Public Safety v. Demby, No. 42, September Term, 2005.

CourtCourt of Special Appeals of Maryland
Writing for the CourtGreene
Citation890 A.2d 310,390 Md. 580
PartiesSECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. Quinton DEMBY, et al.
Decision Date17 January 2006
Docket NumberNo. 42, September Term, 2005.
890 A.2d 310
390 Md. 580
SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES
v.
Quinton DEMBY, et al.
No. 42, September Term, 2005.
Court of Appeals of Maryland.
January 17, 2006.

Page 311

COPYRIGHT MATERIAL OMITTED

Page 312

Michael O. Doyle, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, of Baltimore), on brief, for petitioner/cross-respondent.

Stephen Z. Meehan (Joseph B. Tetrault, Pauline K. White and Tamal A. Banton of Prisoner Rights Information System of Maryland, Inc. of Chestertown), on brief for respondents/cross-petitioners.

Argued before BELL, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

GREENE, J.


This matter has its origin in multiple decisions of the Inmate Grievance Office ("IGO") dismissing the grievances of Quinton Demby, Jesse Baltimore, Kenneth E. Woodall, Daniel Falcone, and Earl F. Cox, Jr. All are, or were,1 inmates serving sentences

Page 313

in the Division of Correction ("DOC"). In his respective grievance, each inmate alleged that amendments to the Code of Maryland Regulations ("COMAR") adopted by the Department of Public Safety and Correctional Services ("the Department") were ex post facto laws, in violation of the United States Constitution and Article 17 of the Maryland Declaration of Rights. The regulations concerned "special project" diminution of confinement credits that were awarded to inmates for being double celled.2

The dismissed grievances were each appealed to the respective circuit courts in the counties in which the inmates were confined3 and all of the dismissals were affirmed. Each respondent filed an application for leave to appeal the decisions to the Court of Special Appeals. The intermediate appellate court, in a reported opinion,4 granted each respective application and consolidated the matters, ultimately reversing the circuit courts and remanding with instructions to reverse the Secretary and order further proceedings. Demby, supra, v. Secretary, Dep't of Pub. Safety and Corr. Servs., 163 Md.App. 47, 877 A.2d 187 (2005). We subsequently granted the petition for writ of certiorari filed by the Secretary of Public Safety and Correctional Services ("the Secretary") and the cross-petition for writ of certiorari filed by respondents.5 Secretary of Corr. v. Demby, 388 Md. 97, 879 A.2d 42 (2005). The Secretary presented two issues for our review, which we have recast as:

1. Are the amendments to former COMAR 12.02.06.05N(2) (now COMAR 12.02.06.04F(1)) "laws" and thus subject to the prohibition against ex post facto laws by the Federal and Maryland Constitutions?

2. If the amendments constitute laws within this context, do they violate the ex post facto prohibitions?

Respondents raise three issues. Two of the respondents' issues are encompassed in our rephrased questions above; respondents' additional question is:

1. Did the Secretary waive her principal argument here by not raising

Page 314

that argument in the circuit courts?6

For the reasons stated below, we conclude that the Secretary's amendments are laws within the meaning of ex post facto clause and that those amendments violate the prohibition against ex post facto laws under the Federal and Maryland Constitutions.

Facts

In his application for leave to appeal, Mr. Demby admits that the Agency record is "meager" and proffers the following regarding his underlying charges and sentence:

[Mr. Demby] is serving a term of confinement as a result of a sentence imposed on April 8, 1999[,] by the Circuit Court for Harford County as follows: No. 99C0042 Count 1—assault [2nd] degree, 10 years from 2/21/99; No. 98C1286 Count 1—distribution of a non-controlled substance, 2 years consecutive to No. 99C0042. The result is a term that expires on February 21, 2011.

