Opinion
No. ED 87127
October 3, 2006
Appeal from the Circuit Court of Washington County.
Stephen D. Hawke, Jefferson City, Missouri, for appellant.
Sean D. O'Brien, Nancy A. McKerrow, Kansas City, Missouri.
AHRENS, P.J., HOFF, J. AND BAKER, J
The State of Missouri ("state") appeals from the judgment of the trial court that found Steven Parkus, a convicted murderer who previously had been sentenced to death, mentally retarded, and that he should be resentenced to life imprisonment without the possibility of parole. Because this court lacks jurisdiction, we transfer the case to the Missouri Supreme Court.
Parkus killed a fellow inmate at the Missouri State Penitentiary. He was convicted of first degree murder, and he was sentenced to death. The judgment was affirmed by the Missouri Supreme Court on direct appeal in State v. Parkus, 753 S.W.2d 881 (Mo. banc 1988), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988). Parkus subsequently filed a motion for post-conviction relief, and the motion court denied his request for relief. The Missouri Supreme Court affirmed the judgment of the motion court in Parkus v. State, 781 S.W.2d 545 (Mo. banc 1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2194, 109 L.Ed.2d 522 (1990). Thereafter, Parkus filed a petition for writ of habeas corpus in U.S. District Court, and the District Court denied his petition. In Parkus v. Delo, 33 F.3d 933 (8th Cir. 1994), the U.S. Court of Appeals affirmed the judgment in part, but also remanded the cause for consideration of additional issues. On remand, the U.S. District Court conducted an evidentiary hearing regarding Parkus's mental state at the time of the murder and denied relief to Parkus. The U.S. Court of Appeals affirmed this judgment in Parkus v. Bowersox, 157 F.3d 1136 (8th Cir. 1998), cert. denied, 527 U.S. 1043, 119 S.Ct. 2410, 144 L.Ed.2d 807 (1999).
In 1999, Missouri Governor Mel Carnahan issued an executive order staying Parkus's execution until a final determination could be made regarding whether Parkus had a mental disease or defect that would exclude him from execution. The Missouri Department of Corrections filed a petition in the Circuit Court of Washington County to begin an inquiry into Parkus's mental fitness for execution, and the court issued orders permitting physicians to evaluate Parkus. Parkus subsequently filed a motion to recall the Missouri Supreme Court's mandate and an alternative petition for writ of habeas corpus. The Supreme Court treated this as a petition for a writ of mandamus and ordered the circuit court to finally determine whether Parkus had a mental disease or defect pursuant to section 552.060 RSMo Cum. Supp. 2002 and whether Parkus had mental retardation excluding him from fitness for execution pursuant to section 565.030, and make its return to the Supreme Court.
Unless noted otherwise, all further statutory citations are to RSMo Cum. Supp. 2002.
The circuit court granted a motion filed by Parkus to bifurcate the hearings on the issues of whether Parkus was competent to be executed and whether he was mentally retarded. The circuit court subsequently issued its order and judgment finding that Parkus was mentally retarded, and therefore it would be cruel and unusual punishment to inflict the death penalty upon him. The court stated that Parkus should be resentenced to life imprisonment without the possibility of probation, parole, or release, except by act of the governor. The state now appeals.
The state initially appealed directly to the Missouri Supreme Court, and the Supreme Court transferred the appeal to this court.
Before addressing the merits of the state's appeal, we must first determine whether we have jurisdiction. We have a duty to determine, sua sponte, whether we have jurisdiction on appeal.Comm. For Educ. Equal. v. State, 878 S.W.2d 446, 450 (Mo. banc 1994); State ex rel. Anderson v. Anderson, 186 S.W.3d 924, 925 (Mo.App. 2006). We resolve all doubts against our own jurisdiction. Chapman v. Schearf, 220 S.W.2d 757, 759-60 (Mo.App. 1949).
Pursuant to Article V, Section 3 of the Missouri Constitution, the Missouri Supreme Court is vested with exclusive jurisdiction "in all cases where the punishment imposed is death." The plain language of the Missouri constitution does not limit this exclusive jurisdiction solely to the direct appeal of criminal cases. This language also includes appellate jurisdiction over a post-conviction proceeding under Rule 29.15 involving the death penalty. Hall v. State, 16 S.W.3d 582, 584 (Mo. banc 2000).
