Stouffer v. Pearson

GREENE, J. Inmate, James L. Pearson, respondent, filed a petition for habeas corpus relief in the Circuit Court for Washington County. 1 After a hearing in the Circuit Court (Wright, J. presiding) the court found that Mr. Pearson was entitled to an immediate release and ordered him to be released from the custody of the Division of Corrections (DOC) 2 after recalculation of diminution of confinement credits and verification of the expiration dates of his terms of confinement. 3 The Court ⁴¹ of Special Appeals, in an unreported opinion, affirmed the trial court’s judgment that Mr. Pearson was entitled to an immediate release. In holding that Mr. Pearson’s “consecutive” sentence for crimes he committed while on parole did not commence at the termination of his parole, the intermediate appellate court explained that if parole is not revoked prior to the imposition of a new consecutive sentence, parole cannot be considered a term of confinement. In other words, parole is not a sentence in esse. 4 The DOC sought certiorari. We granted the DOC’s petition for writ of certiorari filed March 10, 2005.

Stouffer v. Pearson, 386 Md. 180 , 872 A.2d 46 (2005). In our review of the recalculation of Mr. Pearson’s release date, we must determine what the proper commencement date of a consecutive sentence would have been, prior to June 1, 1994, while an offender was on parole and parole had not yet been revoked. In our resolution of this question, we hold that for sentencing purposes parole is not synonymous with incarceration or a sentence being served. Further, we hold that Mr. Pearson’s sentencing in 1979, for crimes committed while on parole, cannot run consecutively to his term of parole because his parole was not revoked until after he was sentenced.

Therefore, we conclude that Mr. Pearson is entitled to an immediate release. Facts On February 1, 1972, the Circuit Court for Baltimore City sentenced Mr. Pearson to twenty-years imprisonment, to commence on August 3, 1971, for robbery with a deadly weapon. 5 On June 1, 1977, the Maryland Parole Commission (MPC) paroled Mr. Pearson. On March 29, 1978, the MPC issued a ⁴² retake warrant for Mr. Pearson. Mr. Pearson was arrested and incarcerated in Baltimore City.

On February 27, 1979, Mr. Pearson was sentenced in the Circuit Court for Baltimore City (Ross, J.) to a twenty-year term of incarceration for second-degree murder, to run “consecutive with any sentence on violation of parole [sic]” and a ten-year term for use of a handgun during the commission of a felony, consecutive to the second-degree murder sentence. Mr. Pearson was also sentenced to three years imprisonment for unlawfully carrying a handgun, to be served concurrently. On April 10, 1979, the MPC revoked Mr. Pearson’s parole, ordering him to serve the balance of the original 1972 sentence, less eight months (or 245 days) “street time” credit. The DOC’s adjusted maximum expiration date on Mr. Pearson’s original 1972 sentence was August 28, 1992; his 1979 sentence would commence on August 28, 1992, and expire on November 24, 2021. 6 Mr. Pearson filed a writ of habeas corpus on July 15, 2004, requesting an immediate release from incarceration, alleging that “at common law, a sentence imposed consecutively to a ⁴³ parole violation term commences on the date of imposition if, at the time of sentencing, parole has not yet been revoked.” Mr. Pearson’s habeas corpus hearing was held in the Circuit Court for Washington County on September 23, 2004. 7 On September 30, 2004, Judge Wright ordered Mr. Pearson released from custody and found that, at common law, a sentence imposed consecutively to a parole violation term commences on the date of imposition if, at the time of sentencing, parole has not yet been revoked.