Mr. Demby initiated his case by filing an administrative remedy procedure complaint ("ARP")7 that was received on May 15, 2002. Mr. Demby's complaint was reviewed by the warden and dismissed on June 10, 2002. An administrative appeal of this decision was received by the Commissioner of Correction (the "Commissioner") on June 20, 2002, and was dismissed by Assistant Commissioner of Correction on July 17, 2002. Mr. Demby's timely complaint was received by the IGO on August 13, 2002. The substance of Mr. Demby's IGO complaint was that his eligibility to earn special housing credits for double celling was terminated by the amendments to COMAR 12.02.06.05N, and that this violated the ex post facto clause. Mr. Demby's complaint was dismissed by the IGO on October 4, 2003.8

Page 315

Mr. Demby's petition for judicial review was heard on May 16, 2003, in the Circuit Court for Somerset County. That court affirmed the decision of the IGO, finding that the Secretary and Commissioner have the authority to abolish, revoke, or revise the eligibility standards for double-celling credits. The Circuit Court also found that the ex post facto clause did not apply to Mr. Demby's case. On June 12, 2003, Mr. Demby filed for leave to appeal from the decision of the Circuit Court for Somerset County.

The procedural histories of respondents, Messrs. Baltimore, Woodall, Falcone, and Cox are similar to that of Mr. Demby. Previously, all respondents had been eligible for special project credits for double celling, but were precluded from such credits as a result of the January 1, 2002, amendment to COMAR 12.02.06.05 ("the amendments"). Mr. Demby was serving a term of confinement for both qualifying and disqualifying sentences, and was informed on May 15, 2002, in response to his ARP, that, as a result of the amendment, he would no longer be eligible for special project credits because his sentence included a disqualifying offense. Mr. Woodall is serving a term of confinement for both qualifying and disqualifying sentences. Subsequently, in response to his ARP, the DOC informed Mr. Woodall that as of January 1, 2002, he was no longer eligible for special project credits for housing because his charge for kidnapping was included as a disqualifying offense per the amendment. Similarly, Mr. Falcone's term of confinement consists of a sentence for robbery with a deadly weapon, a qualifying offense, and a consecutive sentence for carjacking, a disqualifying offense. The carjacking sentence precluded Mr. Falcone from receiving special project credits for housing after the amendment. Mr. Cox was serving a sentence for assault, a qualifying offense, and for use of a handgun in the commission of a crime of violence, which always has been a disqualifying offense. On April 20, 2000, Mr. Cox's handgun sentence ended, beginning his eligibility for double-celling credits. While the record is unclear as to the specific crimes respondents committed, we note that all respondents were serving terms of confinement that included at least one sentence that made them eligible to receive special project housing credits for double celling prior to the amendment.

The respondents who remain incarcerated provided the following updated information on their current situations in their brief:

Based on information provided to counsel by the DOC, the projected mandatory release date for Respondent Kenneth E. Woodall, currently incarcerated in Maryland Correctional Institution in Hagerstown, is May 13, 2010 (as of June 30, 2005). The projected release date for Respondent Daniel Falcone, currently incarcerated at the Maryland Correctional Training Center, also in Hagerstown, is October 11, 2008 (as of July 31, 2005).

The dismissals of the respondents' grievances were affirmed by the Circuit Courts for Somerset and Washington Counties. After granting respondents' petitions for leave to appeal, the Court of Special Appeals held that the COMAR amendments were laws for ex post facto purposes, "by virtue of the legislative discretion granted to the Secretary and the Commissioner pursuant to Corr. Serv. § 3-707." Demby, supra, 163 Md.App. at 67-68, 877 A.2d at 199. Further, the intermediate appellate court held that the amendments violated the ex post facto prohibition because the "application of current COMAR § 12.02.06.04F ... alters [respondents'] punishments by increasing the lengths of

Page 316

their sentences." Id. at 64, 877 A.2d at 197. In its reversal of the opinions of the respective circuit courts and the decisions of the Secretary, the Court of Special Appeals noted:

With this opinion, we do not suggest that once double-celling credits are established they must remain unchanged and available to all inmates in perpetuity. Clearly, current COMAR § 12.02.06.04F may lawfully be applied to inmates who committed their offenses after it took effect. Nor do we suggest that an inmate who is serving a sentence for an offense that is eligible for double-celling credits may not be removed to a single cell in accordance with DOC policies and regulations.

We hold only that an inmate serving a term of confinement for an offense committed prior to January 1, 2002(i) may not be denied double-celling credits, for periods of time during which he or she was or is serving only an eligible sentence, for the sole reason that another sentence in his or her term of confinement is ineligible, and (ii) may not be denied double-celling credits on sentences for offenses that were eligible under the former regulation but are ineligible under the current regulation.

Id. at 68, 877 A.2d at 199-200 (footnote omitted). We granted both side's petitions for writ of certiorari.

