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HEADNOTE

Re: Maryland Correctional Institution -- Women No. 115, September Term, 1998

HABEAS CORPUS PETITION - MODIFICATION OF SENTENCE - Habeas corpus is the proper relief for challenging the lawfulness of an underlying conviction and detention is denied where the intent of the sentencing judge to impose a 24 year sentence was clear when the sentence was announced and remained clear throughout the proceedings.

Circuit Court for Baltimore City

Case No. 97356926 IN THE COURT OF APPEALS OF MARYLAND No. 115 September Term, 1998 MARYLAND CORRECTIONAL INSTITUTION--WOMEN v. PATRICIA A. LEE

Bell, C.J. Eldridge *Rodowsky **Chasanow Raker Wilner Cathell JJ.

Opinion by Bell, C.J. FILED: Jauary 12, 2001 *Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. **Chasanow, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion. The issues this case presents are whether, where a defendant insists that there is a conflict between the pronouncement of sentence and the commitment issued to the Division of Correction ("DOC"), the DOC's failure to follow its policy requiring it to obtain correction of a commitment record, or independently

interpret the transcript of a sentencing proceeding, is appropriately challenged by habeas corpus and whether the Baltimore City habeas corpus judge erred in his interpretation of the Montgomery County sentence. The Circuit Court for Baltimore City held that habeas corpus is the proper vehicle and thus issued the writ and granted the relief requested by the appellee, Patricia A. Lee. Before addressing that issue, however, we must determine whether the appellant, the Maryland Correctional Institution - Women, has the right to appeal the Circuit Court's decision. We shall hold that the appellant has the right to appeal. Furthermore, we conclude that habeas corpus is the appropriate way to raise the issue of the appellee's right to be released from custody. Nevertheless, we believe and, therefore hold, that the Circuit Court erred in construing the appellee's sentence as concurrent. Accordingly, we shall reverse the judgment of the Circuit Court. I. The appellee was convicted, together with her husband and co-defendant, Le Bon Walker, in the Circuit Court for Montgomery County of conspiracy to commit felony theft and nine counts of felony theft. Both were sentenced as follows: "On Count number one for the offense of conspiracy to commit theft over the value of $300, the sentence will be three years in the Department of Corrections. "Count number two, felony theft from B.F. Saul, the sentence of this court will be three years in the Department of Corrections, concurrent to Count No. One. "Count number three, felony theft from Chevy Chase Savings Bank, the sentence of this court will be three years in the Department of Corrections, and that will be consecutive to counts one and two. "On Count number four, felony theft from American Home Funding, the sentence will be three years in the Department of Corrections, consecutive to count three. "On Count number five, felony theft from Sigfried and Margo Temp, the sentence of the court will be three years in the Department of Corrections, consecutive to count four. "On Count number six, the conviction for felony theft from Edward and Ping Waa, the

sentence of the court will be three years in the Department of Corrections, consecutive to count number five. "On Count number seven, felony theft from Republic Federal Savings Bank, the sentence of this court will be three years in the Department of Corrections, consecutive to count number six. "On Count number eight, for the felony theft from Trust Bank, Federal Savings Bank, the sentence of this court will be three years in the Department of Corrections, consecutive to count seven. "On Count number nine, the charge of felony theft from Edward I. and Ping Waa sentence of this court will be three years in the Department of Corrections, concurrent to count no. six. "On Count number ten, felony theft from Crestar Bank, the sentence of this court will be three years in the Department of Corrections, consecutive to count no. eight." The trial judge then said: "The sentences will be served concurrently with the sentence imposed by Judge Weinstein earlier this week. Mr. Walker will receive credit for 390 days he has already served. Mrs. [Lee] Walker will receive credit for 380 days already served." Although initially reflecting some confusion, the Commitment Record ultimately issued to the Commissioner of Correction pursuant to this sentencing stated the total time to be served as 24 years, "to be run . . . concurrent with any other outstanding or unserved sentence," i.e. the 5 year sentence,1 earlier imposed by Judge Weinstein, that had commenced on October 5, 1993.2 The 5 year sentence is the subject of an unreported opinion of the Court of Special Appeals, Lee v. State, September Term 1994, No. 486 (1994), cert. denied, 337 Md. 90, 651 A.2d 854, motion for reconsideration denied, 337 Md. 439, 654 A.2d 447-48 (1995).
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The Commitment record dated February 2, 1994, stated that the appellee was to serve an

aggregate term of 24 years of incarceration from the date of sentencing, February 2, 1994, "consecutive to the last sentence to expire of all outstanding and unserved Maryland sentences," referencing the Weinstein sentence, to which it was said to run concurrently. A second Commitment Record was issued on July 22, 1994. It removed the reference to the sentence being consecutive, noting instead that it was "to be run concurrent . . . ." The third Commitment Record, dated January
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The DOC maintains a "commitment manual," containing its policies and guidelines with respect to commitments. Chapter 90-130 of the manual addresses the Division's policy for resolving ambiguous sentences. It provides, as relevant: "What general guidelines should be followed when staff encounter an ambiguous sentence? "Since Maryland Law provides that ambiguous sentences must be construed in favor of the inmate, when a sentence is found to be ambiguous, commitment staff shall seek clarification from the sentencing judge. Upon receipt of a transcript indicating a different sentence than the one recorded on the commitment record, staff shall immediately request an amended commitment from the court of jurisdiction. When the foregoing action cannot be accomplished, then the Division should obtain necessary documentation and defend the Division's action before the appropriate court. However, in all cases, the Division will exercise good faith efforts to calculate sentences in accordance with applicable policy and available information." The appellee presented a copy of the transcript of the sentencing proceeding to the DOC, maintaining that her commitment should be amended to reflect, rather than an aggregate of 24 years, a sentence of only three years, concurrent to the 5 year sentence imposed previously. According to the appellee, the trial judge's last sentencing comment indicated that she intended that there be a concurrent relationship between the sentences imposed for the counts in the indictment as well as between those sentences and the sentence imposed by Judge Weinstein. Aware of Chapter 90-130, a member of the DOC's commitment staff wrote to Judge Harrington, who confirmed that the period of incarceration ordered was 24 years, run concurrently with the sentence

23, 1997, amended the previous Commitment Record to reflect a total sentence of 27 years and to refer to "sentences," rather than "sentence." The fourth Commitment Record, dated January 24, 1997, changed the total sentence from 27 years to 24 years. Finally, the fifth Commitment Record, dated February 4, 1997, stated, "Sentences to run concurrently to sentence imposed by Judge Weinstein."
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imposed the day before by Judge Weinstein. Thus, she replied that, "[t]he Commitment Record, issued on February 4, 1997, accurately reflects the sentence structure imposed by the Court at the sentencing hearing on February 2, 1994." In that letter, she further advised: "This same issue was the subject of a Defendant's Motion for Reconsideration of Sentence heard on June 7, 1996. After duly considering Ms. Lee's argument and the opposition of the State of Maryland, the motion was denied. The ruling was not appealed." The appellee then initiated an Administrative Remedy Proceeding at the institution, eventually filing, pursuant to Md. Code (1957, 1997 Repl. Vol.) Art. 41,

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