Southern District OKs Lengthy Sentence for ‘Board Bills’ Defendant

The Court of Appeals Southern District ruled June 30 that a judge didn’t abuse his discretion in sentencing a high-profile but low-income defendant to more than two years in jail on a variety of charges.

George Richey had argued on appeal that St. Clair County Associate Circuit Judge Jerry J. Rellihan entered the hefty sentence in retaliation for Richey’s role in a landmark 2019 ruling that forbade local courts from imposing jail “board bills” as court costs.

In State v. Richey, the Missouri Supreme Court ruled unanimously that, while counties can charge criminal defendants for the costs of their incarceration, circuit courts have no statutory authority to impose board bills as courts costs. Instead, counties must use a separate process to recover the money. As a result, defendants can’t be brought back into court monthly to review their payments for that debt, nor can the court put them back in jail for failure to pay it.

Six months before the March 2019 ruling, Richey had been arrested on separate charges of drunkenly threatening his neighbors. The following June, Rellihan acquitted Richey of the most serious of the three misdemeanors he faced and sentenced him to 180 days and 15 days on the remaining two charges.

Rellihan also revoked Richey’s probation for three unrelated convictions and ordered him to serve all of his sentences consecutively, totaling 755 days in jail.

Jedd C. Schneider, a public defender representing Richey, argued on appeal that Richey’s stiff sentence was imposed “because he dared to challenge being jailed for debt.” Schneider estimated that Richey would accrue $26,425 in jail board debt during this sentence, an amount he will be “unlikely to ever repay . . . during his lifetime.”

“Did the trial court learn nothing from the Supreme Court’s Richey opinion?” Schneider wrote in a brief. “The answer is seemingly no.”

The Missouri Attorney General’s Office, which defended the case on appeal, argued that Richey’s two new sentences were within the allowable range of punishment and that setting all of the sentences consecutively was at the judge’s discretion.

“The record amply supports the sentences given, including Defendant’s aggressive incorrigibility, lack of rehabilitation, and indifference to the law,” Gregory L. Barnes, an assistant attorney general, argued in a brief. “There is no evidence that the court took his previous appeal into account in determining to run the sentences consecutively.”

According to transcripts quoted in the briefs, Rellihan’s only comment on Richey’s sentencing was: “So he’s had many, many, many opportunities to become an active and good member of this community and he’s chosen not to.” Writing for the Southern District, Judge Daniel E. Scott, wrote that the trial judge “did not directly, or even indirectly, link Richey’s sentencing” to any right Richey had exercised or to the Supreme Court case.

The record, Scott added “forecloses Richey’s retaliation claim, and with it, all of Richey’s consecutive-sentencing challenges.” Chief Judge Jeffrey W. Bates and Judge Mary W. Sheffield concurred.

In an interview, Schneider said he doesn’t plan to seek further appeal in the case. However, he is separately representing Richey in an ongoing declaratory action seeking credit for Richey’s earlier improper incarceration for failure to pay the board bill. As part of the Richey ruling, the Supreme Court had thrown out a $2,275 bill Richey received after spending 65 days in jail for failure to comply with an order to pay an earlier board bill.

In addition, St. Louis-based ArchCity Defenders in February had filed a civil rights lawsuit on Richey’s behalf, alleging that St. Clair County’s practices amounted to a “modern-day debtors’ scheme” to raise revenue. The suit, which had been removed to federal court, was voluntarily dismissed on May 6. Corrigan L. Lewis, the ArchCity attorney who filed the case, couldn’t be reached for comment.

That suit also has alleged that the consecutive sentences were retaliatory. At the time of dismissal, Rellihan, one of the defendants in the suit, had argued that judicial immunity protected his actions. He also pointed to the then-pending appeal in the Southern District, arguing that it gave Richey an adequate remedy at law for “any rulings or allegedly unlawful actions taken in his criminal case.”

The appeal is State v. Richey, SD36153. The declaratory action is Richey v. St. Clair County et al., 20SR-CC00008.

 
By Scott Lauck | Missouri Lawyers Media molawyersmedia.com

Court OKs Ruling Denying Defender Caseload Relief

A Missouri appeals court has set a high bar for public defenders to overcome when appealing circuit-court denials of their motions for caseload relief.

In a June 9 ruling, a three-judge panel of the Missouri Court of Appeals Western District adopted an abuse of discretion standard of review for cases stemming from a 2013 law that provides a mechanism for district defenders to ask circuit court presiding judges for caseload relief for individual attorneys.

