POINTER v. MISSOURI DEPARTMENT OF CORRECTIONS (2026)

Following a jury trial, Deandre Pointer was convicted in 2005 of four felonies: one count of first-degree murder, one count of second-degree murder, and two associated counts of armed criminal action. The circuit court sentenced him to life imprisonment without parole for the first-degree murder conviction, and to life imprisonment for each of the remaining three offenses. All of Pointer's 2005 sentences were ordered to run consecutively to one another.

Pointer was granted post-conviction relief in 2023. The circuit court vacated his first-degree murder conviction, and entered a conviction for the lesser-included offense of second-degree murder on that count. Pointer's other three sentences were also vacated. The circuit court then resentenced him to four concurrent twenty-three-year sentences.

Pointer filed a declaratory judgment action in the Circuit Court of Cole County, contending that the Department of Corrections has erroneously applied the time he served between 2005 and 2023 to only one of his four concurrent twenty-three-year sentences. The circuit court granted the Department's motion for judgment on the pleadings, and Pointer appeals. We reverse, and order the entry of judgment declaring that Pointer is entitled to equal credit for time served against all four of his identical, concurrent twenty-three-year sentences.

Factual Background

In 2004, Pointer was charged in the Circuit Court of Jackson County with four felonies: murder in the first degree (Count 1); murder in the second degree (Count 3); and two associated counts of armed criminal action (Counts 2 and 4). No. 04CR200504.¹ The charges stemmed from two murders which occurred at different times in June 2003; the murders were committed by Pointer and an accomplice. Following a jury trial in October 2005, Pointer was convicted of all four offenses. In December 2005, the circuit court sentenced Pointer to life imprisonment without parole on Count 1, and to life imprisonment on the other three counts. The court ordered Pointer's four sentences to run consecutively. This Court affirmed Pointer's convictions on direct appeal. See State v. Pointer, No. WD66311, 215 S.W.3d 303 (Mo. App. W.D. 2007).

Following the affirmance of his convictions on direct appeal, Pointer filed a pro se motion for post-conviction relief in the Circuit Court of Jackson County pursuant to Supreme Court Rule 29.15. No. 0716-CV28934. Although Pointer's pro se motion was due on or before June 19, 2007, it was not filed in the circuit court until October 10, 2007. The circuit court appointed the Public Defender's Office to represent Pointer in connection with his post-conviction relief motion. The Public Defender concluded that Pointer's pro se motion was untimely, and moved to rescind the order appointing counsel. On February 13, 2008, the circuit court granted the Public Defender's motion, rescinded its appointment of counsel, and dismissed Pointer's pro se motion for post-conviction relief.

In September 2022, Pointer filed a “Motion for Post-Conviction Relief Due to Abandonment of Counsel” in the 2007 post-conviction relief case. Pointer's abandonment motion contended that he had placed his 2007 pro se motion for post-conviction relief in the prison mail system on June 1, 2007, well in advance of the June 19, 2007 filing deadline. Pointer contended that his pro se motion was not timely filed in the circuit court due to the actions of third parties for which he was not responsible, and that his pro se motion for post-conviction relief should accordingly have been treated as timely. Pointer's September 2022 motion also argued that the circuit court had erred in rescinding its appointment of counsel, without requiring appointed counsel to investigate and litigate whether Pointer's pro se motion could be deemed timely. Pointer's abandonment motion asserted that his 2005 convictions should be vacated because he had received ineffective assistance from both his trial and appellate counsel in the underlying criminal proceeding. Pointer contended that his trial and appellate counsel had performed deficiently by failing to adequately challenge the circuit court's erroneous exclusion of exculpatory evidence during Pointer's trial.

In response to Pointer's abandonment motion, the State agreed that the circuit court had erred in 2008 when it rescinded the appointment of counsel, rather than requiring appointed counsel to explore whether any legal justification existed for the untimely filing of Pointer's pro se motion. On September 22, 2022, the circuit court returned Pointer's 2007 post-conviction relief proceeding to the active docket, and gave Pointer's counsel the opportunity to file an amended motion for post-conviction relief on his behalf.

