Smith v. State

ADKINS, Judge. In this appeal, we review another dispute regarding an inmate’s eligibility for diminution credits — this time for “special project” credits. The Secretary of the Maryland Department of Public Safety and Correctional Services (the “Secretary”), and the Commissioner (the “Commissioner”) of the Division of Correction (collectively, the “DOC”) have denied appellant Ramarro Lee Smith, an inmate in DOC custody, “special project” credits that he claims he earned during his incarceration by “double celling” (ie., being confined in a cell ⁴⁴⁹ with another inmate). The Circuit Court for Baltimore City denied Smith’s Petition for Writ of Habeas Corpus, without stating its reasons for doing so. 1 This Court granted Smith’s application for leave to appeal.

He presents four questions, which collectively ask whether the hearing court erred in denying appellant’s Petition for Writ of Habeas Corpus. We conclude that it did, reverse the judgment, and remand for a determination of whether appellant is entitled to double celling credits and, consequently, to an earlier mandatory release date. FACTS AND LEGAL PROCEEDINGS On September 17, 1982, the Circuit Court for Montgomery County sentenced Smith to thirty years incarceration for second degree murder (the “murder sentence”). This sentence began on June 10, 1977.

The DOC calculated the maximum expiration date for the murder sentence to be June 10, 2007. See COMAR 12.02.06.01B(9) (“Maximum expiration date” is defined as “the date computed by adding an inmate’s total sentence length to the beginning date of the first sentence with the earliest start date which is part of the inmate’s then current term of confinement”). On January 5,1989, Smith was paroled. Approximately ten months later, on November 3, 1989, the Maryland Parole Commission issued a parole violation warrant, alleging that it had reasonable cause to believe that Smith had violated the conditions of his parole.

At a parole violation/revocation hearing on March 7, 1990, Smith’s parole was revoked. By that time, Smith had been on parole for 373 days. The parole commissioner allowed him street time credit for a portion of that time — nine months, or 273 days. See Md.Code (1999), § 7-401 (d)(1) of the Correctional Services Article 2 (upon revo ⁴⁵⁰ cation of parole, “the inmate shall serve the remainder of the sentence originally imposed unless the commissioner hearing the parole revocation, in the commissioner’s discretion, grants credit for time between release on parole and revocation of parole”).

On January 13, 1990, Smith was returned to the DOC, which recalculated his- maximum term of confinement date to be September 18, 2007. Following Smith’s return to the DOC, he was convicted of a robbery he committed while he was on parole. On May 29, 1990, the Circuit Court for Baltimore County sentenced him to a five-year term (the “robbeiy sentence”), to be served consecutively to the murder sentence. As a result, the DOC revised Smith’s confinement date to September 18, 2012.

During his incarceration, Smith has earned good conduct, special project, and industrial credits. At some unknown point during his incarceration, Smith began to double cell. 3 The DOC declined to give Smith any special project credits for double celling. DISCUSSION I. Diminution Credits We begin with a review of 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 (1994). Inmates may earn good conduct credits, work or industrial credits, education credits, and special project credits.

See §§ 3-702 to 3-707. Generally, an inmate may earn up to five credits in each category per month. Id. In the case of special project credits, however, an inmate may earn up to ten credits each month.

The maximum number of ⁴⁵¹ diminution credits that an inmate may earn monthly is capped at 20 days. See § 3-708. The special project credits at issue in this appeal can be earned only “in those special selected work projects or other special programs designated by the Commissioner and approved by the Secretary.” § 3-707(a). Under DOC regulations, inmates may earn diminution credits for participating in “special projects” established by the Commissioner and Secretary.

The DOC regulations state that an inmate who is double celled, and who otherwise “meets the eligibility criteria” established for these credits, “is in a special project....” COMAR 12.02.06.05N(1). There are, however, some specific exclusions that make certain inmates ineligible for double celling credits. These exclusions cover, inter alia, “an inmate who is serving a ... [sjentence for murder....” Id. Thus, an inmate may earn double celling credits only for certain “eligible” sentences.

