Brown v. Brittain

Citation773 P.2d 570
Decision Date15 May 1989
Docket NumberNo. 88SA150,88SA150
PartiesDewaine Everett BROWN, Petitioner-Appellee, v. Jim BRITTAIN, Superintendent, Arkansas Valley Correctional Facility, Respondent-Appellant.
CourtSupreme Court of Colorado

No Appearance for petitioner-appellee.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Marleen Langfield, Asst. Atty. Gen., Denver, for respondent-appellant.

VOLLACK, Justice.

The question in this case is whether a prisoner who was mistakenly released before serving a complete sentence is entitled to have credited against his sentence the time he subsequently served in another state for convictions unrelated to the original sentence. The Crowley County District Court held that Dewaine Everett Brown was entitled to credit against his Colorado sentence for time he served in Louisiana after he was mistakenly released. We reverse.

I.

Brown was sentenced on March 30, 1981 by the Arapahoe County District Court to a term of seven years in the Department of Corrections plus one year of parole for an aggravated robbery conviction to run concurrently with a four year sentence plus one year parole for second degree kidnapping. Brown had been in custody for the previous 357 days in the Denver County Jail. Following sentencing, he was returned to the county jail. He was transferred to the Denver City Jail on May 14, 1981, ostensibly in preparation for his transport to the Department of Corrections.

On May 16, 1981, Brown was mistakenly released rather than transported to the Department of Corrections. 1 Brown neither caused nor attempted to correct the mistaken impression that he was entitled to immediate release. Two days later, Brown left Colorado and went to Louisiana.

Brown was apprehended by police in Louisiana on June 27, 1981 and charged with aggravated robbery, possession of stolen property, resisting arrest, escape, and damage to property. On July 10, 1981, Colorado authorities discovered that Brown had been mistakenly released, and a bench warrant was issued for his arrest. The bench warrant was lodged as a detainer against Brown in Louisiana.

Brown was ultimately convicted in Louisiana and was sentenced to the Louisiana Department of Corrections in September 1981. He was paroled from the Louisiana Department of Corrections on December 10, 1986, and was promptly taken into custody pursuant to the July 1981 detainer. Brown was returned to the Colorado Department of Corrections on December 17, 1986, to resume his March 1981 sentences. He received no credit for time during which he was mistakenly released.

Brown sought habeas corpus relief with the Crowley County District Court in February 1988. Following a hearing, the district court held that Brown was entitled to credit for the time he was at liberty because he was not "at fault" as the term was used in White v. Pearlman, 42 F.2d 788 (10th Cir.1930). The district court noted that Pearlman has been cited with approval by the court of appeals in People v. Incerto, 38 Colo.App. 390, 557 P.2d 1217 (1976), and People v. Battle, 742 P.2d 952 (Colo.App.1987), for the proposition that a prisoner who is mistakenly released through no fault of his own is entitled to credit for the time he was at liberty. The district court stated that the term "at fault" in Pearlman "means something more than remaining silent. It connotes action rather than inaction." The court reasoned that, given a "prisoner's schooling in his right to remain silent as he travels through the judicial system," it would be

too much to expect a prisoner to be able to distinguish those situations when he may safely remain silent from those in which silence operates to his peril. Is a defendant obligated to speak up when he knows the prosecutor is making a mistake in fact which, if unchallenged, will lead to his release? Or is he obligated to correct the record made by the People even though it will be against his interest and may lead to or extend his incarceration? When is he to speak up and when is he to shut up?

The district court concluded that the time from May 16, 1981 to December 17, 1986 should be credited against Brown's March 30, 1981 aggravated robbery sentence in Colorado because Brown was not "at fault" within the meaning of Pearlman. Because he could not have been incarcerated past March 1, 1988 under the March 1981 aggravated robbery and kidnapping convictions, Brown was ordered released. This appeal followed. 2

II.

The prosecution argues that the district court erred in crediting Brown with the time he served in Louisiana after being mistakenly released from the Denver City Jail because the district court failed to consider whether reincarceration would be inconsistent with fundamental principles of liberty and justice. We agree.

