State v. Parker, 144

• Court: Court of Appeals of Maryland
• Citation: 640 A.2d 1104,334 Md. 576
• Docket Number: No. 144,144
• Parties: STATE of Maryland v. Anthony Patrick PARKER. ,
• Decision Date: 01 September 1992

Page 576

334 Md. 576

640 A.2d 1104

STATE of Maryland v. Anthony Patrick PARKER.

No. 144, Sept. Term, 1992.

Court of Appeals of Maryland.

May 11, 1994.

Tarra DeShields-Minnis, Asst. Atty. Gen., argued and on brief (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for petitioner.

Sherrie B. Glasser, Asst. Public Defender, argued and on brief (Stephen E. Harris, Public Defender, on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ., and CHARLES E. ORTH, Jr. ^* , Judge of the Court of Appeals (Retired Specially Assigned).

KARWACKI, Judge.

In this case we review the grant of post-conviction relief on January 22, 1992, to Anthony Patrick Parker, who pleaded guilty to second-degree murder on November 10, 1983, pursuant to a plea agreement.

The facts of this case were set forth in the opinion of the Court of Special Appeals in State v. Parker, 93 Md.App. 597, 613 A.2d 1020 (1992):

"After the appellee [Parker] was formally charged with murder and other related counts arising from an incident that occurred at the Coca-Cola Bottling Company in Baltimore County, a plea bargain was struck between the appellee and the prosecution and memorialized in writing. Under the terms of the agreement, the appellee was to plead guilty to one count of bank robbery in federal court and accept a sentence of twenty years, the sentence to be served in the federal correctional system. In exchange therefor, the prosecution agreed to bind itself to a recommendation that Parker not receive more than a twenty year prison term for his plea of guilty to any 'and all charges arising out of the aforementioned Coca-Cola robbery-homicide.' The prosecution also agreed to make a recommendation that Parker's Maryland sentence be made to run concurrently with his federal sentence. A clause in the written plea agreement specified that the contents of the writing represented the only agreements made between the parties.

"On May 3, 1984, the appellee appeared before Judge Cullen H. Hormes in the Circuit Court for Baltimore County for sentencing upon his conviction for second degree murder. Parker was sentenced to the Maryland Division of Corrections for a period of twenty years, the sentence to run concurrently with the appellee's federal sentence.[ ¹] The sentencing court stated, 'I understand the State's Attorney will make arrangements so that he will serve his time in the federal institution.'

"The prosecutor remarked that he would alert the Commissioner of Corrections that 'the time is to be served in the federal institution.' The sentencing court commented that it understood that fact to be part of the plea agreement. The court then remarked that the commitment record should perhaps reflect that the appellee's Maryland sentence was 'to be served with or at the federal institution.' The notation so appeared on the commitment records. A detainer was then lodged by the Baltimore County Police Department and forwarded to the warden of the United States Penitentiary in Leavenworth, Kansas.

"On April 1, 1991, the appellee was paroled on his federal sentence and, pursuant to the detainer lodged by the Baltimore County Police Department, was remanded to the custody of the Maryland Division of Corrections to complete the balance of his Maryland sentence. Thereafter, the appellee wrote to the Circuit Court for Baltimore County requesting that he be released from his Maryland sentence. In his response, Judge James L. Smith, Jr.[ ²] informed the appellee that he would have to be paroled by the Maryland parole authorities and that 'the circumstances that you have been paroled by the federal prison system, would not bind the Maryland Department of Corrections. You would still have to be paroled by the Maryland authorities on the concurrent sentence which Judge Hormes imposed.'[ ³ "In response to the appellee's filing a petition for post-conviction relief, a hearing was conducted. At the hearing, the appellee maintained that, because Judge Hormes indicated that the appellee's concurrent Maryland sentence was to be served in federal prison, the sentencing judge necessarily intended that when Parker was paroled upon his federal sentence he would thereby be paroled from his Maryland sentence. The appellee admitted, however, that Judge Hormes never once stated to him that upon completion of his federal sentence he would not be obligated to complete the balance of his Maryland sentence, should there be any time left to serve on the Maryland sentence. The hearing concluded with the post-conviction hearing judge holding the matter sub curia until review of the transcript of the original sentencing proceeding could be had.

"The post-conviction hearing court subsequently granted the appellee's petition for relief, ordering the State to release the appellee from the custody of the Division of Corrections."

