Miller v. State, 1003-2020

CourtCourt of Special Appeals of Maryland
Writing for the CourtReed, J.
PartiesSHERRIE LYN MILLER v. STATE OF MARYLAND
Decision Date13 June 2022
Docket Number1003-2020

SHERRIE LYN MILLER
v.

STATE OF MARYLAND

No. 1003-2020

Court of Special Appeals of Maryland

June 13, 2022


Circuit Court for Harford County Case Nos. 12-K-17-000153 and C-12-CV-20-000557

Wells, C.J. Reed, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

OPINION [*]

Reed, J.

This is an appeal from a denial of a request for habeas corpus relief. On November 18, 2019, appellant, Sherrie Lyn Miller, appeared before the Circuit Court for Harford County in Case Number 12-K-17-000153 and pleaded guilty to two counts of conspiracy to distribute marijuana and one count of possession of marijuana with intent to distribute. In accordance with the plea agreement, the court sentenced her to twelve years in prison, with the expectation that after three years the sentence would be modified to time served. The start date of the sentence was January 3, 2020.

On August 10, 2020, Miller filed an Emergency Petition for Writ of Habeas Corpus in the circuit court against appellees, Margaret Chippendale, Warden for the Maryland Correctional Institute for Women ("MCIW"), and O. Wayne Hill, Commissioner of Correction ("Commissioner") for the Division of Correction ("Division"). That petition was docketed as C-12-CV-20-000557. The next month, Miller filed essentially the same petition in the criminal case as well (12-K-17-000153). Miller claimed in the petition that the Commissioner violated a gubernatorial executive order that authorized the Commissioner to place eligible inmates on expedited home detention due to the COVID-19 pandemic. Miller alleged that the Commissioner violated that executive order by refusing to consider her for home detention. After a hearing held on November 2, 2020, the circuit court denied the petition.

Miller filed a timely notice of appeal in both cases, which this Court consolidated. Miller presents one question for our review:

Did the circuit court err in denying the appellant's petition for writ of habeas corpus
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For the reasons to be discussed, we shall affirm the judgment of the circuit court.

Factual & Procedural Background

After reporting to the local detention center on January 3, 2020, Miller was sent to MCIW to serve her sentence. On April 18, 2020, in response to the COVID-19 pandemic, Governor Hogan issued Executive Order 20-04-18-01 "Implementing Alternative Correctional Detention and Supervision[.]" That order made the following findings:

WHEREAS, Because of inmates' close proximity to each other, employees, and contractors in correctional facilities the spread of COVID-19 there poses a significant threat to their health, welfare, and safety, as well as the communities in which they live or to which they will return
WHEREAS, In order to reduce the threat to health, welfare, and safety caused by rapid transmission of COVID-19 between residents and staff in congregative correctional custody, and enable social distancing and other mitigation efforts, certain inmates must be removed from these facilities;
WHEREAS, Decisions regarding expeditious release for certain eligible inmates should consider threats to their health, access to appropriate medical and social services, and safeguards to protect public safety;
WHEREAS, It is in the public interest to prevent inmates' exposure to the novel coronavirus by expeditiously moving them to alternative places of confinement, such as in supervised community placement or their homes;
WHEREAS, It is reasonable to expect that certain inmates do not present a threat to public safety and will abide by the restrictions of alternative places of detention, provided there are plans to ensure access to places of residence, social services, and medical care;
WHEREAS, To prevent exposure to the novel coronavirus, protect the public health, welfare, and safety, and save lives, it is necessary that inmates and staff refrain from congregating, that these individuals' movements and the
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occupancy of prisons and other correctional facilities be controlled, and that part of their populations be evacuated;
WHEREAS, It is further necessary to suspend the effect of certain statutes, rules, and regulations regarding correctional detention and supervision procedures; and
WHEREAS, To mitigate the effects of the spread of COVID-19 and protect the public health, welfare, and safety, especially of vulnerable workers or incarcerated persons at Maryland prisons, it is necessary and reasonable to implement protocols and procedures for transfer out of the State's correctional institutions[.]

Exec. Order No. 20-04-18-01 at 1-2.