Pointer and the State (represented by the Jackson County Prosecuting Attorney's Office) ultimately agreed that Pointer was entitled to post-conviction relief. Accordingly, on June 1, 2023, the circuit court granted Pointer post-conviction relief. The court vacated Pointer's conviction for first-degree murder on Count 1, and instead entered a conviction for the lesser included offense of second-degree murder. The circuit court also vacated Pointer's life sentences on Counts 2 through 4. The judgment in the post-conviction relief case specified that “[t]he underlying criminal case will be returned to an active docket for resentencing.”

Pursuant to the agreement of the parties, the circuit court entered an amended judgment in the underlying criminal proceeding on June 2, 2023. The amended judgment sentenced Pointer to terms of twenty-three years’ imprisonment on each of the four felonies of which he now stood convicted: two counts of second-degree murder, and two associated counts of armed criminal action. Unlike Pointer's December 2005 sentences (which all ran consecutively), the circuit court's June 2023 judgment specified that “[a]ll terms are to run concurrent to one another.” The judgment also specified that Pointer was “given credit for all time served on the charge(s) herein.”

Although the Jackson County Prosecuting Attorney's Office had not opposed Pointer's September 2022 post-conviction relief motion, and had agreed to the concurrent twenty-three-year sentences imposed at Pointer's June 2023 resentencing, the Attorney General's Office attempted to appeal the circuit court's grant of post-conviction relief to Pointer by asking this Court to permit the filing of a late notice of appeal. See No. WD87283. The Attorney General's motion for a special order authorizing the late filing of a notice of appeal was filed on June 24, 2024; the motion was denied by this Court on July 16, 2024.

In July 2023, the Department of Corrections issued Pointer a new face sheet reflecting how his June 2023 sentences would run. The Department credited Pointer with 6,929 days of time served on his sentence on Count 1 for second-degree murder. This represented all of the time Pointer had been detained from his original arrest in 2004, through his resentencing in June 2023. Although the June 2023 judgment specified that all of Pointer's sentences would run concurrently, the Department only credited Pointer with 557 days toward his sentences on Counts 2 through 4, however. This represented Pointer's time in custody following his arrest until his original December 2005 sentencing, but did not include the 6,372 days which Pointer spent in prison between December 2005 and his June 2023 resentencing. The Department credited those 6,372 days solely to Count 1. Under the Department's July 2023 face sheet, Pointer's term of imprisonment on Count 1 will end in June 2027, but his three remaining sentences will continue to run concurrently until his maximum release date of November 20, 2044.

Pointer disputed the Department's view of how his new sentences would run. Pointer contended that, because the circuit court had ordered that his new sentences would run concurrently, he was entitled to equal credit on all four sentences for the seventeen-and-a-half years he had been imprisoned following his original December 2005 sentencing. Pointer informally requested that the Department correct his face sheet, and then filed an administrative grievance, and an administrative appeal. The Department denied Pointer relief at each stage.

In July 2024, Pointer filed a petition for declaratory judgment in the Circuit Court of Cole County. He sought a declaration that he was entitled to 6,929 days’ credit on all four of his concurrent twenty-three-year sentences, not just on his sentence for second-degree murder in Count I. According to Pointer, if he were granted equal, full credit on all four of his sentences, he would have become eligible for parole in late 2023.

Pointer and the Department agreed that the case could be finally resolved on the pleadings, and the parties filed cross-motions for judgment on the pleadings. On January 30, 2026, the circuit court granted the Department's motion. The circuit court's judgment recognizes that “[t]he effect of th[e] [Department's] calculation was to create a situation where [Pointer]’s concurrent 23-year sentences would not allow him to be eligible for parole until serving a total of 44 years [sic] incarcerated from the time of his initial arrest.”² Nevertheless, the court found that the Department correctly calculated Pointer's credit for time served, and that Pointer was not entitled to credit on all four of his twenty-three-year sentences for the time he was incarcerated prior to his 2023 resentencing. The circuit court reasoned that

while Pointer's sentences were ordered to run concurrently beginning on June 1, 2023, Pointer was serving only the first consecutive sentence of life without parole for first degree murder prior to that date. Put another way, Pointer had not yet started to serve his consecutive sentences for second-degree murder and armed criminal action and he cannot receive jail-time credit on those sentences now.

