HOLMES v. MISSOURI BOARD OF PROBATION AND PAROLE (2021)

Derek Holmes appeals the circuit court's Judgment in favor of the Missouri Board of Probation and Parole (“Parole Board”) on Holmes's “Petition of Writ for Declaratory Judgment” wherein Holmes requested a declaration concerning the interpretation and application of Missouri parole regulations. He contends on appeal that the circuit court erred in granting judgment to the Parole Board arguing that, 1) a material fact existed which prevented summary judgment, and 2) the circuit court misapplied the law governing the statute of limitations. We affirm.

Background and Procedural Information

On October 26, 1998, the Circuit Court of St. Louis County imposed consecutive sentences of life imprisonment on Derek Holmes for second-degree murder and armed criminal action. On April 16, 1999, the Parole Board advised Holmes that he would receive a parole hearing in June 2036. After a file review in 2008, the Parole Board informed Holmes that he would have a parole hearing in May 2020. After another review on October 30, 2018, the Parole Board informed Holmes that he would have a parole hearing in May 2035, noting “MPT recalculation based on Edge.” “Edge” references Edger v. Missouri Board of Probation and Parole, 307 S.W.3d 718 (Mo. App. 2010), which determined that the statutory parole ineligibility period on an initial sentence should be added to the regulatory ineligibility period on a consecutive sentence to calculate the aggregate parole ineligibility period. Id. at 721.

Holmes inquired about this recalculation, and a parole official sent Holmes an explanation on November 9, 2018. Holmes was advised that “The Edger rule applies to anyone with consecutive sentences.” Further, “Your parole eligibility is calculated by adding the minimum of Sequence 2 (which is 85% of Life) and the minimum of Sequence 3 (15 years on a Life sentence).” The correspondence calculated Holmes's minimum prison time required prior to parole, resulting in a parole hearing date of May 30, 2035.

On September 23, 2020, Holmes filed a “Petition of Writ for Declaratory Judgment.” Therein he sought a declaration that the Parole Board was misinterpreting Section 217.690 ¹ and 14 CSR 80-2.010 as it applied to Section 571.015 (the statute governing armed criminal action). He contended that 14 CSR 80-2.010(1)(E) states that offenders serving life sentences, among other things, “may not be eligible until a minimum of fifteen (15) has been served ․”, and argued that the fifteen-year minimum must be interpreted as discretionary because the word “may” is used in the regulation.² He asked for a declaration that the Parole Board could set a parole eligibility date below fifteen years for an applicable inmate if it so chose. He also argued that 14 CSR 80-2.010(F) states that for “offenders serving multiple life sentences or other concurrent or consecutive to a life sentence the board may, due to the nature and length of the sentence determine not to set a minimum eligibility date.” He asked the court to declare that the permissive wording of “may” authorized the Board to not set a minimum parole eligibility date for Holmes based on his consecutive life sentences because the armed criminal action statute carries its own minimum mandatory term of three years to be served before parole eligibility. He argued that his armed criminal action conviction which carries a life sentence is exempt from being considered an “ordinary” life sentence which requires fifteen years to be served because Section 571.015 requires that only three years be served.

On October 28, 2020, the Parole Board answered Holmes's petition and set forth general denials. It also raised the affirmative defense that Holmes's claims were barred by the statute of limitations under Section 516.145. The Parole Board simultaneously filed a Motion for Judgment on the Pleadings arguing on the substantive issues that precedent from the Missouri Supreme Court and the Missouri Court of Appeals had rejected similar claims made by other inmates such that Holmes's claims failed as a matter of law. The motion additionally argued that Holmes's claims were barred by the statute of limitations.

On December 15, 2020, the circuit court issued its “Decision, Judgment, and Order,” concluding on the substantive issues that the arguments made by Holmes had been previously rejected by the Missouri Court of Appeals. Further, that Holmes's petition was untimely under Section 516.145. This appeal follows.

Points on Appeal

Holmes raises two points on appeal. Because Holmes can obtain no relief on his substantive claims if they are barred by the statute of limitations, we first address Holmes's second point which argues that the circuit court misapplied the law when it found his claims time-barred. Holmes contends that in applying the one-year statute of limitations under Section 516.145, the court erroneously began running the statute of limitations based on when “the right to sue accrues ․” rather than on when “the damage resulting therefrom is sustained and is capable of ascertainment.” Holmes contends that the running of the statute should have commenced in May 2020, which was when his previous parole hearing had been scheduled. He argues that he suffered no injury until the promised May 2020 parole hearing date came and went.