The Special Project Credit Regulations

The current provision that governs special project housing credits is COMAR 12.02.06.04:

A. Diminution credit9 may be awarded under Correctional Services Article, §§ 3-703 [thru] 3-707, Annotated Code of Maryland, in one or more of the following categories:

(1) Good conduct;

(2) Work tasks;

(3) Education; or

(4) Special projects.

* * * *

E. Special Projects Credit.

(1) The Commissioner, with the approval of the Secretary and based on the...

To continue reading

Request your trial
35 practice notes
  • Hyde v. Md. State Bd. of Dental Examiners, Civil Action No. ELH-16-2489
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • November 5, 2018
    ...we must also determine 'if the administrative decision is premised upon an erroneous conclusion of law.'" Sec'y of DPSCS v. Demby, 390 Md. 580, 614, 890 A.2d 310, 330 (2006) (emphasis added). When "determining whether a constitutional right has been infringed, [a reviewing court m......
  • Doe v. Dep't of Pub. Safety & Corr. Servs., No. 125
    • United States
    • Court of Appeals of Maryland
    • March 4, 2013
    ...as the Ex Post Facto Clause in [62 A.3d 131]Article 1 of the federal Constitution. See Dep't of Public Safety and Corr. Serv. v. Demby, 390 Md. 580, 608, 890 A.2d 310, 327 (2006) (citations omitted); Khalifa v. State, 382 Md. 400, 425, 855 A.2d 1175, 1189 (2004) (citations omitted); Evans v......
  • John A. v. Board of Education, No. 132, Sept. Term, 2006.
    • United States
    • Court of Special Appeals of Maryland
    • July 30, 2007
    ...the ALJ's decision according to the same statutory standards22 as did the circuit court. Dep't of Pub. Safety and Corr. Servs. v. Demby, 390 Md. 580, 614, 890 A.2d 310, 330 (2006); Schwartz v. Dep't of Nat'l Res., 385 Md. 534, 553, 870 A.2d 168, 179-80 (2005); Charles County Dep't of Soc. S......
  • Haskins v. Hawk, Civil Action No. ELH-11-2000
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 29, 2013
    ...we must also determine 'if the administrative decision is premised upon an erroneous conclusion of law.'" Sec'y of DPSCS v. Demby, 390 Md. 580, 614, 890 A.2d 310, 330 (2006) (emphasis added). In contrast to the review of factual determinations, when "determining whether a constitu......
  • Request a trial to view additional results
35 cases
  • Hyde v. Md. State Bd. of Dental Examiners, Civil Action No. ELH-16-2489
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • November 5, 2018
    ...agency; we must also determine 'if the administrative decision is premised upon an erroneous conclusion of law.'" Sec'y of DPSCS v. Demby, 390 Md. 580, 614, 890 A.2d 310, 330 (2006) (emphasis added). When "determining whether a constitutional right has been infringed, [a reviewing court mus......
  • Doe v. Dep't of Pub. Safety & Corr. Servs., No. 125
    • United States
    • Court of Appeals of Maryland
    • March 4, 2013
    ...as the Ex Post Facto Clause in [62 A.3d 131]Article 1 of the federal Constitution. See Dep't of Public Safety and Corr. Serv. v. Demby, 390 Md. 580, 608, 890 A.2d 310, 327 (2006) (citations omitted); Khalifa v. State, 382 Md. 400, 425, 855 A.2d 1175, 1189 (2004) (citations omitted); Evans v......
  • John A. v. Board of Education, No. 132, Sept. Term, 2006.
    • United States
    • Court of Special Appeals of Maryland
    • July 30, 2007
    ...the ALJ's decision according to the same statutory standards22 as did the circuit court. Dep't of Pub. Safety and Corr. Servs. v. Demby, 390 Md. 580, 614, 890 A.2d 310, 330 (2006); Schwartz v. Dep't of Nat'l Res., 385 Md. 534, 553, 870 A.2d 168, 179-80 (2005); Charles County Dep't of Soc. S......
  • Haskins v. Hawk, Civil Action No. ELH-11-2000
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 29, 2013
    ...agency; we must also determine 'if the administrative decision is premised upon an erroneous conclusion of law.'" Sec'y of DPSCS v. Demby, 390 Md. 580, 614, 890 A.2d 310, 330 (2006) (emphasis added). In contrast to the review of factual determinations, when "determining whether a constituti......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT