Frost v. State

• Citation: 336 Md. 125,647 A.2d 106
• Decision Date: 01 September 1993
• Docket Number: Nos. 141,143,s. 141
• Parties: Carl FROST v. STATE of Maryland. Henry L. KING v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 125

336 Md. 125

647 A.2d 106

Carl FROST v. STATE of Maryland.

Henry L. KING v. STATE of Maryland.

Nos. 141, 143, Sept. Term, 1993.

Court of Appeals of Maryland.

Aug. 26, 1994.

Reconsideration Denied Oct. 5, 1994.

Margaret L. Lanier, Asst. Public Defender and Stephen E. Harris, Public Defender, both on brief, Baltimore, for appellants.

Richard B. Rosenblatt, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen., George A. Eichhorn, III, and Alan D. Eason, Asst. Attys. Gen., all on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

CHASANOW, Judge.

The primary issue presented in these two consolidated appeals is whether Maryland Code (1957, 1993 Repl.Vol.), Article 41, § 4-612(e), ¹ as applied to the appellants, violates the ex post facto clauses of the United States and Maryland constitutions. See U.S. Constitution, Article I, § 10, cl. 1; Maryland Declaration of Rights, Article 17. Section 4-612(e) provides as follows: "Revocation--Rescission of diminution credits.--The Parole Commissioner presiding may rescind all diminution credits previously earned on the sentence or any portion thereof in the revocation proceedings."

I.

Before discussing the facts, we believe it helpful to provide a brief overview of "diminution credits" and the related subject of "mandatory supervision." Diminution credits can be earned by inmates to reduce the lengths of their confinements. Presently, Md.Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.), Art. 27, § 700 specifies four types of diminution credits. Inmates can earn diminution credits based on good conduct, "satisfactory performance of work tasks," "satisfactory progress in vocational or other educational and training courses," and "satisfactory progress in special selected work projects, or other special programs." Id. § 700(d)-(f) & (h). These four types of diminution credits shall hereinafter be referred to respectively as good conduct, industrial, educational, and special projects credits. Good conduct credits, unlike the others, are deducted "in advance from the inmate's term of confinement, subject to the inmate's future good conduct." Id. § 700(d)(1) (emphasis added). Assuming an inmate does not forfeit diminution credits as the result of a disciplinary hearing, see id. § 700(g), the inmate can earn the right to be released on a date much sooner than that designated by his or her original term of confinement.

Upon accumulating sufficient credits to earn entitlement to release, the inmate is deemed released under "[m]andatory supervision." Mandatory supervision is defined by statute as "a conditional release from imprisonment which is granted to any person ... who has served the term or terms, less the deductions provided for in Article 27, §§ 700 and 704A of the Code [diminution credits]. This conditional release was previously referred to as 'mandatory release.' " Md.Code (1957, 1993 Repl.Vol.), Art. 41, § 4-501(13). ² With this background in mind, we now turn to the facts pertaining to each appellant respectively.

A. Facts Regarding Appellant Frost

On August 30, 1983, Carl Frost began serving a sentence of ten years for second degree rape with all but seven years suspended and five years probation upon release. While serving this sentence, Frost earned diminution credits which reduced the length of his confinement. By applying 679 days worth of diminution credits to his sentence, Frost was mandatorily released from prison on October 20, 1988, nearly two years before his maximum sentence expiration date of August 30, 1990.

Approximately one year after his mandatory release, Frost was arrested for a third degree sex offense, child pornography, and child abuse. Pursuant to a plea bargain, Frost pled guilty to child abuse and child pornography, and on December 26, 1989, he received 18-months' imprisonment. These new charges also resulted in the issuance of a warrant to revoke Frost's mandatory release. At a January 1990 hearing, the Parole Commissioner decided to revoke Frost's mandatory release, but the Commissioner credited him with six-months' "street time." See Md.Code (1957, 1986 Repl.Vol.), Art. 41, § 4-511(d) (providing that it is within the Parole Commissioner's discretion to grant "credit for time between release on parole and revocation of parole"); Md.Code (1957, 1986 Repl.Vol., 1989 Cum.Supp.), Art. 41, § 4-612(c) ("A person under mandatory supervision shall be subject to all laws, rules, regulations, and conditions applicable to parolees."). This decision was reduced to writing: "Revoke and Allow Six Months Street Time." ³

On March 6, 1990, Frost's probation stemming from his rape conviction was revoked, and the circuit court judge ordered that Frost serve the three-year suspended portion of the sentence in the rape case. The judge further ordered that it be served consecutively to all sentences Frost was presently serving, which included the 18-months' imprisonment for child abuse and child pornography.

