Maryland Correctional Institution v. Lee

BELL, Chief Judge. The issues this case presents are whether, where a defendant insists that there is a conflict between the pronouncement of sentence and the commitment issued to the Division of Correction (“DOC”), the DOC’s failure to follow its policy requiring it to obtain correction of a commitment record, or independently interpret the transcript of a sentencing proceeding, is appropriately challenged by habeas corpus and whether the Baltimore City habeas corpus judge erred in his interpretation of the Montgomery County sentence. The Circuit Court for Baltimore City held that habeas corpus is the proper vehicle and thus issued the writ and granted the relief requested by the appellee, Patricia A. Lee. Before addressing that issue, however, we must determine whether the appellant, the Maryland Correctional Institution-Women, has the right to appeal the Circuit Court’s decision.

We shall hold that the appellant has the right to appeal. Furthermore, we conclude that habeas corpus is the appropriate way to raise the issue of the appellee’s right to be released from custody. Neverthe ⁵⁰⁵ less, we believe and, therefore hold, that the Circuit Court erred in construing the appellee’s sentence as concurrent. Accordingly, we shall reverse the judgment of the Circuit Court.

I. The appellee was convicted, together with her husband and co-defendant, Le Bon Walker, in the Circuit Court for Montgomery County of conspiracy to commit felony theft and nine counts of felony theft. Both were sentenced as follows: “On Count number one for the offense of conspiracy to commit theft over the value of $300, the sentence will be three years in the Department of Corrections. “Count number two, felony theft from B.F. Saul, the sentence of this court will be three years in the Department of Corrections, concurrent to Count No. One. “Count number three, felony theft from Chevy Chase Savings Bank, the sentence of this court will be three years in the Department of Corrections, and that will be consecutive to counts one and two. “On Count number four, felony theft from American Home Funding, the sentence will be three years in the Department of Corrections, consecutive to count three. “On Count number five, felony theft from Sigfried and Margo Temp, the sentence of the court will be three years in the Department of Corrections, consecutive to count four. “On Count number six, the conviction for felony theft from Edward and Ping Waa, the sentence of the court will be three years in the Department of Corrections, consecutive to count number five. “On Count number seven, felony theft from Republic Federal Savings Bank, the sentence of this court will be three years in the Department of Corrections, consecutive to count number six. “On Count number eight, for the felony theft from Trust Bank, Federal Savings Bank, the sentence of this court will ⁵⁰⁶ be three years in the Department of Corrections, consecutive to count seven. “On Count number nine, the charge of felony theft from Edward I. and Ping Waa sentence of this court will be three years in the Department of Corrections, concurrent to count no. six. “On Count number ten, felony theft from Crestar Bank, the sentence of this court will be three years in the Department of Corrections, consecutive to count no. eight.” The trial judge then said: “The sentences will be served concurrently with the sentence imposed by Judge Weinstein earlier this week. Mr. Walker will receive credit for 390 days he has already served. Mrs. [Lee] Walker will receive credit for 380 days already served.” Although initially reflecting some confusion, the Commitment Record ultimately issued to the Commissioner of Correction pursuant to this sentencing stated the total time to be served as 24 years, “to be run ... concurrent with any other outstanding or unserved sentence,” ie. the 5 year sentence, 1 earlier imposed by Judge Weinstein, that had commenced on October 5,1993. 2 ⁵⁰⁷ The DOC maintains a “commitment manual,” containing its policies and guidelines with respect to commitments.

Chapter 90-130 of the manual addresses the Division’s policy for resolving ambiguous sentences. It provides, as relevant: “What general guidelines should be followed when staff encounter an ambiguous sentence? “Since Maryland Law provides that ambiguous sentences must be construed in favor of the inmate, when a sentence is found to be ambiguous, commitment staff shall seek clarification from the sentencing judge. Upon receipt of a transcript indicating a different sentence than the one recorded on the commitment record, staff shall immediately request an amended commitment from the court of jurisdiction. When the foregoing action cannot be accomplished, then the Division should obtain necessary documentation and defend the Division’s action before the appropriate court.

However, in all cases, the Division will exercise good faith efforts to calculate sentences in accordance with applicable policy and available information.” The appellee presented a copy of the transcript of the sentencing proceeding to the DOC, maintaining that her commitment should be amended to reflect, rather than an aggregate of 24 years, a sentence of only three years, concurrent to the 5 year sentence imposed previously. According to the appellee, the trial judge’s last sentencing comment indicated that she intended that there be a concurrent relationship between the sentences imposed for the counts in the indictment as well as between those sentences and the sentence imposed by Judge Weinstein. Aware of Chapter 90-130, a member of the DOC’s commitment staff wrote to Judge Harrington, who confirmed that the period of incarceration ordered was 24 years, run concurrently with the sentence imposed the day before by Judge Weinstein. Thus, she replied that, “[t]he Commitment Record, issued on ⁵⁰⁸ February 4, 1997, accurately reflects the sentence structure imposed by the Court at the sentencing hearing on February 2,1994.” In that letter, she further advised: “This same issue was the subject of a Defendant’s Motion for Reconsideration of Sentence heard on June 7, 1996.