93 Md.App. at 599-601, 613 A.2d at 1021-22 (footnote omitted).

The State appealed the ruling of the post-conviction court to the Court of Special Appeals, contending that the lower court misconstrued the legal effect of multijurisdictional sentences. The State maintained that the concurrent nature of the state and federal sentences did not require that the two sentences also be coterminous. The Court of Special Appeals disagreed, and in affirming the post-conviction hearing court's judgment, it relied on Gantt v. State, 81 Md.App. 653, 569 A.2d 220 (1990), as had the hearing court. On the basis of Gantt, the intermediate appellate court in the instant case reasoned that "parolees, though released from federal confinement, are still serving their prison term 'on the outside' " and concluded:

"[Parker's] federal sentence ends when his parole ends, which happens to be coterminous with his Maryland sentence.

In short, because [Parker's] term of parole from his federal sentence is twenty years and his Maryland sentence was to run concurrently to his federal term, serving the balance of his twenty years on parole will satisfy his Maryland sentence."

Parker, 93 Md.App. at 603, 613 A.2d at 1023. From this decision, the State sought certiorari from this Court. We granted the State's petition on February 11, 1993, and we will reverse the judgment of the Court of Special Appeals.

I

Before turning to the merits of the case, we must first address a motion to dismiss filed by Parker. In his motion, Parker advised us that he was found to have violated the conditions of his federal parole. His parole was revoked in August, 1993, and he is currently incarcerated in a federal prison in Georgia. ⁴ Parker asserts that because the sole issue before this Court is the effect of his federal parole on his concurrent Maryland sentence, the revocation of parole renders the matter moot. We do not agree.

We have stated often that the test for mootness is "whether, when it is before the court, a case presents a controversy between the parties for which, by way of resolution, the court can fashion an effective remedy." Adkins v. State, 324 Md. 641, 646, 598 A.2d 194, 197 (1991); Robinson v. Lee, 317 Md. 371, 375, 564 A.2d 395, 397 (1989); State v. Peterson, 315 Md. 73, 79-82, 553 A.2d 672, 675-77 (1989). Limited exceptions to this doctrine exist, however, and even if no controversy exists at the precise moment of review, a case will not be deemed moot if the controversy between the parties is "capable of repetition, yet evading review." Sosna v. Iowa, 419 U.S. 393, 399-400, 95 S.Ct. 553, 557, 42 L.Ed.2d 532, 540-41 (1975); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147, 161 (1973); Mercy Hosp. v. Jackson, 306 Md. 556, 565, 510 A.2d 562, 566-67 (1986) (McAuliffe, J., dissenting). See also Attorney Gen. v. A.A. County School Bus Contractors Ass'n, 286 Md. 324, 328, 407 A.2d 749, 752 (1979); Coleman v. Coleman, 57 Md.App. 755, 758, 471 A.2d 1115, 1117 (1984). In Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350, 353 (1975), the Supreme Court made clear that the "capable of repetition, yet evading review" exception to the mootness doctrine was limited and in the absence of a class action, it was applicable only where the following two elements combined: (1) the challenged action was too short in its duration to be fully litigated prior to its cessation or expiration; and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. Weinstein concerned a prisoner's challenge to the procedures of the North Carolina Board of Parole. The prisoner had been released by the time the case reached the Supreme Court, and in the absence of a demonstrated probability that the prisoner would again be subject to the Board's supervisory power (thus meeting the second prong of the test), the Court dismissed the challenge as moot. In contrast to that case, both of the elements necessary to make this case capable of repetition are present in the case sub judice.

This case centers on the effect of Parker's federal parole on his concurrent Maryland sentence. Because his parole was revoked after we issued our writ of certiorari but before the case was argued, there can be no question that the action was too short in duration to be fully litigated. The second prong of the test is likewise met, as there is a reasonable expectation that the same complaining party would again be subject to the same action. Unlike Weinstein v. Bradford, here it is entirely reasonable to expect that the federal government might again parole Parker before the expiration of his sentences. ⁵ In this event, the same parties would again find themselves in identical circumstances. ^{6 6} The case is clearly "capable of repetition, yet evading review," and it is therefore not moot. The motion to dismiss is denied.

II

Turning to the merits of this case, we note that the post-conviction hearing judge ordered Parker's release based primarily on the reasoning adopted...