Lerner v. Gill

Evidence, 185 at 439-40. Evidence of motive is probative often and relevant Gazerro,

certain circumstances. v. R.I., 420 A.2d

It is evident that the testimony Leo Bassette testimony coincided with the Roach,

of Barbara who stated that the de having ceased had been trouble with de appeared fendant and that defendant had upset and evidently disturbed. The state

introduced this evidence in order estab

lish motive or malice. We cannot conclude this evidence was not relevant.2 Fur

thermore, no counterbalancing factors ex

isted that might outweighed pro have

bative force of the evidence.

We therefore are of the opinion testimony was relevant and admit- properly justice

ted. The trial did not abuse his discretion.

The defendant’s is denied and appeal dis- missed, judgment appeal- of conviction sustained,

ed from is and the case is re- Superior manded to the Court. Maurice R. LERNER

Matthew GILL et al.

No. 82-208-C.A. Supreme Court of Rhode Island.

Aug. 1983. necessary any history provocation It is to note that the incidents did not im- because Thus, prior analy- mediately precede killing. hostilities between the deceased and de- our interpreted part unchanged. fendant cannot be as an element of sis in I remains Mann,

Robert B. Roney, Mann & Provi- dence, Bonin, Boston, Mass., Robert M. plaintiff. II, Gen.,

Dennis J. Roberts Atty. Sharon O’Keefe, Gen., Chief, P. Sp. Atty. Asst. Appellate Div., for defendants.

OPINION

KELLEHER, Justice.

This case is before us appeal from an order of a Superior justice granting Court the application postconviction relief of petitioner, (Lerner), Maurice Lerner presеntly individual incarcerated at (ACI). Adult Correctional Institutions justice trial granting determined that parole-eligible status to Lerner and the subsequent revocation of that status violat- provision ed the ex of the United respondents, States Constitution. The Mat- Gill, thew assistant director of adult serv- Institutions, ices at the Adult Correctional II, and Dennis Roberts Attorney J. Island, of the State of Rhode vigorously oppose Superior Court’s characteriza- ble for parole, prisoner confined under tion events in this dispute. involved consecutive sentences must serve at least In order to clarify pres- the issues that are one-third of the total of his sentences court, faced ently summary this of the whereas a prisoner serving concurrent sen- factual history precipitated litiga- tences becomes after hav- tion is necessary. equal served term to one-third of the imposed. maximum term If either calcula-

The gangland-style murders of which years greater tion results in a term of than Lerner was accused occurred in the Silver ten, controls, 20, prisoner Lake section of 13-8-13 and the April § Providence on Patriarca, 14, serving 1968. ten eligible years. See State 112 R.I. becomes after 18-21, (1973). A.2d 305-07 Nearly The for question ‍​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​​​‌​‌‌​‌​‌​​​‌​​‌‌‌​​‍parole eligibility prison- later, 27, 1970, two years on March he was ers sentenced to more than one сonsecutive convicted two counts of murder and one life term was not answered by General count of conspiracy to commit murder. See 1981, however, until well after Assembly Lerner, State v. 112 R.I. 308 A.2d 324 acts, conviction, Lerner’s criminal and sen- (1973). Lerner was sentenced on Septem- time, tencing. Legislature spe- At that ber to a term of ten years for cifically prisoner stated that such must conspiracy terms, charge and two life one years consecutively serve ten on each life for each of the murders committed. All of becoming parole eligible. sentence before these sentences were consecutively. to run (1981 Reenactment) General Laws 1956 13-8-13(b), P.L.1981, by as amended ch.

The issues § of this case revolve around the It is to note that provisions important in the regarding General Laws statute to crimes applies only occurring af- murder and For purposes of this 1981; therefore, May any possible ter the statute establishing penalty to the case bar is murder remains eliminated. essentially same as however, at the time This imply, of the commission of the assertion does not that crimes. penalty persons preceding crimes committing murder at that time was that imprisonment eligible parole prior for ten to life. The date should be years Lerner, mаximum penalty by serving faced there- ten on each life sentence. years fore, for the crime of murder was life im- specifically against The subsection cautions prisonment. this inference. statutes, however, The parole require a facto claim on post Lerner bases his ex analysis.

