Maryland House of Correction v. Fields

CHASANOW, Judge. In this certiorari review of three decisions of the Court of Special Appeals, we must address the following questions: 1. Whether the failure of an inmate to raise an issue in an inmate grievance proceeding operates as a procedural bar to habeas corpus review of that issue; 2. Whether the Division of Correction (Division) awarded habeas corpus plaintiffs the proper number of diminution credits in light of a 1992 amendment to Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 700(d)(3) that increased the rate of accumulation of diminution credits from five days per month to ten days per month; and 3.

Whether the Division possesses the authority to reduce an inmate’s diminution credits by the amount of “street-time credits” awarded by the Maryland Parole Commission upon an inmate’s return to incarceration for violation of mandatory supervision. The following cases have been consolidated on appeal from the Court of Special Appeals: Maryland House of Correction v. Fields (No. 125), Secretary, Department of Public Safety and Correctional Services v. Hood (No. 126), and Earl D. Beshears, Warden v. Sayko (No. 19). 1 We begin with a summary of the pertinent facts of each case. ²⁵⁰ FACTUAL BACKGROUND I. A. Fields On April 19, 1988, Merrill Fields 2 was sentenced to ten years imprisonment, with all but five years suspended, for a daytime housebreaking conviction. Shortly thereafter, Fields received a two-year-consecutive sentence (less 86 days for time served) for violation of probation on a prior conviction of heroin possession. These two sentences combined to form a seven-year sentence (less 86 days).

Through the application of diminution credits to the sentences, Fields was released on mandatory supervision on May 8, 1992. Of these diminution credits, 401 credits were “good-conduct” credits, calculated at a rate of five days per month in accordance with former Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 700(d)(2). In 1992, § 700 was amended to provide for ten days per month of good-conduct credits where the inmate has not been convicted of a crime of violence as defined by Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 643B or certain drug related offenses. 3 Chapter 588 of the Acts of 1992 (now codified as Md.Code (1957, 1996 Repl.Vol., 1997 Supp.), Art. 27, § 700(d)(3)). On February 2, 1994, less than two years after his release, Fields was convicted of theft and malicious destruction of property and given an eighteen-month sentence.

These convictions violated his probation for an offense unrelated to the housebreaking and heroin convictions, for which he was given ²⁵¹ a consecutive six-month sentence. In addition, on May 17, 1994, the five-year sentence that had been suspended in connection with the earlier daytime housebreaking conviction was reimposed to be served concurrent with any outstanding or unserved sentences. As a result of Fields’s convictions for theft and malicious destruction of property, the Maryland Parole Commission (MPC) issued a warrant for Fields’s return to custody, and a hearing was convened on May 3, 1994 to consider sanctions in relation to his failure to abide by the terms and conditions of his release on his original seven-year sentence. At this hearing, the MPC decided to revoke Fields’s mandatory supervision release.

As part of that decision, the MPC rescinded all good-conduct credits that had been acquired prior to Fields’s release on mandatory supervision 4 and awarded Fields “street-time” credits 5 pursuant to Md.Code (1957, 1997 Repl. Vol., 1997 Supp.), Art. 41, § 511. 6 To calculate the effect of the MPC’s rescission of good-conduct credits and the award of street-time credits on the maximum expiration date of Fields’s sentence, the Division subtracted the number of street-time credits from the number of diminution credits that Fields had earned during his initial confinement. See Division of Correction Commitment Procedure Manual, Ch. 90-134 (revised 9/15/95). This left a balance of 190 days, which was subtracted from the remainder of the ²⁵² original seven-year sentence.- The Division then awarded Fields new good-conduct credits for the reimposed five-year portion of the sentence that had been suspended on April 19, 1988 and the concurrent theft and malicious destruction of property convictions.

These good-conduct credits were calculated at a rate of five days per month. The award of these credits resulted in a mandatory release date of August 11, 1997. Dissatisfied with the manner in which the Division calculated the good-conduct credits, Fields filed a grievance with the Inmate Grievance Office (IGO) on March 13, 1995. Fields claimed that a 1992 amendment to Art. 27, § 700 increased the rate of accumulation of good-conduct credits from five days per month to ten days per month, and that the Division should have used the new rate in calculating his good-conduct credits.

