Sec'y v. Hemphill

SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. CALVIN HEMPHILL

No. 172

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

August 9, 2018

Circuit Court for Somerset County

Case No. 19-C-14-017042

UNREPORTED

Eyler, Deborah S., Graeff, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This appeal involves the eligibility of Calvin Hemphill, appellee, an inmate in the Division of Correction ("DOC"), to receive diminution credits for "double celling."¹ The Secretary of the Department of Public Safety and Correctional Services ("the Secretary"), appellant, seeks review of the decision of the Circuit Court for Somerset County finding that appellee was entitled to receive inmate diminution double celling credits. It raises one question for this Court's review, which we have rephrased, as follows:

Did the circuit court err in determining that appellee was entitled to double celling diminution credits where he has continually served sentences that disqualify him from earning those credits since entering the DOC in 1999?

For the reasons set forth below, we answer that question in the affirmative, and therefore, we shall reverse the judgment of the circuit court.

BACKGROUND

Diminution of Confinement Credits for Double-Celling

Before addressing the facts and contentions in this case, we will address generally the concept of diminution credits. When a defendant is sentenced to imprisonment, he or she is given a "term of confinement."² The "maximum expiration date" is "the date that an inmate's term of confinement expires." Code of Maryland Regulations ("COMAR") 12.02.06.01B(12); Wilson v. Simms, 157 Md. App. 82, 87, cert. denied, 382 Md. 687 (2004).

Inmates, however, may be entitled to earn diminution of confinement credits, which allow a deduction of a specified number of days from the inmate's term of confinement. See Md. Code (2017 Repl. Vol.) §§ 3-702-708 of the Correctional Services Article ("COR"). An inmate released early through the accumulation of diminution credits is released on "mandatory supervision," which is akin to parole, until the expiration of the maximum term(s) for which he or she was sentenced. COMAR 12.02.06.01B(10)-(11);Sec'y of Pub. Safety & Corr. Servs. v. Hutchinson, 359 Md. 320, 326 (2000); Sec'y, Dep't of Pub. Safety & Corr. Servs. v. Henderson, 351 Md. 438, 441 (1998).³

Diminution of confinement credits can be earned in various ways; inmates may earn good conduct credits, work credits, education credits, and special projects credits. COMAR 12.02.06.04A; COR §§ 3-701-707; Stouffer v. Holbrook, 417 Md. 165, 171 (2010) (explaining diminution credit process). There is, however, a limit to the total number of deductions to which an inmate may be entitled, depending on the type of offense for which the inmate is serving a term of confinement. COR §§ 3-707-708.

The type of diminution credit at issue here are special projects credits for which an inmate may earn "a deduction of up to 10 days" per month from the inmate's term of confinement. Md. Code (2008 Repl. Vol.) § 3-707(a) of the Correctional Services Article.⁴ In particular, it involves special projects credits based on "double celling," i.e., being confined with another inmate. COMAR 12.02.06.04F. See COR § 3-707; Smith v. State, 140 Md. App. 445, 450-51 (2001).

As indicated, there are circumstances under which an inmate may not be awarded special projects credits for double celling. COR §§ 3-702, 3-707; COMAR 12.02.06.04F(3). In 1999, at the time of appellee's initial convictions, an inmate was not eligible for double celling credit if the inmate was 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.

COMAR 12.02.06.05N(1) (1990).

In Smith, this Court held that, when an inmate's term of confinement contained disqualifying sentences and non-disqualifying sentences, an inmate may earn double celling credits during any period of his or her term when the inmate is serving the non-disqualifying sentence. 140 Md. App. at 461.

In 2002, the regulations regarding double celling credits were changed. Rather than disqualifying an inmate from earning double celling credits if an inmate was serving a sentence for certain crimes, the regulation was changed to provide that an inmate whose term of confinement includes a sentence for a disqualifying crime is ineligible for double celling credits. COMAR 12.02.06.04F(3). The regulation also changed the list of disqualifying crimes, and as relevant to this appeal, attempted murder was added to the list. COMAR 12.02.06.04F(3)(a)(vii).

