Fraction v. Secretary, Department of Public Safety & Correctional Services

JAMES R. EYLER, J. Alfred Fraction and Gregory Nutter, appellants, appeal from a judgment entered by the Circuit Court for Somerset County, affirming the denial of appellants’ inmate grievances by the Secretary of the Department of Public Safety and Correctional Services, appellee. Each appellant had been convicted, sentenced, released on mandatory supervision, convicted of new crimes, and reincarcerated. An Administrative ⁷²⁴ Law Judge (“ALJ”) 1 held that the Division of Correction (“DOC”) 2 did not err in refusing to apply certain diminution of sentence credits—earned prior to release on mandatory supervision—when calculating appellants’ new release dates. In each case, the Maryland Parole Commission (“MPC”), the agency responsible for administering the applicable laws, had revoked appellants’ mandatory supervision and, in doing so, was silent with respect to the credits.

The DOC refused to apply the diminution of sentence credits, however, pursuant to a directive from the MPC in February, 1990, wherein it informed the DOC that, as of July 1, 1989, it was the MPC’s intent that all diminution of sentence credits earned prior to release on mandatory supervision be rescinded upon revocation of release, unless the MPC expressly stated otherwise. On appeal, appellants contend that the MPC was required to make an express determination to revoke diminution credits, in each case in which it revoked mandatory supervision, and having failed to do so when it revoked appellants’ mandatory supervision, their diminution credits had to be applied by DOC. We conclude that the inmate grievance procedure was not the appropriate vehicle to raise the issue, and thus, we shall affirm. Facts relating to appellants’ diminution credits The issue presented is one of law.

There is no dispute as to the facts, and consequently, we shall quote from appellants’ brief, omitting extract references. Fraction On January 24, 1984, Alfred Fraction was committed to DOC to serve a sentence of seven years, commencing June 11, 1988. On his motion for modification of sentence, the ⁷²⁵ term was reduced to five years on June 19, 1984, resulting in a maximum expiration date of June 11, 1988. While in DOC, Fraction was awarded or earned 290 good conduct credits, 159 industrial credits, and 78 special project credits.[ 3 ] With the application of these credits to his maximum date, Fraction was released to mandatory supervision on December 27,1986.[ 4 ] Fraction committed new offenses and on February 17, 1988, received several sentences, the longest being 25 years, all commencing on October 3, 1987.

On April 11, 1988, Fraction received an additional sentence of six months and a day, consecutive. On May 2, 1990, MPC revoked Fraction’s mandatory supervision, allowing six months “street time” credit.[ 5 ] Although aware that Fraction was released to mandatory supervision and not parole, the presiding commissioner took no action regarding the diminution credits that resulted in Fraction’s release from DOC. Fraction received another sentence on October 23, 1991, which brought his maximum date to April 4, 2016. His projected date for release to mandatory supervision was January 10, 2010, as of August 23, 2005, the date IGO ⁷²⁶ [Inmate Grievance Office] conducted a preliminary review of his grievance.

The application of the 527 diminution credits at issue in his case to that projected date would result in a mandatory supervision date of August 1,2008.[ 6 ] Nutter. On June 23,1987, Gregory Nutter was sentenced to three years, commencing October 3,1986. On October 1,1987, he was sentenced to 18 months, consecutive. His maximum expiration date was therefore April 3, 1991.

With the application of 522 diminution credits, Nutter was released to mandatory supervision on October 28,1989. On September 5, 1990, Nutter was sentenced to two years, commencing May 18,1990. On November 7,1990, he was sentenced to three years, commencing August 30, 1990. On November 13, 1990, MPC revoked Nutter’s mandatory supervision, allowing no “street time” credit.

As in Fraction’s case, MPC took no action regarding Nutter’s diminution credits. At the hearing before OAH, counsel for DOC conceded that there was no mistake on the part of MPC as to the type of release. On June 19, 1992, Nutter was sentenced to 25 years, commencing March 15, 1990, resulting in a maximum date of March 15, 2015. As of June 23, 2005, the date of preliminary review of his grievance by IGO, Nutter’s projected date for release to mandatory supervision was January 5, 2010.

With the application of the 522 diminution credits at issue to that projected date, his mandatory supervision date would also be August 1,2008.[ 7 ] Background As indicated above, inmates can earn diminution credits known as good conduct, industrial, educational, and special ⁷²⁷ project credits. Frost v. State, 336 Md. 125, 128 , 647 A.2d 106 (1994). When an inmate earns sufficient credits to be entitled to release, the inmate is released. Prior to 1970, inmates released early, because of diminution credits, were treated as if they had served their entire sentence.

