Opinion
PENSC-CR-08-377 KENSC-CR-12-1004
11-13-2014
STATE OF MAINE v. SCOTT MURRAY
ORDER
WILLIAM ANDERSON JUSTICE
Pending before the Court is the defendant's Motion for Correction of Reduction of Sentence brought pursuant to M.R. Crim. P. 35. As refined by the defendant's attorney, the claim is that the policy of the Department of Corrections (D.O.C.) concerning the eligibility of an inmate for an additional two days of good time is unconstitutional, rendering the inmate's sentence illegal.
On March 12, 2013, the defendant was sentenced on the Kennebec case to two years incarceration at the D.O.C, and as part of his plea agreement, the Court revoked a probation attached to the Penobscot charge and imposed a concurrent two year sentence. The defendant now complains that he is receiving seven days of good time each month as authorized by 17-A M.R.S. § 1253(9) and (10)(A) but asserts that he is entitled to nine. The latter section authorizes an additional two days deduction from the sentence each month upon the inmate's successful completion of certain educational or rehabilitation programs. The D.O.C. has a policy concerning the additional two days that limits its applicability to participation in community-based programs when the inmate has no more than 18 months left on his sentence. Defendant argues that this policy is inconsistent with relevant statutory provisions and deprives him of 24 days of good time, having the effect of lengthening his sentence by that number of days.
The Court calculates the number of days lost as a lower number.
The Court has reviewed petitioner's arguments concerning the legality of D.O.C.'s implementation of the good time statute in question and does not address the arguments because the issue is not properly raised pursuant to M.R. Crim. P. 35. Simply put, the issue does not concern the Court's imposition of sentence, which could be addressed by Rule 35, but concerns D.O.C/s interpretation of good time statutes only. Furthermore, there is absolutely no hint or indication that the original sentence was . influenced by a mistake of fact which existed at the time of sentencing, as required by M.R. Crim. P. 35(c)(2). Finally, it appears to this Court that the proper vehicle to challenge a good time issue such as this is through administrative appeal, since it is obviously not cognizable on post conviction review, according to recent case law and its explicit exemption from that process by 15 M.R.S. § 2121(2).
The administrative petitioner would be required to first exhaust administrative remedies and then allege that an adverse D.O.C. ruling violated the good time statute, not a non-rule as maintained in this defendant's brief. Additionally, by separate independent claim added to the 80C appeal pursuant to M.R. Civ. P. 80C(i), a due process claim could be litigated.