Secretary of Public Safety v. Hutchinson

WILNER, Judge. We explore once again the arcane world of diminution credits available to prisoners in the State correctional system. See Moats v. Scott, 358 Md. 593 , 751 A.2d 462 (2000); Secretary, Dept. of Public Safety and Correctional Services v. Henderson, 351 Md. 438 , 718 A.2d 1150 (1998); Beshears v. Wickes, 349 Md. 1 , 706 A.2d 608 (1998); Md. House of Correction v. Fields, 348 Md. 245 , 703 A.2d 167 (1997). The question is whether an inmate who (1) by virtue of accumulated diminution credits is released on mandatory supervision, prior to the expiration of his sentence(s), (2) while on mandatory supervision commits a new crime, for which he receives a new sentence, and (3) is returned to prison to serve both the remaining part of the original sentence(s) and the new sentence, is entitled to good conduct credits against the new ³²² sentence from the time of its effective date or only from the time the original sentence(s) expires.

The dispute between the Secretary of Public Safety and Correctional Services and the Division of Correction (DOC), on the one hand, and Thomas Hutchinson, on the other, hinges on the proper construction of Maryland Code, § 7-504(b) of the Correctional Services Article, which states, simply, that “[a]n inmate may not be awarded any new diminution credits after the inmate’s mandatory supervision has been revoked.” PROCEDURAL HISTORY Thomas Hutchinson is no stranger to the Division of Correction; he has been a frequent guest in its facilities, beginning in 1970, when he was convicted of robbery with a deadly weapon and sentenced to 20 years. In 1973, he escaped, which landed him an additional seven years when he was apprehended two years later. He was paroled in February, 1982, but was returned 11 months later, with an additional 10-year sentence, upon his conviction for assault with intent to murder. In October, 1991, after being convicted of assault with intent to maim, he was given a three-year sentence, with all but three months suspended.

Hutchinson was released on mandatory supervision in May, 1993. Three months later, he was arrested for possession with intent to distribute heroin, of which he was eventually convicted and sentenced to seven years, commencing upon his arrest on August 23,1993. In June, 1994, the Parole Commission formally revoked his mandatory supervision, allowed him no “street time,” and rescinded 613 diminution credits. As a result of the new sentence and the action of the Parole Commission, the maximum expiration date of Hutchinson’s term of confinement was calculated to be August 23, 2000.

All of this is prologue. Hutchinson was released, once again, on mandatory supervision in August, 1995. Any hope that he had somehow been habilitated -was dashed when, on February 29, 1996, he was convicted of possession with intent to distribute cocaine, for ³²³ which he received a 20-year sentence, with all but five years suspended. It is the fallout from that conviction and sentence that produced this appeal.

In June, 1996, the Parole Commission revoked Hutchinson’s mandatory supervision, rescinded all of his 1,568 days of good conduct credits, and allowed him only 61 days of “street time.” By virtue of those actions, Hutchinson’s maximum expiration date with respect to the sentences he was serving when placed on mandatory supervision became February 15, 2001. Against that date, DOC applied 132 work and special project credits, which resulted in a new mandatory supervision release date of October 6, 2000. Later, DOC allowed some additional credits that moved the mandatory supervision release date to September 1, 2000. The full extent of the dispute between Hutchinson and DOC appears to involve an intricate series of calculations not fully explained in either the record extract or the briefs, but the heart of the dispute concerns the extent to which Hutchinson is entitled to good conduct diminution credits against the new five-year sentence, which would end on February 28, 2001.

DOC takes the position that, by virtue of § 7-504(b), Hutchinson is not entitled to any good conduct credits against the five-year sentence until he has served, in full, the term of confinement he was serving when placed on mandatory supervision. Under that approach, as best we can determine, he would not begin to receive good conduct credits against that sentence until September 1, 2000—the mandatory supervision release date applicable to the “old” sentences. Hutchinson, on the other hand, maintains (1) that he is entitled to 92 additional days of work and special project credits against the “old” sentences, which presumably would move the mandatory release date applicable to those sentences back to the end of June, 2000, and (2) that he is entitled to good conduct credits at the rate of five days a month against the five-year sentence from the time it was imposed, on February 29, 1996, which, according to his calculation, would yield an additional 290 days of credits. ³²⁴ In October, 1996, Hutchinson filed a grievance with the Inmate Grievance Office, complaining about DOC’s calculations. His grievance was rejected by the warden, by the Commissioner of Correction, and by an administrative law judge.

