N. Chapman

Presiding Judge, Writ Division

Judge Anthony Rex Gabbert concurs

cc:

Mr. Eric Schmitt, Esq.

Attorney for Respondent

Mr. Don Phillips

Missouri Board of Probation & Parole

Mr. Earnest Langston #23783

Relator Acting Pro Se

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AfPWDf* 0

In the Supreme Court of Missouri

September Session, 2021

State ex rel. Earnest Lee Langston,

Petitioner,

MANDAMUS

No. SC99255

Cole County Circuit Court No. 09AC-CC00541-01

Western District Court of Appeals No. WD84610

Don Phillips, Chairman, Missouri Board of Probation and Parole,

Respondent.

Now at this day, on consideration of the petition for a writ of mandamus herein to the

said respondent, it is ordered by the Court here that the said petition be, and the same is hereby

denied. Petitioner’s request for preliminary order, or service, upon Respondent overruled as

moot,

STATE OF MISSOURI-Sct.

I, BETSY AUBUCHON, Clerk of the Supreme Court of the State of Missouri, certify that

the foregoing is afull, true and complete transcript ofthe judgment ofsaid Supreme Court, entered

ofrecord at the September Session thereof 2021, and on the 5th day ofOctober, 2021, in the aboveentitled cause.

WITNESS my hand and the Seal of the

Supreme Court of Missouri, at my office in

the City ofJefferson, this 5th day of October,

2021.

Clerk

, Deputy Clerk

Supreme Court of Missouri

■r.y

VS.

■ J

■

;

MANDATE

JUDGMENT

MATT BLUNT

2729 Plaza Drive

P. O. Box 236

Governor

Jefferson (fe ly, fefO 65102

LARRY CRAWFORD

Telephone: 573-751-2389

Fax: 573-751-4099

TDD Available

Director

State of Missouri

DEPARTMENT OF CORRECTIONS

Ad Excelleum Conamur - We Strive Towards Excellence”

January 14, 2005

Mr. •

- .

Southeast Correctional Center.:

Mr.

Your letter to the Governor has been forwarded to this office for handling. In that letter

you request that your sentences be converted from consecutive to concurrent.

The members oTTKd Board oTPfbbation and Parole cany7 a heavy responsibility. They

are charged with assessing each individual’s case and determining if release would best

serve the interests of the offender, their victims and Missouri citizens. They also strive to

develop a release plan that will provide the offender an opportunity to address substance

abuse needs, education, anger management or other issues that may nave lead to

incarceration.

Statute 558.019 does give the Board the authority to revert consecutive sentences to

concurrent sentences. Policy and procedure related to consecutive sentence review has

not been established. At this time, the Board is not utilizing the enabling statutory

language that allows conversion of consecutive sentences to a concurrent sentence. In the

rnrzrl p cfercy jtTjTJ"pi'TJC'Cfe uic is ■implemented, the offender population will be notified.

Sincerely,

ClflSS X offender($)

(SS9>dif R$MO)

LISA JONES'

Constituent Services Officer

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Cc: Governor’s Office

File No. 175000

An Equal Opportunity Employer

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2. Th.s provisions of subsections 2 to 5 of this section shall be applicable to all classes of felonies except

those set forth in chapter 195, RSMo, and those otherwise excluded in subsection 1 of this section. For

the purposes of this section, "prison conunitment" means and is the receipt by the department of

corrections of a [defendant] offender after sentencing. For purposes of this section, prior prison

commitments to the department of corrections shall not include commitment to a regimented discipline

program established pursuant to section 217.378, RSMo. Other provisions of the law to the contrary

notwithstanding, any [defendant] offender who has pleaded guilty to or has been found guilty of a

felony other than a dangerous felony as defined in section 556.061, RSMo, and is committed to the

department of corrections shall be required to serve the following minimum prison terms:

(1) If the [defendant] offender has one previous prison commitment to the department of corrections for

a felony offense, the mbtiimim prison term which the [defendant] offender must serve shall be forty

percent of his or her sentence or until the [defendant] offender attains seventy years of age, and has

served at least [forty] thirty percent of the sentence imposed, whichever occurs first,

(2) If the [defendant] offender has two previous prison commitments to the department of correcti ons

for felonies unrelated to the present offense, the minimum prison term which the [defendant] offender

must serve qhall be fifty percent of his or her sentence or until the [defendant] offender attains seventy

years of age, and has served at least forty percent of the sentence imposed, whichever occurs first;

(3) If the [defendant] offender has three or more previous prison commitments to the department of

corrections for felonies unrelated to the present offense, the minimum prison term which the [defendant]

offender must serve shall be eighty percent of his or her sentence or until the [defendant] offender attains seventy years of age, and has served at least forty percent of the sentence imposed, whichever

occurs first

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3. Other provisions of the law to the contrary notwithstanding, any [defendant] offender who has

pleaded guilty to or has been found guilty of a dangerous felony as defined in section 556.061, RSMo,

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 [defendant] offender attains

seventy years of age, and has served at least forty percent of the sentence imposed, whichever occurs

first.