After duly considering Ms. Lee’s argument and the opposition of the State of Maryland, the motion was denied. The ruling was not appealed.” The appellee then initiated an Administrative Remedy Proceeding at the institution, eventually filing, pursuant to Md. Code (1957, 1997 Repl.Vol.) Art. 41, § 4-102.1, 3 an inmate grievance with the Inmate Grievance Office. The grievance was dismissed for failure to state a cognizable claim, specifically because interpretation of a sentencing transcript is an issue for the court, rather than the DOC. The appellee appealed that decision to the Circuit Court for Anne Arundel County.

Affirming, that court indicated that the appropriate avenue of redress was post conviction. A petition for writ of habeas ⁵⁰⁹ corpus was then filed by the appellee in the Circuit Court for Montgomery County. It was heard by Judge Weinstein, who denied it. The appellee next filed, in the Circuit Court for Baltimore City, a petition for writ of habeas corpus, in which she challenged the legality of her continued incarceration by the DOC.

More particularly, the petition alleged that the DOC had failed to apply its policies concerning the interpretation of ambiguous sentences. Following a hearing on the petition, 4 the hearing court issued a memorandum opinion agreeing -with the appellee. Noting the language used to pronounce the sentence, particularly the use of the mandatory, “will,” it determined that, whatever may have been intended, ten concurrent sentences of three years each had been imposed on the appellee by the Montgomery County Circuit Court. The hearing court thus interpreted the orally pronounced sentence.

The effect of following the intention of the court — that the sentences be consecutive — rather than the construction required by the oral pronouncement — ’that the sentences be concurrent — , it concluded, citing Wilson v. State, 45 Md.App. 675, 677 , 415 A.2d 605, 605 (1980), would be to modify the appellee’s sentence upward and thus render it illegal. The hearing court found that the DOC had failed to abide by its own procedures for clarification of ambiguous commitments: “This Court finds that the Respondent has failed to properly calculate the Petitioner’s sentence to show that she is serving each of the individual, three (3) year sentences concurrently with the five (5) year previously imposed sentence by Judge Weinstein, that based on the language expressed by the judge from the bench in accordance with ⁵¹⁰ its own policy. Respondent’s failure has resulted in denial of Petitioner’s Due Process rights as well as denial of equal protection of the law by denying her the right to be considered for parole upon reaching one fourth Qh) of the five (5) year sentence, which she was eligible for as of 1995.” It vacated the appellant’s aggregation of the appellee’s sentences and ordered that they be “served concurrently and calculated accordingly from October 5, 1993, as a matter of law, in Montgomery County Circuit Court case number 63521, notwithstanding the intent of Judge Harrington to impose consecutive sentences, but as otherwise orally pronounced.” The appellant appealed this judgment to the Court of Special Appeals. We issued the writ of certiorari on our own motion prior to any proceedings in that court.

II

Before addressing the merits of the case sub judice, we must consider the appellee’s motion to dismiss. The appellee argues that the appellant’s appeal is prohibited by Md.Code (1957, 1996 Repl.Vol., 2000 Cum.Supp.) Article 27, § 645A (e). She reasons: “The finding of the court below was that the petition challenged Appellee’s illegal confinement, based upon the due process and equal protection violations in the failure of Appellant to follow its guidelines. This illegal confinement, based upon an illegal sentence contained in Appellee’s commitment record, falls squarely without the language of the exception.” Even if the appellant’s appeal in this case is not prohibited by § 645A (e), the appellee further maintains, the appeal should be dismissed nevertheless because of the appellant’s undisputed failure to pursue appellate review through an application for leave to appeal.