In so far as the Division of Correction has stipulated that the petitioner! ] would be entitled to immediate release if that were the case, the petitioner! ] [is] ordered to be released from the custody of the Division of Correction upon recalculation of the[ ] individual diminution of confinement credits and verification of the maximum expiration dates of the[ ] terms of confinement. Discussion The DOC contends that Md.Code (1999, 2005 Supp.), § 9-202(c) of the Correctional Services Article, provides that the imposition of a parolee’s consecutive sentence commences at the expiration of the parole period and not on the date of imposition. 8 The DOC further maintains that Mr. Pearson’s ⁴⁴ thirty-year consecutive sentence imposed in 1979 commenced in 1992, after Mr. Pearson served parole on his original 1972 twenty-year sentence. According to the DOC, when Mr. Pearson’s new consecutive sentence was imposed, and no revocation of parole occurred, the new sentence would commence when his parole term was completed. Mr. Pearson contends, however, that the date on which the sentencing judge imposed the thirty-year sentence was the date the sentence began.

Mr. Pearson asserts that the Court of Special Appeals was correct when it affirmed the trial court and concluded that Maryland common law “prohibits the imposition of a sentence that is consecutive to a term of confinement that is not yet in existence____” Furthermore, Mr. Pearson maintains that § 9-202(c) should be applied retroactively. Thus, his release would have been effective after he served his original term of confinement, and his new sentence would have commenced on the date it was imposed and not after the original term was completed. On the other hand, the DOC contends that § 9-202(c) may not be applied retroactively to sentences imposed prior to the ⁴⁵ statute’s 1994 effective date. We agree on this point and conclude that if the Legislature intended for the statute to apply retroactively, the language of the statute would have clearly expressed that intent.

A review of the applicable statutory and common law in 1979 is required to determine the effect of the sentencing judge ordering Mr. Pearson’s new sentence to run consecutively to his original parole term. Statutory Law 9 In 1999, the Legislature recodified Article 27 § 690C as Maryland Code § 9-202 of the Correctional Services Article. Section 9-202(c) states that a sentence imposed for a crime committed by a parolee commences if parole was revoked before sentencing, after the original term expired, or on the date of sentencing, if parole was not revoked. The enactment of § 9-202 was the first time the issue of sentencing before revocation of parole was specifically addressed by the Legislature. 10 Section 9-202(c) did not exist in 1979 when Mr. Pearson was sentenced.

Md.Code (1957, 1968 Repl.Vol., 1970 Cum. Supp.), Art. 41 § 123, however, was in effect and provided that if a parolee was convicted of a crime committed while on parole and was sentenced to an additional term of imprisonment, the new sentence would run consecutively to the unexpired portion of the original sentence unless otherwise indicated by the sentencing judge. The statute provided: 11 ⁴⁶ § 123. Effect of violation of parole.

Whenever any paroled prisoner shall be convicted of any crime committed while on parole, and shall be sentenced as a penalty therefor, to an additional period of incarceration in any institution within this State, such new sentence shall run consecutive to the time to be served on the original term, unless expressly ordered to the contrary by the judge imposing such new sentence. Md.Code (1978 RepLVol.), Art. 41 § 123 (emphasis added). Although § 123 created a presumption that a sentence imposed for a new crime ran consecutively to the unexpired term of parole, the statute did not expressly state that formal revocation of parole was a condition precedent to the statute’s applicability. Our task and focus is to interpret § 123, keeping in mind that the chief goal of statutory interpretation is to “ascertain and effectuate the intention of the legislature.” Comptroller of Treasury v. Citicorp Int’l Commc’ns, Inc., 389 Md. 156 , 884 A.2d 112 (2005) (slip op. at 7) (quoting Rockwood Cas.

Ins. Co. v. Uninsured Employers’ Fund, 385 Md. 99, 108 , 867 A.2d 1026, 1031 (2005)). See also Motor Vehicle Admin, v. Jones, 380 Md. 164, 175-76 , 844 A.2d 388, 394-95 (2004); Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 513-16 , 525 A.2d 628, 632-33 (1987). In determining the meaning of a statute, we consider the statute’s structure, including the title, and how the statute relates to other laws. ⁴⁷ Witte v. Azarian, 369 Md. 518, 525-26 , 801 A.2d 160, 165 (2002).

