Lerner v. Gill, 82-208-C

• Decision Date: 05 August 1983
• Docket Number: No. 82-208-C,82-208-C
• Citation: 463 A.2d 1352
• Parties: Maurice R. LERNER v. Matthew GILL et al. A.
• Court: Rhode Island Supreme Court

Page 1352

463 A.2d 1352

Maurice R. LERNER v. Matthew GILL et al.

No. 82-208-C.A.

Supreme Court of Rhode Island.

Aug. 5, 1983.

Robert B. Mann, Mann & Roney, Providence, Robert M. Bonin, Boston, Mass., for plaintiff.

Dennis J. Roberts II, Atty. Gen., Sharon P. O'Keefe, Sp. Asst. Atty. Gen., Chief, Appellate Div., for defendants.

OPINION

KELLEHER, Justice.

This case is before us on appeal from an order of a Superior Court justice granting the application for postconviction relief of the petitioner, Maurice Lerner (Lerner), an individual presently incarcerated at the Adult Correctional Institutions (ACI). The trial justice determined that the granting of parole-eligible status to Lerner and the subsequent revocation of that status violated the ex post facto provision of the United States Constitution. The respondents, Matthew Gill, assistant director of adult services at the Adult Correctional Institutions, and Dennis J. Roberts II, Attorney General of the State of Rhode Island, vigorously oppose the Superior Court's characterization of the events involved in this dispute. In order to clarify the issues that are presently faced by this court, a summary of the factual history that precipitated this litigation is necessary.

The gangland-style murders of which Lerner was accused occurred in the Silver Lake section of Providence on April 20, 1968. See State v. Patriarca, 112 R.I. 14, 18-21, 308 A.2d 300, 305-07 (1973). Nearly two years later, on March 27, 1970, he was convicted of two counts of murder and one count of conspiracy to commit murder. See State v. Lerner, 112 R.I. 62, 308 A.2d 324 (1973). Lerner was sentenced on September 14, 1970, to a term of ten years for the conspiracy charge and two life terms, one for each of the murders committed. All of these sentences were to run consecutively.

The issues of this case revolve around the provisions in the General Laws regarding murder and parole. For purposes of this case, the statute establishing the penalty for murder remains essentially the same as at the time of the commission of the crimes. The penalty for murder at that time was imprisonment for ten years to life. The maximum penalty faced by Lerner, therefore, for the crime of murder was life imprisonment.

The parole statutes, however, require a more detailed analysis. On the date the murders were committed, a prisoner sentenced to life imprisonment was not eligible for parole until he had served at least twenty years of his sentence. This provision was altered in 1970 when the General Assembly determined that ten years should be the minimum period served by a life prisoner before becoming parole eligible. This statute expressly repealed prior law and became effective upon its passage on April 30, 1970. As of this date, Lerner had been convicted but not yet sentenced.

Another provision that deserves mention at this point concerns the parole of prisoners subject to more than one sentence. General Laws 1956 (1981 Reenactment) § 13-8-10 provides that before being eligible for parole, a prisoner confined under consecutive sentences must serve at least one-third of the total of his sentences whereas a prisoner serving concurrent sentences becomes eligible for parole after having served a term equal to one-third of the maximum term imposed. If either calculation results in a term of years greater than ten, § 13-8-13 controls, and the prisoner becomes eligible after serving ten years. The question of parole eligibility for prisoners sentenced to more than one consecutive life term was not answered by the General Assembly until 1981, however, well after Lerner's criminal acts, conviction, and sentencing. At that time, the Legislature specifically stated that such a prisoner must serve ten years consecutively on each life sentence before becoming parole eligible. General Laws 1956 (1981 Reenactment) § 13-8-13(b), as amended by P.L.1981, ch. 36, § 1. It is important to note that this statute applies only to crimes occurring after May 7, 1981; therefore, any possible application to the case at bar is eliminated. This assertion does not imply, however, that persons committing crimes preceding that date should be eligible for parole prior to serving ten years on each life sentence. The subsection specifically cautions against this inference.