To reach that conclusion, the appellee notes that the requirement in § 645-1, asserts that “habeas and postconviction proceedings often are in pari materia,” and relies on the statement in Gluckstern v. Sutton, 319 Md. ⁵¹¹ 634, 662, 574 A.2d 898, 912 (1990), that the Court’s interpretation of the exceptions clause as a grant of a right to appeal in habeas corpus cases in certain instances, is “consistent with the purpose of the Post Conviction Procedure Act.” She also contends that “If Appellant’s view is correct, the purpose of the Act would be vitiated, since every inmate necessarily would choose to avail him or herself of habeas, a procedure with an automatic appeal provision, rather than postconviction, mandating an application for leave to appeal.” Section 645A (e) provides: “(e) The remedy herein provided is not a substitute for, nor does it affect any remedies which are incident to the proceedings in the trial court or any remedy of direct review of the sentence or conviction. Except as provided in subsection (a)(3) of this section, a petition for relief under this subtitle may be filed at any time, except that where an appeal has been taken from the judgment of conviction to the Court of Special Appeals, it shall not be necessary to appoint counsel or conduct a hearing or take any action whatsoever on the petition, until the judgment of conviction becomes final in the Court of Special Appeals. No appeals to the Court of Appeals or the Court of Special Appeals in habeas corpus or coram nobis cases, or from other common-law or statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of death or imprisonment shall be permitted or entertained, except appeals in such cases pending in the Court of Appeals on June 1, 1958, shall be processed in due course. Provided, however, that nothing in this subtitle shall operate to bar an appeal to the Court of Special Appeals (1) in a habeas corpus proceeding instituted under § 2-210 of Article 41 of this Code or (2) in any other proceeding in which a writ of habeas corpus is sought for any purpose other than to challenge the legality of a conviction of a crime or sentence of death or imprisonment therefor, including confinement as a result of a proceeding under Title 4 of the Correctional Services Article.” ⁵¹² This Court extensively considered and interpreted this section in Gluckstem in resolving a challenge to the State’s right of appeal in that case.

In that case, Sutton was committed to the Patuxent Institution in 1975 as a defective delinquent, pursuant to Md.Code (1957, 1976 Repl.Vol.), Art. 31B § 9 after having been convicted of two counts of first degree murder and two counts of use of a handgun in the commission of a felony or crime of violence, occurring in 1974, and sentenced to concurrent terms of life plus twelve years. See 319 Md. at 638 , 574 A.2d at 899 . At that time parole eligibility for Patuxent inmates was controlled by Md.Code (1957, 1997 Repl.Vol.), Art. 31B, § 13(d), which, as relevant, provided: “If the institutional board of review as a result of its review and reexamination of any person believes that it may be for his benefit and for the benefit of society to grant him a ... parole from the institution for defective delinquents, it may proceed to arrange for such ... parole.... The board may attach to any such ... parole such conditions as to it seem wise or necessary.... ” Significantly, there was no requirement that the Board’s parole decision be approved by any other person or entity.

See id. at 640, 574 A.2d at 900 . Subsequently, in 1982, the General Assembly enacted Ch. 588 of the Acts of 1982, which amended Art. 31B, § 11(b)(2), relating to paroles by the Institutional Board of Review of Patuxent Institution, to require that “[a]n eligible person who is serving a term of life imprisonment shall only be paroled with the approval of the Governor.” Id. at 643, 574 A.2d at 902 . The Institutional Board of Review of Patuxent Institution having twice voted in favor of his parole and the Governor having twice refused to approve the parole, Sutton filed a petition for habeas corpus requesting his release on parole in accordance with the decisions of the Institutional Board of Review, arguing that the gubernatorial approval requirement, as applied to him, violated the ex post facto clauses of the Maryland Declaration of Rights and of the United States Constitution. See id. at 644-45, 574 A.2d at 901-02 .

The Circuit Court for Baltimore County agreed with Sutton and ⁵¹³ granted the writ, id. at 645, 574 A.2d at 903 , and, therefore, ordered another parole hearing, at whieh the Institutional Board of Review would proceed “solely on the facts and evidence as they existed when the Institutional Board of Review originally considered Petitioner for parole in October of 1984.” Id. at 646, 574 A.2d at 904 . It also ordered that the Board’s decision was not subject to the Governor’s approval. Sutton challenged the right of Patuxent to appeal the Circuit Court judgment, arguing, inter alia., that no appeal lay. Rejecting Sutton’s argument, Judge Eldridge, speaking for the Court explained: “In our view, the language added to the Post Conviction Procedure Act in 1965 was intended to authorize appeals in habeas corpus cases such as the case at bar.

The language of Art. 27, § 645A(e), emphasizes that the Post Conviction Procedure Act shall not operate to bar an appeal ‘(1) in a habeas corpus proceeding instituted under § 2-210 of Article 41 of this Code or (2) in any other proceeding in which a writ of habeas corpus is sought for any purpose other than to challenge the legality of a conviction of a crime or sentence of death or imprisonment therefore, including confinement as a result of a proceeding under Article 31B of this Code.’ “Clause (2) of the above-quoted language obviously applies to a case like the present one. Otherwise, the clause would be meaningless. “Immediately prior to the 1965 enactment, only two statutes provided for appeal or leave to appeal in habeas corpus proceedings: what is now Art. 41, § 2-210, relating to extradition cases, and Ch. 6 of the Acts of 1880, relating to orders based on the unconstitutionality of the statute under which the prisoner was convicted. 5 Clause (1) of the 1965 ⁵¹⁴ language encompasses the extradition cases, and therefore, those cases are not the object of clause (2). Automatic appeals under Ch. 6 of the Acts of 1880 are also not the object of clause (2). Ch. 6 of the Acts of 1880 covers only constitutional challenges to criminal convictions and Art. 31B examination or defective delinquency proceedings.