We look first to the plain meaning of the language chosen by the Legislature. If the plain language of the statute is ambiguous, we analyze the case law, legislative history, and statutory function. Comptroller v. Phillips, 384 Md. 583, 591 , 865 A.2d 590, 594 (2005) (citing Deville v. State, 383 Md. 217, 223 , 858 A.2d 484, 487 (2004)). In our examination of § 123 and its predecessors, we must determine whether the Legislature intended for the statute to apply in situations where parole had not yet been revoked when a sentencing judge imposed a new sentence for a crime committed while on parole.

Several earlier cases which discuss the applicability and meaning of Art. 41, § 101, the predecessor to § 123, highlight the ambiguity created by the statutory language. The operative language of § 101 was similar to § 123, in that “the time to be served on the original term shall run consecutive to such new sentence, and be served in confinement prior to the beginning of such new sentence, unless expressly ordered to the contrary by the judge, imposing such new sentence.” 12 See Burkett v. War ⁴⁸ den, 214 Md. 603, 605 , 134 A.2d 77, 78 (1957) (interpreting the sentencing judge’s pronouncement that “[§ 101] should not apply” and that the sentence imposed for the new offense committed while on parole “ran concurrently with the sentence that [Mr. Burkett] was then serving [for violation of parole]”); State ex rel. Justice v. Warden, 203 Md. 651, 652 , 97 A.2d 906 (1953) (holding that the paroled prisoner’s sentence ran consecutively pursuant to § 101 because the sentencing judge “did not specify whether the sentence of five years was to run consecutively or concurrently with the unserved portion of the sentence of eighteen years”). 13 But see State v. Ewell, 234 Md. 56, 58 , 198 A.2d 275, 276 (1964) (noting that the new sentencing “order did not specify when th[e] sentence should begin, and the prison authorities correctly calculated that it should begin at the end of the original five year term” even though parole had not been revoked at the time of imposition of the new sentence). In the context of imposing a sentence for a crime committed while on parole, in no case has this Court held that § 123 was intended to apply if parole had not been revoked.

If the sentencing judge failed to elaborate concerning the commencement date, under § 123, the new sentence was construed to run consecutively. On one hand, if the sentencing judge specified that the sentence began on the date of imposition, under § 123, the new sentence was construed to run concurrently. On the other hand, if the sentencing judge specified that the new sentence was consecutive to a violation of parole, as in the present case, the sentence was construed to commence after expiration of the term of parole. In summary, § 123 and its predecessors failed to indicate whether the statutes were intended to be applied prior to ⁴⁹ or after parole revocation when a sentencing judge imposed a new or subsequent sentence.

The ambiguity within the statute and its application led to varying results. In 1990, it appears that the Legislature sought to correct the problems created by this omission when it enacted Art. 27, § 690(c). Mr. Pearson, however, was sentenced in 1979 and, therefore, could not have been aided by the new statute. Moreover, a parolee is not in violation of parole until after a hearing and a determination has been made that the parolee has violated the terms of parole.

Due process requires that a parolee be given notice and a hearing before parole can be revoked. 14 See Sec’y, Dept. of Pub. Safety and Corn Servs. v. Henderson, 351 Md. 438, 448-49 , 718 A.2d 1150, 1156 (1998); Swan v. State, 200 Md. 420, 425 , 90 A.2d 690, 692 (1952). Thus, in order for a parolee’s new sentence to run consecutively to the time to be served on the original term, parole must have been revoked. Therefore, arguably, if parole had not yet been revoked when a new sentence was imposed, the presumption contained in § 123 would not have been applicable because the statute omitted necessary qualifying language.

Similarly, in situations where an individual was merely charged with violation of parole or served with a parole ⁵⁰ retake warrant, the presumption would not have been applicable because of the same omission. Common Law We have stated that, generally, the imposition and commencement date of a sentence are matters within the discretion of the sentencing judge, subject to constitutional and statutory limits. Kaylor v. State, 285 Md. 66, 68 , 400 A.2d 419, 421 (1979). In Kaylor , the issue presented was whether a suspended sentence could be served consecutive to a new sentence for an offense committed while on probation. 15 The State argued “that a judge has the power to designate the time at which a sentence will commence and has the discretion to run a sentence consecutively to another sentence.” Id. at 68 , 400 A.2d at 421 .