He then sought judicial review in the Circuit Court for Washington County, which affirmed the ruling of the ALJ. The Circuit Court concluded that “a prisoner whose mandatory supervision has been revoked, cannot earn any new diminution credits either on that portion of the sentence that he must serve resulting from rescission of supervision as well as any new sentence imposed to be served concurrently with his former sentence.” The court held that such a prisoner would begin to earn diminution credits on a subsequent sentence only “upon the completion of the maximum expiration date of the term of confinement for which mandatory supervision had been revoked.” Aggrieved, Hutchinson appealed to the Court of Special Appeals which, in an unreported opinion filed February 11, 2000, reversed the judgment of the Circuit Court. The intermediate appellate court found § 7-504(b) to be ambiguous with respect to whether diminution credits were allowed or disallowed against any new sentence and, applying the rule of lenity, concluded that the statute did not bar credits on subsequently imposed, concurrently executed sentences. It therefore held that DOC erred in refusing to award good conduct credits from February 29, 1996.

It also held that DOC erred in refusing to credit Hutchinson with the 92 work and special project credits he had earned from December, 1993 through August, 1995. In light of those holdings, the court directed a remand to the Secretary of Public Safety and Correctional Services for an immediate recalculation of Hutchinson’s mandatory supervision release date. The case was returned and, on February 16, 2000, DOC released Hutchinson from confinement. The basis on which it concluded that Hutchinson was entitled to immediate release is not in the record before us and has not been explained to us by the parties. ³²⁵ Complaining that the Court of Special Appeals decision, even though unreported, affects the mandatory supervision release dates of between 2,000 and 3,000 other inmates, the Secretary of Public Safety and Correctional Services sought our review of that court’s construction of § 7-504(b).

The Secretary did not complain about the intermediate appellate court’s conclusion regarding the 92 days of work and special project credits, which applied to the old sentences, but only whether § 7-504(b) permitted “an award of credits for time to be served on a concurrent sentence imposed after release on mandatory supervision which overlaps with time the inmate is required to serve on the original, reinstated term of confinement.” We granted certiorari to review that limited question. DISCUSSION The Legislature first authorized good conduct diminution credits in 1876. By 1876 Md. Laws, ch. 162, it provided that convicted prisoners serving sentences in the penitentiary were entitled to have deducted from their sentences five days for each calendar month during which no charge of misconduct had been sustained. The law also required that prisoners be discharged at the expiration of their sentence less the time so deducted.

As we pointed out in Moats, Henderson, Wickes, and Fields , over the years the Legislature provided for three other kinds of credits as well—for performing work tasks (five days a month), for satisfactory progress in vocational or other educational courses (five days a month), and for special work projects (up to ten days a month). The work, educational, and special project credits are awarded monthly, as earned. Good conduct credits, however, are deducted in advance from the inmate’s term of confinement, subject to being rescinded if the inmate misbehaves in various ways. Until 1970, prisoners released early, through the accumulation of credits, were treated as though they had effectively served their entire sentence; they were not subject to any special restrictions or encumbrances upon release.

In 1970, the Legislature changed that situation and provided that persons sentenced after July 1, 1970, who were released early ³²⁶ by reason of accrued diminution credits were to be “deemed as if released on parole until the expiration of the maximum term or terms for which [they were] sentenced.” 1970 Md. Laws, ch. 406. The law provided further that such prisoners were subject to all laws, rules, regulations, and conditions applicable to parolees and were to remain under the supervision of the Division of Parole and Probation until the expiration of the maximum term. Notwithstanding the broad language of the 1970 Act, there was apparently some question as to the extent of the Parole Commission’s authority over prisoners so released, especially over whether any special, individual conditions could be imposed. See Senate Judicial Proceedings Committee Bill Analysis and Department of Public Safety and Correctional Services Position Statement on Senate Bill 103 (1989).

To address that perceived ambiguity, the General Assembly enacted 1989 Md. Laws, ch. 307, which, among other things, defined the status of inmates released early through the accumulation of diminution credits as “mandatory supervision,” required that each person on mandatory supervision be issued a written order specifying the terms and conditions that must be met, and directed the Division of Parole and Probation to supervise the person until the expiration of the maximum term of the sentence. The 1989 Act also, for the first time, addressed the consequences of violating a condition of mandatory supervision. It continued the language of the 1970 law that made persons on mandatory supervision subject to all laws and regulations applicable to parolees, which, at least implicitly, contemplated a revocation of mandatory release status by the Parole Commission if the person violated the conditions of the release. The Act then specified, in a rewritten § 4-612 to Article 41 of the Code: “(e) The Parole Commissioner presiding may rescind all diminution credits previously earned on the sentence or any portion thereof in the revocation proceedings. ³²⁷ (f) A person under mandatory supervision may not earn any new