Fenton v. Sec'y, Dep't of Pub. Safety & Corr. Servs.

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DALLAS FENTON v. SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

No. 0322-2023

Court of Special Appeals of Maryland

November 1, 2024

Circuit Court for Washington County Case No C-21-CV-21-000372

Ripken, Tang, Meredith, Timothy E. (Senior Judge, Specially Assigned), JJ.

OPINION

Meredith, J.

In 2017, at the conclusion of a jury trial, Dallas Fenton, appellant/cross-appellee (hereinafter "Fenton"), was convicted of committing several sexual offenses upon a fourteen-year-old girl on four occasions that occurred during April and May of 2016. For one of the counts charging a third-degree sexual offense, the trial court imposed a sentence of ten years' imprisonment. For another count charging a third-degree sexual offense on a separate date, the trial court imposed a consecutive ten-year sentence. While Fenton was serving the first of those sentences, he was informed by correctional officials that he could not earn or receive any diminution of confinement credits relative to the consecutive ten-year sentence because of a statute that precludes "[a]n inmate" from receiving diminution credits "if the inmate was previously convicted" of a third-degree sexual offense "involving a victim who is a child under the age of 16 years[.]" Section 3-702(c) of the Correctional Services Article ("CS") of the Maryland Code (1999, 2008 Repl. Vol., 2016 Supp.). Fenton complained to the Inmate Grievance Office that the CS § 3-702(c) exclusion from receiving diminution credits did not apply to him because the first time he had ever been convicted of a third-degree sexual offense was at the conclusion of the trial in this case. The Inmate Grievance Office rejected his argument.

Fenton sought judicial review in the Circuit Court for Washington County, and he received partial relief. The circuit court ruled that the "good conduct" credits that are customarily deemed earned and awarded in advance at the outset of an inmate's term of confinement should be awarded to Fenton at the commencement of his consecutive ten-year sentence, but he would be precluded from earning any further diminution credits while he served that consecutive ten-year term. Both Fenton and the Secretary of the Department of Public Safety and Correctional Services, appellee/cross-appellant (hereinafter "the Secretary"), filed applications for leave to appeal in this Court. We granted both applications and transferred the case to our regular docket.

Having considered the arguments of both parties as to whether CS § 3-702(c) precludes an inmate from receiving diminution credits under the circumstances presented by Fenton's case, we conclude that the statutory construction of the phrase "previously convicted" that the Maryland Supreme Court adopted in Gargliano v. State, 334 Md. 428 (1994), controls the outcome of this case. In Gargliano, the Supreme Court held that an enhanced penalty for a defendant who has been "previously" convicted "may be imposed only where the conviction for a prior offense precedes the commission of the [repeated] offense[.]" Id. at 431. Because Fenton had not been convicted of a third-degree sexual offense at the time of his commission of the offenses in April and May of 2016, we agree with Fenton's argument that CS § 3-702(c) does not preclude him from earning diminution credits with respect to his consecutive ten-year sentence.

BACKGROUND

The Offenses

In a previous unreported opinion of this Court in which we affirmed Fenton's convictions, Fenton v. State No. 1111, Sept. Term, 2017 (filed May 30, 2018) (hereinafter "Fenton I"), we described the conduct that led to Fenton's convictions of third-degree sexual offenses as follows:

The female victim lived with her mother and two siblings in Salisbury. She celebrated her fourteenth birthday on March 31, 2016. Shortly thereafter she began communicating with appellant-then fifty-seven years of age-on "Whisper," a smartphone application which allows users to communicate anonymously by exchanging text messages and/or digital images. During their private dialogues on Whisper, appellant and the victim exchanged personal information. She informed appellant that she was fourteen years old, while appellant identified himself as a forty-seven-year-old husband and father of two. Eventually their communications became sexual in nature.

On Friday and Sunday evenings of alternating weekends the victim was alone in her home for two to three hours, beginning around 5:30 or 6:00 p.m. while her mother made roundtrips to Easton, delivering and picking up the elder sibling to and from child visitation. Appellant's first three in-person encounters with the victim took place in her home while her mother made one of these trips.

