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09/30/93 GREGORY C. MILLARD v. DAVID C. ROACH

September 30, 1993

GREGORY C. MILLARD, APPELLANT
v.
DAVID C. ROACH, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Motions Judge)

Before Rodgers, Chief Judge, and Steadman and Wagner, Associate Judges.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Appellant, Gregory C. Millard, appeals from an order of the trial court denying his petition for a writ of habeas corpus filed pursuant to D.C. Code §§ 16-1901 to -1909 (1989). *fn1 Appellant, who is serving a sentence imposed by the Superior Court of the District of Columbia (Superior Court), seeks a credit against that sentence for the approximately five years he served incarcerated in the state of Maryland. He also seeks pretrial credit for the period he was incarcerated after revocation of his bond. As reasons for his claim, appellant asserts essentially the following facts: (1) that he was arrested first in the District of Columbia for the offenses which resulted in his convictions and present sentences; (2) that he subsequently entered a plea of guilty and was sentenced by the Maryland court to a period of incarceration to be served concurrently with the sentence imposed in the District of Columbia; (3) that the Maryland authorities admittedly erred in failing to return him to the District of Columbia immediately after sentencing so as to assure him the benefit of concurrent sentences; and (4) that the responsible District of Columbia officials improperly failed to take steps to secure his return, thereby defeating the intentions of both sentencing courts.

Relying on the case of Crawford v. Jackson, 191 U.S. App. D.C. 170, 589 F.2d 693 (1978), cert. denied, 441 U.S. 934, 60 L. Ed. 2d 662, 99 S. Ct. 2056 (1979), the trial court denied appellant's petition. Appellant argues that the interest of Justice and comity require that he be granted the credit he seeks. The District of Columbia contends that appellant is not entitled to a credit because, pursuant to 18 U.S.C. § 3568 (1985), he could not and did not commence his District of Columbia sentence until he was released by the Maryland authorities and received at Lorton on October 30, 1985. *fn2 We conclude that appellant is entitled to the relief under the unique facts of this case. Therefore, we remand for further proceedings consistent with this opinion.

I.

Appellant Millard is currently at Lorton's Central Facility where he is serving a sentence of sixteen to fifty-four years for several felony convictions. *fn3 According to Millard's verified petition, he was first arrested in the felony case in the District of Columbia on a criminal complaint on January 25, 1980, at which time there were no outstanding warrants or detainers for him. Thereafter, the Maryland authorities issued a warrant for appellant's arrest. On February 26, 1980, Millard appeared before the Superior Court and agreed to return voluntarily to the state of Maryland to face charges there. On March 26, 1980, prior to Disposition of the Maryland case, the Superior Court issued a writ of habeas corpus ad prosequendum to the Maryland officials commanding that they produce Millard on April 10, 1980 for arraignment on the District of Columbia charges. The writ specified that Millard would be returned "upon the Conclusion of such proceedings, but not before the Conclusion of arraignment." However, appellant remained in custody in the District of Columbia until after he was convicted and sentenced on December 2, 1980. The judgment and commitment order entered by Superior Court ordered appellant's commitment to the custody of the Attorney General, or his authorized representative, for imprisonment. The order further provided:

IT IS FURTHER ORDERED that the Clerk or his deputy deliver a true copy of this order to the United States Marshal and that the copy shall serve as the commitment of the defendant.

The record reflects that the order was delivered that same date as required. Although the trial court recommended that appellant serve his sentence at a federal institution for drug rehabilitation, according to appellant, he was sent instead to the maximum security facility at Lorton, Virginia on December 6, 1980. On December 11, 1980, the United States Marshal caused appellant to be sent to the state of Maryland.

On March 18, 1981, appellant entered a plea of guilty in the Circuit Court for Prince George's County, Maryland to one count of robbery with a deadly weapon. The Maryland court imposed a sentence of ten years incarceration with the provision that it be served concurrent with the sentence previously imposed in the District of Columbia. *fn4 Nevertheless, appellant was sent to the Maryland state penitentiary where he remained until October 29, 1985. In a letter from the Maryland Division of Corrections to Millard, the Maryland authorities informed him that because he was sentenced in the District of Columbia first he should not have been sent to Maryland and that they had so notified the proper authorities and arranged for his return to the federal government upon discovering the error. To assure that appellant would complete the balance of the Maryland sentence if released by the District of Columbia before its expiration, the Maryland authorities lodged a detainer with the District of Columbia Department of Corrections on February 26, 1986.

In his departmental administrative appeal, the District of Columbia officials determined that appellant was a Maryland prisoner on temporary loan to the District of Columbia and that therefore, any time spent in the District of Columbia was credited to his Maryland sentence. They also determined that the time he spent in Maryland was to satisfy his Maryland sentence. Appellant filed pro se a writ of habeas corpus outlining these facts with supporting documentation. The trial court, citing Crawford, concluded that appellant did not commence his District of Columbia sentence until he was actually received at the Lorton facility on October 30, 1985 for service of that sentence. Therefore, the court denied the motion. *fn5 Appellant noted this appeal.

II.

Appellant contends that he is entitled to a credit against his District of Columbia sentence for the time he served in the state of Maryland in the interest of Justice and as a matter of comity. Absent such a credit, appellant argues, he will be forced to serve an additional five years of imprisonment, contrary to the intentions of both sentencing courts and to the fundamental principles of Justice. Undoubtedly, appellant would have received the benefit of concurrency as provided by the Maryland court if he had been returned to this jurisdiction immediately after sentencing in Maryland to serve his District of Columbia sentence. However, the government argues that the controlling statute then in effect, 18 U.S.C. § 3568, precludes that result on the facts presented here. *fn6

The referenced statute provides in pertinent part that:

The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts ...


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