more detailed On the date the change interpretation of the committed, murders were a prisoner sen- parole above statutes board. He tenced to life imprisonment was not contends that since the statutes were ini- until he had served at least twen- tially deeming construed in his favor him ty years provision his sentence. This was parole eligible in officials could not altered in 1970 when the Assembly interpretation later and revoke revise determined years ten should be the so, eligibility. argues, To do he vio- minimum period served a life ex prohibition against lates thp becoming parole eligible. before This stat- I, laws in Art. sec. of the United found expressly repealed prior ute law and be- I, and art. sec. of the States Constitution came effective passage April addition, In he Rhode Island Constitution. date, 1970. As of this Lerner had been reinterpreta- of the questions propriety yet convicted but not sentenced. He maintains due-process grounds. tion on pаrole hopes that the manner in which his provision Another that deserves mention later shattered was so fun- at this concerns the were raised and point prison- ers than unfair as to violate due- subject damentally more one sentence. Reenactment) the Fourteenth Amend- process General Laws 1956 clause of rights provides being eligi- due-process 13-8-10 that before ment. He also claims his were infringed upon when a majority of the he testified that his mother started busi- justices court, of this request ness in provide Rhode Island to her son Governor, delivered an with a advisory opinion job upon his release. This was al- concerning meaning of the above done legedly stat- to increase Lerner’s chances of utes. being granted See re Advisory Opinion parole by demonstrating his Governor, R.I., released, ability, 421 A.2d 535 if to support Lerner himself and judicial family characterizes this action as in the state of Rhode Island. facto lawmaking. dealing Before with the The most convincing proof that Lerner claims, merits of these it is necessary was once considered for parole is his detail those activities of state officials that actual appearance before the board Lerner cites as unconstitutional. on two occasions. He was dеnied fact, each time. it was these appear-

The initial inquiry into Lerner’s ances before the parole board that prompt- status held in 1976. Bradford W. ed an attorney general assistant Southworth, question who at that time was director eligibility. Lerner’s This action led the Department Corrections, parole board, chairman of the Joseph wrote a Gal- letter to then-Attorney General kin, request a clarification of Michaelson, Julius C. specifically requesting Attorney statute from General Roberts. advice about the parole-eligibility date of The question again once posed was whether Lerner, an inmate sentenced to two consec- Lerner was to appear utive before the time, life sentences. At this Attorney board after serving only years ten his Michaelson construed the set of two consecutive life sentences or whether statutes discussed above as granting parole- he twenty must wait years. status to Lerner in after only ten years of He incarceration.1 reasoned Attorney expressed General Roberts that the ten-year minimum found in 13- opinion that Lerner should serve no fewer 8-13 was to apply to all prisoners sentenced years than twenty before becoming eligible to life since the General Laws did spe- not parole, contrary to the view of his cifically provide for individuals receiving predecessor. construction, Such a according sentences consecutive to a life sentence. correspondence of October 1979 from Galkin, Mr. Roberts to Mr. comports with

