Alexander v. Corcoran

HARRELL, Judge. This case consists of two consolidated appeals by appellant, Eric Alexander, stemming from the rescission of his grant of parole by the Maryland Parole Commission. Appellant appeals from a decision of the Circuit Court for Baltimore County, that, although denying his request for an immediate release from custody, held that the dictates of due process required a hearing to be held before appellant’s grant of parole could be rescinded and a decision of the Circuit Court ⁶⁴ for Anne Arundel County affirming the subsequent rescission after the “due process” hearing took place. 1 QUESTIONS PRESENTED Appellant presents two questions for our resolution, which we have slightly rephrased for analysis as follows: I. Did the Circuit Court for Anne Arundel County err by affirming the decision of the Parole Commission to rescind appellant’s parole?

II

Did the Circuit Court for Baltimore County err by not ordering the immediate release of appellant from incarceration to parole supervision? Answering both questions in the negative, we shall affirm the judgments. FACTS AND PROCEEDINGS BELOW The underlying facts of this case were the subject of extensive stipulations below, and continue to be essentially undisputed. On 18 June 1982, appellant began serving Maryland sentences, totalling thirty years, resulting from convictions entered by the Circuit Court for Baltimore County on charges of robbery with a deadly weapon and use of a handgun.

These offenses occurred, and the Maryland sentences were imposed, while appellant was on parole from a federal bank robbery sentence. The United States Parole Commission issued a parole violation warrant and lodged it as a detainer against appellant’s Maryland custody. 2 It is this detainer that ⁶⁵ eventually gave rise to the unfortunate and somewhat unusual circumstances of this case. In November of 1983, while incarcerated at the Maryland Penitentiary, appellant appeared for a parole revocation hearing before a representative of the United States Parole Commission. The decision of the United States Parole Commission was to revoke appellant’s federal parole, and set an eight year presumptive re-parole date, which effectively meant that the balance of appellant’s federal sentence would run concurrently with his incarceration on the Maryland convictions.

It is worthy of mention that, at the time of the events giving rise to this action, an outstanding detainer was treated by the Maryland Division of Correction as additional “points” to a prisoner’s objective classification scoring under a former Division of Correction Directive. In appellant’s case, these additional points prevented him from being transferred to a lower-security institution. On 26 July 1991, the United States Parole Commission issued a “Certificate of Parole Nunc Pro Tunc,” ordering the re-parole of appellant from the balance of his federal sentence, effective 18 June 1990. Shortly after this federal order was issued, the Division of Correction received a copy of it.

For reasons most likely attributable to neglect, despite having notification of appellant’s federal re-parole, the Division of Correction treated the federal detainer as still in effect. Appellant was also unaware that the federal detainer was no longer viable. At a 1 June 1993 hearing, the Maryland Parole Commission considered appellant for parole. The Parole Commission’s hearing officer made his recommendation that same day, and completed a “Parole Recommendation/Decision” form.

The decision of the hearing officer was to “Approve [the parole] to detainer only (Federal Parole violation).” On the section of the form describing the “Contingencies of Approval Prior to ⁶⁶ Release,” which is apparently a checklist of items such as substance abuse therapy, education, work release/home detention, psychotherapy, etc., the hearing officer wrote: “No Home verification required before release.” Similarly, in the “Special Conditions After Release” portion of the form, in the space captioned, “Other,” the officer wrote: “supervise on parole after release from Federal Authorities.” Finally, in the area provided for the hearing officer’s remarks, the following was penned: “3RD hearing, satisfactory] [institutional] adjustment since last hearing. [Appellant] has served 11 yrs., and has Federal detainer which limits lesser security progress.” The hearing officer’s recommendation was adopted, by the parole commissioner on 2 June 1993, and an “Order for Release on Parole” was executed by the chairperson of the Parole Commission on 3 June 1993, with the notation, “Approve to Detainer Only (Federal Parole Violation) Supervise on Parole After Release From Federal Authorities.” Before appellant was ever released from Maryland custody, on 4 June 1993, the Division of Correction, apparently having discovered or rediscovered its advisement of the 1991 federal action, gave notice to the Parole Commission and to appellant that, as of 18 June 1990, the detainer lodged against appellant by the United States Parole Commission was no longer in effect. With this information, on 9 June 1993, .the Parole Commission rescinded appellant’s parole, explicitly indicating that “additional information received” was the reason for the rescission. In addition, the Parole Commission notified appellant that a rehearing would be scheduled sometime in September of 1993. In actuality, appellant did not have another parole hearing until 2 December 1993.