Mary Fox, director of the Missouri State Public Defender System, said she anticipates the standard of review being a key part of a motion to transfer the case to the Missouri Supreme Court.

“I think if the statute is going to have value to the state, there would be value in getting a decision from the Supreme Court as to how they would like to see it put into practice,” she said in an interview.

Jackson County District Defender Ruth Petsch had sought to overturn Jackson County Circuit Court Presiding Judge David M. Byrn’s order denying caseload relief for two individual attorneys in her office, David Wiegert and Walter Stokely, as well as her office as a whole.

She also argued that the 2013 law is unconstitutional, asserting that a provision that prohibits public defenders from declining to take on new cases because they already have too many to ethically handle is at odds with attorney ethics rules that require attorneys to provide effective assistance of counsel for their clients.

Under the new standard of review, appeals courts would largely defer to presiding judges and place the burden on public defenders to show that the judges abused their discretion in reaching their decisions.

The ruling also closes the door to Petsch and district defenders across the state who seek to raise concerns about the law’s constitutionality using the process set out in the caseload-relief law.

Since 2017, Petsch has sought caseload relief from the Jackson County Circuit Court under Section 600.063 of the Revised Statutes of Missouri. Following an evidentiary hearing in 2019, Byrn denied relief, finding that neither the individual attorneys nor the wider office were too overburdened to accept new cases while providing effective representation to existing clients.

Before addressing Petsch’s arguments, the court panel first had to decide the applicable standard of review — an issue of first impression.

The parties disagreed on what the correct standard should be. Petsch argued the court should review Byrn’s factual findings for competent and substantial evidence and that de novo review was appropriate for the application of law to the facts, or to interpreting the statute.

The Jackson County Prosecutor’s Office, however, contended that appeals courts should affirm presiding judges’ decisions if factual findings are supported by competent and substantial evidence and to defer to the presiding judges’ credibility findings.

The Western District concluded that the case-relief law describes a procedure for the exercise of a court’s inherent authority and responsibility to manage its dockets.

“As such, and consistent with appellate review of other trial court rulings involving the exercise of discretion pursuant to inherent authority, orders issued by a presiding judge following a section 600.063 conference are presumed to be correct, are reviewed for an abuse of discretion, and the burden of showing an abuse of discretion is on the appellant,” Judge Cynthia L. Martin wrote in the opinion.

Petsch argued that Byrn erred in refusing to declare provisions of the caseload-relief law subordinate to the Rules of Professional Conduct and that the law was unconstitutional as applied if it was interpreted to limit the ability of public defenders to decline or delay appointments in order to comply with ethics rules.

The court ruled that in a proceeding under the caseload-relief statute, a district defender cannot ask a presiding judge for a declaratory judgment about the constitutional validity of the statute.

“The District Defender remains free to challenge the constitutionality of sections 600.062 and 600.063 in any other proceeding where those issues can be properly raised,” Martin said. “But the constitutionality of sections 600.062 and 600.063 cannot be raised in a section 600.063 motion, nor determined by a presiding judge following a section 600.063 conference.”

Judges Lisa White Hardwick and Thomas N. Chapman agreed.

Petsch and her attorney, John C. Aisenbrey of Stinson, declined to comment. A spokesman for the prosecutor’s office also declined to comment.

The case is In re: Area 16 Public Defender Office III v. Jackson County Prosecuting Attorney’s Office, WD82962.

By Jessica Shumaker | Missouri Lawyers Media molawyersmedia.com

Missouri Supreme Court Issues Directives for Reopening Courts

The Missouri Supreme Court has issued additional guidance for circuit courts as they navigate resuming jury trials in the midst of the COVID-19 pandemic.

The court issued an order supplementing its May 4 order and operational directives for gradually reopening the state’s courthouses to in-person proceedings.

In the new order, the court said that the safety of jurors, visitors, court personnel, parties and attorneys is paramount, and no jurisdiction may resume jury proceedings without first undergoing sufficient planning and preparation.

“The resumption of jury proceedings too early would not only risk the health of participants, but it could also undermine public confidence in the courts and damage the integrity of trial by jury, a cornerstone of our justice system,” the order said.

The Supreme Court pointed to new research indicating that COVID-19 may be spread through the air by normal breathing and conversation in addition to the spread of droplets from sneezes and coughs.

“Therefore, every reasonable precaution should be taken in the context of jury proceedings,” the order said.