Although there is no evidence in the rec- the court’s imposition of two life ord that sentences Lerner was formally advised of his to be served consecutively opposed status in it cannot be disputed that he concurrently. Upon Mr. Galkin’s request believed that he would be eligible for a issue, clarification of this important in 1979. He testified that in 1976 he was the Attorney previ- General reiterated his transferred from the Maximum Security position. emphasized ous He that any other section the prison Security, Minimum conclusion negate would the effect of con- where he would soonafter receive such priv- secutive sentences for life and would be ileges as work release and furloughs. Ler- inconsistent with the relevant statutes. ner claims that he relied on the statements of state officials regarding his 11, 1979, On December Mr. wrote Galkin status in making important several family Moran, a memo J. to John director of the decisions. His wife and children moved Corrections, Department of him advising from Brooklinе, their residence in Massa- Lerner’s revised status. Lerner testified chusetts, Cranston, to a home in Rhode Is- January that in of 1980 he was that he told land, in order to take advantage would have to return to the Maximum Se- increased visitation furlough privileges and curity section of the He prison. appar- was that he believed were dependent upon his ently shown the communications that Mr. addition, parole-eligible classification. Attorney Galkin and General Roberts had Although Sep- 14, 1969, August Lerner was not sentenced until roactive to the date of his pretrial tember the sentences were made ret- detention. exchanged as proof change in his The authoritative case that must begin status. Lerner remained any thorough at Maximum discussion of ex post Se- facto Bull, until curity April when the laws is Calder v. Dall.) 385, 1 classifi- cation board L.Ed. 648 determined that he that could be Justice clearly Chase returned to enumerated what Security. types Minimum After law the ex post facto clause receipt prohibited. of the advisory opinion to the Gover- pronouncement that nor, follows Maximum, Lerner was returned to early occurred history, Court’s it re where he stayed six months. Thereaft- point mains the foremost of reference when er, Lerner again was transferred to Mini- considering ex рost facto controversies. mum, where he remains today. The following were considered Lerner first pursued constitutional laws: claims before the United States District Every “1st. law that makes an action Court for the District of Rhode Island in law, done before the passing of the the form of a petition for a writ of habeas done, criminal; which was innocent when corpus. hearing A was held in October of punishes such action. 2d. Every law 1981, in which testimony presented de- crime, aggravates or makes it tailing the facts previously discussed. The was, greater than it when committed. District judge stayed Court Lerner’s federal Every changes 3d. law that the punish action until such time as he had exhausted ment, greater punishment, and inflicts a his state remedies. Accordingly, Lerner crime, than the law annexed to the when filed an application postconviction relief 4th. law Every committed. that alters in Providence Superior Court. The record evidence, legal rules of and receives indicates justice the trial revived Ler- less, different, than testimony, the law ner’s status after consideration of required at the time of the commission of transcript of evidence adduced in the offence, in order to convict the of Federal Court2 as well as memoranda 390, Dall.) fender.” 3 at 1 U.S. L.Ed. oral arguments of counsel. The restoration at 650. of eligibility justice’s was based on the trial later, century placed Over a the Court belief that the 1979 in change Lerner’s eli- application additional restriction on the of gibility status post violated the ex facto post Oregon, ex facto clause. In Ross v. provision of the Federal Constitution. 150, 220, 227 U.S. 33 57 L.Ed. 458 S.Ct. Ex Post Facto Clause (1913), plaintiff judicial that the argued of construction a statute that had been in asking In that the trial justice’s order be place, effect at the time his acts took but affirmed, Lerner advances several alterna- construed, not previously had been consti- arguments. reliance, tive His main how- post reject- tuted an ex facto violation. ever, is the ex facto clause that is claim, ing this the Court stated: to be found in both the United States and provision Constitution, of the “But provi- the Rhode Island Constitutions. according import to the natural of its so in each Constitution almost identical to terms, upon legislative pow- is a restraint U.S.Const., 10; I, that in the other. Art. laws, making er and concerns the of not Const., I, conclusion, R.I. art. 12. Our their construction the courts.” Id. at which of justice, differs from that the trial 161, 222, 33 at 57 at S.Ct. L.Ed. 463. will be based for the most part on Further, various pronouncements by the United in quoting New Orleans Water Supreme Co., States and the ongoing Cоurt de- Works Co. v. Louisiana Sugar Refining velopments that have occurred in the area 125 31 U.S. 8 S.Ct. L.Ed. of administrative law. (1888), 612 the Court stated: testimony given by 2. Much of what we have said about Lerner’s him in the United States reliance on his 1979 status comes from the the District Rhode District Court for of Island.

“The prohibition is aimed at the legisla- Legislative Power, 73 Mich.L.Rev. 1491 tive power State, of the and not at the (1975)), we shall be mindful of them as we courts, decisions of its or the acts of ad- proceed to the at case hand. ministrative or executive boards or offi- however, Before it is proceeding, helpful cers, or the doings corporations or indi- inquiry. narrow our A brief examina viduals.” 227 at U.S. S.Ct. at laws, tion types specified in Cald 222-23, 57 L.Ed. at 463. er, that the ex post provision violate important It is keep this limitation in only indicates that the following one of the mind since it gives rise to a decisive issue in applies is, four to this possibly this case. The respondents maintain that law “that changes punishment, and in the interpretation of a statute an admin- greater flicts a than punishment, the law board, istrative agency, here the does crime, annexed when committed.” not constitute a law within meaning Bull, (3 Dall.) Calder v. the ex post Lerner, course, facto clause. respondents L.Ed. at 650. The argue that takes the opposite viеw. The arguments there had no change punish been each puts forth will be in analyzed more ment that could have been imposed on Ler detail below. As an aid to analysis, April ner in 1968 and raise points several is helpful keep purposes mind the of this support contention. we be Since served the ex post facto clause. lieve that the interpre issue of whether an Graham, Weaver v. 450 U.S. 101 tation of a statute amounts to the enact S.Ct. L.Ed.2d 17 the Court ment of a law is dispositive Lemer’s ex discussed various reasons for the existence claim, post facto we shall not address all of facto clause in the Constitu- respondents’ contentions. First, tion. legislative acts give should fair previously, As indicated Ross v. Oregon, warning of their effect and allow individu- supra, limited the ex post als to rely meaning their until explicitly legislative facto clause to acts. Ross explic- changed. Second, the ban on ex post facto itly excluded from its reach decisions of laws is necessary to prevent lawmakers courts, acts of administrative or executive from abusing their power through arbitrary officers, boards or corpo- the activities of 28-29, action. Id. at rations or individuals. If this were the L.Ed.2d at A purpose, third discussed extent of the holding, inquiry Warren v. Court’s our United States Parоle Commis- sion, 659 could end here since it is the activities of (D.C.Cir.1981), F.2d 183 must be added to these board and not the considerations. a pri- Since mary purpose litigation. which are involved in this The system the criminal-law is Court, however, the deterrence of Ross potentially wrongful con- went to caution: duct, law, an ex post facto ‍​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​​​‌​‌‌​‌​‌​​​‌​​‌‌‌​​‍which enacts a holding “But whilst thus uniformly taken, penalty after an action has been fails provision leg- that the is directed against to meet this goal, for it is impossible to islative, judicial, acts, but not this court deter acts already committed. regarded with like has it as uniformity reaching every legisla- form in which the

