Frost v. State

CHASANOW, Judge. The primary issue presented in these two consolidated appeals is whether Maryland Code (1957, 1993 Repl-Vol.), Article 41, § 4-612(e), 1 as applied to the appellants, violates the ex post facto clauses of the United States and Maryland constitutions. See U.S. Constitution, Article I, § 10, cl. 1; Maryland Declaration of Rights, Article 17. Section 4-612(e) provides as follows: “Revocation—Rescission of diminution credits.—The Parole Commissioner presiding may rescind all diminution credits previously earned on the sentence or any portion thereof in the revocation proceedings.” ¹²⁸ I. Before discussing the facts, we believe it helpful to provide a brief overview of “diminution credits” and the related subject of “mandatory supervision.” Diminution credits can be earned by inmates to reduce the lengths of their confinements.

Presently, Md.Code (1957, 1992 RepLVol., 1993 Cum.Supp.), Art. 27, § 700 specifies four types of diminution credits. Inmates can earn diminution credits based on good conduct, “satisfactory performance of work tasks,” “satisfactory progress in vocational or other educational and training courses,” and “satisfactory progress in special selected work projects, or other special programs.” Id. § 700(d)-(f) & (h). These four types of diminution credits shall hereinafter be referred to respectively as good conduct, industrial, educational, and special projects credits. Good conduct credits, unlike the others, are deducted “in advance from the inmate’s term of confinement, subject to the inmate’s future good conduct.” Id. § 700(d)(1) (emphasis added).

Assuming an inmate does not forfeit diminution credits as the result of a disciplinary hearing, see id. § 700(g), 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. Upon accumulating sufficient credits to earn entitlement to release, the inmate is deemed released under “Mandatory supervision.” Mandatory supervision is defined by statute as “a conditional release from imprisonment which is granted to any person ... who has served the term or terms, less the deductions provided for in Article 27, §§ 700 and 704A.of the Code [diminution credits]. This conditional release was previously referred to as ‘mandatory release.’ ” Md.Code (1957, 1993 RepLVol.), Art. 41, § 4-501(13). 2 With this background ¹²⁹ in mind, we now turn to the facts pertaining to each appellant respectively. A. Facts Regarding Appellant Frost On August 30, 1983, Carl Frost began serving a sentence of ten years for second degree rape with all but seven years suspended and five years probation upon release.

While serving this sentence, Frost earned diminution credits which reduced the length of his confinement. By applying 679 days worth of diminution credits to his sentence, Frost was mandatorily released from prison on October 20, 1988, nearly two years before his maximum sentence expiration date of August 30, 1990. Approximately one year after his mandatory release, Frost was arrested for a third degree sex offense, child pornography, and child abuse. Pursuant to a plea bargain, Frost pled guilty to child abuse and child pornography, and on December 26, 1989, he received 18-months’ imprisonment.

These new charges also resulted in the issuance of a warrant to revoke Frost’s mandatory release. At a January 1990 hearing, the Parole Commissioner decided to revoke Frost’s mandatory release, but the Commissioner credited him with six-months’ “street time.” See Md.Code (1957, 1986 Repl.Vol.), Art. 41, § 4-511(d) (providing that it is within the Parole Commissioner’s discretion to grant “credit for time between release on parole and revocation of parole”); Md.Code (1957, 1986 Repl. Vol., 1989 Cum.Supp.), Art. 41, § 4-612(c) (“A person under mandatory supervision shall be subject to all laws, rules, regulations, and conditions applicable to parolees.”). This decision was reduced to writing: “Revoke and Allow Six Months Street Time.” 3 ¹³⁰ On March 6, 1990, Frost’s probation stemming from his rape conviction was revoked, and the circuit court judge ordered that Frost serve the three-year suspended portion of the sentence in the rape case.

The judge further ordered that it be served consecutively to all sentences Frost was presently serving, which included the 18-months’ imprisonment for child abuse and child pornography. In April of 1993, Frost filed a pro se petition for a writ of habeas corpus in the Circuit Court for Baltimore City. Frost’s primary contention in his petition was that the Parole Commissioner lacked the authority to rescind diminution credits at the January 1990 hearing because to do so would violate the ex post facto prohibition. At the time of the revocation hearing, the Parole Commissioner had express statutory authority to “rescind all diminution credits previously earned on the sentence or any portion thereof....” Md.Code (1957, 1986 Repl.Vol., 1989 Cum.Supp.), Art. 41, § 4-612(e).