Their first such encounter took place on either a Friday or a Sunday evening. Appellant asked her to remove her jeans. After she did so, appellant performed cunnilingus on the victim, touched her breasts, and digitally penetrated her vagina. The second such meeting likewise took place on a Friday or a Sunday evening. Appellant performed cunnilingus on her and touched her "the same as the first time." This encounter differed from the first, however, in that appellant engaged in fellatio with the victim. During the third encounter appellant again engaged in fellatio and cunnilingus with her.

The final in-person encounter occurred on Friday, May 20, 2016, the day on which the victim attended her class's eighth grade graduation prom. Shortly after 5:00 p.m., appellant, driving a pickup truck, picked up the victim from outside her house and drove to "one of the back roads down by [her] school." . . . After appellant parked they alighted the vehicle. Appellant engaged in sexual intercourse with the victim while she sat on the tailgate of the truck. Thereafter, he dropped her off at her school.

Fenton I, slip op. at 2-4.^[1]

Trial and Sentencing

On June 27, 2017, at the conclusion of a trial in the Circuit Court for Wicomico County, a jury found Fenton guilty of eight counts of third-degree sexual offense (counts 1 through 8), one count of sexual solicitation of a minor (count 9), and one count of indecent exposure (count 11).

On August 9, 2017, the court sentenced Fenton to ten years' imprisonment for one count of third-degree sexual offense (count 1), ten consecutive years for another count of third-degree sexual offense (count 8), and then three consecutive years for indecent exposure (count 11), for a total of twenty-three years' imprisonment.^[2]

Diminution of Confinement Credits Generally

In Maryland, inmates are generally entitled to earn "diminution of confinement" credits which reduce the length of their period of confinement by one day for each credit. Upon earning a sufficient number of diminution of confinement credits, the inmate is released on mandatory supervision, which is akin to parole. CS § 7-501(a). See also Sec'y of Pub. Safety & Corr. Servs. v. Hutchinson, 359 Md. 320, 325-26 (2000); Sec'y, Dep't of Pub. Safety &Corr. Servs. v. Henderson, 351 Md. 438, 441 (1998). "Mandatory supervision" is defined as "a conditional release from incarceration granted to an inmate[.]" Code of Maryland Regulations ("COMAR") 12.02.06.01B(10).

Diminution of confinement credits can be earned in various ways, as outlined in the enabling statutes and regulations. See CS § 3-701, et seq., and COMAR 12.02.06.04. For example, diminution credits can typically be earned at a rate of five or ten days per month for "work tasks" pursuant to CS § 3-705, for participating in "education" pursuant to CS § 3-706, and for "special projects" pursuant to CS § 3-707. See also Moats v. Scott, 358 Md. 593, 597 (2000). In addition, sixty days of credit can be earned for successfully obtaining certain "[a]cademic certificates, diplomas, or degrees" pursuant to CS § 3-706.1.

Unlike all other varieties of diminution of confinement credits (which are awarded to the inmate at the time they have been earned), "good-conduct" diminution of confinement credits are earned and credited to the inmate in advance at the commencement of the sentence being served. Good-conduct credits may be deducted in advance from the inmate's term of confinement at a rate of either five or ten days per month, depending on whether the inmate's term of confinement contains a sentence for certain violent offenses or drug-related crimes. CS § 3-704. But good-conduct diminution of confinement credits (and special project diminution of confinement credits) may be revoked if an inmate is found to be in violation of the Division of Correction's disciplinary rules. CS § 3-709.

An inmate is limited to earning a maximum of twenty or thirty credits per month depending on whether the inmate's term of confinement contains a sentence for certain sexual offenses, violent offenses, or drug-related crimes. CS § 3-708.

Certain Inmates not Entitled to Diminution of Confinement Credits

Pursuant to CS § 3-702(b) and (c), inmates convicted of certain sexual offenses committed against children under the age of sixteen may be precluded from receiving diminution of confinement credits. At issue in this appeal, CS § 3-702(c) prohibits an inmate serving a sentence for conviction of a third-degree sexual offense committed against a child under the age of sixteen from earning diminution credits "if the inmate was previously convicted" of that same offense against a child under the age of sixteen. At the time Fenton committed the third-degree sexual offenses that are the subject of this appeal, CS § 3-702(c) read as follows:

An inmate who is serving a sentence for a violation of § 3-307 of the Criminal Law Article involving a victim who is a child under the age of 16 years is not entitled to a diminution of the inmate's term of

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