Convicted murderer entitled to immediate release, Court of Appeals

A man who committed second-degree murder in 1978 while on parole from an armed robbery sentence is entitled to immediate release from prison, the state's highest court has held.The Court of Appeals said last week that James L. Pearson's 30-year-sentence for murder and handgun charges started on the date that sentence was imposed, Feb. 27, 1979, rendering him eligible for release owing to diminution of confinement credits. The Division of Corrections, part of the Maryland Department of Public Safety and Correctional Services, had argued that the second sentence started Aug. 28, 1992 - after Pearson finished parole on his 1972 robbery sentence - and would expire in 2021.The problem was that the 1979 sentence was ordered to run consecutive with any sentence on violation of parole - and Pearson's parole had not been revoked yet. [W]hen imposing a consecutive sentence for a new offense, a sentencing judge should not consider parole as an existing sentence being served, Judge Clayton Greene Jr. wrote for the court. Further, if a parolee commits an offense and the sentencing judge imposes a new sentence before revocation of parole, the new sentence commences on the date of imposition [of the new sentence], he noted.The court added in a footnote that its holding applies to sentences imposed before the 1994 enactment of Section 9-202 of the Correctional Services Article of the Maryland Code. Under Section 9-202, a consecutively imposed sentence for a crime committed by a parolee starts upon expiration of the original term, if the parole was revoked before sentencing; if parole was not revoked, the new sentence starts on the date of the sentencing. We asked the court to interpret the state of the common law prior to the adoption of the statute, Stephen Z. Meehan, one of the attorneys representing Pearson, said Friday. Counting on a future violation of probation to sentence someone is contrary to traditional sentencing notions of justice and fair play. Obviously, the Legislature understood this problem.Pearson was sentenced on Feb. 1, 1972 to 20 years in jail for robbery with a deadly weapon. The sentence was to begin on Aug. 3, 1971.He was paroled on June 1, 1977, but the Maryland Parole Commission issued a warrant the following March after the murder. On Feb. 27, 1979, he received a 20- year term for murder and an additional 10 years for use of a handgun during the commission of a felony.His parole was subsequently revoked and he was ordered to serve the balance of the original 1972 sentence, less eight months. According to the DOC, Pearson would start his new term of imprisonment in 1992.Pearson filed a writ of habeas corpus in Washington County Circuit Court in July 2004, contending that a sentence imposed consecutively to a parole violation term starts on the date that sentence is imposed if parole has not been revoked at the time of sentencing. The circuit court agreed and ordered his release; the Court of Special Appeals affirmed.OverruledThe top court noted that the statute in effect when Pearson was sentenced - Art. 41 Section 123 - failed to indicate whether it was intended to be applied prior to or after parole revocation when a sentencing judge imposed a new or subsequent sentence, Greene wrote - concluding that parole had to have been revoked if a new sentence was to run consecutively to the time served on the original sentence.And in the 1994 Court of Appeals case of State v. Parker, the top court noted, it effectively overruled a Court of Special Appeals holding that a sentencing judge could tack a sentence consecutively onto a term of parole.When a parolee is sentenced for a new crime before revocation of parole, a sentencing judge may not treat parole as an existing form of confinement, and, as such, a new sentence may not be served consecutive to a parole term, Greene noted. WHAT THE COURT HELDCase:J. Michael Stouffer, Warden v. James L. Pearson, CA No. 1, Sept. Term 2005. Reported. Opinion by Greene, J. Filed December 8, 2005.Issue:Was a defendant entitled to an immediate release from prison where he committed murder in 1978 while on parole for a 1972 crime and was sentenced to 30 years consecutive to his term of parole? Holding:Yes, affirmed. Under the law prior to 1994, when a new sentence is imposed before parole is revoked, the new sentence starts on the date of imposition; thus, the new sentence started in 1979.Counsel:Karl A. Pothier for appellant; Joseph B. Tetrault for appellee.

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