Ali v. Department of Public Safety & Correctional Services

Opinion by Woodward, J. Jamil Ali, appellant, was an inmate serving a five-year term of confinement with the Maryland Division of Correction (“DOC”) for armed robbery and a concurrent five-year term for use of a handgun in a crime of violence, the latter without the possibility of parole. 1 The DOC commitment staff determined that appellant was ineligible for release on mandatory supervision, because his use of a handgun conviction rendered him ineligible for parole during his term of confinement. See Md. Code (1999, 2008 Repl. VoL, 2016 Supp.), § 7-501(b) of ⁶⁸⁵ the Correctional Services Article (“CS”). Appellant disputed the DOC staffs determination by filing a Request for Administrative Remedy with the Warden of the Maryland Correctional Training Center.

After the Warden affirmed the DOC staffs determination, and the Commissioner of Correction failed to respond to appellant’s appeal, appellant filed a grievance with the Department of Public Safety and Correctional Services (“DPSCS”), appellee. DPSCS upheld the determination of the DOC commitment staff. Appellant then filed a petition for judicial review in the Circuit Court for Washington County, which affirmed DPSCS’s decision. On appeal, appellant presents a single question for our review: Does CS § 7~501(b) bar release of a prisoner by application of diminution credits when that prisoner will never become eligible for parole?

For the reasons set forth below, we answer this question in the affirmative and accordingly, affirm the judgment of the circuit court. BACKGROUND On May 9, 2011, appellant pled guilty to armed robbery and use of a handgun in the commission of a crime of violence. The Circuit Court for Baltimore County sentenced him to ten years, With five years suspended, for the armed robbery charge, and five years of incarceration for the handgun charge, to run concurrently. By statute, appellant was ineligible for parole during the five-year handgun sentence.

See Md. Code (2002, 2012 Repl. Vol.), § 4-204(c)(l)(ii) of the Criminal Law (I) Article (“CL”) (“The court may not impose less than the minimum sentence of 5 years and ... the person is not eligible for parole in less than 5 years.”). The sentences commenced on September 24, 2010, and had a maximum expiration date of September 24, 2015. On September 6, 2011, the DOC commitment staff determined that appellant’s diminution credits could not be applied to his sentence, which otherwise would have required appellant’s release on mandato ⁶⁸⁶ ry supervision prior to the end of his term of confinement.

The DOC staff based its decision on appellant’s ineligibility for parole during his five-year term of confinement on the handgun charge. On December 21, 2011, appellant, acting pro se, filed a Request for Administrative Remedy with the Warden of the Maryland Correctional Training Center, challenging the DOC commitment staffs determination that he was ineligible for early release on mandatory supervision during his term of confinement. The Warden dismissed appellant’s Request for Administrative Remedy on January 3, 2012, on the same grounds as the DOC staff; namely, that, because appellant was ineligible for parole during his term of confinement, he was also not entitled to release on mandatory supervision prior to the end of such term. Appellant filed an administrative appeal with the Commissioner of Correction, which was received on January 26, 2012.

When the Commissioner did not respond to appellant’s appeal within thirty days, 2 appellant filed a grievance with DPSCS’s Inmate Grievance Office (“IGO”) on March 5, 2012, challenging again the determination of the DOC commitment staff. On February 6, 2013, Scott Oakley, Executive Director of IGO, sent appellant a letter on behalf of DPSCS, upholding the DOC staffs determination. On March 13, 2013, appellant, acting pro se, petitioned for judicial review in the Circuit Court for Washington County. Appellant’s attorney noted his appearance on April 15, 2013.

The court held a hearing on August 16, 2013, and issued an oral ruling affirming the decision of DPSCS. On August 22, 2013, the court entered an order consistent with its oral ruling. On September 12, 2013, appellant filed his application for leave to appeal to this Court, which we denied on March 21, 2014. On April 8, 2014, appellant filed a motion for reconsideration of our order denying his application.