The Supreme Court also has jurisdiction under Article V, Section 10 of the Missouri Constitution, coupled with its standing order of June 16, 1988, in which it directed all of the courts of appeal to transfer all appeals of cases filed pursuant to Rule 24.035, Rule 27.26 and Rule 29.15 to the Missouri Supreme Court prior to opinion in cases in which the death penalty was imposed. See Taylor v. State, 126 S.W.3d 755, 757 (Mo. banc 2004).
The fundamental issue in the present case is whether Parkus is mentally retarded, and therefore not subject to the death penalty under the holding of the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the U.S. Supreme Court held that the execution of a person with mental retardation constitutes "cruel and unusual" punishment. The Missouri Supreme Court has similarly determined that "as a bright-line test," if a defendant can prove mental retardation by a preponderance of the evidence, he or she shall not be subject to the death penalty. Johnson v. State, 102 S.W.3d 535, 540-41 (Mo. banc 2003). The Johnson court determined that this rule applied retroactively. Id.
Jurisdiction to determine the constitutionality of the death penalty on the basis that it constitutes "cruel and unusual punishment" because the convicted defendant is mentally retarded must lie with the Missouri Supreme Court. In this case, Parkus employed several methods to challenge the death sentence imposed on him, in all of which the Missouri Supreme Court had exclusive jurisdiction. He filed a direct appeal in the Supreme Court, as required by Section 565.035 RSMo 1994 and Rule 30.18, which included a mandatory sentence review for proportionality, which was affirmed by the Supreme Court. See State v. Parkus, 753 S.W.2d 881. Parkus also filed a motion for post-conviction relief under Rule 29.15, which was denied. The Missouri Supreme Court affirmed that result in Parkus v. State, 781 S.W.2d 545, in which the Court stated that "[t]he appeal from that judgment is now considered pursuant to the policy of the Court concerning cases in which the sentence is death." Id. at 546. Parkus also filed a motion to recall the mandate of the Missouri Supreme Court and a petition for writ of habeas corpus in the Missouri Supreme Court under Rule 91.02(b). This court has no authority to recall the mandate of the Missouri Supreme Court.
Additionally, under Rule 91.02(b), a petition for writ of habeas corpus where there is a sentence of death is to be filed exclusively with the Missouri Supreme Court. Rule 91.02(b) provides that a filing in any other state court is deemed to have been filed with the Missouri Supreme Court. Moreover, the Missouri Supreme Court recently determined that "matters affecting a sentence of death, once it is affirmed on direct appeal and except for a motion under rule 24.035 or Rule 29.15, are to be filed in this Court and not another state court."State ex rel. Nixon v. Daugherty, 186 S.W.3d 253, 254 (Mo. banc 2006).
Although this Court did determine it had jurisdiction over an appeal involving post-conviction DNA testing in State v. Kinder, 122 S.W.3d 624 (Mo.App. 2003), the present case is clearly distinguishable. The Court in Kinder based its decision on the fact that the matter was a post-conviction proceeding requesting additional DNA testing, and that the post-conviction hearing itself did not subject the defendant to the death penalty. Id. at 628-29. In contrast, the present case concerns the constitutionality of a previously imposed sentence of death and the outcome of the hearing itself will determine whether the defendant is subject to the death penalty. Further, in Kinder, this Court noted that the post-conviction proceeding for DNA testing was an independent civil proceeding and that the death penalty had been imposed in a prior case. Here, the proceeding in question arose out of a motion to recall the mandate and an alternative petition for writ of habeas corpus and addressed issues related to the direct appeal.
In this case the ultimate question is whether Parkus has a mental disease or defect which would exclude him from execution. Under Article V, Section 3, we do not have jurisdiction over a case in which the punishment imposed is death. Consequently, this Court has no jurisdiction where the issue is whether that death sentence is unconstitutional under the Eighth Amendment as a "cruel and unusual punishment." We cannot acquire jurisdiction merely because the Missouri Supreme Court directed a circuit court to make findings and conclusions about a prisoner's mental retardation excluding fitness for execution and make its return to the Missouri Supreme Court. As a result, this Court lacks jurisdiction over this matter, and the cause is transferred to the Missouri Supreme Court.
Because we lack jurisdiction, we cannot address the state's points relied on or the several motions that were taken with this case. Additionally, we note that Parkus filed a motion with this court to commute his sentence from death to life imprisonment without the possibility of parole. This court lacks such power. All these issues and motions are transferred to the Supreme Court with this case for determination.
Mary K. Hoff, J., concurs.
Nannette A. Baker, J., concurs.