Secretary of Public Safety v. Hutchinson, 359 Md. 320, 325 , 753 A.2d 1024 (2000). In 1970, legislation was enacted providing that such inmates “shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced.” Ch. 406 Acts of 1970, Maryland Code (1957, 1971 RepLVol.), Art. 41, § 127A, (now C.S. § 7-502). The MPC is the agency responsible for administering the laws applicable to inmates released on mandatory supervision. In 1970, the release was known as “mandatory release,” but since 1989, it is known as “mandatory supervision.” Art. 41, § 4-501(13) (now C.S. § 7-501).

The 1970 legislation did not expressly address the disposition of diminution credits in the event of release and subsequent revocation of release. In 1989, the legislature amended Art. 41, § 4-612, effective July 1, 1989, to expressly state that MPC had authority to “rescind all diminution credits previously earned on the sentence or any portion thereof....” Frost, 336 Md. at 130 , 647 A.2d 106 (quoting Ch. 307 of the Acts of 1989) (codified in Maryland Code (1957, 1986 Repl.Vol., 1989 Cum.Supp.)), Art. 41, § 4-612(e) (now C.S. § 7-504(b)(l) (2007 Supp.)). The current provision provides that “[t]he commissioner presiding at an individual’s mandatory supervision revocation hearing may revoke[ 8 ] any or all of the diminution credits previously earned by the individual on the individual’s term of confinement.” C.S. § 7-504(b)(l) (2007 Supp.). In Frost, the defendants, Carl Frost and Henry King, were each sentenced to a term of imprisonment.

By virtue of diminution credits earned, each was mandatorily released. ⁷²⁸ While on mandatory release, each was arrested for other offenses, convicted, and sentenced to an additional period of incarceration. In 1990 and 1992, respectively, the MPC revoked each defendant’s mandatory release, and each defendant’s maximum sentence expiration date was determined without applying previously earned diminution credits. Frost, 336 Md. at 129, 133 , 647 A.2d 106 . Frost and King contended that, prior to 1989, the law did not permit revocation of diminution credits, and even though the MPC, in 1989, was given express authority to revoke such credits, the law could not be applied to them because it would violate the ex post facto clauses of the United States and Maryland constitutions.

Id. at 130, 133 , 647 A.2d 106 (citing U.S. Constitution, Article I, § 10, cl. 1; Maryland Declaration of Rights, Article 17). The Court of Appeals agreed with the State and held that, under the law as it existed prior to 1989, diminution credits were lost by operation of law when the MPC revoked an inmate’s mandatory release. Id. at 139, 647 A.2d 106 . Thus, the 1989 law providing that the MPC “may rescind” diminution credits was not more onerous and did not violate the ex post facto prohibition.

Id. at 141, 647 A.2d 106 . On February 14, 1990, apparently as a result of the 1989 law, the MPC adopted Policy 2-24, which provides that, “[effective retroactively to July 1, 1989, it is the intent of [MPC] that all diminution of sentence credits earned prior to Mandatory Release be rescinded upon revocation of release. The exception will be cases where the Revoking Commissioner expressly states otherwise.” On February 22, 1990, the MPC communicated its policy to DOC. On November 5, 1997, the MPC further advised the DOC, with respect to diminution credits: If the Commissioner is rescinding ALL credits, the Commissioner will indicate ALL in the appropriate space. ⁷²⁹ If the Commissioner is SILENT with respect to the rescission of diminution credits, the DOC is authorized to rescind ALL diminution credits.

If the Commissioner wants to rescind a portion of the credits, the Commissioner will indicate the NUMBER in the appropriate space. The DOC is authorized to deduct the credits in the following order: Good conduct, special credit, industrial and educational. After being denied relief by the warden of their respective correctional institutions and by the Commissioner of Correction, each appellant filed an inmate grievance with the IGO. An ALJ dismissed the grievances, and the circuit court affirmed.

We granted appellants’ applications for leave to appeal and consolidated them for purposes of disposition. Contentions Appellants contend (1) the IGO had jurisdiction over their grievances and that, in any event, the question of jurisdiction was not raised before the agency and is not properly before us; (2) the MPC, in each individual case, must exercise discretion and make a decision regarding the disposition of diminution credits, when revoking mandatory supervision; (3) MPC Policy 2-24 is a regulation within the meaning of the Administrative Procedure Act (APA), Maryland Code (2004 Repl.Vol.), § 10-101 et seq. of the State Government Article, and invalid for failure to comply with the terms of the Act, and; (4) the rule of lenity is applicable to an MPC decision that does not expressly direct the disposition of diminution credits. Appellee contends (1) appellants’ claims constitute a complaint against the MPC, and the IGO lacks jurisdiction; (2) the MPC rescinded the diminution credits when it revoked appellants’ mandatory supervision; (3) MPC policies do not have to be promulgated under the APA; and, (4) if the MPC’s reliance on its policy was improper, then it should be directed