By earning diminution credits, an inmate may earn the right to be released on a date much earlier than that designated by his or her original term of confinement. See Frost, 336 Md. at 128 , 647 A.2d 106 . “Upon accumulating sufficient credits to earn entitlement to release, the inmate is deemed released under ‘[mjandatory supervision.’ ” Id. Mandatory supervision is “a conditional release from confinement” granted to an inmate who “has served the term or terms, less diminution credit awarded....” § 7-501(3). We turn now to Smith’s complaint that he has earned double celling credits that the DOC has refused to award him.

II

Appellant’s Eligibility For Double Celling Credits Smith contends that the hearing court erred by failing to order the DOC to award him special project credits for double celling during his robbery sentence. He claims that his 30 year murder sentence “reached and exceeded its ‘Mandatory Supervision Release’ date in approximately February/March ⁴⁵² of 1998, based upon the diminution credit days earned up to that time.” Since that time, Smith complains, he has been serving his consecutive five-year robbery sentence without collecting any diminution credits for double celling. The DOC counters that Smith is not eligible for double celling credits because “[he] is serving a term of confinement that includes a sentence for second degree murder,” which is an ineligible sentence under the regulations. The DOC posits that applying credits against an inmate’s sentence, rather than against the inmate’s entire term of confinement, conflicts with section 3-702, which provides that inmates may be “entitled to a diminution of [their] term of confinement,” rather than a diminution of their “sentence.” (Emphasis added.) It argues that Smith’s “suggestion that the DOC- should apply allowed diminution of confinement credits to individual sentences contained within his term of confinement rather than to the term itself is proscribed” by section 3-702.

The question we must decide, then, is whether an inmate may be eligible for double celling credits when his single “term of confinement” encompasses multiple, consecutive sentences, one of which the DOC has defined as an “ineligible” sentence and the other an “eligible” sentence. If, as the DOC argues, double celling credits are not available during any term of confinement that includes a sentence for murder (or, presumably, for any other ineligible sentence), then Smith is not entitled to any credits. If, as Smith argues, double celling credits may be available for that portion of a term of confinement representing the inmate’s consecutive “eligible” sentence, then he may be entitled to double celling credits. We begin by reviewing the statutes and regulations governing the double celling credits at issue here.

The legislature mandated in section 3-702 that “an inmate committed to the custody of the Commissioner [of Correction] is entitled to a diminution of the inmate’s term of confinement as provided under this subtitle.” “Term of confinement” is defined as: (1) the length of the sentence, for a single sentence; or ⁴⁵³ (2) the period from the first day of the sentence that begins first through the last day of the sentence that ends last, for: (i) concurrent sentences; (ii) partially concurrent sentences; (iii) consecutive sentences; or (iv) a combination of concurrent and consecutive sentences. § 3-701. Special project credits are authorized under section 3-707, which states in relevant part: In addition to any other deductions allowed under this subtitle, an inmate may be allowed a deduction of up to 10 days from the inmate’s term of confinement for each calendar month during which the inmate manifests satisfactory progress in those special selected work projects or other special programs designated by the Commissioner and approved by the Secretary. The Secretary and Commissioner have designated double celling as a special project, by adopting regulations providing that a double celled inmate serving what we shall refer to as an “eligible” sentence “is in a special project.” N. Special Project Credit for a Double Celled Inmate. (1) An inmate who meets the eligibility criteria in § N(2), below, is in a special project pursuant to [section 3-707], except an inmate who is serving a: (a) Sentence for murder, rape, sex offenses, child abuse, drug trafficking or distribution, or use of a firearm in the commission of a felony; (b) Mandatory sentence for the commission of a felony; or (c) Sentence as a repeat offender under Article 27, § 643B, Annotated Code of Maryland.

(2) An inmate eligible for special project credits under this section is an inmate who: (a) Has agreed to be voluntarily double-celled; ⁴⁵⁴ (b) Is double-celled in an institution which is required by court order to be single-celled, or by court order has a population cap and the population cap is exceeded; (c) Is double-celled in an institution which is not under court order but where the number of double cells exceeds the single-cell design capacity of the institution; or (d) Is housed in a dormitory or dormitory-type housing and the housing area where the inmate is confined does not provide for 55 square feet of living space per inmate exclusive of dayrooms, toilets, and showers. (3) An inmate who meets the criteria described above shall receive 5 days credit for each calendar month, and on a prorated basis for any portion of a calendar month, beginning on a date and ending on a date the Secretary determines appropriate, based on the demand for inmate housing and services in the Division of Correction. (7) This regulation may not be interpreted, understood, or construed to mean that an inmate who is eligible to receive the credits described in it has a right to these credits or that an inmate will continue to receive these credits in the future. COMAR 12.02.06.05N.

