Lerner v. Gill

• Decision Date: 04 January 1985
• Docket Number: No. 84-1136,84-1136
• Citation: 751 F.2d 450
• Parties: Maurice R. LERNER, Plaintiff, Appellee, v. Matthew GILL, etc., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 450

751 F.2d 450

Maurice R. LERNER, Plaintiff, Appellee, v. Matthew GILL, etc., et al., Defendants, Appellants.

No. 84-1136.

United States Court of Appeals First Circuit.

Argued Sept. 5, 1984.

Decided Jan. 4, 1985.

Dennis J. Roberts, II, Atty. Gen., Providence, R.I., with whom Sharon O'Keefe, Sp. Asst. Atty. Gen., Chief, Appellate Div., Providence, R.I., was on brief, for defendants, appellants.

Robert M. Bonin, Boston, Mass., with whom Bonin & Zalcman, Boston, Mass., was on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and SELYA, ^* District Judge.

LEVIN H. CAMPBELL, Chief Judge.

The State of Rhode Island appeals from a judgment of the United States District Court for the District of Rhode Island overturning as an ex post facto law the state's denial of parole eligibility to petitioner Maurice Lerner. We reverse.

On April 20, 1968, Maurice Lerner murdered two men in Rhode Island with a shotgun, apparently in fulfillment of a mobster "contract." The particulars are related in State v. Patriarca, 112 R.I. 14, 308 A.2d 300 (1973), and State v. Lerner, 112 R.I. 62, 308 A.2d 324 (1973). Lerner was arrested soon after and was charged by the state with two counts of murder and one count of conspiracy. When the killings occurred, a Rhode Island statute then provided that prisoners sentenced to imprisonment for life had to serve not less than 20 years' imprisonment before becoming eligible for parole. R.I.Gen.Laws Sec. 13-8-13 (1956) adopted in 1960 R.I.Pub.Laws 115, Sec. 1. ¹ After Lerner's arrest and indictment, but prior to his trial, this statute was amended, effective April 30, 1970, to provide that prisoners sentenced to imprisonment for life had to serve not less than ten years' imprisonment before becoming eligible for parole, see 1970 R.I.Pub.Laws 120, Sec. 1, R.I.Gen.Laws Sec. 13-8-13 (1969 Reenactment). ² On September 14, 1970, having been found guilty on all three counts, Lerner was sentenced to two life terms for the two murders and ten years for conspiracy, all of which sentences, the court directed, were to be served consecutively.

On January 29, 1973, the then Attorney General of Rhode Island, Richard Israel, advised the Parole Board in another context that persons sentenced to multiple sentences which were not imposed simultaneously were deemed to be serving concurrent sentences for parole eligibility purposes. This opinion did not interpret the statute relevant to Lerner, R.I.Gen.Laws Sec. 13-8-13, but rather interpreted a related provision, R.I.Gen.Laws Sec. 13-8-10. (There seems to be no question, moreover, that Lerner's sentences were imposed both simultaneously and with the express direction that they be consecutive.)

On August 3, 1976, Attorney General Julius Michaelson, who had replaced Israel, was asked by the Rhode Island Department of Corrections for his opinion concerning the date Lerner would be legally eligible for parole. Michaelson advised the Department that under R.I.Gen.Laws Sec. 13-8-13 (1969 Reenactment), Lerner would become first eligible for parole on August 14, 1979, i.e., after serving ten years. ³ Following the Attorney General's letter, Lerner was transferred from a maximum to a minimum security facility, and he was granted work release and furlough privileges, all of which accompanied parole-eligible status. Lerner's family moved to Rhode Island, and his mother invested in a Nautilus facility there to create an employment opportunity for him in the event he was paroled.

In March and September 1979 Lerner appeared before the Parole Board but was denied parole on both occasions. On October 19, 1979, the new Attorney General, Dennis Roberts, II, disagreeing with his predecessor in office, responded to a Parole Board inquiry that under section 13-8-13, a prisoner like Lerner who had been sentenced to two consecutive life sentences had to serve ten years for each sentence, consecutively, for a total of 20 years, before becoming legally eligible for parole. In Lerner's case, this meant that he would have to serve a minimum of approximately ten more years before becoming parole-eligible. Following this letter, Lerner was returned to maximum security.