Pointer appeals.

Standard of Review

Under Supreme Court Rule 55.27(b), “[a]fter the pleadings are closed ․, any party may move for judgment on the pleadings.”

The party moving for judgment on the pleadings admits, for purposes of the motion, the truth of all well pleaded facts in the opposing party's pleadings. The position of a party moving for judgment on the pleadings is similar to that of a movant on a motion to dismiss; i.e., assuming the facts pleaded by the opposite party to be true, these facts are, nevertheless, insufficient as a matter of law. A trial court properly grants a motion for judgment on the pleadings if, from the face of the pleadings, the moving party is entitled to a judgment as a matter of law.

State ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 134 (Mo. 2000) (cleaned up). “This Court reviews a circuit court's ruling on a motion for judgment on the pleadings de novo.” Woods v. Mo. Dep't of Corr., 595 S.W.3d 504, 505 (Mo. 2020) (citing Mo. Mun. League v. State, 489 S.W.3d 765, 767 (Mo. 2016)).

Discussion

Pointer asserts three Points on appeal. First, he contends that the circuit court erroneously applied the relevant statutes and caselaw when it refused to credit his time served equally to all four of his concurrent sentences. In his second Point, Pointer contends that the circuit court's judgment, which “will require [Pointer] to serve forty years on his four concurrent twenty-three-year sentences,” constitutes cruel and unusual punishment in violation of both the United States and Missouri Constitutions. Finally, in his third Point, Pointer argues that the circuit court's judgment violates his rights to procedural and substantive due process under the State and federal Constitutions.

Because we conclude that Pointer is entitled to relief on his first Point, we do not address the constitutional arguments raised in his second and third Points.

The State argues (on multiple grounds) that Pointer has failed to preserve the argument raised in Point 1. First, the State argues that Pointer's Point Relied On is defectively worded. The Missouri Supreme Court has explained, however, that

[t]his Court's preference is to decide cases on their merits rather than on technical deficiencies in the brief and this Court will not exercise discretion to disregard a defective point unless the deficiency impeded disposition on the merits. A brief impedes disposition on the merits where it is so deficient that it fails to give notice to this Court and to the other parties as to the issue presented on appeal.

City of St. Louis v. State, 682 S.W.3d 387, 397 n.7 (Mo. 2024) (cleaned up); see also Bell v. Shelter Gen. Ins. Co., 701 S.W.3d 614, 616 n.1 (Mo. 2024) (noting the Court's “strong preference to resolve matters on the merits when possible”). City of St. Louis addressed the appellants’ arguments on the merits, despite multiple defects in their points, because their arguments were “readily understandable.” 682 S.W.3d at 397 n.7. So too here: Pointer's “Point Relied On, and the Argument under that Point, make [his] argument crystal clear”; accordingly, “any defects in [Pointer's] Point Relied On do not ‘impede[ ] disposition on the merits.’ ” Lyda v. Allstate Fire & Cas. Ins. Co., 737 S.W.3d 120, 127 (Mo. App. W.D. 2026).

The State also claims that Pointer failed to preserve in the circuit court his argument that he is entitled to relief under the principle of vacatur, as applied in Burlew v. Missouri Department of Corrections, 340 S.W.3d 259 (Mo. App. W.D. 2011), and Calvin v. Missouri Department of Corrections, 277 S.W.3d 282 (Mo. App. W.D. 2009). That is simply inaccurate: Pointer's Motion for Judgment on the Pleadings specifically cited Burlew and Calvin for the principle that the running of his current sentences could not be calculated “based entirely on a previous judgment and sentence that is now null and void because it was vacated.” And the proposed judgment he submitted to the circuit court laid out in detail precisely the same vacatur argument he makes in his appellate briefing. Pointer's reliance on the vacatur principle recognized in Burlew and Calvin was presented to the circuit court, and is preserved for our review.