In Sec'y, Dep't of Pub. Safety & Corr. Servs. v. Demby, 390 Md. 580, 586, 618 (2006), the Court of Appeals held that, pursuant to the ex post facto clauses of the Federal and Maryland Constitutions, the 2002 regulatory amendments could not be applied to restrict the eligibility for double celling credits for inmates whose term of confinement consisted of sentences solely for crimes committed before January 1, 2002. It affirmed thisCourt's holding that an inmate serving a term of confinement for offenses committed prior to January 1, 2002,

may not be denied double-celling credits, for periods of time during which he or she was or is serving only an eligible sentence, for the sole reason that another sentence in his or her term of confinement is ineligible, and [] may not be denied double-celling credits on sentences for offenses that were eligible under the former regulation but are ineligible under the current regulation.

Id. at 619 (quoting Demby v. Sec'y, Dep't of Pub. Safety & Corr. Servs., 163 Md. App. 47, 68 (2005)).

In 2007, the Secretary promulgated new regulations to further limit double celling credits. The new regulations provided that such special projects credits may not be awarded if the inmate was serving a term of confinement that included a sentence for a crime committed on or after July 1, 2007. COMAR 12.02.06.04F(3)(a)(xiii).⁵Appellee's convictions and sentences

With that background of diminution credits in mind, we address appellee's convictions and sentences at issue here. On November 18, 1999, appellee was sentenced to 30 years' imprisonment, all but 15 years suspended, for his conviction of attempted first degree murder. The court also imposed the following concurrent sentences: 15 years for his conviction of possession with intent to distribute cocaine; ten years for his conviction of use of a handgun in the commission of a felony or crime of violence; and six months for another conviction.⁶ The DOC calculated appellee's maximum expiration date on those sentences to be April 22, 2014. Based on appellee's accumulation of 1,063 diminution credits, the DOC released appellee on mandatory supervision on May 25, 2011.

A short time after being released on mandatory supervision, appellee was arrested. On August 7, 2012, appellee pleaded guilty to second degree assault and was sentenced to ten years' imprisonment. The DOC calculated the maximum expiration date for that sentence to be June 2, 2022.

On August 10, 2012, the circuit court found appellee in violation of the probation imposed for his 1999 conviction of attempted murder, and it imposed a ten-year sentence, to be served consecutively to the ten-year sentence for the second degree assault conviction. The DOC calculated the maximum expiration date for that sentence to be June 4, 2031.⁷

On June 26, 2013, the Maryland Parole Commission revoked appellee's release on mandatory supervision relating to his 1999 convictions. The DOC provided a sentence calculation worksheet, which we have summarized, showing the following calculations:

Date

Sentence

Imposed

Sentence

Maximum

Expiration Date

Double

Celling

Credit

Eligible?

11/18/1999

Attempted first degree

murder.

15 years from 4/22/1999

Use of a handgun in

Commission of Felony or

Crime of Violence.

4/22/2014

YES

   Ten years concurrent (1stFive years without parole)  4/22/2009  NO   Possession with Intent toDistribute Cocaine.15 years concurrent  4/22/2014  NO   False statement.Six months concurrent  10/22/1999  YES  5/25/2011  Release from confinementon mandatory supervision(MSR) - Days out 72.    8/7/2012  Assault-2nd DegreeTen years from 6/2/2012  6/2/2022  NO  8/10/2012  Violation of Probation on1999 attempted first degreemurder conviction.Ten years consecutive tolast sentence to expire (less363 day's credit)  6/4/2031  YES  11/15/2012  Conspiracy to distributeheroin.9 years from 6/19/2011concurrent  6/19/2020  NO 

The calculations provided for good conduct credits of five days per month for the 1999 convictions and ten days per month for the 2012 second degree assault conviction.⁸

Procedural Background to Claim

On January 24, 2013, appellee filed a grievance with the Inmate Grievance Office ("IGO"), asserting that he was contesting the DOC's determination that he was not entitled to the double celling diminution of confinement credits until his sentence for second degree assault reached its maximum expiration date of June 22, 2022. He argued that he was serving two terms of confinement - a "post parole" term of ten years for second degree assault (the "new" sentence) and a "pre-parole" consecutive term of ten years for attempted first degree murder (the "old" sentence), and therefore, his sentences did not "aggregate to form a single term of confinement." He argued that, after deducting credits for good conduct, his maximum expiration date on the "new" sentence for second degree assault would be on March 8, 2018, at which point he would be...