Robinson v. Lee

• Citation: 564 A.2d 395,317 Md. 371
• Parties: Bishop L. ROBINSON and Fred D. Jordan, Jr. v. Terry Avon LEE. 14 Sept. Term 1989.
• Decision Date: 06 October 1989
• Court: Maryland Court of Appeals

Page 371

317 Md. 371

564 A.2d 395

Bishop L. ROBINSON and Fred D. Jordan, Jr. v. Terry Avon LEE.

14 Sept. Term 1989.

Court of Appeals of Maryland.

Oct. 6, 1989.

Alan D. Eason, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for petitioners.

Norman Handwerger (Legal Aid Bureau, Inc., both on brief), Baltimore, for respondent.

Argued Before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, and BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired) Specially Assigned.

COLE, Judge.

In this case we are asked to decide whether a sentence, which the trial judge orders to be served "consecutive with sentence now serving," is to be served consecutively to the aggregate of all preexisting unserved sentences or served consecutively only to the sentence then being served.

We set forth the pertinent criminal history of the defendant in order to place the issue in proper focus. On January 26, 1968, Terry Avon Lee, having been convicted of robbery, was sentenced to prison for five years from that date by Judge Cardin of the Criminal Court of Baltimore. ¹ Lee escaped from custody on August 1, 1969 and was not returned to custody until March 29, 1971.

Apparently while an escapee, Lee committed other crimes. He was convicted of robbery with a deadly weapon before Judge Jones of the Criminal Court of Baltimore who imposed a sentence of six years dated March 29, 1971 which sentence was "consecutive with any sentence now serving." On August 24, 1971, Judge Evans of the Circuit Court for Anne Arundel County sentenced Lee to one year's imprisonment "consecutive to any sentences now being served" for the escape.

Lee escaped from custody again on June 5, 1973 and was not returned to custody until May 8, 1974. During this "leave of absence," Lee again apparently resorted to robbery, this time with a deadly weapon, for which he was convicted before Judge Perrott of the Criminal Court of Baltimore who sentenced Lee to fifteen years imprisonment dated May 8, 1974 "consecutive with sentence now serving." It is this sentence which is at the core of Lee's complaint.

For the second escape, Judge Biener of the Circuit Court for Anne Arundel County sentenced Lee on February 24, 1975 to one year's imprisonment "consecutive to any sentence now being served." Finally, on January 2, 1979, Judge Boublitz of the District Court of Maryland sitting in Washington County imposed a sentence on Lee of six months "commencing at the expiration of the present term" for possession of marijuana.

The prison authorities considered all the sentences as consecutive to each other and none being concurrent. Therefore, Lee's maximum sentence would expire on February 26, 2006.

On the other hand, Lee maintained that the fifteen year sentence for robbery with a deadly weapon was consecutive only to the five year sentence and concurrent with the other sentences. Hence, Lee calculated his maximum sentence expiration date to be November 11, 1989.

In order to resolve this difference in interpretation, the Petitioners, the Secretary of Public Safety and Correctional Services and the Commissioner of Corrections of the State of Maryland (State), filed an action for Declaratory Judgment in the Circuit Court for Washington County requesting the circuit court to determine the duration of Lee's custody. A trial on the merits was held before Judge Daniel Moylan who signed an Order ² determining that Lee's six year sentence and fifteen year sentence were running consecutive to the five year sentence Lee was then serving. However, the two escape sentences of one year each, the seven year sentence, and the six months sentence were running consecutive to the aggregate of sentences existing at the time each was imposed.

The State filed an appeal but on March 31, 1989, the circuit court, after a habeas corpus hearing, determined that Lee's mandatory release date was September 18, 1986. Accordingly, the Court issued an order releasing Lee as of March 31, 1989. Lee was finally released on April 5, 1989, upon the denial of the State's Motion to Stay Execution of Judgment of the Habeas Corpus Order by the Court of Special Appeals and this Court. We did, however, grant certiorari to review the declaratory judgment proceeding.

Lee maintains that we cannot conduct such review because the issue of his release is now moot in light of his habeas corpus release and because the State may not use review of the declaratory judgment proceeding as a disguise to review the habeas corpus order.