These purposes should be remembered exerted, power tive of a State is whether when considering whether a law is constitu- constitution, it be a a constitutional tional or not under the ex facto clause. post amendment, legisla- an enactment of the If goals way these are not in some en- ture, municipal or ordinance of a hanced, by-law court should be most reluctant to corporation, regulation or a or order of post prohibition. invoke the ex facto Al- instrumentality other though plan we do not to restrict ourselves some criteria, delegated authori- solely exercising legislative to an based on these analysis 162-63, 33 at scholarly sug- ty.” as some commentators have 227 U.S. S.Ct. gested (see Ex Post Facto Limitations on 57 L.Ed. at 463-64. controlling by that the board acted is not to be considered

Lerner claims Gilbert, in a in determin- v. quasi-legislative capacity the courts. General Electric Co. regarding eligibility policy 50 L.Ed.2d 343 429 U.S. 97 S.Ct. serving consecutive life sentences. The re- Co., (1976); & 323 U.S. Skidmore Swift As- spondents argue that since the General 89 L.Ed. 124 rulemaking author- sembly delegate did not outset that important It is to note its inter- ity agency, to this administrative interpretations pretations not laws in sense of the any were few, question possessed any, statute in if word. rule. If a label characteristics of formal dispute, To resolve this we feel it placed were to be on the board’s 1976 Davis, is turn to 2 Administrative helpful to pris- when a determination that concerned 1979), Treatise, (2d Law 7:8 at 36 ed. to two consecutive life sen- oner sentenced where a distinction is drawn between its de- parole, tences would be rule. A interpretive legislative rule and a classified as “inter- termination would be legislative product rule is the of an exercise The pretive” “legislative.” and not General delegated legislative power to make laws delegated authority has not Assembly through interpretive rules whereas an rule rulings on the board tо issue rule an issues without exer agency statutes. meaning parole-eligibility Sec- legislative power cising delegated rulings These do not seq. tions 13-8-1 et of a through validity make law rules. The of law and do not constitute have force it is legislative depends upon rule whether interpretations rep- The binding authority. power granted by Legisla within the opinion an agency’s resent no more than ture, procedure, pursuant proper issued a statute to a regarding process. and reasonable as a matter of due particular situation. of such a rule is estab validity Once a rule as classifying significance lished, valid binding it is as on a court as a legislative, than as interpretive, rather rules, Interpretive statute. on the other conclu- has not been post purposes hand, force of law. Courts do not have the ruling is clear that a determined. It sively judgment for that of may substitute their delegated legislative authority made under deciding agency administrative courts from an differently by is treated interpretive whether or not to enforce an author- rule, which has no such interpretive a court choose defer may rule. is whether ity question behind it. judgment, required to an is not agency’s of ex to the area distinction should extend Boston Rent Control to do so. See Niles v. history In view of the facto law. 135, 374 Administrator, Mass.App.Ct. facto clause and the ex purpose of Electric Credit (1978); N.E.2d law, respond must case we current Small, (Tex.1979). Corp. v. S.W.2d affirmative. a rule is to be whether To determine earlier, Oregon, 227 U.S. Ross v. As noted interpretive, one legislative or classified as held 57 L.Ed. 33 S.Ct. assigned power must consider the applied solely clause facto post that the ex If a statute ex agency. administrative action, adminis- judicial, not legislative to interpret and delegates power to pressly could Legislature A trative, individual. or reg agency, to an legislation define certain this constitu- commands of not avoid the pow to that pursuant promulgated ulations au- delegating merely by prohibition tional of having the force rules legislative er are instrumentality another thority to Francis, Batterton v. law. this restriction purpose The state. If the 53 L.Ed.2d 448 Rodriguez in the court by aptly expressed conferred such branch has not lawmaking Commission, F.2d Parole United States promulgating agency authority Cir.1979). (7th rule, interpretive promulgation Congress