After a July 21,1995 hearing on the matter, an Administrative Law Judge (ALJ) concluded that the grievance had merit. On November 16, 1995, the Secretary of Public Safety and Correctional Services (Secretary), however, rejected the ALJ’s recommendation and denied the grievance based on its conclusion that an inmate who is serving multiple sentences is still only serving one “term of confinement” for the purposes of § 700 and the single term of confinement should be deemed “ ‘imposed’ on the date that the sentence starting first within the term of confinement was imposed.” Fields did not appeal this final order to the circuit court. Fields instead filed a petition for a writ of habeas corpus in the Circuit Court for Baltimore City on November 27, 1995. In his petition, he presented two substantive arguments in support of his request for immediate release: (1) that good-conduct credits should have been awarded at a rate of ten days per month; and (2) that the Division should not have subtracted street-time credits from previously-earned diminution credits.

The court agreed with Fields, granted habeas corpus relief, and ordered Fields be released on February 7, 1996. The Maryland House of Correction then noted an appeal to the Court of Special Appeals, which affirmed the decision of the circuit court. This Court granted the Mary ²⁵³ land House of Correction’s petition for writ of certiorari on February 14,1997. B. Sayko On July 30, 1987, Michael S. Sayko was sentenced to two, ten-year concurrent sentences for two cases of third-degree sexual offense.

His sentences carried a maximum expiration date of February 13, 1997. Having earned 1203 diminution credits and having served all but 1203 days of his sentences, Sayko was conditionally released under mandatory supervision on October 29,1993. Almost a year and a half later, on March 29, 1995, Sayko was convicted of indecent exposure by the Circuit Court for Allegany County and was sentenced to three years imprisonment. Because the indecent exposure conviction constituted a violation of Sayko’s conditional release, the MPC revoked Sayko’s mandatory supervision at a hearing on May 4, 1995.

See Art. 41, §§ 4-612(c), 4—511(c). As part of its decision to revoke the release, the MPC also rescinded approximately half of Sayko’s previously-earned diminution credits pursuant to Art. 41, § 4-612(e). The MPC further granted Sayko street-time credit pursuant to § 4—511(d) for some, but not all, of the 521 days between the date Sayko was released on mandatory supervision and the date his release was revoked. 7 As a result of the MPC’s decision, the Division subtracted Sayko’s street-time credits from Sayko’s previously-earned diminution credits. From the remaining diminution credits, the Division deducted the diminution credits that the MPC had rescinded.

According to the Division’s calculations, Sayko was left with a total of 484 diminution credits. The Division also awarded Sayko additional good-conduct credits for the time Sayko spent in either a local jail or detention center and ²⁵⁴ prospective good-conduct credits for the time between Sayko’s return to the Division’s custody and his new maximum expiration date. These good-conduct credits were awarded at a rate of five days per month. The award of these credits resulted in a mandatory release date of April 2,1996.

Sayko filed an amended petition for a writ of habeas corpus in the Circuit Court for Allegany County, arguing that he was entitled to immediate release. Sayko alleged that the Division illegally deducted his street-time credits from his diminution credits rather than adding the street-time credits to the diminution credits as the MPC intended. The circuit court agreed that the Division was without authority to make this deduction and, on January 17, 1996, the court ordered the Division to restore the credits. Sayko was immediately released under mandatory supervision. 8 On appeal to the Court of Special Appeals, the Division raised two issues.

First, the Division argued that Sayko should be barred from filing a habeas corpus petition because he had not exhausted his administrative remedies. Second, the Division argued that the circuit court erred in concluding that the Division erred in subtracting the street-time credits awarded Sayko by the MPC from his diminution credits. The intermediate appellate court, in an unreported opinion filed on December 17, 1996, affirmed the decision of the circuit court. This Court granted the Division’s petition for writ of certiorari on April 11,1997.

C. Hood On August 14, 1991, Wayne Hood was convicted of theft by the Circuit Court for Somerset County and was sentenced to eight years imprisonment, with all but four years suspended. The sentence commenced on August 11, 1991, and Hood was paroled on February 3, 1993. On December 22, 1993, Hood ²⁵⁵ was again convicted of theft by the Circuit Court for Wicomico County and was sentenced to four years imprisonment, to begin on July 16, 1993. The December 1993 conviction constituted a violation of Hood’s parole for the August 1991 sentence.

