Demby v. SECRETARY, DEPT. OF PUB. SAFETY & CORR. SERV.

877 A.2d 187

163 Md. App. 47

Quinton DEMBY, Jesse Baltimore, Kenneth E. Woodall, Daniel Falcone, Earl F. Cox, Jr. v. SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES.

Nos. 1230, 1408, 1490, 1491, .

Court of Special Appeals of Maryland.

July 1, 2005.

Stephen Z. Meehan (Joseph B. Tetrault, Pauline K. White, Prisoner Rights Information System of Maryland, Inc., on the brief), Chestertown, for appellant.

Michael O. Doyle (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Panel: MURPHY, C.J., KENNEY, SHARER, JJ.

SHARER, J.

In this consolidated appeal from separate inmate grievance proceedings, appellants are inmates committed to the custody of the Commissioner of Correction ("the Commissioner"). Appellee is the Secretary of Public Safety and Correctional Services ("the Secretary").

Appellants allege that, because of amendments to a Division of Correction ("the DOC") regulation, they are unlawfully being denied diminution of confinement credits for double-celling. After pursuing administrative remedies pursuant to the inmate grievance procedure, each appellant petitioned for judicial review by the circuit court for the county in which he was incarcerated.¹ Appellants Quintin Demby, Jesse Baltimore, and Earl F. Cox, Jr. each filed a petition in the Circuit Court for Somerset County. Appellants Kenneth E. Woodall and Daniel Falcone each filed a petition in the Circuit Court for Washington County. The trial courts entered judgment in favor of the Secretary in all five cases.

Appellants then separately filed applications for leave to appeal to this Court. We granted the applications and consolidated the appeals for briefing and argument.² We now reverse the judgments of the Circuit Court for Somerset County as to appellants Demby and Cox, and the judgments of the Circuit Court for Washington County as to appellants Woodall and Falcone. We remand the cases to the respective courts with instructions to reverse the decisions of the Secretary and remand the cases for further proceedings.

We dismiss appellant Baltimore's appeal as moot. Prior to argument before this Court, Baltimore was released to mandatory supervision. As appellants acknowledge in their reply brief, if they prevail on appeal, "Baltimore [will] have no remedy in damages." To the extent that Baltimore's appeal may present an unresolved issue of important public concern, or may present an issue that is capable of repetition yet evading review in his particular case, we are confident that our determinations as to the remaining four appellants will resolve those issues.³

APPLICABLE STATUTES AND REGULATIONS

The General Assembly has provided that "an inmate committed to the custody of the Commissioner is entitled to a diminution of the inmate's term of confinement as provided under [Title 3, Subtitle 7 of the Correctional Services Article]." Md.Code, Corr. Serv's § 3-702 (1999). With respect to the type of diminution credit involved in this case, the legislature has further provided:

§ 3-707. Same — Special Projects.

(a) In general. — 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 [of Public Safety and Correctional Services].

(b) Method of calculation. — A deduction described in subsection (a) of this section shall be calculated:

(1) from the first day that the inmate is assigned to the work project or program; and

(2) on a prorated basis for any portion of the calendar month during which the inmate participates in the work project or program.[⁴]

"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 a special project." Smith v. State, 140 Md. App. 445, 453, 780 A.2d 1199 (2001). As originally adopted effective April 1, 1990, former Md. Regs.Code ("COMAR") tit. 12, § 02.06.05 provided in pertinent part:

N. Special Project Credit for Double-Celled Inmates.

(1) Inmates who meet the eligibility criteria in § N(2) are in a special project pursuant to Article 27, § 700(f), Annotated Code of Maryland[⁵], except inmates who are 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.[⁶]

(2) Inmates eligible for special project credits under this section are inmates who:

(a) Have agreed to be voluntarily double-celled;

(b) Are 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) Are 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) Are housed in a dormitory or dormitory-type housing and the housing area where the inmates are confined does not provide 55 square feet of living space per inmate exclusive of dayrooms, toilets, and showers.