Lerner bases his ex post facto claim on the change in the interpretation of the above statutes by the parole board. He contends that since the statutes were initially construed in his favor by deeming him parole eligible in 1979, officials could not later revise the interpretation and revoke that eligibility. To do so, he argues, violates the prohibition against ex post facto laws found in Art. I, sec. 10, of the United States Constitution and art. I, sec. 12, of the Rhode Island Constitution. In addition, he questions the propriety of the reinterpretation on due-process grounds. He maintains that the manner in which his parole hopes were raised and later shattered was so fundamentally unfair as to violate the due-process clause of the Fourteenth Amendment. He also claims his due-process rights were infringed upon when a majority of the justices of this court, at the request of the Governor, delivered an advisory opinion concerning the meaning of the above statutes. See In re Advisory Opinion to the Governor, R.I., 421 A.2d 535 (1980). Lerner characterizes this action as judicial ex post facto lawmaking. Before dealing with the merits of these claims, it is necessary to detail those activities of state officials that Lerner cites as unconstitutional.

The initial inquiry into Lerner's parole status was held in 1976. Bradford W. Southworth, who at that time was director of the State Department of Corrections, wrote a letter to then-Attorney General Julius C. Michaelson, specifically requesting advice about the parole-eligibility date of Lerner, an inmate sentenced to two consecutive life sentences. At this time, Attorney General Michaelson construed the set of statutes discussed above as granting parole-eligible status to Lerner in 1979, after only ten years of incarceration. ¹ He reasoned that the ten-year minimum found in § 13-8-13 was to apply to all prisoners sentenced to life since the General Laws did not specifically provide for individuals receiving sentences consecutive to a life sentence.

Although there is no evidence in the record that Lerner was formally advised of his status in 1976, it cannot be disputed that he believed that he would be eligible for parole in 1979. He testified that in 1976 he was transferred from the Maximum Security section of the prison to Minimum Security, where he would soonafter receive such privileges as work release and furloughs. Lerner claims that he relied on the statements of state officials regarding his eligibility status in making several important family decisions. His wife and children moved from their residence in Brookline, Massachusetts, to a home in Cranston, Rhode Island, in order to take advantage of the increased visitation and furlough privileges that he believed were dependent upon his parole-eligible classification. In addition, he testified that his mother started a business in Rhode Island to provide her son with a job upon his release. This was allegedly done to increase Lerner's chances of being granted parole by demonstrating his ability, if released, to support himself and his family in the state of Rhode Island.

The most convincing proof that Lerner was once considered eligible for parole is his actual appearance before the parole board on two occasions. He was denied parole each time. In fact, it was these appearances before the parole board that prompted an assistant attorney general to question Lerner's eligibility. This action led the chairman of the parole board, Joseph Galkin, to request a clarification of the parole statute from Attorney General Roberts. The question once again posed was whether Lerner was eligible to appear before the board after serving only ten years of his two consecutive life sentences or whether he must wait twenty years.

Attorney General Roberts expressed the opinion that Lerner should serve no fewer than twenty years before becoming eligible for parole, contrary to the view of his predecessor. Such a construction, according to the correspondence of October 1979 from Mr. Roberts to Mr. Galkin, comports with the court's imposition of two life sentences to be served consecutively as opposed to concurrently. Upon Mr. Galkin's request for a clarification of this important issue, the Attorney General reiterated his previous position. He emphasized that any other conclusion would negate the effect of consecutive sentences for life and would be inconsistent with the relevant statutes.

On December 11, 1979, Mr. Galkin wrote a memo to John J. Moran, director of the Department of Corrections, advising him of Lerner's revised status. Lerner testified that in January of 1980 he was told that he would have to return to the Maximum Security section of the prison. He was apparently shown the communications that Mr. Galkin and Attorney General Roberts had exchanged as proof of the change in his status. Lerner remained at Maximum Security until April of 1980, when the classification board determined that he could be returned to Minimum Security. After the receipt of the advisory opinion to the Governor, Lerner was returned to Maximum, where he stayed for six months. Thereafter, Lerner was again transferred to Minimum, where he remains today.

Lerner first pursued his constitutional claims before the United States District Court for the District of Rhode Island in the form of a petition for a writ of habeas corpus. A hearing was held in October of 1981, in which testimony was presented detailing the facts previously discussed. The District Court judge stayed Lerner's federal action until such time as he had exhausted his state remedies. Accordingly, Lerner filed an application for...