Opinion
C.A. No. S10M-06-028.
December 6, 2010.
ORDER DENYING PETITION SEEKING WRIT OF MANDAMUS AND DENYING REQUESTS FOR SENTENCE MODIFICATION.
Andre' M. Owens ("Owens") has filed a petition seeking a writ of mandamus regarding credit time due him. When the matter commenced, the only issue concerned meritorious good time credits. However, as the matter has proceeded, issues concerning the interpretation of Owens' sentence and the correct amount of behavior, as well as, meritorious good time credits due him have been raised. This decision resolves Owens' sentencing and credit time issues.
Sentencing History
On January 15, 2002, Owens was arrested on two sets of charges in Sussex County: Def. ID #s 0201010358 and 0201010376. The State of Delaware ("the State") consolidated them into one case, Def. ID# 0201010358. Owens was incarcerated as of January 16, 2002. Two other matters were pending against him during the pertinent time period. On February 12, 2002, Owens was sentenced to 9 months at Level 5 for a violation of probation in the New Castle County Superior Court case of Def. ID# 0008017068. Then, on April 11, 2002, the Court of Common Pleas in and for Sussex County sentenced him on a pending case (Def. ID# 0202008516) to 30 days at Level 5 pursuant to 11 Del. C. § 4204(k).
On June 4, 2002, Owens entered into a plea agreement to resolve the charges in Sussex County Superior Court in Def. ID# 0201010358. He pled guilty to the charges of robbery in the first degree (S02-03-0266); carjacking in the first degree (S02-01-048); second offense driving under the influence (S02-02-0703); felony criminal mischief (S02-01-0466); vehicular assault in the second degree (S02-02-0702); failing to stop at the command of a police officer (S02-02-0715); and reckless driving (S02-02-0717). The remaining charges were nolle prossed.
He was sentenced on June 4, 2002, the date he pled. The sentence provided as follows:
* As to the charge of robbery in the first degree, he was sentenced to 15 years at Level 5, with credit for 140 days previously served. The first 2 years of this sentence is mandatory pursuant to 11 Del. C. § 832. After serving 8 years and upon successful completion of the Level 5 Key Program, the balance is suspended for 1 year Level 4, Residential Substance Abuse Treatment Program ("RSATP") and upon successfully completing RSATP, the balance is suspended for 6 years at Level 3, aftercare.
* As to the charge of carjacking in the first degree, Owens was sentenced to 5 years at Level 5, suspended after 2 years for 3 years at Level 3 probation. The 2 years at Level 5 are mandatory pursuant to 11 Del. C. § 836.
* As to the charge of driving under the influence, he was sentenced to 1 year at Level 5, suspended after 60 days for 10 months at Level 3 probation. The 60 days are mandatory pursuant to 21 Del. C. § 4177.
* As to the charge of felony criminal mischief, he was sentenced to 2 years at Level 5 suspended for 2 years at Level 3 probation.
* As to the charge of vehicular assault in the second degree, he was sentenced to 6 months at Level 5 suspended for 6 months at Level 2 probation.
* As to the charge of failing to obey a police officer signal, he was sentenced to pay a fine and serve 6 months at Level 5 suspended for 6 months at Level 2 probation.
* As to the charge of reckless driving, he was ordered to pay a fine.
The probationary sentences are to run consecutively.
Pertinent to this case is the fact that the driving under the influence sentence is a non-Truth in Sentencing ("non-TIS") sentence. 67 Del. Laws, ch. 30; State v. Clyne, 2002 WL 1652149 *2 n. 6 (Del. Super. July 22, 2002). However, the robbery in the first degree and carjacking in the first degree sentences are Truth in Sentencing ("TIS") sentences. 67 Del. Laws, ch. 30.
Driving under the influence convictions now are a part of Truth in Sentencing pursuant to Senate Bill 320, which became effective on July 15, 2010. However, sentences imposed before this date are not covered by Senate Bill 320.
The sentence was modified on July 23, 2002, to include restitution due to various victims.
In 2008, the Department of Correction ("DOC") contacted this Court about Owens' sentence. DOC requires a person to serve sentences in the order in which they appear on the sentencing order. If the sentence remained as ordered on June 4, 2002, then Owens would not be able to enter the Key Program until after he served the carjacking and driving under the influence sentences and that, consequently, would have required him to serve the entire robbery sentence before entering the Key Program. DOC suggested that the Court revise the sentencing order so that it have the intended effect of Owens serving 8 years at Level 5 on the robbery conviction and not the full 15 years.