Clause (2) relates to appeals in cases ‘other than’ those challenging criminal convictions or Art. 31B proceedings. Consequently, contrary to the view of the Court of Special Appeals, the purpose of clause (2) was not to make it clear that the Post Conviction Procedure Act did not abolish appeals in habeas corpus cases involving extradition and cases under Ch. 6 of the Acts of 1880. Neither category of cases was encompassed by clause (2). Clause (2) has meaning only if construed as granting a right of appeal in a habeas corpus case not involving a challenge to the criminal conviction and sentence or the Art. 31B proceeding which led to the prisoner’s confinement.” 319 Md. at 661-62 , 574 A.2d at 911 .

Thus, as the appellant argues, this Court, in Gluckstem, determined that the 1965 amendment to § 645A(e) of the Post Conviction Procedures Act provides authorization for appeals in a proceeding where “a writ of habeas corpus is sought for any purpose other than to challenge the legality of a conviction of a crime or sentence.” 319 Md. at 661 , 574 A.2d at 911 . ⁵¹⁵ That the appellee’s petition for habeas corpus challenged only the legality of her confinement and not the legality of her sentence is patent. She admits as much in her Motion to Dismiss, when she acknowledges that “[t]he finding of the court below was that the petition challenged Appellee’s illegal confinement, based upon the due process and equal protection violations in the failure of Appellant to follow its guidelines.” To be sure, she later states that the illegal confinement is based on an illegal sentence; however, the legality of the sentence is presented, if at all, only indirectly, as it relates to the ambiguous sentence argument and analysis. She has never contended that the court was without authority to render consecutive sentences aggregating 24 years; her only contention has been that the court did not, in fact, do so, which is what makes her confinement unlawful. The Memorandum Opinion of the hearing judge also makes clear that what was before the court in the petition for habeas corpus was the legality of the appellee’s confinement and not of her sentence.

He states, by way of context: “This is the petitioner’s first application regarding the calculation of her credits during incarceration and her third application regarding ‘oral pronouncement’ of her sentences. The Petitioner’s main contention under this present application is the continued incarceration of Petitioner, based on the Division of Correction’s policies and procedures that are not being adhered to in the calculation of her sentence structure, which has caused Petitioner’s continued illegal confinement based on her ‘oral pronouncement’ of sentences.” Moreover, the court’s more particular statement of the appel-lee’s argument confirm that this is so: “Petitioner asserts that t he Respondent [Warden] has refused to properly calculate Petitioner’s sentence to show that the Petitioner is serving each of the individual three (3) year sentences concurrently with the five year previously imposed sentence by Judge Paul H. Weinstein. Petitioner further states that the Division of Corrections [sic] has ⁵¹⁶ acknowledged that her Commitment Record does not reflect the ‘language expressed by the Judge from the bench,’ yet they have refused to calculate Petitioner’s sentence in accordance with their policy 90-132-1. “Petitioner further asserts that the Division of Corrections [sic] has allegedly aggregated the individual three (3) year sentences in direct violation of their own policy as outlined in Chapter 90-130-5 of the ‘Commitment Manual.’ “The policy in question states that when an ambiguity is found in one’s sentence, as is the case in Petitioner’s sentence structure, the Division of Corrections [sic] is required by law to calculate the sentence in favor of the inmate. The Division of Corrections [sic] has failed to do so and is therefore illegally detaining Petitioner past her mandatory release date, based on her ‘orally pronounced’ sentence.” But most telling of all is the petition for habeas corpus itself.

In it, the appellee states most emphatically that “[t]he validity of the conviction is not an issue of this Habeas Corpus petition .” The petition further avers: “The only issue before the Court is the continued incarceration of Petitioner, based on the Division of Correction’s policies and procedures that are not being adhered to in the calculation of her sentence structure, which has caused Petitioner’s continued illegal confinement, based on her ‘oral pronouncement’ of sentences and the service thereof. Said policies and procedures within the ‘Commitment Manual’ of the Division of Correction has created a ‘Liberty Interest Right’ that is being violated by Respondent.” Moreover, throughout the petition, the appellee focused on the appellant’s responsibility, by virtue of its policies and procedures, which she identifies as being contained in a “Commitment Manual,” to have calculated the appellee’s sentence consistent with her interpretation of the law governing sentencing. Finally, in referring to the prior filed petition concerning this