This provision was part of a revision to § 4-612, which took effect on July 1, 1989. See Ch. 307 of the Acts of 1989. Section 4-612’s predecessor, however, provided as follows: “Any person sentenced after July 1, 1970, to the jurisdiction of the Department of Correction and having served his term or terms, less the deductions provided for in Article 27, § 700 of this Code, shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced. Said released prisoner shall be subject to all laws, rules, regulations and ¹³¹ conditions applicable to parolees and shall remain under the supervision of the State Department of Parole and Probation until the expiration of the maximum term or terms for which he was sentenced.” (Emphasis added).

Ch. 406 of the Acts of 1970. Frost argued that the 1970 legislation was controlling, and that it did not permit the rescission of diminution credits. Therefore, Frost contended that the 1989 legislation disadvantaged him and could not be applied against him. The circuit court (Davis, Andre M., J.) denied Frost’s petition and found no merit in his claim that the statutory authorization for revocation of a mandatory releasee’s diminution credits had “ex post facto effect.” Judge Davis reasoned that the 1989 legislation “worked no substantive change in respect [to] the Parole Commission’s authority to rescind diminution credits” under the 1970 legislation. 4 In denying Frost’s petition for habeas corpus, Judge Davis also stated the following: “[I]t is clear that the Parole Commission properly rescinded Frost’s credits.

It is difficult to imagine how the Parole Commission could have meaningfully acted at all but for a recision of those credits. The very nature of mandatory release supervision is such that the ‘carrot’ of release, on the basis of earned credits, will hopefully motivate an inmate to lawful behavior during the period between release and the maximum expiration date of the underlying sentences. The ‘stick’ of recision is a logical, and necessary, concomitant of that carrot.” Thereafter, Frost filed an application for leave to appeal to the Court of Special Appeals, which the intermediate appellate ¹³² court treated as' a notice of appeal. 5 We issued a writ of certiorari prior to argument in the Court of Special Appeals. ¹³³ B. Facts Regarding Appellant King Henry King was sentenced to 25-years’ imprisonment for a second degree murder which occurred on September 20, 1972. During his incarceration, King earned various diminution credits consisting of good conduct, industrial, and special projects credits.

After application of these credits (2572 days) to his maximum term of incarceration, King was mandatorily released from prison more than seven years before his original term of confinement was set to expire. King also violated the terms of his release. Less than two years after his release, King was convicted of malicious destruction of property and fleeing and eluding a police officer. In light of these new offenses, the Parole Commission issued a retake warrant for violation of King’s release.

On July 24, 1992, the Parole Commission revoked King’s mandatory release, but granted him credit for one year of street time. On April 23, 1993, King filed a petition for a writ of habeas corpus in the Circuit Court for Dorchester County (Johnson, J.) in which he raised the same contention as Frost. King argued that the 1970 legislation did not permit rescission of diminution credits, and therefore the 1989 legislation permitting rescission of “all” diminution credits could not be applied to his sentence without violating the ex post facto clause. Compare Ch. 406 of the Acts of 1970 (providing that an inmate on mandatory release is “deemed as if released on parole”) with Ch. 307 of the Acts of 1989 (allowing the Parole Commissioner to “rescind all diminution credits previously earned on the sentence or any portion thereof ... ”).

The circuit court denied King’s petition based on reasoning very similar to that used by Judge Davis in denying Frost’s petition. Judge Johnson explained that if the 1970 legislation were interpreted to mean that diminution credits were not rescindable, “no revokee could have ever been reincarcerated to serve the remainder of his original sentence, for the reapplication ¹³⁴ of his diminution credits would erase the balance of his original sentence. This would essentially mean that the ability to hold the reimposition of the .remainder of a [mandatory] parolee’s sentence over his head, as a method of deterring the [mandatory] parolee from engaging in future criminal acts, would not exist.” Unwilling to reach “such an absurd result,” Judge Johnson concluded that under the 1970 legislation all diminution credits were automatically rescinded upon revocation of mandatory release. Because the 1989 legislation made rescission of diminution credits discretionary, Judge Johnson declared that it was not more onerous than the prior legislation and denied King’s petition for a writ of habeas corpus.

Thereafter, King sought relief in the Court of Special Appeals, and prior to argument in that court, we issued a writ of certiorari and directed that the case be argued along with the Frost case.

II

Initially, the State contends that we should affirm the denial of appellants’ habeas corpus petitions on the grounds that neither Frost nor King appealed their revocation proceedings to the circuit court. Section 4-511(e) of Article 41 states that “[t]he inmate may appeal to the circuit court within 30 days after receiving the written decision of the Commission. The court shall hear the appeal on the record.” Md.Code (1957, 1993 Repl.Vol.), Art. 41, § 4-511(e). Based on this statute, the State contends that appellants’ petitions should have been denied on this ground alone, without consideration of the merits.

In support of its contention, the State cites Shields v. Warden, 218 Md. 634 , 145 A.2d 279 (1958), and Beard v. Warden, 211 Md. 658 , 128 A.2d 426 (1957). In Shields , we rejected the petitioner’s application for leave to appeal from a denial of á writ of habeas corpus which alleged that there, was insufficient evidence to justify his conviction. This Court stated that “[i]t is well settled that habeas corpus proceedings are not intended to be, and cannot be used as, a substitute for a motion for a new trial or an appeal, and that the sufficiency of the evidence cannot be ¹³⁵ raised by a habeas corpus proceeding.” 218 Md. at 635 , 145 A.2d at 279 . See also Canter v. Warden, 207 Md. 616, 617 , 113 A.2d 418, 419 (1955) (“We must repeat the rule that habeas corpus cannot be made to serve the purpose of an appeal or a new trial to review the question of the guilt or innocence of the petitioner.”); State ex rel.

Battee v. Warden, 191 Md. 751, 752 , 60 A.2d 187, 187 (1948) (“As we have said many times, the writ of habeas corpus cannot be used as an appeal or for the purpose of reviewing the evidence given in a criminal case.”). In Beard , this Court also denied an application for leave to appeal from the denial of a writ of habeas corpus. The petitioner argued that the law under which he was sentenced was an unconstitutional ex post facto law. We explained that “the judgment of a court of general jurisdiction, which has the power to decide constitutional questions and questions of its own jurisdiction, is not a nullity, and that habeas corpus is not an available remedy when the judgment is not a nullity and direct appeal is or was available.” 211 Md. at 660 , 128 A.2d at 427 .

See also Wilson v. Warden, 198 Md. 663, 665 , 80 A.2d 897, 898 (1951); Loughran v. Warden, 192 Md. 719, 723-24 , 64 A.2d 712, 715 , cert. denied, 337 U.S. 908 , 69 S.Ct. 1040 , 93 L.Ed. 1721 (1949). The State’s reliance on Shields and Beard is misplaced. In the instant case, appellants’ primary contention is not that mere errors or irregularities were committed in their proceedings, 6 nor that a court of general jurisdiction made an incor ¹³⁶ rect ruling as to its jurisdiction. Cf Superintendent v. Calman, 203 Md. 414, 424 , 101 A.2d 207, 212 (1953) (distinguishing between judgments of superior courts of general jurisdiction and justices of the peace).

Rather, appellants maintain that the Parole Commissioner’s order rescinding their credits was an absolute nullity because the Commissioner lacked the authority to take any action against them for violating the terms of their releases. Accordingly, if the Parole Commissioner lacked the power to rescind their diminution credits and thereby re-incarcerate them, appellants allege that they are being illegally detained. Based on the nature of this contention, we shall address the merits of appellants’ ex post facto claims.

III

Both the United States Constitution and the Maryland Declaration of Rights prohibit the enactment of ex post facto laws. See U.S. Const., Art. I, § 10, cl. 1; Md.Decl. of Rts., Art. 17. “[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29 , 101 S.Ct. 960, 964 , 67 L.Ed.2d 17, 23 (1981) (footnote omitted). In Booth v. State, 327 Md. 142 , 608 A.2d 162 , cert. denied, — U.S. -, 113 S.Ct. 500 , 121 L.Ed.2d 437 (1992), this Court observed that “[t]he Maryland prohibition has been viewed as having the same meaning as the federal.” 327 Md. at 169 n. 9, 608 A.2d at 175 n. 9 (citing Anderson v. Dep’t of Health & Mental Hyg., ¹³⁷ 310 Md. 217, 223 , 528 A.2d 904, 907 (1987), cert. denied, 485 U.S. 913 , 108 S.Ct. 1088 , 99 L.Ed.2d 247 (1988)). Appellants maintain that the amended version of Article 41, § 4-612, as applied in their cases, constitutes an ex post facto law.

