Blankenship v. State

⁶¹⁶ MOYLAN, Judge. By separate indictments, the appellant, Donald Wade Blankenship, Jr., was charged with seven robberies and two attempted robberies that all occurred between June 5 and 9, 1999. Three of those offenses occurred in Prince George’s County and the other six occurred in Montgomery County. On November 23, 1999, the three Prince George’s County cases were transferred to the Circuit Court for Montgomery County.

The appellant subsequently pled guilty to all offenses. On March 10, 2000, Judge Paul A. McGuckian sentenced the appellant to a term of five years incarceration with all but two years suspended for each offense. The sentences were to run consecutively. The court then gave the appellant credit for the 238 days he spent in custody before the imposition of his sentences.

That credit was applied towards one of the offenses of which he was convicted and sentenced, to wit, the Prince George’s County robbery of Aissata Bah. On March 22, 2000, the appellant filed a Motion to Correct an Illegal Sentence. He argued that pursuant to Md.Ann. Code, art. 27 § 638C(a) (1999), the 238 days credit should have been subtracted from each offense for which he was convicted and sentenced and not just from one of them. In denying that motion, Judge McGuckian explained that it was within the court’s discretion to apply the credit toward another sentence.

The court declined so to exercise its discretion and denied the motion. The appellant appealed, raising the sole issue of whether the trial court erred in failing to give him credit for time spent in custody before the imposition of sentence for each of the offenses of which he was convicted and sentenced. Md.Ann. Code, art. 27 § 638C, entitled “Credit against sentence for time spent in custody,” provides, in pertinent part: (a) Credit for time spent in custody before conviction or acquittal.—Any person who is convicted and sentenced shall receive credit against the term of a definite or life sentence or credit against the minimum and maximum ⁶¹⁷ terms of an indeterminate sentence for all time spent in the custody of any state, county or city jail, correctional institution, hospital, mental hospital or other agency as a result of the charge for which the sentence is imposed, or as a result of the conduct on which the charge is based, and the term of a definite or life sentence or the minimum and maximum terms of an indeterminate sentence shall be diminished thereby. (Emphasis supplied).

Prior to his sentencing on March 22, 2000, the appellant had spent 238 days in custody, to wit, incarcerated. It is the position of the State and it was the ruling of Judge McGuckian that the appellant was, therefore, entitled to have his sentence of actual or aggregate incarceration reduced by 238 days. It is the appellant’s position that because his pre-sentence incarceration was on multiple charges, a possible reading of Sect. 638C(a) would mandate that he have each of his nine consecutive sentences reduced by 238 days for a total reduction of 2142 days. 1 The issue is one of first impression and it requires us to divine what the Legislature intended to do when, in 1974, it enacted what is now Sect. 638C. The only appellate opinion that has engaged in any in-depth analysis of Sect. 638C is that of Judge Cole for the Court of Appeals in Fleeger v. State, 301 Md. 155 , 482 A.2d 490 (1984).

Judge Cole pointed out that the legislative purpose was twofold. One purpose (not here pertinent) is for the benefit of the State and the public at large. It is to prevent a defendant from accumulating in advance “banked time” that might give him, in effect, a partial or total “Get out of jail free” card against some yet unperpetrated crime. 301 Md. at 163-65 , 482 A.2d 490 . ⁶¹⁸ The other purpose (here very pertinent) is for the benefit of the defendant. It is to shield the defendant, as much as possible, from having to serve “dead time.” Judge Cole explained: Another purpose of the credit statute is the elimination of “dead” time, which is time spent in custody that will not be credited to any valid sentence.

See Schornhorst, Presentence Confinement and the Constitution: The Burial of Dead Time, 23 Hastings L.J. 1041 (1972); Right to Credit for Time Spent in Custody Prior to Trial or Sentence, 77 A.L.R.3d 182 (1977). Section 638C(a) seeks to avoid dead time by authorizing mandatory credit for any time spent in custody while awaiting trial on an offense for which the defendant is ultimately convicted. 301 Md. at 165 , 482 A.2d 490 (emphasis supplied). If two defendants receive identical sentences for similar crimes, it is the self-evident purpose of Sect. 638C(a) that the indigent prisoner who could not make bail not serve more time (pre-sentence incarceration plus post-sentence incarceration) than the more affluent prisoner who did make bail (post-sentence incarceration only). It is, moreover, clear that the Legislature contemplated a practical one-day-for-one-day method of reckoning.

If a defendant has suffered 85 days of pre-sentence incarceration, for instance, he will serve 85 fewer days of actual incarceration pursuant to his sentence or aggregate sentences of incarceration. The State will not be permitted to deny a defendant his credit for time served by applying it to one concurrent sentence but not to another. It is more than a “paper” credit. If the prisoner had been in jail for 85 days prior to being sentenced, he would be entitled to walk out of jail 85 days sooner, even on multiple concurrent sentences.

Nash v. State, 69 Md.App. 681, 691-93 , 519 A.2d 769 (1987). By the same token, the defendant is not entitled to double or triple or quadruple credit for time served in the case of consecutive sentences. The defendant is entitled to a single credit against the aggregate sentence, not to multiple credits against each ⁶¹⁹ and every constituent segment of that aggregate. The elemental equation is one actual day for one actual day, and the paper shuffling of multiple sentences will neither decrease it nor increase it.

The appellant lifts from context and then makes much of the phrase “as much credit as possible.” The context is Fleeger v. State, 301 Md. at 165 , 482 A.2d 490 : By enacting § 638C(a), the General Assembly sought to ensure that a defendant receive as much credit as possible for time spent in custody as is consistent with constitutional and practical considerations. (Emphasis supplied). On the facts of Fleeger , the problem was that of giving Fleeger “as much credit as possible” up to and hopefully including 100% credit for his pre-sentence incarceration actually served. What was before the Court in Fleeger did not in any way involve a claim of entitlement to 200% credit or 900% credit for the pre-sentence incarceration and the Court of Appeals was not even giving thought to such a non-existent issue.

The use of the phrase “as much credit as possible” by the Court of Appeals simply will not, therefore, carry the semantic weight urged by the appellant. The appellant here, of course, received 100% credit for the 238 days he served of pre-sentence incarceration. That is as much credit as the “as much credit as possible” language of Fleeger ever contemplated. Although the issue is one of first impression in Maryland, our resolution of it is in line with the undeviating resolution of the same issue by our sister states under virtually identical “credit for time served” statutes.

In Endell v. Johnson, 738 P.2d 769, 771 (1987), the issue before the Court of Appeals of Alaska was identical with that now before us: While the precise issue raised in the present case has never been addressed in Alaska, courts of other jurisdictions, construing similar credit-for-time-served statutes, have uniformly held that, when