Finally, the State argues that Pointer failed to preserve his claim that the circuit court erroneously failed to reference and apply the vacatur rule, because Pointer did not file a post-judgment motion to alter or amend the judgment under Rule 78.07(c). That Rule provides that, “[i]n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” But Pointer does not take issue with the “form or language of the judgment” – he argues instead that the judgment is erroneous because it misapplies the substantive law. Rule 78.07(c) is inapplicable. See J.W. by K.C.G. v. N.R.W., 695 S.W.3d 231, 242 (Mo. App. W.D. 2024) (finding Rule 78.07(c) inapplicable where the appellant's arguments “do not relate to the judgment's form or language or dispute the lack of statutory findings ․ but, instead, address the applicable substantive law”).

The circuit court relied on § 558.031.4, RSMo 2000 ³ to conclude that Pointer's incarceration from December 2005 through June 2023 counted only against his new sentence on Count 1. Section 558.031.4, RSMo 2000 provided that

[i]f a sentence of imprisonment is vacated and a new sentence imposed upon the offender for that offense, all time served under the vacated sentence shall be credited against the new sentence, unless the time has already been credited to another sentence as provided in subsection 1 of this section.

The Missouri Supreme Court has held that, “[i]n construing [§ 558.031], we are guided by the principle that criminal statutes must be ‘construed strictly against the [s]tate and liberally in favor of the defendant.’ ” Goings v. Mo. Dep't of Corr., 6 S.W.3d 906, 908 (Mo. 1999) (citations omitted); see also, e.g., Barker v. Mo. Dep't of Corr., 695 S.W.3d 181, 185 (Mo. App. W.D. 2024); Miller v. Mo. Dep't of Corr., 338 S.W.3d 400, 403 (Mo. App. W.D. 2011).

Section 558.031.4, RSMo 2000 does not apply to the new conviction and sentence Pointer received on Count 1 in 2023. By its terms, § 558.031.4 only applies where an offender's “sentence of imprisonment is vacated and a new sentence [is] imposed upon the offender for that offense” – namely, the offense for which the offender was originally sentenced. (Emphasis added.) Section 558.031.4 does not determine “the effect of a vacated sentence on the running of a sentence for a separate offense.” Burlew v. Mo. Dep't of Corr., 340 S.W.3d 259, 264 (Mo. App. W.D. 2011); see also Yowell v. Mo. Dep't of Corr., 494 S.W.3d 564, 569-70 (Mo. App. W.D. 2016) (observing that § 558.031.4 “regulates credit an offender receives when a sentence is vacated and a new sentence is imposed for that same offense”; emphasis added).

With respect to Count 1, the circuit court did not merely vacate Pointer's sentence for first-degree murder, and resentence him for the same offense. Instead, in 2023 the circuit court vacated Pointer's first-degree murder conviction, and entered a new conviction and sentence for second-degree murder. Second-degree murder was specifically designated as a “lesser degree offense[ ] of murder in the first degree.” See § 565.025.2(1)(a), RSMo 2000. A lesser-included offense is distinct from “the offense charged,” and an offense cannot be “both an included offense and the offense charged.” State v. Hibler, 5 S.W.3d 147, 150 (Mo. 1999). While “[e]very information or indictment puts the defendant on notice, for due process purposes, of all offenses included in the offense charged,” id. (citations omitted), this does not change the fact that a charged offense, and a lesser-included offense, are distinct offenses. In this case, Pointer did not receive a new sentence on Count 1 for the same offense of which he was originally convicted, making § 558.031.4 inapplicable.