The December hearing resulted in recommendations for work release and appellant’s progress to lesser security, 3 as well as the scheduling of another hearing for June of 1995. These recommendations were adopted by the parole commissioner. ⁶⁷ The proceedings that led to the first appeal in the instant case were commenced by appellant’s filing of a petition for writ of habeas corpus in the Circuit Court for Baltimore County on 22 December 1994. Appellant alleged in the petition that his due process rights under the United States and Maryland Constitutions were violated by the “arbitrary” rescission, without adequate notice and hearing, of the parole granted to him on 3 June 1993. A hearing was held on the matter before Chief Judge Edward A. DeWaters on 29 March 1995, during which testimony of both appellant and the hearing officer was taken.

The matter was held sub curia, and an opinion was issued on 5 May 1995. 4 The pertinent portion of Judge DeWaters’s opinion is transcribed below: It seems apparent, and the Court so finds, that at the point when the commissioner signed [the 3 June 1993] order, [appellant] was on parole and was afforded a constitutionally protected liberty interest. No longer could the [Parole] Commission act without extending due process to [appellant]. This would require the Commission to conduct an appropriate hearing with notice to appellant before any action could be taken regarding the order of June 3, 1993. This hearing is to be conducted as soon as possible.

In the meantime, the June 3, 1993 order of parole is still in effect. Therefore, the process for the parole of [appellant] must begin under the order. The result of the hearing may or may not [a]ffect this process. Following the decision of the Circuit Court for Baltimore County, the Parole Commission issued a warrant for the arrest and detention of appellant (a “retake warrant”) on 9 May 1995, alleging that there was reasonable cause to believe appellant had violated the terms and conditions of his parole.

On 15 May 1995, appellant moved to quash the parole retake warrant or, in the alternative, to reconsider its 5 May 1995 decision. Judge DeWaters denied appellant’s motion by marginal notation, dated 19 May 1995, but according to the docket ⁶⁸ entries, the denial was not filed until 25 May 1995. Appellant noted an appeal on 15 June 1995; appellees did not cross-appeal from the court’s decision. Meanwhile, on 19 May 1995, in purported compliance with the decision of the Circuit Court for Baltimore County, a special hearing on appellant’s case was convened before Parole Commissioner Maceo Williams at the Jessup Pre-Release Unit.

No allegations were made that appellant had committed any new criminal offenses or violated any prison disciplinary rules since the grant of parole on 3 June 1993. The parties also agreed that appellant had not obtained the grant of parole through fraud or lack of candor. Nevertheless, the parole commissioner found that the 3 June 1993 order for parole was not a grant of release into the community, but rather, “the parole was only to change the incarceration from the State of Maryland to the federal authorities.” Furthermore, the commissioner found that “continued incarceration was a condition of the Parole Order,” and because the condition could not be satisfied due to the absence of a federal detainer, “the parole Order [was] a nullity.” Accordingly, the Parole Commission formally rescinded the order of parole it previously issued on 3 June 1993. Pursuant to Md.Ann.Code (1957, 1993 RepLVol., 1995 Cum.

Supp.) art. 41, § 4-511(e), appellant appealed the rescission to the Circuit Court for Anne Arundel County on 6 June 1995. The electronic recording of the 19 May 1995 administrative hearing was apparently misplaced, so a transcript was not made part of the record before the circuit court. The parties agreed, however, to supplement the administrative record with stipulations, documents, and memoranda of law. On 30 October 1995, Judge Eugene Lerner held a hearing, after which he affirmed the Parole Commission’s decision by a memorandum opinion and order filed 2 November 1995.

The portion of Judge Lerner’s opinion offering the court’s rationale is set forth below: In this case, the Court must decide if the Maryland Parole Commission can rescind an inmate’s parole after it discovers ⁶⁹ that it mistakenly believed a detainer existed and paroled an inmate on that basis. For guidance, the Court looks to the decision of the Court of Appeals in [Patuxent Inst. Bd. of Review v. Hancock, 329 Md. 556 , 620 A.2d 917 (1993) ]. In that decision the Court stated that “[c]onduct which not only .occurred before the parole or probation decision was made but was [not] known to the granting authority may, but need not, support rescission.” This Court finds that the fact that a federal detainer did not actually exist is new information which, when discovered, would allow the Maryland Parole Commission to rescind [appellant’s] parole.