This Court stated that the “imposition of sentence in a criminal case is a matter within the discretion of the judge” and “a judge’s power to direct when a sentence is to be served ... [or] when a sentence shall commence ... merely implements that punishment.” Id. at 69-70 , 400 A.2d at 421-22 . In discussing the judicial power and discretion to impose consecutive sentences we said: The authority of the court to sentence a convicted defendant derives from the court’s power to try an accused person for a crime committed within its jurisdiction. This judicial power includes the determination of whether a sentence will be consecutive or concurrent.... [T]he power of a judge to impose consecutive sentences ensures that a person who commits separate and distinct violations of the law receives separate and distinct punish ⁵¹ ments. Otherwise a person would escape the full impact of punishment for one offense.

Id. at 69-70 , 400 A.2d at 421-422 (citations omitted). Several jurisdictions have directly addressed the issue of the commencement date of a new sentence for a crime committed by a parolee, when parole had not yet been revoked. The United States Supreme Court has held that when a parolee is sentenced for a crime committed while on parole, and parole was not revoked prior to the new sentence, the parolee should serve the remainder of the original sentence after revocation of parole. Moody v. Daggett, 429 U.S. 78, 85 , 97 S.Ct. 274, 278 , 50 L.Ed.2d 236, 243 (1976) (noting that the original term “of a parolee convicted of [a] crime is to run consecutively to the sentence imposed for the subsequent offense”).

See also Stockton v. Massey, 34 F.2d 96, 97 (4th Cir.1929) (stating that once the intervening sentence was completed, the parole violator would be returned to prison to “complete his original sentence” and the parole board had the “arbitrary power ... to delay the hearing and revocation of parole”); Santa v. Tippy, 14 F.3d 157, 159 (2nd Cir.1994) (stating that when a parolee committed a crime while on parole, and parole was not revoked until after imposition and commencement of the new sentence, once parole was revoked the unexpired portion of the original sentence would begin to run concurrently). In State v. Parker, 334 Md. 576 , 640 A.2d 1104 (1994), we indirectly addressed the commencement date for sentences involving parolees for crimes committed while on parole when we reviewed and overruled Gantt v. State, 81 Md.App. 653 , 569 A.2d 220 (1990). In Maryland, the confusion in the law had its genesis with the intermediate appellate court’s analysis in Gantt . Notwithstanding our decision in Parker , the DOC maintains, sub judice, that the holding in Gantt remains intact today as a valid statement of the law in accordance with the rule of stare decisis.

See Livesay v. Baltimore County, 384 Md. 1, 14 , 862 A.2d 33, 41-42 (2004) (noting that stare decisis means “to stand by the thing decided”) (internal citation omitted). ⁵² In the Gantt case, Mr. Gantt was convicted by a jury in the Circuit Court for Baltimore City for possession with intent to distribute a controlled dangerous substance while on parole from a federal sentence. Gantt, 81 Md.App. at 655 , 569 A.2d at 221 . The court imposed a fifteen-year consecutive sentence to follow his federal sentence. Id.

Eventually, Mr. Gantt was paroled from the federal sentence. Id. His federal parole was not revoked before the Baltimore City sentencing judge imposed the new consecutive sentence. Id.

The issue presented in Gantt was whether parole was considered a sentence in esse. The intermediate appellate court subsequently held: [A] person who is on parole is actually serving a sentence outside the prison walls. Thus, a judge sentencing a parolee on a subsequent offense may make that subsequent sentence consecutive to the sentence the parolee is serving, i.e., the sentence from which he is on parole. Id. at 660-61 , 569 A.2d at 223 .

