Opinion
CIVIL ACTION NUMBER 00M-08-023-JEB.
Submitted: August 21, 2000. Argued: August 23, 2000.
Decided: August 31, 2000.
Upon Petition for Writ of Habeas Corpus — DENIED
MEMORANDUM OPINION
J. Dallas Winslow, Jr., Esq., Assistant Public Defender, Public Defender's Office, for petitioner
Mark H. Conner, Esq., Deputy Attorney General, Department of Justice, for respondents
HERLIHY, Judge
JOHN ALLEN DIXON, JR.,
John Allen Dixon, Jr., has petitioned this Court for a writ of habeas corpus. He was sentenced in 1991 to a jail term of ten years. With earned good time, his term of imprisonment was reduced and he was released from jail several weeks ago. Subsequently, he was returned to jail for one or more violations of his supervision conditions. He correctly notes that the Truth-In-Sentencing [TIS] legislation abolished parole for all persons, including him, sentenced under its provisions. He concludes that that means he was under no supervision of any kind and that he is being unlawfully held and should be released. Despite the abolition of parole under TIS, he was under supervision and is being lawfully held. Accordingly, his petition is DENIED.
FACTUAL BACKGROUND
Dixon was sentenced to ten years incarceration on October 18, 1991 on a charge of robbery in the second degree. Prior to that sentencing, he was declared to be an habitual offender under the provisions of 11 Del. C. § 4214 (a). His term of imprisonment was made effective May 13, 1991, which was the date he was committed to jail in lieu of bail, when arrested on the robbery charge. Since the date of the offense was in May 1991, TIS applied to the sentence he received.When this Court sentences a defendant under the provisions of § 4214(a), it must impose a term of imprisonment and cannot suspend any portion of it. Nor is the Court empowered to add a period of probation to follow that jail time. Despite this restriction placed on the Court, a defendant serving a jail sentence imposed under § 4214(a), however, is entitled to earn good time resulting in a reduction in the time to be served. That is what happened here. The issue is what is that person's status when released early, if parole has been abolished under TIS?
11 Del. C. § 4214 (a), § 4381.
DISCUSSION
Parole was abolished under TIS. To that extent, Dixon's argument is correct. Without parole, he goes on to contend that he was under no supervision and cannot be returned to jail for violating any terms of supervision.
While it is correct that Dixon was not on parole when his earned good time allowed him to be released early, he, nevertheless, was still under supervision until the maximum date of his sentence through May 12, 2001. He was on conditional release under the terms of a statute which reads:
A person having served that person's term or terms in incarceration, less such merit and good behavior credits as have been earned, shall, upon release, be deemed as released on parole until the expiration of the maximum term or terms for which the person is sentenced. A person may waive the right to conditional release, in which case the person shall serve the remainder of the term or terms in prison. Such waiver shall be in writing. Only persons who have been committed for 1 year or more shall be deemed to be released on parole, provided, the Department [of Correction] by general rule may lower said period of time.
Pursuant to the terms of this statute, he is considered as being released as if on parole but it is called conditional release, not parole. A person such as Dixon, therefore, is subject to other statutory provisions, including that he is subject to Board of Parole supervision. Such a person is also subject to potential return to jail for violating the terms of conditional release. Dixon fits into this statutory scheme.
Some confusion does exist, however, because the statutes, such as § 4248, creating the status of conditional release predated the enactment of TIS. When TIS was enacted and abolished parole, it would have been better to explicitly incorporate the status of conditional release for persons in Dixon's position. Despite the confusion, Dixon still was on a conditional release status when he was released from jail due to earned good time.
These statutes also refute his other argument that he was under no supervision. That contention, in effect, was that he, with earned good time, had no jail time left to serve. It is correct that his time of incarceration was reduced by earned good time, but it is incorrect that the remainder was eradicated. The statutory scheme makes it clear that the balance of unserved jail time can be reimposed for a violation of conditional release.
Id.
In addition to these claims, Dixon's petition raises others. But, they relate to more narrow ones relating to circumstances of his return and are not reviewable by means of a petition for writ of habeas corpus.
This case is a good example of a sentencing issue which has troubled the judges of this Court. The Court is imposing more habitual offender sentences. It is not unusual that the only sentence or the most significant sentence to be imposed is governed by the provisions of § 4214(a). As noted, any sentence under that provision must be for a term of imprisonment which can neither be suspended nor followed by a period of probation. Because TIS results in the habitual offender serving a substantial portion of the sentence in jail, the balance left on supervised custody is often short.
That is what happened here. Dixon was released after nine years in jail but with only about a year to go on his sentence. It is extremely likely that if he had not been sentenced as an habitual offender but given a nine-year sentence, such a sentence would have been followed by much more than a mere one-year period of probation. One year of community supervision after such a long term of incarceration, even if conditional release as here, is hardly sufficient. Experience shows that a longer period of transition to the community is needed both to assist the offender and to protect the public.
This Court should be empowered to add an additional appropriate period of follow-up probation so that adequate supervision can occur over a sufficient period of time. Such would better serve the obvious public safety concerns than an all-too-short period of supervision. But, is the answer to take away the ability to earn good time under § 4214(a). That would result in no supervision period upon release and raise far more serious issues of public safety. The resolution of these issues is, of course, a matter of public policy and for the General Assembly.
CONCLUSION
For the reasons stated herein, the petition for writ of habeas corpus of John Allen Dixon, Jr., is DENIED.
IT IS SO ORDERED.
____________________________