Witherspoon v. Maryland Parole Commission

PAUL E. ALPERT, Judge, Ret., specially assigned. In late August of 2000, Milton Witherspoon, the appellant, began serving a 15-year prison sentence for possession of cocaine with intent to distribute. In October of 2001, appellant filed a petition for writ of mandamus in the Circuit Court for Baltimore City, requesting that the court direct the Maryland Parole Commission to conduct a parole hearing upon his completion of only about 16 months of his sentence. The court denied the petition without a hearing, and appellant filed this appeal.

ISSUE Appellant argues, in essence, that the trial court erred in failing to grant his petition for writ of mandamus, in that the Parole Commission is improperly refusing to consider his diminution of confinement credits in determining the date on ¹⁰³ which his parole hearing should be held. We find no merit in this argument and affirm the judgment of the trial court. FACTS Appellant began serving his 15-year sentence on August 27, 2000. On June 12, 2001, appellant, through counsel, sent a letter to the Maryland Parole Commission expressing his opinion that he would become eligible for parole on or about December 12, 2001.

Appellant pointed out that an inmate serving a determinate term of confinement is ordinarily eligible for parole after serving one-fourth of that term of confinement. 1 He further pointed out that “one fourth of 15 years is 1,368 days.” Appellant observed that he had been awarded 899 good conduct days upon his commission to the custody of the Commissioner of Correction. He theorized that, in order to determine the proper date for his parole hearing, the Parole Commission should subtract the 899 good conduct days from the 1,368 days that constituted one-fourth of his total sentence. It should then conduct a hearing 469 days after his sentence began. 2 Both the Parole Commission and the trial court flatly rejected appellant’s argument. DISCUSSION Appellant’s argument is based on his reading of § 7-301 of the Correctional Services Article.

In pertinent part, the statute provides: (a) In general.— (1) Except as otherwise provided in this section, the [Parole] Commission shall request that the ¹⁰⁴ Division of Parole and Probation make an investigation for inmates in the local correctional facility and the Division of Correction make an investigation for inmates in a State Correctional facility that will enable the Commission to determine the advisability of granting parole to an inmate who: (1) has been sentenced under the laws of the State to serve a term of 6 months or more in a correctional facility; and (ii) has served in confinement one-fourth of the inmate’s aggregate sentence. (2) Except as otherwise provided by law or in a predetermined parole release agreement, an inmate is not eligible for parole until the inmate has served in confinement one fourth of the inmate’s aggregate sentence. (d) Life imprisonment.—... an inmate who has been sentenced to life imprisonment is not eligible for parole consideration until the inmate has served 15 years or the equivalent of 15 years considering the allowances for diminution of the inmate’s confinement under § 6-218 of the Criminal Procedure Article [ (concerning credit for time spent in custody) ] and Title 3, Subtitle 7 of this Article [ (concerning diminution of confinement credits) ]. Code (1999, 2002 Cum.Supp.), § 7-301(a) and (d) of the Correctional Services Article.

Appellant argues that, because the statute directs that diminution of confinement credits be considered in determining the parole eligibility of inmates serving parolable life sentences, they should also be considered in determining the parole eligibility of inmates serving determinate terms of confinement. He contends that “nothing in the Correctional Services Article forbids the consideration of diminution credits in establishing parole eligibility for those serving sentences ¹⁰⁵ other than life.” Appellant concludes that, under the circumstances, the rule of lenity should be applied to require consideration of the credits in determining his parole eligibility. Contrary to appellant’s interpretation of § 7-301, the statute does expressly preclude consideration of diminution of confinement credits in determining parole eligibility for inmates with determinate terms of confinement. As the above-quoted portion of § 7-301 reflects, the legislature specified in two separate places in part (a) that such inmates are not to be considered for parole until they have “served in confinement