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...................................................................

........................

4. For the purpose of determining the minimum prison term to be served, the following calculations

shall apply:

(1) A sentence of life shall be calculated to be thirty years;

(2) 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.

5. For purposes of this section, the term "minimum prison term" shall mean time required to be served

by the [defendant] offender before he or she is eligible for parole, conditional release or other early

release by the department of corrections. Except that the board of probation and parole, ig. thecasejof

consecutive sentences imposed at the same time pursuant to a course of conduct constituting a cpmrpon

~^S5e5ie^FpIan7sHaH be authorized to converTconsecutive sentences'to concurrentyentences, when the

boarddSidsTafter hearing'with notice to the prosecuting or circuit attorney, that the sum of the terms

results in an unreasonably excessive total term, taking into consideration all factors related to the crime .

or crimes committed and the sentences received by others similarly situated.

http://www.senate.mo.gov/03info/billtext/tat/sb005.htm

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14 MO ADC 80-2.010

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JCCC LAW LIBRARY

14 Mo. Code of State Regulations 80-2.010

Missouri Code of State Regulations Currentness.

Title 14 - Department of Corrections

Division 80 - State Board of Probation and Parole

ChaDter 2 - Parole Consideration and Conditional Release

. _

*14 CSR 80-2.010 Parole Eligibility, Hearings, Reviews and Release Dates

This rule sets forth factors regarding parole eligibility, the purpose and procedures for

PURPOSE:

parole hearings, and the possible results.

(1) Minimum Parole Eligibility. The following provisions apply to sentences where there is no minimum

prison term established by statute requiring more time to be served.

Appendix C are eligible for parole after fifteen percent (15%) of the maximum sentence has been

served, except where statute would require more time to be served.

(B) Offenders convicted of driving while intoxicated as a persistent, aggravated, ^chronic offender

and enhanced non-vioient class C and D felony offenses under section 558.016, RSMq are eligible

for parole after twenty-five percent (25%) of the maximum sentence has been served, except

where statute would require more time to be served.

Procedures Governing the Granting of Paroles and Conditional Releases, Appendix C are eligible for

parole after twenty-five percent (25%) of the maximum sentence has been served, except where

statute requires more time to be served.

fDl Offenders convicted of violent offenses as shown in-the Procedures Governing the Granting of

except where statute would require more time to be served.

CEl Offenders serving life or multiple concurrent or consecutive life sentences and offenders with

sentences totaling forty-five (45) years or more are eligible for parole after a minimum of fifteen

(15) years has been served, except where statute would require more time to be served.

f,s

minimum eligibility date.

the Board of Probation and Parole, 1511 Christy Drive, Jefferson City, MO 65101. This rule does not

incorporate any subsequent amendments or additions.

(2) Medical Parole.

(A) The board will consider a medical parole under the following conditions:

1 A specific recommendation to the parole board must be made by a correctional center

physician responsible for the treatment, care or custody of offenders who have serious

physical, mental or emotional problems; and

2. The

parole board must determine that the offender will be able to obtain and receive proper

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(C) Parole hearings provide the hearing panel the opportunity to3. The victim or person representing the victim may call or write the parole board rather than

attend the hearing.

1. Review and discuss all available reports, pertinent case history material, and any other

material they deem to be relevant. This may Include medical, psychological and psychiatric

reports, prior record of arrests, convictions and Incarcerations, past and present patterns of

behavior, and confidential information;

4. The victim or person representing the victim may have a personal meeting with a board

member at the board's central office In Jefferson City. ■

2. Review and discuss institutional adjustment, conduct, and progress as this will reflect upon the

offender’s attitudes and preparation to resume life In free society;

5. The victim or person representing the victim will be notified of the results of any parole hearing

If they indicate a desire to be notified.

3. Evaluate the offender in regard to suitability for parole release; and

representative of law enforcement from the jurisdiction, in which the crime was committed, shall

provide notice prior to the parole hearing for any offender. The judge, prosecuting attorney, a

representative from law enforcement, or a combination of them, may attend the hearing and

provide information to the hearing panel in reference to the board's deliberation regarding parole

release. Notification of the hearing results will be provided upon request.

4. Determine conditions to be accomplished prior to and after release,

(4) Scheduling.