Under the new guidelines, in order to resume grand or petit jury proceedings under any operating phase, presiding judges first must determine whether their circuits have the proper facilities and equipment in place to conduct jury proceedings in compliance with social distancing protocols, local restrictions on occupancy rates and other recommended health and safety strategies.

Jury proceedings are not generally anticipated to resume before a court implements Phase Three of the Supreme Court’s operating phases, the order said. The order noted that the earliest a court could enter Phase Three under its requirements is June 13.

The order said courts should take efforts to educate the general public about the importance of jury service and the steps the courts are taking to ensure the safety and well-being of potential jurors as jury trials resume.

The Supreme Court also recommended that courts suspend warrants for jurors who fail to appear when summoned and to suspend the execution of warrants previously issued for that reason until after the pandemic subsides.

Instead, the court recommended that circuits follow up with non-responders with a second notice and second summons. Courts may offer deferral in place of a warrant.

Additionally, the order recommended that courts should be capable of seating jurors 6 feet apart, limiting the number of potential jurors involved in jury selection and ensuring that members of the public may view public court proceedings.

Molawyersmedia.com

AG Schmitt Partners with Attorneys to Prosecute Rioters

Missouri’s Attorney General Eric Schmitt is partnering with U.S. Attorneys to prosecute demonstrators who commit acts of violence during protests in Missouri.

In a Monday news release, the Missouri Attorney General’s Office said it will give the power of prosecution to the U.S. Attorney’s Offices in the Eastern and Western Districts allowing these attorney’s offices to prosecute people who “who commit acts of violence and rioting in Missouri.”

This includes prosecuting individuals who were charged and arrested by federal authorities over the weekend in St. Louis.

“George Floyd’s death is tragic and heartbreaking. Missourians have the right to protest peacefully, and should be able to exercise that right in a safe manner as thousands have done across the country over the last few days,” said Attorney General Schmitt. “However, those who seek to use these protests to destroy property and commit acts of violence, including those who come to Missouri from out of state, will be held accountable for their actions by federal and state authorities. Those acts of destruction and violence will not be tolerated.”
 
Tim Garrison, U.S. Attorney for the Western District of Missouri, stands with the right to peacefully protest. But, he noted that those who choose to take part in acts of violence will be prosecuted.

“Those who cross the line from lawful protestors to criminal agitators will be arrested and prosecuted,” Garrison said. “We are working alongside our state and local partners to maintain order and public safety.”

Similarly, U.S. Attorney for the Eastern District of Missouri Jeff Jensen said the state will continue to serve Missourians by prosecuting those who violate laws by committing acts of violence.

Additionally, Jensen said prosecution will come for people who cross state lines to participate in violent protests.

“If you travel across state lines to participate in a riot or threaten the safety of our community and its property, you will be prosecuted,” Jensen said.

By Megan Smaltz | KRCG TV

Missouri Judiciary Launches Interactive Tool as Courts Reopen

The Missouri Courts’ main COVID-19 alerts page has been redeveloped to enable users to determine quickly the phase in which a court is operating as courts begin the process of reopening under the Supreme Court of Missouri’s May 4 order and administrative guidelines, which became effective May 16.

Circuit court and appellate court information will be available using the drop-down menus or the interactive maps (which toggle between circuit/county and appellate district views). Clicking on any county or district will take users to a page with the court’s notices and orders. The map is followed by a searchable, sortable table for municipal division information. If there is specific information available for a particular municipal division, it will be included in the table. Otherwise, the municipal division may be covered by a countywide order. Clicking on the hyperlinked name of the municipal division will take users to a page with the division’s notices and orders.

Both the maps and the table are color-coded according to operating phase. A key to the operating phases also is included on the COVID alerts page. Pursuant to the Court’s order and administrative guidelines, all courts currently are operating in Phase Zero; beginning May 16, they could begin moving to Phase One operations if they met the Court’s guidelines.

The Missouri Courts’ COVID alerts page remains available at https://www.courts.mo.gov/pandemic/. The new design went live May 16.

Missouri Supreme Court Issues Directive to Resume Court Activities

The Supreme Court of Missouri has issued an order and operational directives, effective May 16, to help courts statewide establish localized plans – recognizing the varying community health safeguards and court dockets, facilities and staffing levels across the state – for easing COVID-19 restrictions on in person proceedings. Since mid-March, the state’s courts have been operating under precautionary measures to help combat the spread of the disease while ensuring they remain open to conduct business as necessary to carry out their core, constitutional functions.

