Jones v. Filbert

843 A.2d 908, 155 Md. App. 568, 2004 Md. App. LEXIS 26
CourtCourt of Special Appeals of Maryland
DecidedMarch 8, 2004
DocketNo. 0935
StatusPublished
Cited by8 cases

This text of 843 A.2d 908 (Jones v. Filbert) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Filbert, 843 A.2d 908, 155 Md. App. 568, 2004 Md. App. LEXIS 26 (Md. Ct. App. 2004).

Opinion

MARVIN H. SMITH, Judge, (Retired, Specially Assigned).

While on parole, appellant Mark Durand Jones, Jr. committed felony theft. After he was convicted and sentenced for that crime, the Maryland Parole Commission (MPC) revoked Jones’ parole. Jones served his post-parole sentence in the Wicomico County Detention Center, then returned to the Division of Correction (DOC) to resume serving the remainder of his pre-parole sentences. He petitioned for a writ of habeas corpus, complaining that the DOC 1 refuses to credit diminution of confinement credits that he accrued before he was paroled against the remainder of his pre-parole sentences that he is now serving. Jones renews that argument in this appeal from the denial of habeas relief, and also complains that the judge who sentenced him heard his habeas petition, in violation of Md. Rule 15-307.

We agree with the Circuit Court for Wicomico County that, pursuant to Md.Code (1999), section 3-711 of the Correctional Services Article (CS), any diminution credits that Jones accrued before his parole cannot be used to reduce his term of confinement after parole was revoked. We also find that any consideration of Jones’ habeas petition by a judge who had sentenced Jones did not prejudice Jones. Accordingly, we shall affirm the judgment.

FACTS AND LEGAL PROCEEDINGS

In December 1998, Jones was convicted of resisting arrest, second degree assault, possession of cocaine, and theft of less [572]*572than $300. The Circuit Court for Wicomico County (Warren, J.) sentenced Jones to an aggregate of seven years of DOC confinement, beginning September 30, 1997.

On January 2, 2001, the MPC paroled Jones. While he was on parole, Jones committed felony theft. In January 2002, the Circuit Court for Wicomico County (Simpson, J.) sentenced Jones to two years for escape. In September 2002, the same court (Beckstead, J.) sentenced Jones to five years on the theft conviction, concurrent with his outstanding sentences and beginning on December 12,1998. On November 12, 2002, the MPC revoked Jones’ parole.

Jones apparently served his post-parole sentence in the Wicomico County Detention Center, then was returned to the DOC to resume serving his pre-parole sentences. Over Jones’ objection, the DOC refuses to credit Jones with the 1,120 diminution credits that he claims to have accrued before he was paroled.

DISCUSSION

I.

Diminution Credits

“Diminution credits can be earned by inmates to reduce the lengths of their confinements.” Frost v. State, 336 Md. 125, 128, 647 A.2d 106, 107 (1994). By accruing diminution credits, inmates may earn the right to be released to mandatory supervision on a date much earlier than that designated by his or her original term of confinement.2 See id., 336 Md. at 128, 647 A.2d at 108.

[573]*573But an incarcerated inmate “is entitled to diminution of the inmate’s term of confinement [only] as provided under [the diminution credits] subtitle” of the Correctional Services Article. See CS § 3-702. In CS section 3-702, the General Assembly directed that this right to accrue and use diminution credits is a qualified one that is “subject to” both section 3-711 in the parole subtitle and the provisions of the mandatory release subtitle.

In section 3-711, the General Assembly instructed that parolees forfeit diminution credits by committing crimes while on parole. Since it became effective in 1996, section 3-711 has governed how these parole crimes affect “past” diminution credits credits accrued before parole). It provides in full:

If an inmate is convicted and sentenced to imprisonment for a crime committed while on parole and the parole is revoked, diminution credits that were awarded before the inmate’s release on parole may not be applied toward the inmate’s term of confinement on return to the Division.

CS § 3-711.

This statute explains why the DOC has refused to credit Jones with any diminution credits that he accrued before he was paroled. Because Jones undisputedly was convicted and sentenced to imprisonment for a crime committed while on parole, his parole was revoked, and he was reincarcerated, CS section 3-711 prevents Jones from using any past diminution credits to reduce the term of his incarceration.

Although there is no reported Maryland case directly holding that section 3-711 prevents the use of pre-parole diminution credits after the MPC revokes an inmate’s parole for committing a new crime, both the Court of Appeals and this Court have adopted that position in dictum. We agree with the view of section 3-711 reflected in both of these cases.

In Sec’y Dep’t of Pub. Safety & Corr. Servs. v. Henderson, 351 Md. 438, 718 A.2d 1150 (1998), the Court of Appeals commented on the statutory prohibition against the use of preparóle credits. Henderson committed a drug crime while on [574]*574parole. He was returned to the DOC to serve a new sentence and the remainder of his pre-parole sentence for a violent crime. See id., 351 Md. at 446, 718 A.2d at 1154-55. The DOC credited him at the rate of five good conduct credits per month, which it applied against Henderson’s single term of confinement.3 After two decisions by the Court of Appeals regarding how the two accrual rates affected inmates serving terms of confinement consisting of sentences that earn credits at different rates, the DOC recalculated Henderson’s credits. The DOC believed that the Court’s decisions obligated it to treat each sentence within a term of confinement separately. See id., 351 Md. at 446-48, 718 A.2d at 1154-55. Even though both of Henderson’s sentences accrued credits at the lower rate, the DOC applied the credits separately against each one, and then calculated separate release dates for each sentence. See id., 351 Md. at 447-48, 718 A.2d at 1155. One of those recalculated dates was more than four years after Henderson’s actual release date. See id., 351 Md. at 447, 718 A.2d at 1155. As a result, Henderson was rearrested and returned to DOC custody. See id., 351 Md. at 447-48, 718 A.2d at 1155.

The Court of Appeals held that the DOC initially “calculated [Henderson’s] good time credits exactly as it should have and properly released him.” Id., 351 Md. at 452, 718 A.2d at 1157. The Court affirmed that “ ‘all sentences that overlap or run consecutively do not need to aggregate for all purposes to a single term of confinement.’ ” Id. (quoting Md. House of Corr. v. Fields, 348 Md. 245, 267, 703 A.2d 167, 178 (1997))(em-phasis in Henderson). In contrast to previous cases, in which the aggregation of sentences that accrued credits at different rates would have “denied the inmates a legislatively mandated benefit[,]” the aggregation of Henderson’s two sentences “would have the opposite effect” — it would ensure that [575]*575Henderson received that benefit. See id., 351 Md. at 452, 718 A.2d at 1157.

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Bluebook (online)
843 A.2d 908, 155 Md. App. 568, 2004 Md. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-filbert-mdctspecapp-2004.