(A) Parole hearings are conducted monthly with offenders at each major institution.

(D) The hearing panel shall limit or exclude any irrelevant.or repetitious statement.

(B) Within ninety (90) days of delivery to the Department of Corrections, a parole hearing will

automatically be scheduled for all offenders eligible for parole under state law. The date of the

hearing will be based upon a schedule established by the board which takes into account the

offense, sentence length, and credit for time served. The offender will receive written notice of

the date of hearing approximately forty-five (45) days in advance.

(E) The Interview will be recorded.

(F) The hearing shall not be open to the public and the records of all hearings shall be treated as

confidential and shall not be opened to inspection by the offender concerned, the offender’s

delegate, or any other unauthorized persons ( sections 217.670 and 549.500, RSMo).

will not accept a request for a continuance of less than three (3) months or more than five (5)

years.

(G) The Inmate who waives a personal appearance before the hearing panel shall have his/her

case considered by the board In absentia.

(D) An offender who has a sentence of less than twenty-four (24) months may waive their right

to a personal hearing.

(E) An offender serving ail incarceration for a class C, D, or E (published September 2016 and

effective January 2017) non-violent offense, excluding DWI and UUW, who has not failed an

institutional treatment program and has a sentence length of seven (7) years or less may be

allowed to waive their parole hearing.

(H) An offender who is serving a concurrent Missouri sentence while confined in another state or

federal correctional center Is under the same rules governing the granting of parole and

conditional release as an offender who is serving his/her sentence in a Missouri institution, except

that a personal hearing before the board shall not be required. The board will consider these

cases in absentia,

(6) Hearing Results.

(5) Hearing Procedure.

(A) The offender will appear before the hearing panel. The hearing panel shall consist of one (1)

member of the parole board and two (2) hearing officers appointed by the board.

1. Offenders may have a person of their choice at the hearing. The offender's delegate may offer

a statement on behalf of the offender, ask questions, and provide any additional information that

may be requested by the hearing panel.

2. Other inmates may not be present at the hearing.

(B) In accordance with section 595.209, RSMo the Department of Corrections, Victims Services

Unit shall notify victims of identified offenses, or upon the written request of the victim of any

other offense, of their right to be present at the parole hearing of the offender. Any victim or

person representing the victim who attends a parole consideration hearing may provide

information to the hearing panel In reference to the board's deliberation regarding parole release.

1. The victim or person representing the victim who attends a hearing may be accompanied by

one (1) other person.

2. The victim or person representing the victim who attends a hearing may give testimony in the

presence of the offender or to the hearing panel without the offender being present.

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(A) After the hearing, a number of different kinds of investigation reports may be requested,

including field Investigations, institutional investigations, medical evaluations, psychological or

psychiatric evaluations, or a combination of these.

(B) A decision will be reached as soon as possible and the offender will receive a written notice as

soon as the notice can be prepared and delivered.

1. The purpose of a reconsideration hearing shall be to consider the offender's case and any

significant developments or changes in the offender's;status that may have occurred'subsequent

to the previous hearing.

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2. Reconsideration hearings shall be conducted every one (1) to five (5) years at the board's

discretion until a release date has been established.

(D) A release date may be set, either by parole or conditional release.

1. Parole will apply to the sentence the offender is currently serving and consecutive paroles will

be granted to apply to consecutive sentences.

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'2. The setting of a release date does not automatically entitle the offender to be released on that

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of the sentence imposed, whichever occurs first. Section 558.019.4(11 explicitly

provides that in determining the minimum prison term to be served, a life sentence

shall be calculated to be thirty years. Eighty-five percent of thirty years is 25.5 years.

Eighty-five percent of his ten-year sentence is 8.5 years. Thus, the circuit court

ctly determined that Wolfe's minimum prison term prior to parole eligibility should

■ corre

be calculated as thirty-four years (25.5 years plus 8.5 years).

MDOC concedes that action 558.019.4(11 [**9] requires that, for purposes of

determining the mandatory minimum prison term to be served a life sentence is

considered to be thirty years; therefore, Wolfe becomes "theggt^all^p.arole eiig'ble

o-vt^Wesatena^^

or 25.5 years. However,

because MDOC interprets a life sentence that is coupled with a ten-year^ongecutive

than seventy-five years, MDOC argues that section 558.019.4(2)

sentence to be more

ap^FirthiTiTS^rThat Son provides that "(a]ny 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

matter of law, asserts MDOC, Wolfe's two sentences arejaqreqatedjntp a

years." As a

single seventy-five-year sentence under subparagraph (2). Under this method of

calculation^ MDOC argues^ Wolfe's mandatory minimum prison term will be completed

on Wolfe's seventieth birthday. ^

In another twist to its argument, MDOC asserts that Wolfe cannot serve eighty-five

miict- itnrlpr unction 558.019.3, until [**10]

percent of his ten-year sentence, as

that sentence begins to run . MDOC contends, until a prisoner dies, a life sentence is

not completed, thus his second sentence will never begin.