We have on prior occasions addressed the issue of mootness. In Attorney General of the State of Maryland v. A.A. County School Bus Contractors Assoc., Inc., 286 Md. 324, 407 A.2d 749 (1979), we acknowledged the principle that appellate courts do not decide moot questions. We held "[a] question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide." Id. at 327, 407 A.2d at 752. See also State v. Ficker, 266 Md. 500, 506-07, 295 A.2d 231, 234-35 (1972); Lloyd v. Board of Supervisors of Elections, 206 Md. 36, 39, 111 A.2d 379, 380 (1954). Based on the above stated rule, the instant case is moot. Respondent has been released from custody under a habeas corpus order and that order cannot be altered by this court's ruling on the declaratory judgment. See Md.Cts. & Jud.Code Ann. § 3-705(a) (1984); Hamilton v. McAuliffe, 277 Md. 336, 353 A.2d 634 (1976). In Hamilton, we said that "... the declaratory judgment process is not available to decide ... questions which have become moot...." (Citations omitted). Id. at 340, 353 A.2d at 637.

This Court, however, is willing to decide moot questions where "[i]t appears ... that there are important issues of public interest raised which merit an expression of our views for the guidance of courts and litigants in the future." In re Special Investigation No. 281, 299 Md. 181, 190, 473 A.2d 1 (1984); see also State v. Peterson, 315 Md. 73, 82-85, 553 A.2d 672 (1989); A.A. Co. School Bus, 286 Md. at 327, 407 A.2d at 752; Ficker, 266 Md. 500, 295 A.2d 231 (1972); Lloyd, 206 Md. 36, 111 A.2d 379 (1954).

Here the need for clarity in the imposition of multiple sentences is a matter of great public concern and is something which can frequently recur given the nature and state of the criminal justice system. For these reasons we are convinced that this question requires our attention. Ficker, 266 Md. at 507, 295 A.2d at 235 ("an appeal, even though moot, will not be dismissed where the urgency of establishing a rule of future conduct in matters of important public concern is both imperative and manifest."); Lloyd, 206 Md. at 43, 111 A.2d at 381-382.

The real question here is whether the fifteen year sentence should run consecutively to the initial five year sentence or consecutive to the aggregate of sentences unserved at the time the fifteen year sentence was imposed. The answer to this question depends upon our interpretation of "now serving." The parties dwell on the meaning of the word "term" as opposed to "sentence" or "sentences". They direct our attention to a number of cases which we find not helpful in resolving this problem. ³ As we see it, we are limited to the words the judges used when imposing the various sentences.

The sentence Judge Perrott imposed was expressly consecutive; the only qualification was "with sentence now serving." "Now" is defined as "at the present time: at this moment." Webster's Third New International Dictionary 1546 (1981). Nor do we detect any difference in the meaning of the phrases "now being served" and "now serving." Other jurisdictions share our view.

In Ex parte Benton, 10 N.J. Super. 595, 77 A.2d 517 (1950) the appellate court of New Jersey concluded that "now being served" is a restrictive condition and can refer only to the precise sentence being served at the time the new sentence is imposed.

In In re Swink, 243 N.C. 86, 89 S.E.2d 792 (1955) an escape sentence which was to commence at termination of sentences "now being served" was held to be concurrent to the pending sentence because the commitment did not adequately describe the sentence "being served."

It seems indelibly clear to us that at the moment Judge Perrott pronounced the sentence, Lee was serving only one sentence: the initial five year sentence imposed by Judge Cardin effective January 26, 1968, the expiration date of which was extended due to Lee's escapes. ⁴ Judge Perrott in all probability recognized Lee as an inveterate robber and therefore imposed a lengthy sentence intending it to be consecutive to any sentence that Lee had that was outstanding, pending and unserved. But by the language used he did not say so. Therefore, instead of the fifteen year sentence being consecutive to the six year sentence, it was concurrent with all the outstanding sentences yet to be served. Furthermore, because the language used by each of the judges is similar if not substantially the same, the same rationale is applicable. We explain.

Lee was sentenced to five years on January 26, 1968. His maximum sentence would have ended on January 25, 1973. Before that sentence expired, however, he was sentenced on March 29, 1971, to six years "consecutive with any sentence now serving." This sentence was in fact consecutive. He then received one year for the escape "consecutive to any sentences now being served." The escape statute then in effect did not prohibit sentences for escape from being served concurrently with other sentences. ⁵ Art. 27, § 139 (1971 Repl.Vol.). Hence, the language "now serving" still related to the initial five year sentence and resulted in the escape sentence beginning and running concurrently with the six year term. His total sentence at this point was eleven years.

He was then sentenced to seven years on November 3, 1971, "to run consecutively...