Wilson v. Simms

⁸⁵ EYLER, JAMES R., J. Robert Michael Wilson, appellant, appeals from the Circuit Court for Carroll County’s denial of his application for a writ of habeas corpus. Appellant is presently in the custody of the Division of Correction (DOC), within the Department of Public Safety and Correctional Services, housed in the Maryland House of Correction. Appellees are Stuart O. Simms, in his then capacity as Secretary of the Department; William R. Sondervan, in his capacity as Commissioner of the Division of Correction; and Ronald Hutchinson, in his capacity as Warden of the Maryland House of Correction. Appellant contends that he is entitled to immediate release from confinement.

As explained below, we disagree. Factual Background Appellant has been in trouble with law enforcement agencies in several jurisdictions on several occasions, some predating the events recited herein. We pick up the story on December 19, 1978, when appellant was convicted by a jury in the Circuit Court for Carroll County of assault with intent to murder, burglary, and related offenses. On February 8, 1979, after merging the offenses for purposes of sentencing, the circuit court sentenced appellant to 18 years’ imprisonment for the assault with intent to murder conviction, to be served “consecutive with the sentence received in Talbot County”; 1 15 years’ imprisonment for a conviction of burglary, to be served consecutively to the term imposed for the assault with intent to murder conviction; 15 years’ imprisonment for a conviction of conspiracy, to be served concurrently with the term imposed for the conviction of burglary; and 3 years’ imprisonment for a conviction of carrying a weapon openly, to be served consecutively to the term imposed for the conviction of burglary.

We shall refer to this sentence as the “36 year” or “Carroll County” sentence/term. ⁸⁶ On January 20, 1979, the Circuit Court for Talbot County sentenced appellant with respect to several prior convictions in that court. Appellant was sentenced to 15 years’ imprisonment for a conviction of armed robbery; 15 years for a second conviction of armed robbery; 10 years for a conviction of burglary; 5 years for a conviction of conspiracy; and 5 years for a conviction of unlawful use of a handgun in the commission of a crime of violence. The court ordered that each term of imprisonment be served consecutively to the other terms and that all terms were to be served “consecutive to the sentences previously imposed in other jurisdictions.” We shall refer to this sentence as the “50 year” or “Talbot County” sentence/term. The Carroll County convictions were affirmed on appeal.

Wilson v. State, (Court of Special Appeals of Maryland No. 704, Sept. Term, 1979, filed: February 27, 1980). Appellant’s petition for certiorari was denied. On March 26, 1999, the Talbot County convictions were vacated by the Circuit Court for Talbot County, on petition for post-conviction relief, based on prosecutorial misconduct. The State appealed, and this Court reversed.

State v. Wilson, No. 519, Sept. Term 1999 (filed May 12, 2000). Appellant’s petition for writ of certiorari was granted, and the Court of Appeals reversed this Court. Wilson v. State, 363 Md. 333 , 768 A.2d 675 (2001). On May 9, 2002, the State nol prossed the charges.

On June 19, 2002, appellant filed an application for writ of habeas corpus in the Circuit Court for Carroll County, contending that, once the Talbot County convictions were vacated, he was entitled to immediate release. Appellant was represented by counsel in the circuit court and is represented on appeal. In addition to papers filed by counsel in circuit court and a brief filed in this Court, appellant, purporting to act pro se, filed several papers in the circuit court and in this Court. ⁸⁷ Framing the Issues We shall attempt to explain the issues and the contentions of the parties, but first we shall build the framework. The relevant statutory provisions are contained in Md.Code (2001), § 6-218 of the Criminal Procedure Article, providing for credit on a sentence for time spent in custody, and Md.Code (1999), Title 3, Subtitle 7 of the Correctional Services Article, providing for diminution of confinement credits while in custody.

Generally, diminution of confinement credits are awarded monthly as earned, but good conduct credits are deducted in advance and rescinded if an inmate misbehaves. The “term of confinement” concept is part of the statutory scheme governing diminution of confinement credits. A term of confinement is “the period from the first day of the sentence that begins first through the last day of the sentence that ends last.” § 3-701(2) of the Corr. Serv.

Art. The “maximum expiration date” is the date that the term of confinement expires. Id. The anticipated “mandatory supervision release” date, a conditional release from confinement, is determined by applying diminution of confinement credits to the maximum expiration date. § 7-501 of the Corr. Serv.

Art. On January 23, 1990, appellant was paroled by the Delaware Board of Parole. The certificate of parole states that appellant was paroled to the “Maryland detainer only.” Appellant did not come into the custody of the Maryland DOC, however, until May 2, 1990. It is not clear where appellant was between January 23 and May 2, 1990. The circuit court, in its opinion denying appellant’s petition for writ of habeas corpus, stated that his whereabouts were unknown.

There is some indication in the record that appellant may have been in custody in Virginia, although the circumstances are not explained. At oral argument, appellant’s counsel asserted that appellant was physically incarcerated in Virginia while serving the Delaware sentence, and that authorities there continued to hold him awaiting pick up by Maryland authorities. That assertion was disputed by appellee’s counsel. ⁸⁸ When appellant was received into custody, the DOC calculated the maximum expiration date of appellant’s term of confinement as August 15, 2074. To reach this date, the DOC used January 23, 1990, as the start date, applied the 526 day credit to the Carroll County term, and added the terms of confinement from both the Carroll County and the Talbot County sentences.

See § 3-701(2) of the Corr. Serv. Art. After appellant’s Talbot County convictions were vacated, the DOC recalculated appellant’s maximum expiration date to be November 22, 2024. Again, the DOC used January 23, 1990, as the start date, applied 526 days’ pretrial credit, and added 36 years.

In response to appellant’s application for writ of habeas corpus, and prior to the hearing in the circuit court, the DOC computed appellant’s mandatory supervision release date as follows. Using the calculation set forth in the preceding paragraph, appellees applied 2073 good conduct diminution of confinement credits, computed at 5 credits per month from May 2, 1990, to November 22, 2024, 2 § 3-704 of the Corr. Serv. Art.; 407 industrial diminution of confinement credits, § 3-705 of the Corr.

Serv. Art.; and 252 special project diminution of confinement credits, § 3-707 of the Corr. Serv. Art. The D.O.C. then subtracted 65 good conduct credits imposed for disciplinary violations.

Application of the net of the diminution of confinement credits to the maximum expiration date yielded an anticipated mandatory supervision release date of August 4, 2017. § 7-501 of the Corr. Serv. Art.; COMAR 12.02.06.01B(8). The D.O.C. concluded that appellant was lawfully detained, and his application should be dismissed.

On July 29, 2003, the Circuit Court for Carroll County held a hearing on appellant’s application. At the time of the ⁸⁹ hearing, appellees re-calculated the maximum expiration date of appellant’s term of confinement to be May 2, 2026. See § 3-701(2) of the Corr. Serv.

Art; COMAR 12.02.06.01B(18) (defining term of confinement); and COMAR 12.02.06.01B(12) (defining maximum expiration date). Appellees determined that March 26, 1999, the date the Talbot County convictions were vacated, was the commencement date of the Carroll County sentence; subtracted 526 days as pretrial credits, making the start date October 16, 1997; allowed credits for the time served under the Talbot County sentence from May 2, 1990 (not January 23, 1990) to October 16, 1997, see § 6-218(d) of the Crim. Pro. Art.; and ran 36 years from the resultant date, May 2, 1990.

Additionally, appellees allowed 2160 good conduct credits, § 3-704 of the Corr. Serv. Art., computed at 5 credits per month from May 2, 1990, to the maximum expiration date, May 2, 2026; 407 industrial credits, § 3-705 of the Corr. Serv.

Art.; and 292 special project credits, § 3-707 of the Corr. Serv. Art. Appellees also subtracted 65 good conduct credits rescinded for disciplinary violations. The result was an anticipated mandatory supervision release date of September 18, 2018. § 7-501 of the Corr.

Serv. Art. In a memorandum opinion and order dated September 30, 2003, the circuit court denied appellees’ motion to dismiss, but, on the merits, denied appellant’s application. The court adopted appellees’ position, finding that appellant’s Carroll County sentence began on March 26, 1999, the date the Talbot County convictions were vacated; applied 526 pretrial credits, making the start date October 16, 1997; and credited the 2724 days between May 2, 1990, and October 16, 1997. The court concluded that appellant’s maximum expiration date is May 2, 2026, and that his anticipated mandatory supervision release date was to be determined by the DOC, after applying diminution of confinement credits.

Parties’ Contentions Appellant, in the circuit court and on appeal, contends that his Carroll County sentence should be deemed to have begun ⁹⁰ on February 8, 1979, because, when the Talbot County convictions were vacated, there was nothing to which the Carroll County sentence could be consecutive. Thus, after applying 526 pretrial credits, appellants’ actual start date should be August 31, 1977. After applying all the credits he is allegedly owed, appellant argues that he is entitled to immediate release from confinement. 3 In his brief, appellant, through counsel, argues that (1) the circuit court erroneously construed the effect of vacating the Talbot County convictions and that the Carroll County sentence began on the date of his sentencing for the Carroll County convictions; (2) the circuit court erred in relying on § 6-218(d) of the Criminal Procedure Article in concluding ⁹¹ that the Carroll County sentence began on March 26, 1999; and (3) in the alternative, the applicable law is ambiguous and the writ of habeas corpus should be issued under the rule of lenity. Appellees contend that (1) the court erred in denying their motion to dismiss because appellant did not state a colorable claim of entitlement to immediate release; and (2) the circuit court did not err in its ruling on the merits.

With respect to the first contention, appellees argue that, even assuming the Carroll County sentence began on February 8, 1979, after applying the 526 pretrial credits and adding the 36 years, the maximum expiration date of appellant’s term of confinement would be August 13, 2013. After applying good conduct credits at a rate of 5 per month from May 2, 1990 (a total of 1400) and 407 industrial credits, and 292 special project credits, and subtracting 65 good conduct credits as a result of disciplinary violations, appellant’s mandatory supervision release date would be February 5, 2008. Consequently, appellant would not be entitled to immediate release, and he must exhaust his administrative remedies before petitioning for a writ of habeas corpus. Standard of Review We review the denial of an application for habeas corpus relief under the standard set forth in Maryland Rule 8-131(c).

We will review the case on both the law and the evidence, and we will not set aside the judgment on the evidence unless clearly erroneous. Id. Additionally, we note that Maryland Rule 15-303(e)(3)(A) provides that the court shall grant the writ unless “the judge finds from the petition, any response, reply, document filed with the petition or with a response or reply, or public record that the individual confined or restrained is not entitled to any relief.” Discussion Before addressing appellant’s arguments on the merits, we recognize that an application for a writ of habeas corpus is proper under certain circumstances. Pursuant to ⁹² §§ 10-201 to 10-210 of the Correctional Services Article, governing complaints to the Inmate Grievance Office, when an inmate such as appellant alleges entitlement to immediate release and makes a colorable claim that he has served his sentence, less credits, the inmate is not required to pursue administrative remedies.

Maryland House of Correction v. Fields, 348 Md. 245, 261 , 703 A.2d 167 (1997). While it appears likely that appellant is not entitled to immediate release even if we assume he is correct in his contentions, we shall address his contentions on the merits. Effect of vacating Talbot County convictions Appellant’s primary argument is that the Carroll County sentence should be deemed to have begun on the date it was imposed because, when the Talbot County convictions were vacated, the effect was as if they never existed. By applying 526 pretrial credit days to the date of imposition of the sentence, February 8, 1979, appellant concludes that the Carroll County sentence began on August 31, 1977.

Relying on Stanton v. State, 290 Md. 245 , 428 A.2d 1224 (1981), appellant reasons that a sentence consecutive to nothing cannot exist and has to begin immediately. In addition, appellant relies on Robinson v. Lee, 317 Md. 371 , 564 A.2d 395 (1989), and State v. Sayre, 314 Md. 559 , 552 A.2d 553 (1989), and argues that the interpretation of the Carroll County sentence is limited to the words used, and the words linked the sentence to the Talbot County sentence only. The authorities relied on by appellant are not on point. In Stanton, 290 Md. at 245-46 , 428 A.2d 1224 , following a criminal conviction in circuit court, the circuit court imposed a sentence to be served consecutively to a sentence earlier imposed in district court in an unrelated matter, which was pending for de novo review in the circuit court.

The Court of Appeals upheld the circuit court sentence as beginning when the district court sentence was superseded by a new sentence imposed by the circuit court on de novo review if the defendant was convicted or, if not, at the time of acquittal. 290 Md. at 250 , 428 A.2d 1224 . The Court held that the sentence in ⁹³ question began when the prior sentence ceased to exist, but we note that the prior sentence was not vacated based on reversible error. The case is of limited assistance, therefore, and tends to favor appellees’, rather than appellant’s, position. In Robinson , a sentence was imposed that was to be served “consecutive with the sentence now serving.” The Court, observing that a sentence is limited to the words used by the court, 317 Md. at 377 , 564 A.2d 395 , held that the sentence was to be served consecutive only to the sentence then being served and not to the aggregate of all preexisting unserved sentences.

Id. at 378 , 564 A.2d 395 . In Sayre, 314 Md. at 560 , 552 A.2d 553 , the question was whether, applying Rule 4-345(b), which prohibits an increase in sentence after the sentence is imposed, the circuit court had in fact imposed a sentence before it attempted to change it. The court imposed a sentence and stated that it was to be served concurrently with another sentence, terminated the ease, and placed the defendant in the custody of officers in the courtroom. The court then changed the sentence to one to be served consecutively.

The Court held that sentence had been imposed when the court terminated the proceedings, and the court could not change it. In the case before us, the Carroll County court did not change or attempt to change the sentence. The sentence was also quite clear. It was to be served consecutively to the Talbot County sentence, and the Talbot County sentence clearly was to be served consecutively to sentences previously imposed in other jurisdictions.

The Delaware sentence was imposed prior to the Talbot County sentence. With respect to the words used, it is clear that the Carroll County sentence, by incorporating the Talbot County sentence, was to be consecutive to sentences previously imposed in other jurisdictions. The earliest the sentence could begin, therefore, after the Talbot County convictions were vacated, was when appellant