“When delegated Fitzharris, has to an (9th Cir.1972), 460 F.2d 382 since agency the to authority make a rule in- pattern its factual is somewhat similar to itself, making stead of the rule the result- happened what when board first ing administrative rule is an extension of considered Lerner’s status. Love thе statute for purposes of the clause. had been sentenced to serve two consecu- Congress What cannot do it can- directly, tive terms for violations of California’s not do by delegation.” Id. at 173. Safety Health and Code 11500.5. This § previously,

As discussed one of the section that an individual convict- provided major purposes of the ex facto post clause ed under 11500.5 must serve at least two § is the prevention legislative abuse. and one-half of his sentence before years When the agency vests in an becoming The parole.4 general authority binding make law through parole statute, (West Cal.Penal Code 3049 rulemaking power, the arbitrary abuse 1982), that a provided eligi- became of that authority hands of the agency parole upon serving ble for one-third of his must still prevented. agency If the has Department minimum sentence. The State however, no such authority, danger sent Love Corrections a formal document legislative present abuse is not and the ex Legal entitled “Notice of advising Status” post facto clause need not be invoked. This him that he would be was particularly true of Rhode pa Island’s three and four months. years depart- role board.3 the Legislature cre ment determined that in the case of consec- board, аted the parole it did not vest the sentences, utive the parole statute controls board with official authority promulgate and therefore Love required would be interpretation rules in of statutes. Appar serve one-third of the combined minimum ently board on its own chose to make its years sentence of ten on his two convictions. interpretive legisla determination absent a department altered its position shortly tive mandate. Its decisions did not have by concluding thereafter 11500.5 did the force of law and therefore cannot be apply persons under consecutive sen- legislative considered a abuse. To hold oth tences for narcotics violations. The correct- erwise would ignore the precepts upon ed “Notice of Legal Status” sent to Love which the ex post prohibition facto is based. advised him that he would have to serve A review of recent case law also leads to (two five years years per and one-half con- the conclusion that post no ex facto viola- viction) before becoming eligible tion occurred in this case the parole because Appeals The United States Court of for the board had no authority to make law and did held that Ninth Circuit this alteration in not dо so. there Since is no Rhode Island Department Love’s status of Correc- precedent dealing post with ex facto in- tions constituted an ex facto violation. fringements law, through changes it is necessary jurisdictions to look to other At glance, sweeping language first for guidance. remembered, It must be might used the Love court seem to en- however, that such controlling cases are not Ap- here. compass presented the situation and need not be followed. parently ignoring the distinction between rules,

Lerner, court legislative interpretive making argu- his ex ment, places great emphasis on Love v. stated: board, remaining appointees,