On October 9, 1980, the Supreme Court of Rhode Island, responding to a question put by the Governor, issued an advisory opinion which was in accord with Attorney General Roberts's interpretation of the ten-year provision in the 1970 version of section 13-8-13. In re Advisory Opinion to the Governor, 421 A.2d 535 (R.I.1980) (Bevilacqua, C.J., dissenting). On May 7, 1981, the legislature went a step further, amending section 13-8-13 to include a directive that in the case of a prisoner sentenced consecutively to more than one life term for crimes committed after May 7, 1981, he must serve not less than ten years consecutively on each life sentence. While limited to crimes occurring after May 7, 1981, this amendment contained a clause negating any implication that prisoners serving consecutive life sentences for earlier crimes were to be eligible after only ten years. See R.I.Gen.Laws Sec. 13-8-13 (1981 Reenactment) (Supp.1984). ⁴

On May 11, 1981, Lerner filed a petition for habeas corpus in the United States District Court for the District of Rhode Island. The court stayed proceedings in order to enable Lerner to exhaust state remedies. Lerner then filed an application for post-conviction relief in the Superior Court of Rhode Island, which was granted, the justice finding Attorney General Roberts's construction of section 13-8-13, and the Parole Board's current acceptance thereof, to be a violation of the prohibition against ex post facto laws in the United States Constitution. On appeal this judgment was reversed by the Supreme Court of Rhode Island which, as in its advisory opinion, favored Attorney General Roberts's construction. Lerner v. Gill, 463 A.2d 1352 (R.I.1983) (Bevilacqua, C.J., dissenting). State proceedings having been exhausted, the district court vacated its stay and issued an opinion and order granting the petition for habeas corpus on the ground that the state's denial of parole eligibility after the passage of ten years was a violation of the provision in the federal Constitution prohibiting a state from passing an ex post facto law. U.S. Const. art. I, Sec. 10, c. 1. Lerner v. Gill, 580 F.Supp. 1056 (D.R.I.1984). From this judgment the State now appeals.

I.

The constitutional prohibition against a state's passing an ex post facto law bars, among other things, "every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed." See Calder v. Bull, 3 U.S. (3 Dall.) 385, 390, 1 L.Ed. 648 (1798); Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). The main purpose of the prohibition is to assure that legislative acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. See Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17 (1981); Calder v. Bull, 3 U.S. (3 Dall.) at 387.

The Supreme Court of the United States has held that parole eligibility is part of the "law annexed to the crime" for ex post facto purposes. See Warden v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974). See also Breest v. Helgemoe, 579 F.2d 95, 102 (1st Cir.1978); Rodriguez v. United States Parole Commission, 594 F.2d 170, 175 (7th Cir.1979); Geraghty v. United States Parole Commission, 579 F.2d 238, 265 (3d Cir.1978), vacated on other grounds, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1981). Thus, if the version of section 13-8-13 that became effective in 1970, as presently construed by Rhode Island authorities and the state Supreme Court, required Lerner to undergo a longer period of incarceration before parole than would have been true under the law in effect in 1968 when Lerner committed the murders, we might agree with the district court. Breest v. Helgemoe, 579 F.2d at 102. See also Love v. Fitzharris, 460 F.2d 382 (4th Cir.1972), vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973); Piper v. Perrin, 560 F.Supp. 253 (D.N.H.1983). But such is not the case. When on April 20, 1968, Lerner committed the crimes, persons given even a single life sentence had to serve a minimum of 20 years before being eligible for parole. A fortiori two consecutive life sentences would have resulted in at least that (the question of whether they would have required 40 years does not seem to have come up). Therefore, the state's present reading of the 1970 revision, that one sentenced consecutively for two life sentences must serve a minimum of 20 years, does not subject Lerner to any more onerous a penalty than was imposed by the law affixed to the crime when committed.

"It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law." Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 344 (1977). Here Lerner's required incarceration before parole eligibility "was twenty years then and it is twenty years now," in the district court's own words, 580 F.Supp. at 1060. Insofar as the purpose of the ex post facto clause is to give persons a fair warning of the punishment they can expect for their crimes, petitioner has not in any way been made worse by the action of the Parole Board. Even after Attorney General Michaelson's lenient interpretation of the 1970 statute was replaced by a stricter one, Lerner remained eligible for parole as soon as would have been true under the law in effect when he committed his crimes. Since the amended law, as presently construed, is no more onerous than the old, there is no violation of the constitutional guarantee against ex post facto laws. Id. See also Calder v. Bull, 3 U.S. (3 Dall.) at 390; Breest v. Helgemoe, 579 F.2d at 102-03; Hayward v. United States Parole Commission, 659 F.2d 857, 862 (8th Cir.1981); Warren v....