The Court of Appeals Western District has asked the Missouri Supreme Court to decide whether part of a recent change in the state’s criminal code operates retroactively.

In an unusual move, the appeals court on Jan. 8 transferred two cases to the Supreme Court involving men with prior drug offenses who had been convicted of second-degree drug trafficking. At the time of their crimes, section 195.223 of the Revised Statutes of Missouri required such offenders to be sentenced under the range for a class A felony, without the possibility of probation or parole.

The Missouri Supreme Court. File Photo.

On Jan. 1, 2017, an overhaul of the state’s criminal code went into effect. Among the changes, the crime of second-degree drug trafficking was transferred to a different statute. Section 195.223 was repealed, removing the mandatory term of imprisonment for prior and persistent drug offenders.

Dimetrious Woods and Gary L. Mitchell, prior drug offenders who had been sentenced to 25 years and 15 years in prison, respectively, argued that they should benefit from the recent change and be granted parole hearings. But separate panels of the Western District held that the change in the law didn’t operate retroactively.

The inmates’ arguments centered on a 2004 Missouri Supreme Court ruling, State ex rel. Nixon v. Russell, which had allowed a newly enacted statute to operate retroactively. The statute at issue in that case had permitted parole for some nonviolent felonies, and the Supreme Court said it could be applied to previously convicted inmates because it didn’t shorten their actual sentences or alter the law that created their original offenses.

But Judge Mark D. Pfeiffer, writing in Woods’ case, said the bar on parole in the original statute was part of the substantive law governing the offense. Judge Thomas Newton concurred, but Judge Alok Ahuja dissented.

Ahuja wrote that the now-repealed statute didn’t create the offense of second-degree drug trafficking; it just made recidivist offenders ineligible for parole. The majority, he wrote, “fails to fully implement the legislature’s decision to allow offenders like Woods to be considered for parole.”

Noting that there was “some degree of fair disagreement on the issue at hand,” Pfeiffer ordered the case transferred to the Supreme Court.

“Given that this issue is one of general interest and importance, and it will certainly recur repeatedly in response to the General Assembly’s recent overhaul of the criminal code, we believe clarity in the law on this topic by the Supreme Court is vital and necessary to the courts of the State of Missouri moving forward,” he wrote.

By Scott Lauck | Missouri Lawyers Weekly