3. The which receives administrative as well work.” The Corrections, support Department from the physician, attorney, professional, must appointed consists of five individuals who are demonstrated an interest ‍​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​​​‌​‌‌​‌​‌​​​‌​​‌‌‌​​‍in social-welfare have three-year By the Governor for terms. stat- problems. Laws 1956 Reenact- (1) qualified ute the board must consist of ment) 13-8-1 and -2. §§ psychiatrist neurologist, (2) a member Bar, (3) person profession- Rhode Island a repealed. has been 4. This section ally trained in or “in some correctional work closely general such related field as social pronouncement “Absent court on the the area of administrative law. Accord- in matter, Love, interpretation any the of the relation agency interpretation to of a ship between the statutes placed upon carries with it the force of law. We statute by them the agency administrative the already have determined that force of charged with their enforcement has the given depends upon pres- law to a rule the and effect of law.” Love force v. Fitz express legislative ence or absence of au- harris, 460 F.2d interpretive to make that rule. An thority the parole decision such that made follow, For that we respectfully reasons board, authority, which does not have this decline to the subscribe to rationale and does not have the force of law. Love, conclusions found in Love. unlike Lerner, was sent formal notice of his status position support we take here finds prison. Although his arrival at we do reasoning of other courts that have suggest not that form alone determines relationship between dealt with the law, whether a rule has the force of can clauses. post and the ex facto Ro- changes of the authority possessed by indicative Parole Commis- driguez v. United States earlier, agency the that issues it. As noted Cir.1979), sion, (7th involvеd 594 F.2d 170 it is difficult to conceive of Rhode Island’s guidelines to a application the parole-board regard determination in to prior who committed his offense to Lerner’s parole-eligibility being status as petition- of these criteria. The the issuance equivalent the of a rule of kind. claimed, agreed, that er and the court rules to his case violat- application of these A further difference Love and between holding, facto clause. In so post ed the ex respective Lerner can be drawn from their regulations the court determined that statutory Depart- schemes. In Love the a statute for ex equivalent were ment of Corrections had to choose between finding was based on This purposes. application general parole statute Congress explicitly delegated the fact that or the section under which the particular commission to authority petitioner was convicted. Love did not in- rules; guidelines promulgate volve a over the thrust opinion difference of congressional product were indirect an statute, but California can be found in reasoning action. Similar applica- officials were confronted with the Parole Commis- Geraghty v. United States opinion, In our tion of alternate statutes. siоn, (3d Cir.1978). that 579 F.2d 238 of a different completely the ex post that the court determined prisoner’s closely law to a sentence more to retroactive increase applies facto clause approximates of abuse the ex type by rulemak- punishment brought about prevent facto clause was intended to than a legis- equivalent ing, “the administrative of a opinion difference of about the reach its expressed at 266. The court lation.” Id. subject judi- statute that had never been escape allowing Legislature disfavor at scrutiny. cial power on its constitutional limitations differences, Apart particular from these through delegation. generali- we cannot subscribe to the broad situation, it is clear First, Lerner’s the Love court. zation advanced not involved in legisla- Legislature was by ignoring any distinction between decision, directly either rules, board’s eligibility Love fails to interpretive tive and The board’s determinations expressed indirectly.5 the current views comport with January considering applica- Assembly guidelines individual 5. The General P.L.1982, today require specify specifically the board to enacted ch. which tions session Reenactment) category criminal offenses what 13- for each is cited as G.L.1956 ordinarily requires pa- portion legislation inmate now of a sentence 8-14.1. This annually, specific expected adopt, to serve before he or she at least would be role board applications parole. The statute also which it will evaluate would be released on criteria writing requires reduce to that are to serve as the board The criteria regard to his date were made do so. The record indicated that there was without the express authority legisla- of the no prohibiting entry drug- notice into the Further, tive branch making to do so. located, store where the lunch counter was decisions, parole board did not act in a Supreme but the Carolina con- South Court legislative manner. The which a process by strued the statute so that it not applied conclusion was appeared reached informal. only entry the act of but also to the act The board sought attorney advice from one remaining premises on the after being general and followed his advice but subse- Brennan, told to leave. Mr. Justice in writ- quently received other advice from the ing majority, explaining after first present attorney general. conflicting The that due process requires criminal statute opinions have led to There litigation. give warning fair of the conduct that it debate, hearings, no record of formal criminal, seeks to make observed that addition, discussion of the issue. once right warning to fair can be not only denied made, the decision was no statement of by “vague statutory language but also from decree, policy, or formal letter was issued. judicial an unforeseeable and retroactive parole could board not have been less expansion precise of narrow and statutory legislative in its actions. The board’s inter- language.” Id. at S.Ct. pretations are in statute no L.Ed.2d at 899. way the delegation result of a of the Gener- board, when gave it first Ler- al Assembly’s legislative prerogatives. For ner eligibility subsequently status and then reasons, the above reject we Lerner’s ex took away, engaged judicial was not post facto claim uphold the actions of legislation that was nullified in Bouie. The the parole board. change viewpoint is similar to Due Process one exhibited an individual who receives When Lerner was justice, before the trial conflicting advice after with consulting two he also challenged propriety attorneys. or more Our examination of change in his eligibility due-proc- status on 13-8-13, speaks the statute that grounds. ess justice the trial eligibility for a who may serv- well aware of the grounds upon which Ler- sentence, ing a life precise is nowhere so claim, ner due-process based his in granting statute, the South Carolina antitrespassing relief he rested grant solely on the ex especially as it concerns consecutive life post facto question. due-process Since the gains sentences. Lerner nothing from level, issue was properly raised at the trial ruling in Bouie. we shall consider it here. pursuance due-process further of his There are several facets to Lerner’s claim, charges change Lerner next that the due-process claim. he us to Initially, refers in his eligibility “fundamentally status was Columbia, City Bouie v. unfair” v. Helge and refers us to Breest 12 L.Ed.2d 894 and then moe, (1st Cir.1978), 579 F.2d where claims board should be con ruled that a New First Circuit Court sidered in the same as the light judicial alter life sen Hampshire trial court could body Supreme faulted the United States mur imposed following first-degree tence engaging Court in Bouie for in what was comply der conviction so as to with a stat equivalent described the Court as the required indicating ute that a certificate lawmaking. In Bouie whether “psycho- Court was concerned or not the homicide was with a 1960 lunch- certified, in nature.” If so the pris counter “sit-in” and a Carolina anti- sexual South trespassing statute a crime оner’s status is affected. severely that made it Court, enter the receiv The while property noting another after Circuit from the not to property justice impose notice owner trial had a a sentence duty applications rationale whatever it takes on and all action statute, that with complied 707, 708, 246, the certification 418 (1979). N.Y.S.2d 248 expressed thought that the power of a Department Ferrelli v. of Employment Se sentencing court to correct an invalid sen- 588, 261 curity, (1970), 106 R.I. A.2d 906 this tence expressed a court similar view toward the subject