Under the order, activities in all appellate and circuit courts – including all associate, family, juvenile, municipal and probate divisions – will continue to be restricted in some respect, and courts are encouraged to use all available technologies to conduct activities remotely to limit the number of in-person proceedings conducted in courthouses. The order authorizes judges presiding over civil matters to waive, for good cause shown, deadlines or time limitations set by state or local court rule (but not those set by a statutory or constitutional provision) and directs courts to adopt measures to ensure timely filing by self represented litigants (who lack access to Missouri’s electronic filing system).

The order further enacts operational directives establishing uniform “gateway criteria” for Missouri courts to begin resuming – gradually as local conditions permit – activities previously suspended. Under the operational directives, also effective May 16, to help make paramount the health and welfare of litigants, witnesses, victims, jurors, attorneys, judicial employees and other individuals involved in judicial proceedings in determining whether a courthouse is ready to progress through four defined operating phases, local courts:

  • Should monitor local circumstances and conditions on a regular basis.
  • Should work with local health officials, law enforcement officers, children’s division personnel, juvenile officers, prosecutors and public defenders, and local attorneys in adapting their plans for moving through operating phases to local health conditions.
  • May move to a new operating phase only after being in the prior operating phase at least 14 calendar days, with no confirmed COVID-19 cases in the court facility and improving COVID-19 health conditions in the community during that time.
  • May revert to a prior operating phase immediately when required by local conditions and circumstances.


Regardless of the phase in which they may be operating, local courts should:

  • Allow (or, in phase three, consider allowing) “vulnerable individuals” as defined by the Centers for Disease Control and Prevention to postpone their required presence in a court proceeding.
  • Follow social-distancing protocols and consider requiring the use of masks or other face coverings.
  • Clean and disinfect common areas and consider providing hand sanitizers and wipes.

The Court intends to issue further operational directives for conducting grand and petit jury proceedings as pandemic and health conditions improve.

Governor Parson Makes Court Appointments

Governor Mike Parson ​appointed two prosecuting attorneys and two judges on Friday, May 1.

He ​appointed Kelly W. Puckett as the Grundy County ​Prosecuting Attorney​ and William Lynch as the Newton County Prosecuting Attorney.

Puckett has served as the interim prosecuting attorney for Grundy County since January 2019. He holds bachelor’s degree in legal studies from Missouri Western State University and a Juris Doctorate from Washburn University School of Law. 
 
Lynch has served as the interim prosecuting attorney since the Honorable Judge Jake Skouby took office as an Associate Circuit Judge in the 40th Judicial Circuit.​ ​Lynch holds bachelor’s degree from Missouri Southern State University and a master’s degree and Juris Doctorate from the University of Missouri-Columbia.

Gov​.​ Parson ​also ​appointed the Honorable Scott A. Lipke as Circuit Judge for the 32nd Judicial Circuit​ and he ​appointed Alan Beussink as Associate Circuit Judge for the 32nd  Judicial Circuit.
 
Lipke​ will fill the Circuit Judge vacancy created by the appointment of the Honorable Michael Gardner to​ the​ Missouri Court of Appeals, Eastern District.​ ​Lipke, of Jackson, is currently serving as an Associate Circuit Judge of the 32nd Judicial Circuit. He holds a bachelor’s degree from Murray State University in Murray, Kentucky, and a Juris Doctorate from Valparaiso University School of Law in Valparaiso, Indiana.
 
Beussink will fill the Associate Circuit Judge vacancy created by the departure of the Honorable Scott. E. Thomsen.​ ​Beussink, of Leopold, currently serves as a partner at the law firm Whiffen and Beussink. He holds a Bachelor of Arts in political science from the University of Missouri-Columbia and a Juris Doctorate from the University of Missouri-Columbia School of Law.

Appeals Court Turns Down CCW Argument

The Court of Appeals Eastern District ruled April 21 that a man whose felonies would be just misdemeanors in some other states still can’t get a concealed carry license.

The Jefferson County Sheriff’s Department denied Tonie M. Townsend a permit because he had pleaded guilty in 1999 in Missouri to two felony counts of criminal non-support. Though he had completed his probation — and was pardoned in 2016 by Gov. Jay Nixon — the fact that Townsend had pleaded guilty to the felonies remained on his record, disqualifying him from a concealed carry permit.

On appeal, Townsend argued that Missouri’s concealed carry law makes an exception if the​​ person’s crime is “classified as a misdemeanor under the laws of any state.” At least seven other states treat non-support as a misdemeanor even if it carries a sentence greater than one year, and Townsend argued that his prior crimes should receive similar treatment.