The Department argues that § 558.031.4 is applicable to Pointer's new sentence on Count 1, because Pointer's new conviction and sentence were imposed on the same count of the indictment as the vacated first-degree murder conviction and sentence; the Department also argues that “the re-imposed sentence [was] connected to the previously imposed consecutive sentence.” (Emphasis added.) But § 558.031.4 does not provide that time served on a vacated sentence will be applied to a new sentence imposed under “the same count” of a charging instrument, or to a new sentence which is “connected to” the vacated sentence. Rather, § 558.031.4 requires that the new sentence was “imposed upon the offender for that offense” to which the vacated sentence applied. (Emphasis added.) The language of the statute – strictly construed against the State – does not adopt a “same count” or “connected to” standard.

Nor does § 558.031.4 dictate the manner in which Pointer's new sentences on Counts 2 through 4 should operate. As we explained in Burlew, 340 S.W.3d at 264, § 558.031.4 does not determine how the vacatur of one sentence affects the running of other sentences. Here, Pointer's primary contention is that he is entitled to credit on his sentences for Counts 2 through 4 because of the vacatur of his original conviction and sentence on Count 1; § 558.031.4 does not govern this situation.

The Department also argues that the result reached by the circuit court is supported by the second sentence of § 558.031.1, RSMo 2000, which provided that an offender “shall receive credit toward the service of a sentence of imprisonment for all time in prison, jail or custody after the offense occurred and before the commencement of the sentence, when the time in custody was related to that offense ․ .” In Burlew, however, we held that this provision was inapplicable where an offender's claim is “not that he is entitled to credit for time served ‘before the commencement of the sentence’ ” on a particular offense, but is instead that a particular sentence “should be deemed to have commenced” at a particular time. 340 S.W.3d at 264. Pointer's argument falls into the latter category – he is not seeking credit for time he served “before the commencement of the sentence[s]” on Counts 2 through 4; he is instead seeking a determination that those sentences “should be deemed to have commenced” at the time of his December 2005 sentencing. As in Burlew, § 558.031.1, RSMo 2000 is inapplicable to Pointer's claim.

Because §§ 558.031.1 and .4 do not apply here, we are confronted with a seventeen-and-a-half-year period of incarceration which is “unaccounted for.” Pointer nominally served that time solely under a first-degree murder conviction which has since been vacated, not on any of the four offenses of which he now stands convicted. In such circumstances, Burlew applied the general principle that, “where one conviction and sentence in a consecutive sequence is later vacated, the other sentences in the sequence should be recalculated to run as if the vacated sentence had never existed.” 340 S.W.3d at 263. Under this principle, “after vacation of one conviction [in a sentencing sequence], a sentence which follows the vacated sentence ‘drops down,’ so that the defendant receives credit against the valid sentence for time which was ostensibly served on the vacated sentence.” Id. In Burlew, the Court applied the vacatur principle to hold that an offender was entitled to additional time-served credit on a later sentence in a consecutive sequence, when an earlier conviction in the sequence was vacated – even though at the time the offender was only serving his sentence on the vacated conviction. Id.

Burlew relied on Calvin v. Missouri Department of Corrections, 277 S.W.3d 282 (Mo. App. W.D. 2009), which held that time which was nominally served on a 1998 conviction must be applied to the offender's other sentences, after the 1998 conviction was vacated. The Court explained:

No doubt the department is correct that the 1998 conviction and sentence had prima facie validity before they were set aside. In that sense, they were voidable. However, common sense and reasonable justice would dictate that once the conviction and sentence were set aside, they must be treated, for maximum release date purposes, as having been void. Thus, a recalculation of the maximum release date in view of the vacation of the 1998 sentence was entirely appropriate. When the 1998 conviction and sentence in this case were vacated for lack of a factual basis, it was a declaration that the sentence was to be regarded as though it had never existed.

Id. at 288; see generally Hewitt v. United States, 606 U.S. 419, 431-32 (2025) (under “[b]ackground principles regarding the legal effect of vacatur,” the “vacatur of a criminal sentence ‘wipe[s] the slate clean’ ”; “[b]y operation of legal fiction, the law acts as though the vacated order never occurred”) (citation omitted).