That executive order authorized the Commissioner to consider eligible inmates for expedited home detention:

1.To continue to safely reduce correctional facilities' populations of inmates and prevent the spread of COVID-19:
a. The Commissioner of Correction (the "Commissioner") is authorized to, for all inmates in the custody of the Division of Correction:
ii. Who are eligible pursuant to [Md. Code, Correctional Services ("Corr. Servs.")] § 3-404, immediately consider them for home detention ("expedited home detention")[.]
2.An inmate is not eligible for early mandatory supervision, expedited home detention, or accelerated parole if the term of confinement includes a sentence for a sexual offense.
5. Upon a determination that the action will reduce the inmate's risk of exposure to COVID-19 and will not compromise the health, welfare, or safety of the inmate, victims, or the public, the Commissioner may:
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b. Place the inmate on expedited home detention.
10. Effect of Other Laws.
a. The effect of any statute, rule, or regulation of an agency of the State or a political subdivision inconsistent with this Order, including [Corr. Servs.] §§ 3-708, 7-501(b), and
b. 7-505(a), and Code of Maryland Regulations 12.02.26.05C(5) through (7), is hereby suspended.
c. Except as expressly provided for herein, all other laws regarding an inmate's release on mandatory supervision, placement in home detention, or parole remain in effect.

Exec. Order No. 20-04-18-01 at 2-5.

On November 2, 2020, the court held a hearing on Miller's petition for writ of habeas corpus. Miller, through counsel, stated the relief that Miller sought: "All we're asking is that [Miller] be considered immediately for home detention as authorized by Governor Hogan." Miller noted that she did not fall into any of the categories of inmates excluded from home detention program eligibility under Corr. Servs. § 3-404, which provides:

An inmate is not eligible for the [home detention] program if the inmate:
(1) is serving a life sentence;
(2) has been found guilty of a crime of violence as defined in § 14-101 of the Criminal Law Article unless:
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(i) 5 years have elapsed since expiration of the sentence for the crime of violence; or
(ii) the inmate is within 90 days of release on parole or mandatory supervision; or
(3) has been found guilty of the crime of:
(i) child abuse under § 3-601 or § 3-602 of the Criminal Law Article; or
(ii) escape under § 9-404 of the Criminal Law Article.

Thomas Nittinger, acting director of case management for the Division, testified at the hearing. Nittinger testified that Miller's release date is in January 2028. Nittinger explained that Miller was ineligible for home detention because she was not within six months of her release date. Code of Maryland Regulations ("COMAR") 12.02.26.05D(1) provides: "An inmate who has more than 6 months remaining before release at the time of home detention placement is ineligible if the inmate . . . [i]s currently serving a sentence for the manufacturing, distribution, possession with intent to distribute, or conspiracy to distribute a controlled dangerous substance as defined by the Annotated Code of Maryland[.]"

Miller argued that the executive order suspended COMAR 12.02.26.05D(1), and she was thus eligible for expedited home detention under the executive order because she was not excluded from home detention program eligibility under Corr. Servs. § 3-404. The State contended that the express language of the executive order did not suspend COMAR 12.02.26.05D(1), and thus Miller was ineligible for expedited home detention. The circuit court noted, while the executive order suspended some COMAR provisions, "if [the Governor] wanted to say that other laws are also to be suspended he would have said so.

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But he said all other laws remain in effect." In addition, the circuit court ruled that Miller's "conviction for possession with intent to distribute, and more particularly, her sentence in this case with a mandatory release date in 2028 do not make her eligible for consideration of home detention." The court thus denied Miller's request for habeas corpus relief.

The April 2020 executive order stated that it "remain[ed] effective until the state of emergency is terminated and the proclamation of the catastrophic health emergency is rescinded, or until rescinded, superseded, amended, or revised by any subsequent orders." Exec. Order No. 20-04-18-01 at 5. Thereafter, on November 17, 2020, the Governor issued Executive Order No. 20-11-17-03 "Implementing Alternative Correctional Detention and Supervision[.]" That order superseded the April 2020 executive order and it was nearly identical to it, except that the November 2020 order provided:

1. To continue to safely reduce correctional facilities' populations of inmates and prevent the spread of COVID-19:
a. The Commissioner of Correction (the "Commissioner") is authorized to, for all inmates in the custody of the Division of Correction:
ii. Who are otherwise eligible for home detention, immediately consider them for home detention ("expedited home detention")[.]
10. Effect of Other Laws.
a. The effect
...

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