Thus, on February 10,1994, Hood appeared before the MPC for a hearing at which the MPC revoked Hood’s parole pursuant to Art. 41, § 4-612(e). The MPC granted Hood street-time credits, however, for the period from February 3, 1993 to July 16, 1993, pursuant to Art. 41, § 511(d). On February 28, 1994, Hood was convicted of possession of a controlled dangerous substance and sentenced to nine months. On August 31, 1994, Hood appeared before the Circuit Court for Somerset County for a hearing on his violation of probation.

At this time, the court reimposed the four years that were suspended in 1991 in conjunction with Hood’s original theft conviction, to run consecutively to any of Hood’s other sentences. As a result of Hood’s new sentences, the Division calculated Hood’s new maximum expiration date as July 16, 2001, and it determined that Hood was entitled to five days of good-conduct credits per month until that date, a total of 569 credits. On May 18, 1995, Hood filed a grievance in the IGO arguing that the Division incorrectly calculated the number of good-conduct credits Hood was due. Hood argued that, pursuant to § 700, he was entitled to ten days of good-conduct credits per month on the sentence for the December 1993 theft conviction because the conviction occurred after Art. 27, § 700 was amended.

The matter was referred to the Office of Administrative Hearings, and there was a hearing before an ALJ on August 16, 1995. On August 29, 1995, the ALJ determined that the grievance was without merit. Hood sought judicial review in the Circuit Court for Somerset County which affirmed the decision of the ALJ on August 22.1996. Hood then appealed to the Court of Special Appeals, which, in an unreported per curiam opinion filed on October 30.1996, reversed the decision of the circuit court.

The Court of Special Appeals held that, as to Hood’s sentences imposed after October 1, 1992, Hood was entitled to good-conduct ²⁵⁶ credit at the rate of ten days per month. The court remanded the case to the circuit court with instructions to reverse and remand the decision of the Secretary for further proceedings consistent with its opinion. The Secretary filed a petition for writ of certiorari, and this Court granted certiorari on February 14,1997.

II

Before turning to the two substantive issues presented, we must first address the procedural issue of whether plaintiffs’ 9 use of petitions for writ of habeas corpus to secure judicial review of the Division’s actions was proper. The Division contends that the circuit court lacked jurisdiction to consider the request for habeas corpus relief because plaintiffs failed to exhaust the administrative procedures established to redress inmate grievances. Plaintiffs claim that the resolution of the two substantive claims in their favor leaves them entitled to immediate release and, thus, plaintiffs may properly petition the court for writs of habeas corpus despite their failure to exhaust the inmate grievance procedure. We begin with a review of inmate grievance procedure and then proceed to a discussion of why, under the facts of the cases sub judice, an inmate need not use those procedures, but instead may file a petition for habeas corpus.

A. Article 41, § 4-102.1 establishes the Inmate Grievance Office and spells out the procedure for filing an inmate grievance. Generally, pursuant to subsection (c), individuals who are confined to correctional facilities must submit any complaints or grievances against any officials or employees of the Division to the IGO, which conducts a preliminary evaluation of the grievance. Art. 41, § 4-102.1(c) & (d). If the IGO ²⁵⁷ finds the grievance wholly lacking in merit, it may issue an order of dismissal without a hearing or findings of fact.

Art. 41, § 4-102.1(d). That order constitutes the “final decision of the Secretary of Public Safety and Correctional Services for purposes of any judicial review.” Id. If, on the other hand, the grievance is not found to be wholly lacking in merit, it is forwarded to the Office of Administrative Hearings (OAH), which conducts a hearing on the matter and acts upon its finding in a fashion similar to the IGO. Art. 41, § 4-102.1(e).

If the hearing results in a finding by OAH that the grievance is wholly lacking in merit, an order of dismissal shall be issued, and such order constitutes the final decision of the Secretary. Art. 41, § 4-102.1(e). If, however, OAH concludes that the grievance is meritorious, either in whole or in part, OAH must promptly forward the grievance to the Secretary for review. Id.

The Secretary has fifteen days to affirm, reverse, or modify the order. Id. The Secretary must then order the appropriate officials to accept, in whole or in part, OAH’s recommendations or the Secretary may “take whatever action he deems appropriate in light of the findings of’ OAH. Id.