“must be some temporal estoppel limit. against the defend ** * time, After a period substantial ant on the basis of the conduct of one of its therefore, it might be un- fundamentally case, agents. In that we held that in proper fair, and thus violative process of due for a public agency may circumstances be es- a court to alter even an sentence in illegal topped denying representations from made way which frustrates a prisoner’s ex- agents its an causing individual to act to pectations by postponing parole eligi- his upon his detriment in reliance those state bility or release date far beyond that ments. The facts and circumstances of set.” Id. at originally each case must be closely scrutinized to justice requires determine whether the im The remarks offered by the First Circuit position estoppel. v. Schiavulli School limiting power Court about of a trial Providence, Committee of North 114 R.I. court to correct an “invalid sentence” were 443, 448-49, 416, 419 334 A.2d pure many dicta. It should be noted that courts with expressly disagree the comment In the Lerner asserts present that in Breest and have held illegal that an he and acted on the family assumption sentence be altered or corrected at may any eligible that he would be in 1979. 126; time. Bynoe, United States v. 562 F.2d His wife and children moved from Massa- (1st States, Cir.1977); 129 Burns v. United advantage chusetts to Rhode Island to take 828, (8th Cir.1977); 552 F.2d 831 People v. furlough of the increased visitation and Favors, 263, 264, 78, Colo.App. 42 600 P.2d privileges they parole-eligi- believed a State, (1979); 79 Coles v. 290 Md. enjoys. ble inmate This belief is erroneous. (1981); 429 A.2d 1032 v. Burk is limited only work-release status hart, (Tenn.1978). 566 S.W.2d eligible parole, who are Fry, State v. 61 Hawaii 602 P.2d session, January the court held that a seven- P.L.1977, passage with the ch. made erroneous year delay original between the furlough privileges available to an inmate and its correction was not so sentencing imprisonment sentenced to life after he has unreasonable as to amount to a denial eight years served of his sentence. This process. Although due the dicta in Breest change is now embodied in G.L.1956 speculative justify it is too interesting, Thus, an in- Reenactment) 42-56-18. a decision on Lerner’s behalf. We see noth may, mate within the discretion of the clas- holding supports Breest which board, the benefit of fur- enjoy sification due-process Lerner’s claim. loughs of whether or not he is regardless family’s reinstate his His move to a attempts