The correct application of the statute of limitations is a question of law we review de novo. DiGregorio Food Prods., Inc. v. Racanelli, 609 S.W.3d 478, 480 (Mo. banc 2020). Section 516.145 provides that “all actions brought by an offender ․ against the department of corrections or any entity or division thereof” shall be brought within one year of when the cause of action accrues. For purposes of section 516.100 to 516.370, “the cause of action shall not be deemed to accrue when the wrong is done ․ but when the damage resulting therefrom is sustained and capable of ascertainment.” § 516.100.³

Holmes's “Petition of Writ for Declaratory Judgment” argued that the Parole Board misinterpreted/misapplied governing statutes and regulations when it calculated his parole eligibility in October 2018. The relief sought was a declaration that Section 217.690 and 14 CSR 80-2.010(E) are permissive rules and that the Parole Board has the discretion to grant Holmes parole after he completes the minimum mandatory three years for armed criminal action as set forth in Section 571.015, rather than interpreting 14 CSR 80-2.020(E) to require fifteen years. The wrong Holmes alleged was committed by the Parole Board, therefore, is statutory/regulatory misinterpretation and/or misapplication which resulted in what he perceives to be a parole eligibility date that could be earlier if the statutes/regulations are interpreted in the manner he contends they should be.

Holmes acknowledges that he first learned of his recalculated parole hearing date on October 30, 2018, and that the formula and rationale for that calculation was explained to him on November 9, 2018. Holmes was at that point on notice of the alleged erroneous statutory/regulatory interpretation, and first apprised of the potential impact to him of the Parole Board's position. Holmes stated in his Petition (and is insistent on appeal) that he is not claiming to have a liberty interest in an earlier parole hearing/release date. With regard to harm, he alleged in his petition that he suffered harm because, 1) “if the Board is misinterpreting their discretionary authority, it definitely could change the calculus of time he potentially serves,” 2) “he's barred from the prison college program because an inmate must be within 10 years of a parole date to participate,” and 3) “if the Board is not calculating his earliest possible parole hearing date, it financially affects his prospective yearly income since he's been promised a secure position after release[.]”

Holmes does not contend that he is entitled to an eligibility hearing earlier than 2035, just that he could potentially be given an earlier hearing and eligibility date if the Parole Board is advised that it has the authority to grant an earlier date and it then chooses to do so.⁴ Holmes acknowledges that he has no right to, or expectation of, an earlier release date even if the regulation is interpreted as he advocates. We find that his right to sue accrued when he first learned of the perceived misinterpretation/misapplication of the law as it had been applied to him, which was November 9, 2018, at the latest. Pursuant to Section 516.145, Holmes's petition needed to be filed on or about November 9, 2019. As his “Petition of Writ for Declaratory Judgment” was not filed until September 23, 2020, it was time barred.

Holmes's second point on appeal is denied. As Holmes's second point is dispositive of this appeal, we need not address Holmes's first point.

Conclusion

The circuit court's judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Revised Statutes of Missouri as updated through 2018, unless otherwise noted. All code references are to Missouri's Code of State Regulations as updated through 2018, unless otherwise noted.

2.   14 CSR 80-2.010(1)(E) actually states: “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.” The word “may” is not used in the regulation as alleged by Holmes, nor does it appear that any prior version of the regulation used the word “may.”

3.   While Holmes states that he does not concede that Section 516.100 applies to his claims, he argues on appeal is that the circuit court misapplied Section 516.100; Holmes makes no claim that a different statute applies.

4.   Holmes contends that he was first “injured” by the Parole Board's misinterpretation / misapplication of the law in May of 2020, because that was when his previous parole hearing was scheduled. Holmes does not argue, however, that May of 2020 was when he would have first been potentially entitled to a hearing based on his interpretation of the relevant statutes/regulations. Under his interpretation, he concludes that “he would have to complete his second-degree murder sentence before the Board could have even considered him for parole release on his armed criminal action. That wouldn't happen until 2022.” This would suggest that he has not yet suffered harm. Holmes's pleadings, however, reveal that he ascertained that the Parole Board's interpretation of the relevant statutes/regulations adversely affected his ability to obtain an earlier parole release when, at the very latest, he was informed as to the reasoning behind the Parole Board's calculation of his parole eligibility date.

Anthony Rex Gabbert, Judge

All concur.