On August 1, 2008, Owens' order was modified so that it would have the intended effect. That modification, which is the current version of his sentence, provided as follows:
* Effective June 4, 2002, Owens was sentenced with regard to the robbery first conviction to 15 years at Level 5, with credit for 140 days previously served, suspended after 8 years at Level 5 for 6 years of Level 3 aftercare. The first two years are mandatory Level 5 time pursuant to 11 Del. C. § 832.
* As to the driving under the influence conviction, Owens was sentenced to 1 year at Level 5, suspended after 60 days to 10 months at Level 3 probation. The 60 days at Level 5 are mandatory.
* As to the carjacking first conviction, Owens was sentenced to 5 years at Level 5, suspended after 2 years AND upon successful completion of Level 5 Key Program, the balance is suspended at Level 4, RSATP and upon successful completion of RSATP, the balance is suspended for Level 3 aftercare. The 2 years are mandatory.
Again, the probation periods are consecutive and not concurrent.
The remaining portion of the sentence is not pertinent to the pending matter and consequently, I do not set it forth.
Law regarding Level 5 Sentences
It is helpful, at this point, to set forth the law governing how the sentences are required to run and how credit time is applied.
First, the Level 5 sentences run consecutively; i.e., one after another. 11 Del. C. § 3901(d). The usual rule is that the order for running the sentences is based upon the order in which a defendant was sentenced; i.e., the first count on which a defendant is sentenced precedes the second on which he is sentenced, which precedes the third, and so on. 11 Del. C. § 3901(b). There are exceptions to that rule, and two exceptions apply in this case. The first exception is that a sentence pursuant to 11 Del. C. § 4204(k) interrupts a "regular" sentence. 11 Del. C. § 4216(b). The second exception is that a defendant serves a non-TIS sentence after he has served all of the TIS sentences.
In 11 Del. C. § 3901(d), it is provided:
No sentence of confinement of any criminal defendant by any court of this State shall be made to run concurrently with any other sentence of confinement imposed on such criminal defendant.
In 11 Del. C. § 3901(b), it is provided:
All sentences for criminal offenses of persons who at the time sentence is imposed are held in custody in default of bail, or otherwise, shall begin to run and be computed from the date of incarceration for the offense for which said sentence shall be imposed, unless the person sentenced shall then be undergoing imprisonment under a sentence imposed for any other offense or offenses, in which case the said sentence shall begin to run and be computed, either from the date of imposition thereof or from the expiration of such other sentence or sentences, as the court shall, in its discretion, direct.
In 11 Del. C. § 4216(b), it is provided:
Where an inmate is serving a "nonmandatory" Level V (incarceration) sentence and is subsequently sentenced to a mandatory term of incarceration, serving of the earlier sentence shall be suspended and the inmate shall serve the new mandatory Level V sentence until it is completed and then resume serving the earlier sentence.
Second, a defendant generally only receives credit time on one sentence, not two or more. 11 Del. C. § 3901(b).
DOC has maintained, for good reason, that Owens is not entitled to the 140 days of credit time on the robbery charge. Owens was sentenced on the violation of probation charge, and that sentence commenced on January 16, 2002, the day after he was arrested on the above-noted charges. Thus, he technically was not entitled to the 140 days of credit time on his robbery sentence since a person can receive credit only against one sentence at a time. Giving him credit against the robbery sentence means he was receiving double credit.
Third, DOC calculates the Level 5 time a defendant must serve and then subtracts the good time credits from the end of the sentence. Snyder v. Andrews, 708 A.2d 237 (Del. 1998).
Although it is not an issue in this case at this time, it is possible that the good time credits may be forfeited. 11 Del. C. § 4382.
The statute governing good time credits is 11 Del. C. § 4381. There are two types of credits to which a defendant is entitled: behavior and meritorious. As explained in Snyder v. Andrews, 708 A.2d at 242-3:
Behavior credits may be awarded for an inmate's continuing compliance with the Department's disciplinary rules and regulations. Merit credits may be earned for an inmate's participation in certain education, rehabilitation, or work programs. [Footnotes omitted.]