In April of 1993, Frost filed a pro se petition for a writ of habeas corpus in the Circuit Court for Baltimore City. Frost's primary contention in his petition was that the Parole Commissioner lacked the authority to rescind diminution credits at the January 1990 hearing because to do so would violate the ex post facto prohibition. At the time of the revocation hearing, the Parole Commissioner had express statutory authority to "rescind all diminution credits previously earned on the sentence or any portion thereof...." Md.Code (1957, 1986 Repl.Vol., 1989 Cum.Supp.), Art. 41, § 4-612(e). This provision was part of a revision to § 4-612, which took effect on July 1, 1989. See Ch. 307 of the Acts of 1989. Section 4-612's predecessor, however, provided as follows:

"Any person sentenced after July 1, 1970, to the jurisdiction of the Department of Correction and having served his term or terms, less the deductions provided for in Article 27, § 700 of this Code, shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced. Said released prisoner shall be subject to all laws, rules, regulations and conditions applicable to parolees and shall remain under the supervision of the State Department of Parole and Probation until the expiration of the maximum term or terms for which he was sentenced." (Emphasis added).

Ch. 406 of the Acts of 1970.

Frost argued that the 1970 legislation was controlling, and that it did not permit the rescission of diminution credits. Therefore, Frost contended that the 1989 legislation disadvantaged him and could not be applied against him. The circuit court (Davis, Andre M., J.) denied Frost's petition and found no merit in his claim that the statutory authorization for revocation of a mandatory releasee's diminution credits had "ex post facto effect." Judge Davis reasoned that the 1989 legislation "worked no substantive change in respect [to] the Parole Commission's authority to rescind diminution credits" under the 1970 legislation. ⁴

In denying Frost's petition for habeas corpus, Judge Davis also stated the following:

"[I]t is clear that the Parole Commission properly rescinded Frost's credits. It is difficult to imagine how the Parole Commission could have meaningfully acted at all but for a recision of those credits. The very nature of mandatory release supervision is such that the 'carrot' of release, on the basis of earned credits, will hopefully motivate an inmate to lawful behavior during the period between release and the maximum expiration date of the underlying sentences. The 'stick' of recision is a logical, and necessary, concomitant of that carrot."

Thereafter, Frost filed an application for leave to appeal to the Court of Special Appeals, which the intermediate appellate court treated as a notice of appeal. ⁵ We issued a writ of certiorari prior to argument in the Court of Special Appeals.

B. Facts Regarding Appellant King

Henry King was sentenced to 25-years' imprisonment for a second degree murder which occurred on September 20, 1972. During his incarceration, King earned various diminution credits consisting of good conduct, industrial, and special projects credits. After application of these credits (2572 days) to his maximum term of incarceration, King was mandatorily released from prison more than seven years before his original term of confinement was set to expire.

King also violated the terms of his release. Less than two years after his release, King was convicted of malicious destruction of property and fleeing and eluding a police officer. In light of these new offenses, the Parole Commission issued a retake warrant for violation of King's release. On July 24, 1992, the Parole Commission revoked King's mandatory release, but granted him credit for one year of street time.

On April 23, 1993, King filed a petition for a writ of habeas corpus in the Circuit Court for Dorchester County (Johnson, J.) in which he raised the same contention as Frost. King argued that the 1970 legislation did not permit rescission of diminution credits, and therefore the 1989 legislation permitting rescission of "all" diminution credits could not be applied to his sentence without violating the ex post facto clause. Compare Ch. 406 of the Acts of 1970 (providing that an inmate on mandatory release is "deemed as if released on parole") with Ch. 307 of the Acts of 1989 (allowing the Parole Commissioner to "rescind all diminution credits previously earned on the sentence or any portion thereof ..."). The circuit court denied King's petition based on reasoning very similar to that used by Judge Davis in denying Frost's petition. Judge Johnson explained that if the 1970 legislation were interpreted to mean that diminution credits were not rescindable,

"no revokee could have ever been reincarcerated to serve the remainder of his original sentence, for the...