Jones v. Filbert

MARVIN H. SMITH, Judge, (Retired, Specially Assigned). While on parole, appellant Mark Durand Jones, Jr. committed felony theft. After he was convicted and sentenced for that crime, the Maryland Parole Commission (MPC) revoked Jones’ parole. Jones served his post-parole sentence in the Wicomico County Detention Center, then returned to the Division of Correction (DOC) to resume serving the remainder of his pre-parole sentences.

He petitioned for a writ of habeas corpus, complaining that the DOC 1 refuses to credit diminution of confinement credits that he accrued before he was paroled against the remainder of his pre-parole sentences that he is now serving. Jones renews that argument in this appeal from the denial of habeas relief, and also complains that the judge who sentenced him heard his habeas petition, in violation of Md. Rule 15-307. We agree with the Circuit Court for Wicomico County that, pursuant to Md.Code (1999), section 3-711 of the Correctional Services Article (CS), any diminution credits that Jones accrued before his parole cannot be used to reduce his term of confinement after parole was revoked. We also find that any consideration of Jones’ habeas petition by a judge who had sentenced Jones did not prejudice Jones.

Accordingly, we shall affirm the judgment. FACTS AND LEGAL PROCEEDINGS In December 1998, Jones was convicted of resisting arrest, second degree assault, possession of cocaine, and theft of less ⁵⁷² than $300. The Circuit Court for Wicomico County (Warren, J.) sentenced Jones to an aggregate of seven years of DOC confinement, beginning September 30, 1997. On January 2, 2001, the MPC paroled Jones.

While he was on parole, Jones committed felony theft. In January 2002, the Circuit Court for Wicomico County (Simpson, J.) sentenced Jones to two years for escape. In September 2002, the same court (Beckstead, J.) sentenced Jones to five years on the theft conviction, concurrent with his outstanding sentences and beginning on December 12,1998. On November 12, 2002, the MPC revoked Jones’ parole.

Jones apparently served his post-parole sentence in the Wicomico County Detention Center, then was returned to the DOC to resume serving his pre-parole sentences. Over Jones’ objection, the DOC refuses to credit Jones with the 1,120 diminution credits that he claims to have accrued before he was paroled. DISCUSSION I. Diminution Credits “Diminution credits can be earned by inmates to reduce the lengths of their confinements.” Frost v. State, 336 Md. 125, 128 , 647 A.2d 106, 107 (1994). By accruing diminution credits, inmates may earn the right to be released to mandatory supervision on a date much earlier than that designated by his or her original term of confinement. 2 See id., 336 Md. at 128 , 647 A.2d at 108 . ⁵⁷³ But an incarcerated inmate “is entitled to diminution of the inmate’s term of confinement [only] as provided under [the diminution credits] subtitle” of the Correctional Services Article.

See CS § 3-702. In CS section 3-702, the General Assembly directed that this right to accrue and use diminution credits is a qualified one that is “subject to” both section 3-711 in the parole subtitle and the provisions of the mandatory release subtitle. In section 3-711, the General Assembly instructed that parolees forfeit diminution credits by committing crimes while on parole. Since it became effective in 1996, section 3-711 has governed how these parole crimes affect “past” diminution credits credits accrued before parole).

It provides in full: If an inmate is convicted and sentenced to imprisonment for a crime committed while on parole and the parole is revoked, diminution credits that were awarded before the inmate’s release on parole may not be applied toward the inmate’s term of confinement on return to the Division. CS § 3-711. This statute explains why the DOC has refused to credit Jones with any diminution credits that he accrued before he was paroled. Because Jones undisputedly was convicted and sentenced to imprisonment for a crime committed while on parole, his parole was revoked, and he was reincarcerated, CS section 3-711 prevents Jones from using any past diminution credits to reduce the term of his incarceration.

Although there is no reported Maryland case directly holding that section 3-711 prevents the use of pre-parole diminution credits after the MPC revokes an inmate’s parole for committing a new crime, both the Court of Appeals and this Court have adopted that position in dictum. We agree with the view of section 3-711 reflected in both of these cases. In Sec’y Dep’t of Pub. Safety & Corr.

