Sometimes I’ll pretend I understand something that’s a mystery to
me. For example, I can recite the rule
against perpetuities from memory. I know
the elements and areas of the law where it applies, but don’t ask me to
explain it. I know just enough about it
to wave it around and pretend.
Sentencing calculations are something I’m not going to pretend to
understand either. That’s some “new
math” in my book. The DOC can have it.
In today’s case, defendant wanted additional credit toward his
aggregate minimum sentence, but the trial court denied it, and that led to this
appeal. As the SCOV puts it, “The facts
concerning the multiple charges filed against defendant and the subsequent
sentencing are complicated.”
Ain’t that the truth?
First, defendant was charged in Orange County for larceny and was
held for lack of bail. He served about
eight months, pled guilty, was sentenced to six months to three years, and then
was immediately released on furlough (because he’d already served beyond the
minimum).
Not two months later, defendant was charged with assault and
robbery and escape from furlough in Windsor County. He was again held for lack of bail. While awaiting trial on those charges, he was
charged with two counts of larceny: one in Washington County and one in Windham
County. He continued to be held for lack
of bail. At the same time, he was still
serving his sentence from Orange County (on furlough). Confused yet?
He pled guilty to the pending charges, and was given a variety of
consecutive (meaning one picks up where the last one leaves off)
sentences. The department of
corrections’ (DOC) calculated an “aggregate sentence of 2--38 years and awarded
defendant 236 days against the aggregate maximum for time served.”
Defendant filed a grievance with DOC arguing that the calculation
was wrong and that he should get more credit for time served. The DOC said “Nope, ‘cause the sentences are
consecutive.” So defendant filed a
motion asking the superior court to correct the sentence to 30 months to 33
years and give credit for the 604 days between arraignment and sentencing on
the last set of charges.
The trial court granted the motion in part and denied it in
part. Essentially, the trial court noted
that certain sentences (Windsor-County-based assault and robbery, and escape)
were concurrent, but defendant was not entitled to additional credit.
So all that brings us to the SCOV’s door. Defendant’s arguments on appeal are three:
1. The aggregation is wrong;
2. There’s a new law that
entitles him to extra credit, and the new law is a clarification, not an
amendment so it applies to his case; and
3. Even under the old law, his
furlough wasn’t revoked; he was held for lack of bail; and he should get
credit.
The State
counters with:
1. He waived the new-legislative-enactment
argument ‘cause he didn’t raise it below;
2. Nuh-uh, it’s an amendment;
3. He doesn’t get extra credit
under the old law; and
4. Wrong rule! Game over!
The SCOV
rejects the State’s procedural argument first.
The SCOV notes that usually the DOC is in a better position to calculate
a defendant’s sentence; in that case, if the defendant has an issue with the
calculation the proper course is to file a grievance, and eventually file a
civil rule 75 action (review of administrative action). On the other hand, sometimes the trial court
is in the best position to fix a screwy sentence; in that case, as here, then
the proper course is to file a criminal rule 35 action (correction of
sentence).
The SCOV
also rejects the State’s waiver argument, noting that the legislation’s
effective date was after the filing of the appeal, and thus, it will consider
what effect, if any, the legislation has on defendant’s sentence.
The
effect, the SCOV reasons, is none. Here,
the SCOV distinguishes a case that stands (or rather, stood) for the
proposition that a legislative clarification retroactively applies by noting that in this
case, it’s “not clear” that the legislation was a response to a SCOV case. Here, there was even a memo in the
legislative history that gave a specific example given of how the new law would
differ in effect from the old law.
Even
assuming that the legislative action at issue here was a clarification, the
SCOV rejects its earlier position “suggesting that a legislative enactment
intended to ‘correct’ an opinion of this Court should be applied
retrospectively as a clarification of what the law had always been.” From now on, the SCOV states, the presumption
is going to be against retroactivity. Essentially,
this sounds like, unless the legislature says: THIS IS A RETROACTIVE STATUTE
AND STUFF, the SCOV won’t be playing that game.
Administrative
law practitioners take note: creative legislative-action arguments just got a
whole lot harder.
While the
SCOV leaves a door open for “consideration” of a later legislature’s
clarifications, it’s a small door, and it might be said that this opinion
represents something of a sea change in this field. So this is one to read. I mean, sure,
they all are, but this one’s
important. Who will make the next move
in this thrilling game of legislative-interpretation chess? Stay tuned.
In
somewhat anticlimactic fashion, the SCOV concludes that defendant was not
entitled to any credit beyond what he was given under the old law, which at the
time of sentencing provided credit “for any days spent in custody in connection
with the offense for which sentence was imposed.” Here, defendant was in jail (though on
furlough) on his previous sentence and got hit with consecutive sentences based
on the new charges. The SCOV reasons
that he got the credit to which he was entitled.
The
result would likely be different if defendant’s sentences were concurrent, and
defendant would get credit while being held for lack of bail while still on
furlough. So here’s what you need to
remember: consecutive, bad; concurrent good; and it ain’t retroactive unless
the legislature says so.
Class
dismissed.
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