(citations omitted). Appellant filed a timely appeal from that decision on 14 November 1995. This Court granted a joint motion by the parties for consolidation of the two cases on appeal. 5 ⁷⁰ DISCUSSION I. We are called upon to determine whether the Circuit Court for Anne Arundel County properly affirmed the Parole Commission’s 19 May 1995 decision to rescind appellant’s 3 June 1993 grant of parole. Although appellant’s contentions of error will be reviewed in greater depth, infra, for the sake of clarity and simplicity, we set forth our basic view of this case in summary fashion at the outset.

The 3 June 1993 order of parole was clearly “approve[d] to detainer only.” In spite of appellant’s reliance on certain regulations that require the Parole Commission to consider various criteria before ordering parole, we do not find implicit in the 3 June 1993 order a finding by the Parole Commission that appellant was ready to be assimilated back into society. Because the Parole Commission believed appellant was merely being “released” into the custody of federal authorities, such regulatory requirements were not fulfilled. Shortly thereafter, all parties to the parole proceeding became aware that they were mistaken in their belief that the federal detainer existed. We have little doubt that appellant was unaware of the mistake.

The Parole Commission, on the other hand, is instructed by its own regulations to investigate the status of detainers. In this case, the Parole Commission evidently failed to fulfill its responsibility in this regard. Nevertheless, the remedy for this oversight is not an immediate release of appellant to the nonexistent detainer, effectively putting him back on the streets. Without the Parole Commission performing a proper home and job verification, a timetable for readjustment to society, as well as related inquiries, the substantial interest in public safety precludes such an option.

The more appropriate course is basically what the Parole Commission did, i.e., rescind the grant of parole to detainer because there was no detainer, perform a reevaluation of the possibility of appellant’s release into the community, and, upon finding that such action was not ⁷¹ yet propitious, begin appellant’s gradual progression towards release. Accordingly, we see no error by the Circuit Court for Anne Arundel County in affirming the rescission of the parole order. We turn now to examine the details of appellant’s assertions of error. Appellant first advances the argument that the 3 June 1993 parole to the federal detainer was a concession, implicit in the grant of parole, that he is a suitable candidate for parole.

In support of this contention, appellant cites COMAR 12.08.01.21B(5)(b), which provides: “The [Parole] Commission may parole an inmate to meet detainers if the inmate is considered in other respects to meet the parole criteria set forth in Regulation .18.” Regulation .18 provides, in relevant part: (1) The Commission shall have the exclusive power of parole release. In determining whether a prisoner is suitable for release on parole the Commission considers: (a) The circumstances surrounding the crime; (b) The physical, mental, and moral qualifications of persons who become eligible for parole; (c) Whether there is reasonable probability that the prisoner, if released on parole, will remain at liberty without violating the laws; and (d) Whether the release of the prisoner on parole is compatible with the welfare of society. (2) The Commission also considers the following criteria: (a) Whether there is substantial risk the individual will not conform to the conditions of parole; (b) Whether release at the time would depreciate the seriousness of the individual’s crime or promote disrespect for the law; (c) Whether the individual’s release would have an adverse affect on institutional discipline; (d) Whether the individual’s continued incarceration will substantially enhance his ability to lead a law abiding life when released at a later date. ⁷² (3) To make these determinations the Commission examines: (a) The offender’s prior criminal and juvenile record and his response to prior incarceration, parole or probation, or both; (b) The offender’s behavior and adjustment and his participation in institutional and self-help programs; (c) The offender’s vocational, educational, and other training; (d) The offender’s current attitude toward society, discipline, and other authority, etc.; (e) The offender’s past use of narcotics, alcohol, or dangerous controlled substances; (f) Whether the offender has demonstrated emotional maturity and insight into his problems; (g) Any reports or recommendations by the sentencing judge, the institutional staff, or by a professional consultant such as a physician, psychologist, or psychiatrist; (h) The offender’s employment plans, his occupational skills, and his job potential; (i) The offender’s family status and stability; (j) The offender’s ability and readiness to assume obligations and undertake responsibilities; (k) The adequacy of the offender’s parole plan and the availability of resources to assist him; (l) Any other factors or information which the Commission may find relevant to the individual’s consideration for parole. COMAR 12.08.01.18A.

See also Md.Ann.Code art. 41. § 4-506 (Repl.Vol.1993) (setting forth mandatory statutory criteria to be considered at parole suitability hearings). The administrative documentation relative to the 3 June 1993 order of parole clearly indicates that the above-listed criteria were not followed in their entirety by the Parole Commission because of the detainer, or, alternatively, they ⁷³ were followed in their entirety if interpreted in light of the presence of the detainer. For example, as to COMAR