This statute was amended in 2008 and the amendment applies to Owens. 76 Del. Laws, c. 351 (2008).
The version of 11 Del. C. § 4381 which applied before August 15, 2008, provided:
(a) All sentences imposed for any offenses other than a life sentence imposed pursuant to any provision of this Code may be reduced by earned good time under the provisions of this section and rules and regulations adopted by the Commissioner of Corrections.
(b) "Good time" may be earned for good behavior while in the custody of the Department of Corrections when the person has not been guilty of any violation of discipline, rules of the Department or any criminal activity and has labored with diligence toward rehabilitation according to the following conditions:
(1) During the first year of any sentence, good time may be awarded at the rate of 2 days per month beginning on the first day of confinement.
(2) After completing 365 days of any sentence, good time may be awarded at the rate of 3 days per month.
(3) No person shall be awarded more than 36 days of good time under this subsection for good behavior in any 1 year consisting of 365 calendar days actually served.
(c) "Good time" may be earned for participation in educational and/or rehabilitation programs as designated by the Commissioner under the following conditions:
(1) Good time may be awarded for satisfactory participation in approved programs at a rate of up to 2 days per calendar month.
(2) No more than 24 days of program good time total as established in this subsection may be awarded in any 1 year consisting of 365 days actually served.
(d) "Good time" may be earned by participation in work programs as authorized by § 6532 of this title at a rate of up to 2.5 days per month with a limit of 30 days earned during any 1 year consisting of 365 days actually served.
(e) No more than a total of 90 days of "good time" may be earned in any 1 year consisting of 365 days actually served.
The version effective August 15, 2008, provides as follows:
(a) All sentences imposed for any offenses other than a life sentence imposed pursuant to any provision of this Code may be reduced by earned good time under the provisions of this section and rules and regulations adopted by the Commissioner of Corrections.
(b) "Good time" may be earned for good behavior while in the custody of the Department of Corrections when the person has not been guilty of any violation of discipline, rules of the Department or any criminal activity and has labored with diligence toward rehabilitation according to the following conditions:
(1) During the first year of any sentence, good time my be awarded at the rate of 2 days per month beginning on the first day of confinement.
(2) After completing 365 days of any sentence, good time may be awarded at the rate of 3 days per month.
(3) No person shall be awarded more than 36 days of good time under this subsection for good behavior in any 1 year consisting of 365 calendar days actually served.
(c) "Good time" may be earned by participation in education, rehabilitation, work, or other programs as designated by the Commissioner. Good time may be awarded for satisfactory participation in approved programs at a rate of up to 5 days per calendar month.
(d) No more than a total of 100 days of "good time" may be earned in any 1 year consisting of 365 days actually served.
Owen's Contentions
Owens has raised several issues during the course of these proceedings.
An incorrect assumption of his is that he served all of his mandatory time first. As the above discussion shows, that assumption is incorrect. The Level 5 sentences are consecutive. Consequently, at this point in time, he is serving the 2 years of mandatory time for his carjacking sentence. After he finishes serving the carjacking sentence, he will serve the driving under the influence sentence since non-TIS sentences are served after all TIS sentences are served.
Owens has contended several times in his filings in this matter that the Court intended to suspend his Level 5 time after he completed the Key Program. That contention is incorrect. The carjacking sentence, which was a two year mandatory sentence, must be served as must the driving under the influence sentence. The Court has made clear that he is to complete the Key Program AND serve his Level 5 time before any Level 5 time is suspended. The reason the Court held the resentencing was explained above. Without the resentencing, Owens would have had to serve the full 15 years on the robbery sentence rather than serve 8 years. The purpose of the resentencing was not to have him serve less than the 10 years and 60 days at Level 5. Thus, to the extent Owens argues his Level 5 sentence should be suspended and he should be allowed to go to Level 4, his argument fails.
Owens finished the Key Program. However, because he has Level 5 time to serve and due to classification matters, he is being held in a secured area where he cannot participate in any further programs. Owens requests the Court to remedy this situation. Although Owens validly argues that his rehabilitation is being stymied, there is nothing this Court can do about his situation. As this Court repeatedly has informed Owens, it does not interfere with DOC classification matters as those matters are within the discretion of DOC. See Winward v. Taylor, 788 A.2d 133, 2001 WL 1636748 (Del. 2001)(TABLE). Consequently, Owens is not entitled to any relief from this Court as to his classification situation.
