Watson v. Burgan

610 A.2d 1364, 1992 Del. LEXIS 252
CourtSupreme Court of Delaware
DecidedJuly 2, 1992
StatusPublished
Cited by21 cases

This text of 610 A.2d 1364 (Watson v. Burgan) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Watson v. Burgan, 610 A.2d 1364, 1992 Del. LEXIS 252 (Del. 1992).

Opinion

WALSH, Justice:

This is an appeal from the granting of a writ of mandamus by the Superior Court directing officials of the Delaware Department of Corrections (“the Department”) to recompute the sentence of Ricky D. Bur-gan (“Burgan”) and permit his release from imprisonment. The Superior Court ruled that a 1990 Addendum to Department regulations, adopted upon the advice of the Attorney General, incorrectly repealed an earlier administrative regulation as contrary to Delaware statutory law. We agree and affirm.

*1366 I

The facts underlying the mandamus proceedings in the Superior Court are not in dispute. Burgan pled guilty in 1982 to assault in the first degree and possession of a deadly weapon during the commission of a felony. He was sentenced to ten years imprisonment for the assault offense and to a mandatory minimum five year sentence for the weapon offense to be served following the underlying sentence for assault. By its terms, therefore, the sentencing order complied with 11 Del.C. § 1447(c). 1

Despite the unambiguous language of section 1447(c), the Department had a longstanding practice of “administratively realigning” prisoners’ sentences for purposes of calculating parole eligibility dates and conditional release dates based on good time credits. This practice was guided by Department Regulation 1134 (the “original regulation”), which authorized Department records personnel to aggregate the terms of the underlying felony and the weapon offense. Against this total would be calculated the prisoner’s parole eligibility date and his conditional release date. In its calculation, the Department placed any mandatory sentence, which in Burgan’s case happened to be the entirety of the weapon sentence, as served at the beginning of the entire term of imprisonment. As a result, Burgan was provided with a sentence status sheet reflecting his ineligibility for parole during the first five years of his sentence as opposed to a restriction during the first three and one-half years had parole been calculated solely upon a combined fifteen year sentence. Thus, for parole and conditional release date purposes Burgan was administratively determined to be serving the weapons sentence before that of the underlying assault sentence contrary to the terms of section 1447(c).

In October 1990, the Department, acting in accordance with an advisory opinion issued by the Attorney General, promulgated an addendum which purported to revise the method for calculating parole eligibility and conditional release dates. The apparent purpose of the addendum was to ensure that mandatory weapons sentences would be served after, not before, the sentence for underlying felonies, in literal compliance with section 1447(c). Pursuant to the addendum, the Department recalculated Burgan’s parole eligibility and conditional release dates. This recalculation resulted in the revocation of Burgan’s then existing right to apply for parole and resulted in the extension of his conditional release date from February 20, 1991 to October 13, 1992. Burgan, who was then in work release status at the Plummer Center, had his work release status revoked and was returned to confinement. 2

In June 1991, Burgan filed a complaint seeking declaratory and mandamus relief. In granting relief, the Superior Court concluded that section 1447(c) was unclear in its application and required construction in view of the contrasting interpretations between the original regulation and the addendum. The Superior Court ruled that the original regulation was consistent with a reasonable reading of the statute in view of its legislative history. The Court noted that section 1447 was intended to guide sentencing, not the' administrative determination of parole eligibility and good time *1367 credits, which are secured under separate statutory standards. In view of the fact that the original regulation had remained in effect for fourteen years without legislative reaction, the practical and plausible administrative interpretation was acceptable as indicative of legislative intent.

In addition to upholding the reasonableness of the original regulation, the Superi- or Court ruled that a retroactive application of the addendum to Burgan’s sentence would violate the ex post facto clause, U.S. Const. Art. I, § 10. The promulgation and effect of the addendum were unforeseeable to Burgan because he had pled guilty in reliance on representations of the prosecutor, his defense counsel and the judge taking his guilty plea that the first five years of his combined sentence would be mandatory thus making him eligible for parole thereafter.

II

On appeal, the Department contends that the Superior Court’s construction of section 1447 is fundamentally flawed in viewing the statute as ambiguous when its literal meaning is clear and compelling. The 1990 addendum, it argues, was prompted by the decision of this Court in Zimmerman v. State, Del.Supr., 565 A.2d 887 (1989) which led, in turn, to the Attorney General’s advisory opinion requiring modification of the regulation to reflect legislative intent. The Department also disputes the Superior Court’s ex post facto determination on the ground that Burgan could not reasonably rely upon an erroneous interpretation of an administrative ruling clearly at variance with statutory law.

The decision of the Superior Court essentially turns on the construction of statutory law as well as the constitutional implication of conflicting interpretations. Our review of such questions of law is de novo. City of Wilmington v. Parcel of Land, Del.Supr., 607 A.2d 1163 at 1166 (1992).

The parties are in agreement that the legislative purpose for the enactment of section 1447(c), which became law in 1976, was to preclude the imposition of concurrent sentences which was an option available to sentencing judges at the time. This intent was satisfied by the first sentence of the statute but, as the Superior Court noted, the language concerning the underlying offense being “served” prior to the weapons offense “was probably added to foreclose any possible question whether the general prohibition in the first sentence ... was intended to apply specifically to the sentence for the underlying felony as well.” Burgan v. Watson, Del.Super., C.A. No. 91M-06-16, Balick, J., slip op. at 7 (March 17, 1992).

While section 1447 reflects a legislative intent to preclude concurrent service of sentencing for underlying felonies and related weapons offenses, and to that extent the meaning of the statute is unmistakable, the statute takes on a certain ambiguity when applied to a prisoner’s parole and good time credit entitlement, both of which are secured by separate statutes. Thus, under 11 Del.C. § 4346(a), a person “may be released on parole by the Board if he has served one-third of the term imposed by the court, such term

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