The order of the Secretary constitutes a final decision for purposes of judicial review. Id. This Court has emphasized that the administrative remedy under the Inmate Grievance statute “is both comprehensive and ‘flexible.’ ” McCullough v. Wittner, 314 Md. 602, 611 , 552 A.2d 881, 885 (1989); see also State v. McCray, 267 Md. 111, 141-144 , 297 A.2d 265, 281-84 (1972). See generally Comment, Maryland Inmate Grievance Commission, 35 Md. L. Rev. 458 (1976).

The plaintiffs in the instant cases assert that the resolution of the two substantive claims in their favor leaves them entitled to immediate release, and thus, they could properly petition the circuit court for writs of habeas corpus despite any failure to invoke and exhaust the inmate grievance administrative and judicial review procedures. The question posed is one of primary jurisdiction. Judge Rodowsky in Wash. Sub.

San. Comm’n v. Mitchell & Best, 303 ²⁵⁸ Md. 544, 561-62, 495 A.2d 30, 39 (1985) (quoting in part from Md-Nat’l Cap. P. & P. v. Wash. Nat’l Arena, 282 Md. 588, 601 , 386 A.2d 1216, 1225-26 (1978)), stated for the Court: “Primary jurisdiction ‘is a judicially created rule designed to coordinate the allocation of functions between courts and administrative bodies.’ The doctrine ‘comes into play when a court and agency have concurrent jurisdiction over the same matter ... and there is no statutory provision to coordinate the work of the court with that of the agency.’ ” (Citations omitted).

In Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 786 , 506 A.2d 625, 631 (1986), after quoting the above passage from Wash. Sub. San. Comm’n v. Mitchell & Best, supra, we further explained as follows: “In the situation outlined above, where the General Assembly has provided an administrative remedy and there also exists an independent judicial remedy, and no statute coordinates the two or specifies which is primary, we have ordinarily construed the pertinent enactments to require that the administrative remedy be first invoked and followed.

Sec. Dept. of [Human] Res. v. Wilson, 286 Md. 639, 645 , 409 A.2d 713, 717 (1979); White v. Prince George’s [Co.], 282 Md. 641, 649 , 387 A.2d 260, 265 (1978), and cases there cited. On occasion, however, we have held that the administrative remedy is not primary and that resort may be had to the concurrent judicial remedy without invoking or exhausting the administrative procedures. See, e.g., Md.-Nat’l Cap. P. & P. v. Wash.

Nat’l Arena, supra. Where, however, the administrative remedy is deemed to be primary, this Court has generally held that it must be pursued and exhausted before a court exercises jurisdiction to decide the controversy.” Consequently, when the legislature provides an administrative and judicial review remedy for a particular matter, and where there is a pre-existing common-law or statutory judicial remedy for the same matter, and where the legislature fails to specify which remedy is primary, the usual legal ²⁵⁹ presumption is that the administrative remedy is primary and must be “ ‘first invoked and followed’ before resort to the courts.” Md. Reclamation v. Harford Cty., 342 Md. 476, 493 , 677 A.2d 567, 576 (1996)(quoting Hubbard, 305 Md. at 786 , 506 A.2d at 631 ). Moreover, if “the legislative body expressly states that the administrative remedy is primary ... or must be exhausted, the mandatory nature of the exhaustion requirement is underscored. Such express language ‘is totally inconsistent with the notion that the [administrative agency’s] jurisdiction over [the matter] can be circumvented.’ ” Md. Reclamation, 342 Md. at 493 , 677 A.2d at 576 (quoting in part from McCullough, 314 Md. at 609 , 552 A.2d at 884 ).