Owens has been incarcerated since January 16, 2002. The status sheet dated November 30, 2010, clarifies his sentencing history, credit situation, and release date. I review the pertinent information below in detail and in light of the law governing the calculation of Level 5 sentences.
On February 12, 2002, Owens was sentenced to 9 months at Level 5 for a violation of probation in Def. ID# 0008017068. That sentence, the first one he was sentenced on since being incarcerated on January 16, 2002, started running on January 16, 2002, the date of Owens' incarceration. Owens served 2 months and 26 days of that sentence before it was interrupted on April 11, 2002, for him to serve a 30 day sentence pursuant to 11 Del. C. § 4204(k) in Def. ID# 0202008516. On May 10, 2002, the sentence in Def. ID# 0008017068 recommenced. Owens had 7 months and 4 days left to serve on the sentence in Def. ID# 0008017068. That sentence was to end on December 13, 2002. Normally, the sentence in the case at hand would not have commenced until the previous sentence ended because Owens should not have received the credit for 140 days. However, because this Court gave Owens such credit and DOC is following the instructions of the Court, DOC is calculating his sentence in this matter to start running from July 26, 2002, which is 140 days from the end of his sentence in Def. ID# 0008017068. Thus, Owens is receiving double credit time at the direction of the Court and not because he is statutorily entitled to it.
Owens contends that his sentence is 30 days longer than it should be. He argues that DOC gave him an extra 30 days to serve when it interrupted his violation of probation sentence in Def. ID# 0008017068 for him to serve the Court of Common Pleas sentence in Def. ID# 0202008516. Apparently, he thinks that the 30 day Court of Common Pleas sentence in Def. ID# 0202008516 should have run concurrently with the violation of probation sentence in Def. ID# 0008017068. Owens' understanding is incorrect. Again, Level 5 sentences must run consecutively. DOC had to interrupt his non-11 Del. C. § 4204(k) sentence so that he could serve the 11 Del. C. § 4204(k) sentence in Def. ID# 0202008516. 11 Del. C. § 4216(b). Also, pursuant to the terms of 11 Del. C. § 4204(k), defendant was not entitled to any credit against this 30 day sentence. When that sentence ended, his violation of probation sentence in Def. ID# 0008017068 restarted. There is no merit to Owens' contention DOC added 30 days to his sentence.
In 11 Del. C. § 4204(k), it is provided in pertinent part that the "sentence shall be served without benefit of any form of . . . good time. . . ."
Owens may think he is entitled to sentences running concurrently because this Court ordered that he receive the 140 days credit time on Def. ID# 0201010358. From his viewpoint, he is serving two Level 5 sentences concurrently. Absent this Court's specific order that he receive 140 days credit time, he never would receive such. His misunderstanding of the law is somewhat understandable. However, it is just that, a misunderstanding of the law.
I now turn to the issues on which the mandamus petition is based: good time credits.
The Level 5 time Owens was sentenced to as of January 16, 2002, was 9 months (Def. ID# 0008017068), 30 days (Def. ID# 0202008516), and 10 years (Def. ID# 0201010358) of TIS time and 60 days (Def. ID# 0201010358) of non-TIS time. His release date on these sentences, without any credit time, is September 21, 2012. The credit time applied to TIS time differs from that for non-TIS time; i.e., it is not as generous. Snyder v. Andrews at 239. However, it is statutorily-mandated and it is what it is. Owens receives 378 days of behavior good time credits on the TIS sentences and 10 days of behavior good time credits on the non-TIS sentences, for a total of 388 behavior good time credits. He acquired 119 meritorious good time credits. With the 388 days of behavior good time credits applied to his maximum expiration date, his release date becomes August 30, 2011. With the 119 meritorious good time credits added to that, his release date is May 3, 2011.
Owens argues he has not received all of his meritorious good time credits and he seeks a writ of mandamus instructing DOC to award him these credits. As the law below explains, an inmate is not automatically entitled to meritorious credit time. However, if DOC has a policy to award meritorious credits for participation in a program or work, then it must award those credits. Should it fail to do so, then Owens is entitled to a writ of mandamus regarding such credits.