We will not interpret section 558.019 to permit an unreasonable result. See Carroll v._

Mn. Bd. of Prob. & Parole, 111 S.W.3H 654. 658 (Mo.Add. W.D. 20030. As previously

discussed, section 558.019.4(1) clearly establishes that for the purpose of determining

the minimum prison term to be served, a life sentence shall be calculated to be thirty

years

. MDOC's argument that the provision applicable here is that Wolfe's sentences, in

the aggregate, are over seventy-five years and thus should be calculated as seventy

^ five years is nonsensical in light of the clear language of section 558.019.4I3JThe judgment of the c^cuit court is affirmed.

Victor C. Howard, Chief Judge

Breckenridge and Hardwick, JJ., concur.

frfftplPZX ^ - a

Footnotes

[T3

---- All statutory references are to RSMo 2000.

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FOOTNOTES

6 Atkins, like Major, was charged under the old law. The old law allowed parole after

service of twenty years. Atkins, 303 S.C. at 219, 399 S.E,2d at 763.

Adopting the reasoning of the Atkins' Court, it follows that "^if a_consecutjyeJifeseQtence

could not nullify parole eligibility on a parolable life sentence/then a five-year consecutive

sentence cannot either.

The question now becomes what is HN1°+the efficacy of a consecutive sentence? The answer

is two fold. First, following the guidance of Mims, the time is aggregated and parole eligibility

is calculated on the aggregated sentence. Secondly, jfthe consecutive sentence_is_a_non^

parolable offense then its sentence must be served and credltegTirsTagaThst the aggregated

sentibdiTThis is necessary to give effect to the legislative grant of parole eligibility on the

parole-eligible offense. 7

FOOTNOTES

. V

argument that this approach is contrary to prior practice was made in part by the

7 The

dissent in Atkins to no avail.

Considering the above discussion, [*17] the meaning of "consecutive" needs further

attention. H/vl3?Because this term is not defined in our code of laws, we must employ the

rules of statutory construction to ascertain and effectuate the intent of the Generd Asserny.

See Hawkins v. Bruno Yacht Sales. Inc., 353 S.C. 31, 39, 577 S.E.2d 202, 207 (—1 ( €

cardinal rule of statutory construction is to ascertain and effectuate the intent of the

legislature."); Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. .174, 178, 420 S.E.2d 843

846X19921 (stating the words of a statute must be given their plain and ordinary meaning

without resorting to subtle or forced construction to limit or expand a statute s operation),

Lee vjrhermal Eng'g Cprp^3 5 2 S,C,_8.L_ .91-92, 572. S,E.2d 298,.3_0lXCL._App,G0_Q2)^^^

("Where a word is not defined in a statute, our appellate courts have looked to the usual

dictionary meaning to supply its meaning.").

H/vi2y«Consecutjve" means sentences run successively and the service of the

cannot run at the same time as the other sentences. See Black's Law Dictionary 304 (6th ed.

1990) (noting that "consecutive" means successive, succeeding one another in regular order,

to follow in uninterrupted succession); Webster's [*18] Concise Dictionary 150 (2003)

("Following in uninterrupted succession; successive."); see generally R.P.D., Annotation,

When Sentences Imposed by the Same Court Run Concurrently or Consecutively; and

Definiteness of Direction with Respect Thereto, 70 A.L.R. 1511 (1931 & Supp.

■

(outlining cases and discussing question of whether sentences on different counts or different

. . .

offenses were intended to be served concurrently or consecutively and whether the sentence

or sentences were sufficiently definite for the purpose intended).

Thus, HN13+a notation that a sentence is "consecutive," for sentencing purposes, does not

necessarily delineate that the particular sentence has to run last. It merely indicates that all

the sentences are to run successively, and not to run at the same time. See Atkins,---------- ----at 219 399 S E 2d at 763 (noting that "for purposes of parole eligibility, consecutive

sentences-should be treated as one general sentence by aggregating the periods imposed in

■^acfT^enteTTce^JTTFiereforerHespTteTITeTacrthatthe weapons.sentence was the last one

imposed and it was denoted as "consecutive" there was no indication that

weapons

sentence was to be the last sentence to [*19] be served. See Tilley,. 334 S.C. at 2B-.29, m:

/ f r\

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.