That legislation, enacted in 1989, entitles the Parole Commissioner presiding at a revocation hearing to “rescind all diminution credits previously earned on the sentence or any portion thereof....” Ch. 307 of the Acts of 1989. Section 4-612’s predecessor, which originated in 1970, provided that a person “having served his term or terms, less the deductions [for diminution credits], shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced,” and shall be “subject to all laws, rules, regulations and conditions applicable to parolees.” Ch. 406 of the Acts of 1970 (emphasis added). Appellants contend that the 1970 legislation “did not authorize revocation of diminution credits.” Therefore, appellants claim the 1989 statute is more onerous than its predecessor, and could not be applied to them. See Dobbert v. Florida, 432 U.S. 282, 294 , 97 S.Ct. 2290, 2299 , 53 L.Ed.2d 344, 357 (1977) (“It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.”).

The State, however, maintains that it is “only logical ... that all credits were rescinded by operation of law” under the 1970 legislation, and thus the present statute has no negative impact on appellants. The appellants’ ex post facto contention, therefore, may be resolved by ascertaining the intent of the Legislature when it enacted the prior statute’s provision that an inmate was “deemed as if released on parole.” Ch. 406 of the Acts of 1970. In analyzing a statute, we must always be cognizant of the fundamental principle that statutory construction is approached from a “ ‘commonsensical’ ” perspective. Richmond v. State, 326 Md. 257, 262 , 604 A.2d 483, 486 (1992) (quoting United States v. Universal Corp., 344 U.S. 218, 221 , 73 S.Ct. 227, 229 , 97 L.Ed. 260, 264 (1952)).

Thus, we seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense. See Holman v. Kelly Catering, 334 Md. ¹³⁸ 480, 487 , 639 A.2d 701, 705 (1994); Comptroller v. Fairchild Industries, 303 Md. 280, 288 , 493 A.2d 341, 345 (1985); State v. Intercontinental, Ltd., 302 Md. 132, 137 , 486 A.2d 174, 176 (1985). Furthermore, we do not read statutory language “in isolation or out of context [but construe it] in light of the legislature’s general purpose and in the context of the statute as a whole.” Forbes v. Harleysville Mutual, 322 Md. 689, 696-97 , 589 A.2d 944, 948 (1991). In Geico v. Insurance Comm’r, 332 Md. 124 , 630 A.2d 713 (1993), we explained that “[c]ontext may include related statutes, pertinent legislative history and ‘other material that fairly bears on the fundamental issüe of legislative purpose or goal....’” 332 Md. at 132 , 630 A.2d at 717 (quoting Kaczorowski v. City of Baltimore, 309 Md. 505, 515 , 525 A.2d 628, 632-33 (1987)).

In accordance with these principles of statutory construction, the State suggests the following common-sense analysis of 'the 1970 legislation: “As the statute was silent, only two possible resolutions existed for the disposition of credits—the inmate could be entitled to keep all credits, or the inmate could be subjected to the loss of all credits. Inasmuch as the inmate initially possessed sufficient diminution credits to obtain mandatory release, retention of the . credits following the finding of a violation would require immediate release again. In other words, if the inmate retained the credits, he could not be treated ‘as if released on parole’ (as required by [Ch. 406 of the Acts of 1970]) as he could not be re-incarcerated upon a violation. Compare Article 41, Section 4-511(d) (“if the order of parole is revoked, the prisoner shall serve the remainder of the sentence originally imposed ...”).

Thus, despite the silence in the statute, the only logical interpretation of the statute that would accomplish its purpose required a loss of diminution credits by operation of law.” We agree with the State’s assertion that under the 1970 legislation rescission of diminution credits was the only logical result in the event the Parole Commissioner deemed it necessary to revoke an inmate’s order of mandatory release. ¹³⁹ The 1970 legislation provided that once an inmate has served his term of confinement, less any diminution credits, the inmate is (1) deemed “released as if on parole”; (2) “subject to all laws, rules, regulations and conditions applicable to parolees”; and (3) “under the supervision of the State Department of Parole and Probation until the expiration of the maximum term or terms for which he was sentenced.” Ch. 406 of the Acts of 1970. If we construed this legislation such that a mandatory releasee is entitled to keep all diminution credits notwithstanding a violation of the terms of the release, we would reach an entirely unreasonable result. See D & Y, Inc. v. Winston, 320 Md. 534, 538 , 578 A.2d 1177, 1179-80 (1990) (“[Ujnreasonableness of the