On May 15, 2014, ⁶⁸⁷ we issued a show cause order directing DPSCS to “show cause why [appellant’s] Motion for Reconsideration and Application for Leave to Appeal should not be granted.” DPSCS filed a response to our show cause order on September 17, 2014, stating that it “has no objection to the granting of the application for leave to appeal.” We granted appellant’s application for leave to appeal on October 27, 2014. STANDARD OF REVIEW In reviewing an administrative decision, “[t]his Court looks through the circuit court’s decision and evaluates the decision of the agency.” Wilson v. Md. Dep’t of Env’t, 217 Md.App. 271, 283 , 92 A.3d 579 (2014) (citations and internal quotations omitted). Such review is limited to deciding “if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and ... if the administrative decision is premised upon an erroneous conclusion of law.” John A. v. Bd. of Educ. for Howard Cty., 400 Md. 363, 381 , 929 A.2d 136 (2007) (citations and internal quotations omitted). The Court of Appeals has stated that a court’s review of an agency’s conclusions of law is de novo.

Lawson v. Bowie State Univ., 421 Md. 245, 256 , 26 A.3d 866 (2011). Although [a]n appellate court generally owes no deference to agency decisions on pure issues of law, and is free to substitute its judgment for that of the agency on such questions ... [, e]ven with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. We, therefore, ordinarily give considerable weight to the administrative agency’s interpretation and application of the statute that the agency administers. Furthermore, the expertise of the agency in its own field of endeavor is entitled to judicial respect.

Mesbahi v. Md. State Bd. of Physicians, 201 Md.App. 315, 330 , 29 A.3d 679 (2011) (citations and internal quotations omitted). ⁶⁸⁸ DISCUSSION Mandatory Supervision Versus Parole The Court of Appeals has explained the process by which an inmate is released on mandatory supervision: We begin with a discussion of diminution credits. Diminution credits are credits which can be “earned by inmates to reduce the lengths of their confinements.” “Assuming an inmate does not forfeit diminution credits as the result of a disciplinary hearing, the inmate can earn the right to be released on a date much sooner than that designated by his or her original term of confinement.” Once the inmate accumulates “sufficient credits to earn entitlement to release, the inmate is deemed released under ‘mandatory supervision.’ ” Under CS § 7-501(a), mandatory supervision is “a conditional release from confinement [granted] to an inmate who is serving a term of confinement of more than 18 months ... to the jurisdiction of the Division of Correction ... and [who] has served the term or terms, less diminution credit[s].” There are four types of diminution credits: good-conduct, work (or industrial), educational, and special project credits. Good-conduct credits, which are the subject of this appeal, are different from other diminution credits in that they are deducted “in advance from the inmate’s term of confinement, subject to the inmate’s future good conduct.” Prior to October 1, 1992, inmates, upon incarceration, were prospectively awarded five days of good-conduct credits for each month of their sentence^ regardless of the nature of their sentence ...]. Stauffer v. Holbrook, 417 Md. 165, 170-71 , 9 A.3d 25 (2010) (alterations in original) (emphasis added) (citations omitted).

By contrast, the Court has characterized parole as follows: The Supreme Court has said, “[t]he essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Our Legislature has defined it as “a conditional release from imprisonment, granted by ⁶⁸⁹ the Maryland Parole Commission ... [which] entitles the recipient ... to leave the institution in which he is imprisoned, and to serve the remainder of his term outside the confines thereof .... ” The purpose of parole is to help individuals reenter society and to alleviate the costs to society of keeping an individual in prison. While the executive branch, usually through a parole board, is vested with the authority to grant parole and implement its purpose, it is the legislature that establishes the governing procedures and criteria. Thus, parole is a matter of legislative grace, not of constitutional right Patuxent Inst. Bd. of Review v. Hancock, 329 Md. 556, 573 , 620 A.2d 917 (1993) (alterations in original) (emphasis added) (citations omitted).

In summary, an inmate is released on mandatory supervision automatically as soon as a sufficient number of diminution credits have been earned, while an inmate is released on parole only if the Maryland Parole Commission finds the inmate suitable for parole, after consideration of certain factors set forth in the statute. See CS §§ 7-305, -501. Those factors include “the circumstances surrounding the crime[,]” “the physical, mental, and moral qualifications of the inmate[,]” “the progress of the inmate during confinement,” and the compatibility of the inmate’s release on parole “with the welfare of society.” CS § 7—305(1), (2), (3), (6). In general, an inmate is eligible for parole before he or she is subject to automatic release on mandatory supervision. 3 ⁶⁹⁰ Plain Language of the Statute The statutory provision at issue in this appeal is CS § 7-501, which provides: (a) In general—Except as provided in subsection (b) of this section, the Division of Correction shall grant a conditional release from confinement to an inmate who: (1) is serving a term of confinement of more than 18 months; (2) was sentenced on or after July 2,1970, to the jurisdiction of the Division of Correction; and (3) has served the term or terms, less diminution credit awarded under Title 3, Subtitle 7 and Title 11, Subtitle 5 of this article.