Unless parole was revoked, Gantt permitted parolees to serve the rest of their parole on the “outside,” stating that, 16 [sentencing judges should be cognizant of the possibility that if the parole authorities (especially in foreign jurisdictions) do not revoke his parole — or until they do — such a defendant given a consecutive sentence to be served upon the termination of an earlier sentence may well remain free from physical restraint until the conclusion of that prior sentence or until a retake warrant is issued by the Department of Parole and Probation. Id. at 661 , 569 A.2d at 224 . The import of Gantt is that when a parolee’s parole term is completed, conceivably years later, a parolee would need to contact authorities. The parolee would then be incarcerated ⁵³ and, at that point, begin to serve the balance of the sentence imposed at the time of the parole violation. 17 In State v. Parker, 334 Md. 576, 591 , 640 A.2d 1104, 1111 (1994), we disapproved Gantt , “to the extent that [it] treats time spent on parole and time spent in prison identically in the context of multiple sentences.” We agreed in Parker that “Gantt was correct in its statement that parole constitutes service of the sentence beyond the prison walls.... ” Id. at 587 , 640 A.2d at 1109 .

On November 10, 1983, in Baltimore County, as part of a plea agreement, Mr. Parker pled guilty to second-degree murder, but was not sentenced on the murder conviction until 1984. Id. at 581 , 640 A.2d at 1106 . On December 1, 1983, he pled guilty in Federal court to robbery and was sentenced to ⁵⁴ twenty years in the Federal correctional system. Id. at 581 n. 1, 640 A.2d at 1106 n. 1.

As part of the plea agreement, the Circuit Court for Baltimore County sentenced him for the second-degree murder conviction to a term of twenty years to run concurrently with his federal sentence. Id. at 582 , 640 A.2d at 1107 . On April 1, 1991, Mr. Parker was paroled on his federal sentence and remanded to the custody of the Maryland Division of Corrections to complete the balance of his Maryland sentence. Id.

Mr. Parker filed for post-conviction relief, objecting to serving the Maryland sentence behind prison walls. Id. At Mr. Parker’s post-conviction hearing, he argued that the Maryland sentencing judge “intended that when Parker was paroled upon his federal sentence he would thereby be paroled from his Maryland sentence.” Id. at 583 , 640 A.2d at 1107 . The post-conviction judge granted Mr. Parker’s petition and released him from State custody.

Id. The State appealed. Id. The intermediate appellate court, on the basis of Gantt , agreed with the post-conviction court and concluded that, “because [Parker’s] term of parole from his federal sentence is twenty years and his Maryland sentence was to run concurrently to his federal term, serving the balance of his twenty years on parole will satisfy his Maryland sentence.” Id. at 584, 640 A.2d at 1107 (alteration in original).

The State then sought review in this Court. Id. We granted the State’s petition and reversed the judgment of the Court of Special Appeals. Id. at 584 , 640 A.2d at 1108 .

In Parker , we held that although a parolee is considered to be “in custody,” “parole is fundamentally different in nature from actual service within the prison walls.” Id. at 587 , 640 A.2d at 1109 . A parolee has freedom that a confined prisoner lacks, such as the ability to return to society and function as a responsible, self-reliant person ... [to] be gainfully employed[,] ... be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions riot applicable to other citizens, his ⁵⁵ condition is very different from that of confinement in a prison. Id.

(quoting Morrissey v. Brewer, 408 U.S. 471, 482 , 92 S.Ct. 2598 , 2600-01, 33 L.Ed.2d 484, 495 (1972)). 18 In our view, in Parker , this Court effectively overruled Gantt’s holding that a sentencing judge could run a sentence consecutively to a term of parole. In reaching that result, in effect, we determined that a prisoner on parole is not serving a sentence in esse because our holding in Parker was that ⁵⁶ “parole is fundamentally different in nature from actual service within the prison walls.” Id. Furthermore, we held that the consecutive sentence imposed in Gantt , “frustrate[d] the punitive purposes