Servs. v. Henderson, 351 Md. 438 , 718 A.2d 1150 (1998), the Court of Appeals commented on the statutory prohibition against the use of preparóle credits. Henderson committed a drug crime while on ⁵⁷⁴ parole. He was returned to the DOC to serve a new sentence and the remainder of his pre-parole sentence for a violent crime. See id., 351 Md. at 446 , 718 A.2d at 1154-55 .

The DOC credited him at the rate of five good conduct credits per month, which it applied against Henderson’s single term of confinement. 3 After two decisions by the Court of Appeals regarding how the two accrual rates affected inmates serving terms of confinement consisting of sentences that earn credits at different rates, the DOC recalculated Henderson’s credits. The DOC believed that the Court’s decisions obligated it to treat each sentence within a term of confinement separately. See id., 351 Md. at 446-48 , 718 A.2d at 1154-55 . Even though both of Henderson’s sentences accrued credits at the lower rate, the DOC applied the credits separately against each one, and then calculated separate release dates for each sentence.

See id., 351 Md. at 447-48 , 718 A.2d at 1155 . One of those recalculated dates was more than four years after Henderson’s actual release date. See id., 351 Md. at 447 , 718 A.2d at 1155 . As a result, Henderson was rearrested and returned to DOC custody.

See id., 351 Md. at 447-48 , 718 A.2d at 1155 . The Court of Appeals held that the DOC initially “calculated [Henderson’s] good time credits exactly as it should have and properly released him.” Id., 351 Md. at 452 , 718 A.2d at 1157 . The Court affirmed that “ ‘all sentences that overlap or run consecutively do not need to aggregate for all purposes to a single term of confinement.’ ” Id. (quoting Md. House of Corr. v. Fields, 348 Md. 245, 267 , 703 A.2d 167, 178 (1997))(em-phasis in Henderson).

In contrast to previous cases, in which the aggregation of sentences that accrued credits at different rates would have “denied the inmates a legislatively mandated benefit[,]” the aggregation of Henderson’s two sentences “would have the opposite effect” — it would ensure that ⁵⁷⁵ Henderson received that benefit. See id., 351 Md. at 452 , 718 A.2d at 1157 . The Court concluded that the DOC’s “disaggregation” and recalculation of Henderson’s release date was unwarranted because the statutory direction to apply diminution credits against the inmate’s term of confinement was not ambiguous in Henderson’s situation. See id., 351 Md. at 453 , 718 A.2d at 1158 .

Judge Chasanow wrote a concurring and dissenting opinion, joined by Chief Judge Bell and Judge Rodowsky. The minority emphasized that the General Assembly had prohibited the use of pre-parole credits by inmates who commit crimes while on parole. See id., 351 Md. at 457-58 , 718 A.2d at 1160 . Through former Article 27 section 700(k), now recodified as CS section 3-711, “the legislature made clear its disapproval of what the majority is doing by letting Henderson’s pre-parole diminution credits reduce his post-parole sentence.” Id., 351 Md. at 457 , 718 A.2d at 1160 .

The Henderson majority replied to the minority’s criticism in a footnote, denying that it was “overlook[ing] the effect” of this statutory prohibition against using pre-parole credits. See id., 351 Md. at 452 n. 3, 718 A.2d at 1157 n. 3. The majority pointed out that it did not apply to Henderson because his sentences were imposed before the statute took effect in 1996. See id.

Although the majority concluded that the statute “ha[d] no application to this case[,]” it nevertheless agreed with the minority that it does “apply to persons on parole who commit new crimes and receive new sentences on or after October 1,1996[.]” See id. This Court recently discussed section 3-711 in Stouffer v. Staton, 152 Md.App. 586 , 833 A.2d 33 (2003). That case involved an inmate who committed a crime while on mandatory supervision. We examined the statutory scheme that was in effect when Staton’s mandatory supervision was revoked, and contrasted it with the clear statutory language of section 3-711 and its predecessor, as well as the analogous language in current sections 7-502(c) and 7-504(c) of the mandatory supervision subtitle, which did not take effect until after ⁵⁷⁶ Staton’s mandatory release was revoked.

See id., 152 Md. App. at 588-89, 591-95 , 833 A.2d at 34 . We held that Staton was entitled to the past good conduct credits that accrued at a higher rate before his mandatory release, because the prior statutory