The Inmate Grievance statute indicates that the administrative remedy shall be primary. Article 41, § 4-102.1(k) states in relevant part as follows: “No court shall entertain an inmate’s grievance or complaint within the jurisdiction of the Inmate Grievance Office or the Office of Administrative Hearings unless and until the complainant has exhausted the remedies as provided in this section.” The Court in McCullough, 314 Md. at 608-09 , 552 A.2d at 884 , pointing to “[t]his sweeping language, delineating the need to invoke and exhaust the administrative remedy,” held that, even if the administrative agency had lacked “the power to grant the particular type of relief sought,” an inmate was required to invoke and exhaust the administrative remedy under the Inmate Grievance statute before a court could adjudicate the inmate’s common-law tort action for money damages against a correctional officer. In light of the language of Art. 41, § 4-102.1(k), and our decisions under that statutory provision, it seems clear that a person confined under the custody of the Division of Correction or the Patuxent Institution, “who has any grievance or complaint against any officials or employees of the Division of Correction or the Patuxent Institution,” Art. 41, § 4-102.1(c)(emphasis added), must invoke and exhaust the ²⁶⁰ administrative remedy under the Inmate Grievance statute before obtaining an adjudication under an alternative common-law or state statutory judicial remedy. If a habeas corpus proceeding, by an inmate asserting an entitlement to immediate release, were nothing more than a common-law or statutory remedy, we would agree with the Division that the inmate would be required first to invoke and exhaust the administrative procedure.

A habeas corpus proceeding, however, is not simply a common-law or statutory remedy over which the General Assembly has full control. Instead, it is a remedy authorized and protected by the Constitution of Maryland. Md. Const., Art. Ill, § 55 provides that “[t]he General Assembly shall pass no Law suspending the privilege of the Writ of Habeas Corpus.” While the legislature may “reasonably” regulate the issuance of the writ, any legislatively imposed regulations must not impair the fundamental right to the substantive remedy of habeas corpus. Olewiler v. Brady, 185 Md. 341, 346 , 44 A.2d 807, 809 (1945); see also State v. Glenn, 54 Md. 572 (1880) and cases cited therein.

Without any extended discussion of the issue, this Court has reviewed habeas corpus petitions by prisoners who had not presented their claims to the Inmate Grievance Office. See, e.g., Gluckstem v. Sutton, 319 Md. 634 , 574 A.2d 898 , cert. denied sub nom Henneberry v. Sutton, 498 U.S. 950 , 111 S.Ct. 369 , 112 L.Ed.2d 331 (1990). In State v. McCray, we reversed an order granting relief requested in several consolidated habeas corpus petitions filed by inmates who alleged their confinement at, and conditions at, Patuxent Institution constituted cruel and unusual punishment. Although we reversed the order in light of the predecessor to the current Inmate Grievance Act, we pointed out that the inmates did not allege or establish that they were “entitled to be released or discharged from confinement.” 267 Md. at 146 , 297 A.2d at 283 .

Further in Fincher (Brown) v. Warden, 216 Md. 644 , 139 A.2d 842 (1958), we held that habeas corpus was not available until the entire legal portion of the petitioner’s sentences had been ²⁶¹ served. From these cases we can distill the principle that pursuant to Md. Const., Art. Ill, § 55 an inmate is not required to utilize the inmate grievance procedure, and courts will entertain an inmate’s petition for habeas corpus when the plaintiff alleges entitlement to immediate release and makes a colorable claim that he or she has served the entire sentence less any mandatory credits.

III

Having determined that plaintiffs were appropriately before the circuit court, we next turn to whether plaintiffs 10 were entitled to have good-conduct credits calculated at a rate of ten days per month rather than the five days per month used by the Division in calculating plaintiffs’ good-conduct credits with respect to sentences imposed after October 1, 1992. For the reasons set forth below, we hold that plaintiffs are entitled to good-conduct credits at the rate of ten days per month for those sentences imposed at a new sentencing after October 1, 1992, and a rate of five days per month for those sentences imposed at a sentencing prior to October 1,1992. A. We begin with a discussion of diminution credits. Diminution credits are credits which can be “earned by inmates to reduce the lengths of their confinements.” See, e.g., Frost v. State, 336 Md. 125, 128 , 647 A.2d 106, 107 (1994). “Assuming an inmate does not forfeit diminution credits as the result of a disciplinary hearing, 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.” Frost, 336 Md. at 128 , 647 A.2d at 108 (citations omitted).

Once the inmate accumulates “sufficient credits to earn entitlement to release, the inmate is deemed released under ‘[mjandatory supervision.’ ” Id. Mandatory supervision is “a conditional release ²⁶² from imprisonment which is granted to any person serving a term of confinement of more than 12 months who was sentenced ... to the jurisdiction of the Division