In construing and applying these statutes and the DOC regulation, this Court generally gives the DOC’s interpretation considerable weight. A “court’s task on review is not to ‘substitute its judgment for the expertise of those persons who constitute the administrative agencyf.]’ ” United Parcel Svc. v. People’s Counsel for Baltimore County, 336 Md. 569, 576-77 , 650 A.2d 226 (1994) (citations omitted). Moreover, appellate courts are mindful that “an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Furthermore, the expertise of the agency in its own field should be respected.” Board of Physician Quality Assur. v. Banks, 354 Md. 59, 69 , 729 A.2d 376 (1999) (citations and footnote omitted).

The same principles apply to ⁴⁵⁵ an agency’s interpretation of its own regulation. See, e.g., Changing Point, Inc. v. Maryland Health Res. Planning Comm’n, 87 Md.App. 150, 160 , 589 A.2d 502 (1991) (“[A]n agency is best able to discern its intent in promulgating a regulation. Thus, an agency’s interpretation of the meaning and intent of its own regulation is entitled to deference”).

This is not to say, however, that the DOC’s interpretation and application of its own regulation is conclusive. Courts will not permit an agency to violate the plain language of its regulation. It is well established that rules and regulations promulgated by an administrative agency [such as the DOC] cannot be waived, suspended or disregarded in a particular case as long as such rules and regulations remain in force. This rule has been recognized in federal and state jurisdictions and has become known as the “Accardi doctrine” since it was announced in U.S. ex rel Accardi v. Shaughnessy, 347 U.S. 260 , [ 74 S.Ct. 499 , 98 L.Ed. 681 ] (1954)....

This doctrine has been broadly applied.... “An agency of the government must scrupulously observe rules, regulations or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down.” ... [T]here is an abundance of authority for the doctrine that an agency cannot violate its own rules and regulations.... Hopkins v. Maryland Inmate Grievance Comm’n, 40 Md.App. 329, 335-36 , 391 A.2d 1213 (1978) (quoting United States v. Heffner, 420 F.2d 809, 811 (4th Cir.1970)) (other citations omitted). See also IV-13 Administrative Law § 13.03 (Matthew Bender 2000) (“Properly promulgated regulations have the force of law, binding the agency as well as other affected persons.... [C]ourts have not allowed agencies to violate any rules and regulations that were promulgated to benefit a party ... by entitling him to a substantive benefit”).

In this case, we do not find the DOC’s interpretations of section 3-702, section 3-707, and the double celling regulation persuasive, because the DOC has ignored the plain language of its own regulation. For the reasons set forth below, we ⁴⁵⁶ conclude that Smith is entitled to earn credits against his eligible sentence, even if he could not do so against his ineligible sentence. Preliminarily, we acknowledge our agreement with the DOC’s contention that it is not obligated to create or maintain a special project for double celling. By providing that inmates “may be allowed” special project credits “for satisfactory progress in ... special programs designated by the Commissioner and approved by the Secretary,” the legislature authorized, but did not require, the DOC to “designate” double celling as a “special program” for which an inmate may earn special projects credits.

See § 3-707. Thus, the DOC has discretionary authority to abolish the double celling program by regulating it out of existence. Similarly, it has authority to alter the program by redefining who is participating in the double celling program — in other words, by changing its own eligibility standards. Moreover, we recognize that not all inmates who are eligible for double celling credits will actually retain them.

The Legislature explicitly authorizes the DOC to revoke special project credits “[i]f an inmate violates the applicable rules of discipline, ... according to the nature and frequency of the violation.” § 3-709(a). Where we part company with the DOC is on the issue of whether it may deny double celling credits to inmates who meet the eligibility requirements that the DOC itself established. We find the language of the DOC regulation clear and unambiguous. Other than a requirement that the inmate be double celled in a qualified institution, 4 the only criterion that the DOC selected to identify inmates eligible for double celling credits is the inmate’s sentence: “An inmate who meets the [double celling]