As explained in Harris v. Snyder, Del. Super., C.A. No. 98M-09-045, Carpenter, J. (March 26, 1999):
3. A writ of mandamus is a command that may be issued by this Court to an inferior court, public official, or agency to compel the performance of a duty to which the petitioner has established a clear legal right. n2 However, such a writ will not be issued unless the petitioner can establish that he has a clear right to the performance of the duty, that there has been arbitrary refusal or failure to act and that there is no other adequate remedy available. n3 Even when these requirements are met, it is within the Court's discretion whether the issuance of such a writ is justifiable. n4
Footnotes
n2 Clough v. State, Del. Supr., 686 A.2d 158, 159 (1996).
n3 Id. See In re Bordley's Pet. for Writ of Mandamus, Del. Supr., 545 A.2d 619, 620 (1988).
n4 Ingersoll v. Rollins Broadcasting of Del., Inc., Del. Supr., 272 A.2d 336, 338 (1970).
End Footnotes
4. Whether "good time" may be earned for participation in rehabilitation programs is governed by 11 Del. C. § 4381(c), n5 which provides that "good time" may be awarded for satisfactory participation in approved rehabilitation programs, as designated by the Commissioner. n6 "Good time" does not exist as a matter of constitutional right. n7 It is strictly governed by statute, n8 and while DOC has limited discretion in calculating good time credits and must follow the applicable statutes, 11 Del. C. § 4381 grants the Commissioner discretion to designate which rehabilitation programs will justify the awarding of such credits. n9
Footnotes
n5 See supra note 1.
n6 11 Del. C. § 4381(c)(1).
n7 Snyder v. Andrews, Del. Supr., 708 A.2d 237, 242 (1998).
n8 Nardini v. Willin, Del. Supr., 245 A.2d 164, 165 (1968).
n9 See id. at 166.
End Footnotes
DOC has provided various affidavits wherein the amount of Owens' meritorious good time credits are detailed and wherein it has addressed discrepancies and the Court's questions concerning the awards. The various documents and affidavits DOC has provided establish Owens is entitled to 119 days meritorious good time credits.
The listing of credits awarded shows 0 credits in certain months, even though Owens was either working or participating in programs. Owens expresses concern that he was not appropriately awarded those earned credits. However, as explained in the November 10, 2010, affidavit of David W. Vinson, DOC Correctional Staff Lieutenant, Owens did not earn enough credits in those months to register for the month. When he earned a sufficient amount of credits, DOC awarded the previously earned credits the next month. A defendant only may receive up to the amount of credits allowed by statute and policy no matter how many programs in which he participates or how much he works. Johnson v. Phelps, 2009 WL 597625 (Del. Super. Feb. 20, 2009).
Specifically, Lieutenant Vinson explained:
Pursuant to the Department of Corrections, Bureau of Prisons Policy 7.1, goodtime is earned based on the number of hours participated in a day and the number of days participated in a month. The minimum amount of goodttime that can be earned in a month is .50 (½) day. In order to qualify for this minimum amount an offender must participate for under 5 hours a day and more than 5 days but less then [sic] 9 days per month. If an offender earned .50 (½) day it would be recorded as earned but not deducted, as you can not deduct ½ of a day. These ½ days are carried forward and added to the next ½ day earned to equal 1 whole day deducted.
The information DOC has provided explaining why some months Owens did not receive credits but showing he ultimately received those credits is sufficient to establish that DOC has appropriately awarded Owens 119 days of meritorious good time credits. Owens has not produced documents establishing he is entitled to more credits than he has received despite being instructed to provide such information. It is his burden to produce such. Meades v. Hosterman, 907 A.2d 146, 2006 WL 2466466 (Del. Aug. 23, 2006) (TABLE); Hopkins v. Vinson, 2005 WL 1348373 (Del. Super. May 9, 2005); Harris v. Snyder, Del. Super., C.A. No. 98M-09-045, Carpenter, J. (March 26, 1999). Failing to do so means he has not established entitlement to a writ of mandamus.
DOC has awarded Owens 119 days of meritorious credits and that determination is final.
In conclusion, and for the foregoing reasons, the petition seeking a writ of mandamus is DENIED and all requests for sentence modifications are DENIED.
IT IS SO ORDERED THIS 6TH DAY OF DECEMBER, 2010.