The appeals court, however, said Townsend’s interpretation was “illogical.” The concealed carry permit law, Judge Gary M. Gaertner Jr. wrote, “includes no intent to require the Sheriff to search the laws of all 50 states to determine the effect of a Missouri felony guilty plea on a CCW permit application.”

The case is Townsend v. Jefferson County Sheriff’s Department, ED107660.

By Scott Lauck  | molawyersmedia.com

Photo by KY3

Supreme Court Responds to Risk of Exposure to COVID-19 in Jails, Prisons

In response to questions about the risk of exposure to COVID-19 in prisons and county and city jails, ​on March 30 ​the Supreme Court of Missouri sent all state judges a letter calling attention to the various rules and statutes governing pretrial release of individuals charged with offenses but not yet found guilty as well as those governing release of individuals who have been found guilty and sentenced. 

 
In doing so, the Court leaves decisions about the release of any particular individuals to the discretion of local judges to make appropriate decisions under the facts and circumstances of each particular case. 
 
The verbiage of the letter, ​which is ​available on the Missouri Courts’ COVID-19 alerts page, is included below:

Re: Jail Populations and the Coronavirus Disease (COVID-19)

Dear Judges,

As a result of recent inquiries regarding the risk of exposure to COVID-19 in prisons and county and city jails, the Supreme Court of Missouri wants to call attention to the following rules and statutes.

In 2019, this Court revised its bond and pretrial release rules. Rule 33.01 addresses a defendant’s right to be released from custody pending trial. Rule 29.18 provides individuals detained as a result of a probation or parole violation also have a right to release prior to any final hearing on the matter. Likewise, Rule 37.15 addresses a defendant’s right to be released from custody following an ordinance violation.

Once a defendant has been convicted and sentenced, the power of courts to order release of an incarcerated offender is governed by statute. Missouri courts have the statutory authority to release an offender sentenced to a term in the county jail on judicial parole. Specifically, section 559.100.1 provides:

The circuit courts of this state shall have power, herein provided, to place on probation or to parole persons convicted of any offense over which they have jurisdiction, except as otherwise provided in section 559.115, section 565.020, sections 566.030, 566.060, 566.067, 566.125, 566.151, and 566.210, section 571.015, section 579.170, and subsection 3 of section 589.425.

This authority is limited by section 559.115.1, which provides: “Neither probation nor parole shall be granted by the circuit court between the time the transcript on appeal from the offender’s conviction has been filed in appellate court and the disposition of the appeal by such court.”

Section 559.115.2 further provides that, subject to the limitations in section 559.115.1 and 559.115.8, courts “have the power to grant probation to an offender anytime up to one hundred twenty days after such offender has been delivered to the department of corrections but not thereafter.”

The Court appreciates your continued efforts to prevent the spread of COVID19 in your respective jurisdictions.

Sincerely, GEORGE W. DRAPER III Chief Justice

Supreme Court of Missouri Extends Precautionary Measures to Combat COVID-19

In response to the coronavirus disease 2019 (COVID-19), the Supreme Court of Missouri today extended through Friday, May 1 its statewide suspension of most in-person proceedings, subject to certain listed exceptions for urgent matters required under the constitution or state law or otherwise necessary to protect health or safety.

Despite the restrictions, the state’s courts remain open to conduct necessary business, though access to court buildings – including the Supreme Court Building – has been limited to help prevent the spread of the disease. The Court’s order does not affect a court’s ability to consider or rule on matters and does not affect required deadlines through the state’s electronic filing system.

The Court’s order authorizes local courts to determine how best to conduct the excepted proceedings and other necessary court business. The Missouri Courts COVID-19 alert page – https://www.courts.mo.gov/pandemic/, launched March 13 – links to the various orders and notices issued by the Court, the three districts of the Missouri Court of Appeals, each of the state’s 115 circuit courts and a growing number of the state’s stand-alone municipal divisions. This web page is updated throughout each day as new information become available. Individuals with questions about the status of particular cases should check Case.net, sign up for alerts through Case.net’s Track This Case tool, ask their attorney or contact the local clerk’s office.

As information about and best practices for dealing with COVID-19 continue to evolve, the Court will continue to discuss how best to balance the health and safety of the public, judges and court staff statewide with the judicial branch’s responsibility to uphold the constitutional rights of litigants seeking redress and other core constitutional functions.