Two theories have been recognized to permit a prisoner who was mistakenly released through no fault of his own to receive credit against his sentence for the time he was at liberty. Both theories are grounded in the due process requirement that state action must be consistent with "fundamental principles of liberty and justice." Buchalter v. New York, 319 U.S. 427, 429, 63 S.Ct. 1129, 1130, 87 L.Ed. 1492 (1943). The first theory is that a prisoner should not be required to serve his sentence in installments. See White v. Pearlman, 42 F.2d 788, 789 (10th Cir.1930); see also Watson v. Enslow, 183 Colo. 435, 440, 517 P.2d 1346, 1349 (1974) (Colorado had no authority under Uniform Criminal Extradition Act to order extradition to California of prisoner paroled from Colorado prison eight years previously). The second theory is that a failure to attempt to regain custody of the prisoner within a reasonable time constitutes a waiver of jurisdiction over the prisoner. See Shields v. Beto, 370 F.2d 1003, 1004 (5th Cir.1967) (twenty-eight year delay in executing sentence after prisoner was extradited back to original state); see also Lanier v. Williams, 361 F.Supp. 944, 947 (E.D.N.C.1973) (five year delay in executing sentence while prisoner was at liberty).

The record shows that the Colorado Department of Corrections did not delay its attempt to regain custody of Brown for an unreasonable time, so the second theory for permitting Brown to receive credit for time at liberty is not present. The question that remains is whether he is entitled to credit for time at liberty under the first theory.

A.

White v. Pearlman, 42 F.2d 788 (10th Cir.1930), is the leading case on credit for time at liberty due to mistaken release from prison. In Pearlman, a prisoner was sentenced to a five year federal term in Texas on March 17, 1925. The Texas warden mistakenly believed Pearlman had received a three year sentence. On June 5, 1926, the warden told Pearlman that his term would expire on July 5, 1926, and that he would be released at that time. Pearlman told the warden that there was some mistake because he had received a five year sentence. Despite his protest, Pearlman was discharged on July 5, 1926. He returned to his home state. Two years later, Pearlman learned that he was wanted in Texas because of his mistaken 1926 discharge. He returned voluntarily to Texas and was committed to a prison in Kansas. He sought habeas corpus relief from the Kansas prison after he would have been entitled to release had his sentence continued to run while he was at liberty.

The federal district court granted Pearlman's habeas corpus petition, and the Tenth Circuit Court of Appeals affirmed the judgment of the district court. It held that where a prisoner is discharged from a penal institution "without any contributing fault on his part" and without violating the terms of parole, his sentence "continues to run while he is at liberty." 42 F.2d at 789 (citations omitted). The Tenth Circuit found that Pearlman was not only "without fault," he was in essence ejected from the Texas penitentiary despite his protests that a mistake was being made. Under those circumstances, the Tenth Circuit concluded that the sentence ran during the two years he was at liberty. Id.

The Tenth Circuit, however, expressly declined to consider "whether a prisoner, who knows a mistake is being made and says nothing, is at fault" for purposes of having his sentence run while he is at liberty. Id. That issue is now squarely before us.

B.

Many courts have cited Pearlman for the proposition that a prisoner who says nothing when mistakenly released is not "at fault," with the result that the prisoner's sentence ran during the time he was at liberty. Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir.1984); Lanier v. Williams, 361 F.Supp. 944, 947 (E.D.N.C.1973); Ex parte Agee, 474 So.2d 161, 163 (Ala.1985); Giles v. State, 462 So.2d 1063, 1064 (Ala.Crim.App.1985); People v. Battle, 742 P.2d 952, 953-54 (Colo.App.1987); People v. Incerto, 38 Colo.App. 390, 393, 557 P.2d 1217, 1220 (1976); Carson v. State, 489 So.2d 1236, 1238 (Fla.App.1986). These cases, however, fail to recognize that Pearlman expressly refused to decide whether a prisoner who says nothing when mistakenly released is "at fault" for purposes of deciding whether he should receive credit for the time he was at liberty. Nor do these cases provide an independent rationale to support the conclusion that a prisoner is entitled to receive credit for time at liberty when mistakenly released. In short, these cases rely on Pearlman for a proposition Pearlman never decided.

C.

The United States District Court for the District of Columbia, in United States v. Merritt, 478 F.Supp. 804 (D.D.C.1979), has provided perhaps the most cogent analysis to date for deciding whether the sentence of a prisoner who remained silent while being mistakenly released continues to run while the prisoner is at liberty.

A convicted person will not be excused from serving his sentence merely because someone in a ministerial capacity makes a mistake with respect to its execution. Several additional factors must...

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