Applying the vacatur rule here, Pointer's conviction and sentence for first-degree murder on Count 1 must be treated as if they never occurred. In addition, the entirety of Pointer's original sentencing package – including the order that all four of his sentences run consecutively – was also vacated in 2023. Under Burlew, Pointer's surviving convictions and concurrent twenty-three-year sentences must “drop down” into the place previously occupied by the vacated conviction and sentence for first-degree murder. This includes the provision of Pointer's new sentences specifying that those sentences are to be served concurrently. There is no basis for applying the time Pointer served between December 2005 and June 2023 solely to his sentence on Count 1, when that sentence has been ordered to run concurrently to the sentences he received on Counts 2 through 4. The Department's position would effectively treat the sentence on Count 1 as if it remained consecutive to Pointer's remaining sentences; this would have the effect of nullifying the concurrent sentences the circuit court actually imposed in June 2023. Pointer's June 2023 sentences are not subject to collateral attack in this proceeding, and the Department had no authority to disregard the sentencing court's orders.

The Department argues that affirmance is required under our prior decisions in Yowell v. Missouri Department of Corrections, 494 S.W.3d 564 (Mo. App. W.D. 2016), and Pettis v. Missouri Department of Corrections, 275 S.W.3d 313 (Mo. App. W.D. 2008). But each of those cases is materially distinguishable from this one. In this case – as in Burlew and Calvin – the critical issue is the effect of the vacatur of a conviction and sentence on the running of sentences for other offenses. As we have explained above, because of the nature of the issue here, §§ 558.031.1 and .4, RSMo 2000 are inapplicable.

Yowell and Pettis are fundamentally different. In each case, the primary underlying conviction and sentence in a sentencing sequence was left unchanged. See Yowell, 494 S.W.3d at 567 (underlying Crawford County conviction unaffected by later court rulings); Pettis, 275 S.W.3d at 316 (underlying first-degree murder conviction unchanged). Further, in both Yowell and Pettis, only (some of) the offenders’ relevant sentences were vacated, and the offenders were re-sentenced for the same offenses. Yowell, 494 S.W.3d at 566-67 (detailing vacatur and resentencing for multiple Phelps County convictions); Pettis, 275 S.W.3d at 316 (describing 2007 vacation of sentence for drug possession, and later resentencing).

Thus, both Yowell and Pettis involved circumstances in which certain of an offender's sentences were vacated and new sentences imposed; the issue was the credit to be applied to the later sentences as a result of the vacatur of earlier sentences for the same offenses. Given the nature of the issues involved in the two cases, this Court applied § 558.031.4 to deny the credit the offenders requested. Yowell, 494 S.W.3d at 570; Pettis, 275 S.W.3d at 319. As we have explained, however, § 558.031.4, RSMo 2000 is inapplicable in the very different factual circumstances of this case. Yowell and Pettis do not dictate a contrary outcome here.

Conclusion

For the foregoing reasons, the circuit court's judgment is reversed. The case is remanded to the circuit court for the entry of judgment declaring that Pointer is entitled to credit, on all four of his concurrent twenty-three-year sentences, for 6,929 days of time served prior to his June 2023 resentencing.

FOOTNOTES

1.   The circuit court's judgment, and the parties’ appellate briefing, all state that Pointer was charged in Count 3 with murder in the first degree, but that the jury convicted him of the lesser-included offense of second-degree murder. That is inaccurate. Pointer was tried based on an Amended Indictment filed on September 11, 2005. The Amended Indictment charged him in Count 3 with second-degree murder, and the court's instructions submitted only second-degree murder to the jury with respect to Count 3.

2.   The circuit court's reference to 44 years of incarceration appears to be mistaken. According to the Department's face sheet, Pointer's maximum release date is 2044. Pointer's brief contends that, based on the Department's calculations, he would be eligible for parole in 2041.

3.   Consistent with State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516-17 (Mo. 2001), the parties agree that the version of § 558.031 in effect at the time of the underlying offenses governs here.

Alok Ahuja, Judge

All concur.