(b) Eligibility requirements—An inmate convicted of a violent crime committed on or after October 1, 2009, is not eligible for a conditional release under this section until after the inmate becomes eligible for parole under § 7-301(c) or (d) of this title. CS § 7-501 (italics in original) (bold emphasis added). Section 7-301(c), referenced in Section 7-501(b), governs the determination of an inmate’s parole eligibility. Section 7-301(c)(1) provides, in relevant part: (ii) An inmate who has been sentenced to the Division of Correction after being convicted of a violent crime committed on or after October 1, 1994, and who has been sentenced to more than one term of imprisonment, including a term during which the inmate is eligible for parole and a term during which the inmate is not eligible for parole, is not eligible for parole until the inmate has served the greater of: 1, one-half of the inmate’s aggregate sentence for violent crimes; 2. one-fourth of the inmate’s total aggregate sentence; or ⁶⁹¹ 3. a period equal to the term during which the inmate is not eligible for parole.

CS § 7—301(c)(l)(ii) (emphasis added). In- the case sub judice, appellant was “sentenced to more than one term of imprisonment, including a term during which the inmate is eligible for parole,”—his five-year non-suspended armed robbery sentence—“and a term during which the inmate is not eligible for parole”—'his concurrent five-year sentence for his use of a handgun in committing a violent crime. CS § 7—301(c)(1)(ii); see also CL § 4-204. Thus, under Section 7-301(c)(l)(ii)(3), appellant was not eligible for parole until he had served his entire five-year sentence.

Notwithstanding his ineligibility for parole, appellant argues that Section 7-501 (b) does not bar his release on mandatory supervision 4 prior to the end of the five-year term for the handgun conviction. Specifically, appellant maintains that, because (1) Section 7-501(b) precludes conditional release “until after” he becomes eligible for parole, and (2) he will never become eligible for parole until his maximum expiration date, Section 7-501(b) “does not apply, as the event specified in the law will not occur.” As a result, according to appellant, his diminution credits must be applied to permit his release on mandatory supervision prior to the end of his term of confinement. DPSCS responds that under the plain meaning of Section 7-501(b), “[i]nmates who do not become eligible for parole during their terms of confinement can never be released on mandatory supervision.” According to DPSCS, the purpose of this provision is to prevent an inmate convicted of a violent crime from benefitting from a mandatory release from incarceration prior to the date upon which the Maryland Parole ⁶⁹² Commission, “in the exercise of its discretion, could order the inmates released on parole.” We agree with DPSCS that the meaning of Section 7-501(b) bars appellant’s release on mandatory supervision prior to the end of his term of confinement. We shall explain.

It is clear that appellant does not become eligible for parole until after he has served five years of incarceration, because under Section 7—301(c)(l)(ii) the greatest period of confinement that appellant must serve to become parole eligible is the five-year sentence imposed on the handgun conviction. See CS § 7—301 (c)(1)(ii) (stating that an inmate, like appellant, “is not eligible for parole until the inmate has served the greater of ... 3. a period equal to the term during which the inmate is not eligible for parole.”) Appellant’s maximum term of confinement, however, is also five years, because his two five-year sentences are concurrent. Therefore, under the plain language of Section 7—501(b), appellant cannot be released on mandatory supervision before serving five years of incarceration, because he does not “become[] eligible for parole under § 7-301(c)” “until after” his maximum term of confinement has been served in its entirety. We reject appellant’s argument that Section 7-501(b) does not apply to him because “he will never become eligible for parole.” The concept of never becoming eligible for parole includes the concept of not becoming eligible for parole.

If we were to agree with appellant’s interpretation of Section 7-501(b), appellant would be released on mandatory