(3) Inmates who meet 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 the date and ending on the date the Secretary determines appropriate, based on the demand for inmate housing and services in the Division of Correction.

(4) An inmate may not, under any circumstances, be entitled to earn from all sources, including this regulation, more than the statutory maximum of 15 credit days per month.

(5) The Commissioner shall revoke all special project credits earned under this section if, within 30 days before the inmate's release on mandatory supervision, an inmate is found guilty of an institutional rule violation for:

(a) Assault;

(b) Possession of contraband;

(c) Escape; or

(d) Attempted escape.

* * *

(7) This regulation may not be interpreted, understood or construed to mean that inmates who are eligible to receive the credits described in this section have any right to those credits or that inmates will continue to receive those credits in the future.

17:8 Md. Reg. 972-74 (Apr. 20, 1990). The DOC interpreted the regulation to prohibit any award of double-celling credits to an inmate if any sentence in his or her term of confinement is ineligible, regardless of whether the inmate's term of confinement also included a non-concurrent eligible sentence.

On September 10, 2001, this Court filed Smith v. State, 140 Md.App. 445, 780 A.2d 1199 (2001). In Smith, we interpreted former COMAR § 12.02.06.05N and held that,

when an inmate's term of confinement includes both a sentence that is not eligible for the special project credits in question and a consecutive sentence that is eligible for those credits, the two sentences must be considered separately, so that the inmate may reduce his or her term of confinement by earning special project credits against the eligible sentence.

140 Md.App. at 461, 780 A.2d 1199. As a result of Smith, the DOC was required to award retroactive double-celling credits to an unknown number of inmates. The appellants in this case were included in that broad sweep.

Effective January 1, 2002, at least in part in response to this Court's opinion in Smith, the Commissioner of Correction amended, by "emergency action," the regulations regarding diminution of confinement credits for double-celling. See 29:4 Md. Reg. 413-14 (Feb. 22, 2002).⁷ Current COMAR § 12.02.06.04F now provides:

F. Special Projects Credit for Housing.

(1) Except as provided in § F(3) of this regulation, an inmate may be awarded special projects credit for housing under Correctional Services Article, § 3-707, Annotated Code of Maryland, if the inmate is:

(a) Assigned to a cell containing two beds and is not serving a period of disciplinary segregation; or

(b) Housed in a dormitory or dormitory-type housing and the housing area where the inmate is confined does not provide 55 square feet of living space per inmate, exclusive of dayrooms, toilets, and showers.

(2) An inmate may be awarded a maximum of five special projects credits for housing 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, subject to §§ F(3) and G of this regulation.

(3) An inmate may not be awarded special projects credit under this section during the inmate's term of confinement if the inmate is serving a term of confinement that includes a:

(a) Sentence for:

(i) Abduction;

(ii) Arson in the first degree;

(iii) Carjacking or armed carjacking;

(iv) Kidnaping;

(v) Manslaughter, except involuntary manslaughter;

(vi) Mayhem and maiming, as previously proscribed under Article 27, §§ 384-386, Annotated Code of Maryland;

(vii) Murder or attempted murder;

(viii) Use of a handgun in the commission of a felony or other crime of violence;

(ix) Child abuse, abuse or neglect of a vulnerable adult, or child sale, barter, or trade under Criminal Law Article, § 3-601, 3-602, or 3-603, Annotated Code of Maryland;

(x) Assault on a Division inmate or employee under Criminal Law Article, § 3-205, Annotated Code of Maryland;

(xi) A drug crime; or

(xii) [(a)] An offense which would cause the offender to be defined as a child sexual offender, offender, sexually violent offender, or sexually violent predator under Criminal Procedure Article, Title 11, Subtitle 7, Annotated Code of Maryland;

(b) Mandatory sentence for the commission of a

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