Lerner also was not so fruitless parole eligibility by having nearby this court rule Cranston home Assuming that the state is from him as Lerner would have us believe. estopped denying however, were, testimony given at that status. He claims that he relied Court, he which is now original position hearing when Federal record, grave that no part made certain decisions re of our indicates family and his rule, general their future. As a suffered in this move. Mrs. Lerner garding loss was doing her children have been estoppel courts are reluctant to invoke testified that schools, Island and aside from against government on the basis of well Rhode daughter’s temporary problem, v. health McCoy action of one of its officers. her effects from State, (Del.1971); they Austin have not suffered ill 277 A.2d Austin, (Fla.Dist.Ct. only appar- economic loss v. this move. So.2d Berle, the fact that ently 71 A.D.2d suffered resulted from App.1977); McLaughlin apartment Massachusetts the Lerners interest in whether and when an inmate is vacated belonged parents. to Lerner’s Mrs. First, deemed for parole. pa- Lerner arrangement testified that this had role-eligible inmate may enjoy the benefit represented savings a definite financial of work release not available to other in- Island, her. By moving to Rhode she and mates. generally prison- This involves the longer her children could no take advantage er’s participation in activities outside the savings. of this prison. It is important public safety for the and welfare enjoyed that benefit be In addition to this move his wife by and only by those inmates who come the within children, Lerner testified that his mother reach pertinent statutes. In addi- opened had a business in Rhode Island for tion, bestowing parole eligibility upon one the express purpose creating an employ- yet punished who has not as been properly ment opportunity for him should he be pa- for his crime to the extent intended the by roled. We accept cannot this action as a injustice upon works an the vic- basis for applying estoppel against the state tims of the crime or their families as well as First, two reasons. establishing a the citizens of the state. son, business enterprise solely help her Lerner’s mother taking was а risk that he us, therefore, We have before a case in would not be paroled granted even if eligi- public which the interest greatly outweighs Second, bility Lerner, status. according to any possible injury by suffered the petition- the opened business in March of 1978 and as If the estoppel er. doctrine is to be invoked of the date of his testimony in Federal against government only in those in- Court, October the business had ex- justice stances in which right so re- panded to three different locations in Rhode it quire, is clear that Lerner cannot com- Island. the financial condition of imposition. mand its the business was never actually subject a come that We facet of Lerner’s inquiry, rapid such expansion indicates that due-process in which he claims argument the business is flourishing. No economic acquired protected liberty that he a interest harm appears to have resulted from this at the moment in 1979 when the parole venture. board first told him that he was facts, therefore, From these it is difficult parole. argument This is meritless. to see how the misstatements of the board induced action changed that Lerner’s Supreme The has twice held Court position to his disadvantage. Even if we due-process within recent times that accept contention that these events oc- give clause does not an inmate a constitu curred solely on the basis of his imminent tionally protected simply interest be liberty parole eligibility, apparent it is that none cause state provides possibility have a grave hardship inflicted on either Curen, 14, 102 v. Van parole. Jago U.S. Lerner or his family. (1981); 70 L.Ed.2d 13 Greenholtz v. S.Ct. Inmates of the Nebraska Penal and Correc determining estoppel whether In an tional 99 S.Ct. appropriate against Complex, device to use U.S. government, The state is under no only we must not consider the L.Ed.2d 668 problems petitioner, obligation operate encountered but constitutional does, we must the mere public system, also be mindful inter and even when it Wharton, not a fortiori re possibility est involved. United v. does States 406, 412-13 release. (9th Cir.1975); protectable expectation 514 F.2d Beacom sult in a Rather, Equal Employment Opportunity phrased Commis the state statute must be sion, legitimate F.Supp. (D.Ariz.1980). way in such a creates just and not a unilater prison estop this case a inmate seeks to claim of entitlement Greenholtz, 442 at denying parole- board from his 1979 al hope 7-12, 2103-06, strong has 60 L.Ed.2d eligibility public date. Thus, pro- Judiciary whether a state statute referred to the Senate Com- 675—78. bill, “An question vides a entitlement is a which was entitled protectable mittee. cаse-by-case Permitting that must be decided on a ba- Inmates under a Life Act Sen- sis. in Ten Eligible to be for Parole tence Years,” amended would have 13-8-13. seeking to determine the existence or accompanied legislation The proposed protectability nonexistence of the of Ler- Legisla- explanation prepared an status, ner’s now turn to the we read, permits “The act tive which Council statutes, is, 13-8-8, -9, relevant §§ paroled a life sentence to be inmates under -12, -10(a), and -13. 13-8-8 sub- Section emerged The bill from years.” after ten jects required who is to serve a any prisoner April Judiciary Committee sentence in excess of six months at substitute, S-473, A. The Substitute juris- Adult Correctional Institutions Permitting “An Act which was entitled Any person, diction of the board. or Lengthy a Life Sentence Inmate Under of a known as a exception with the Eligible for Parole Ten Sentence “lifer” or a “habitual criminal” who is serv- Years,” requisite way through made its sentence, because of the single may, a channels and became law on legislative 13-8-9, paroled of be after provisions § 30, 1970. April having served one-third of the sentence. If simulta- prisoner” “such is confined while two of re- gave types bill substitute sentences, neously serving two or more such groups prisoners. lief of To to different is parolе eligibility an individual’s deter- sentence, to serving those an indeterminate mined, earlier, by provisions as noted of wit, life, period eligibility waiting prisoner serving 13-8-10. A consecutive § years, to ten and twenty was reduced from serving sentences is after serving were sen- prisoners to those who a of the total equal term to one-third ineligible making tences them sentences, prisoner of the and a amount 13-8-9 and ten under years §§ less than serving concurrent sentences -10, of ten period arose after a served one- prisoner once the has Legislature, It is obvious years. imposed. of the maximum sentence A third serving the lifer a affording relief to when paroled by criminal can be virtue habitual sentence, op- that the same single believed serving 13-8-12 after at least five of § prisoner afforded a should be portunity of the enhancement years twenty-five-year one serving who was as an individual such period described in 12-19-21.6 § as two terms such lengthy or more definite for rob- sentences thirty-year consecutive 1979, time Lerner claims he In March respectively. bery rape of relief parole eligible, became source He was the was to be found in 13-8-13. § 9, Earlier, advisory 1980 in the October legislation 1970 that had beneficiary of the Governor, majority of the a opinion to the the time twenty years reduced from to ten responded who justices of this court had to prisoner serving a a life sentence of the opin- were inquiry chief executive’s reaching parole eligibility. serve before never in- Assembly ion that the General beneficence ten-year for the tended to extend The Rhode Island Journals Senate A, S-473, pris- to a March contained in Substitute 1970 indicate that on January session life sen- serving consecutive was introduced oner who was bill S-473 Senate subsequently any person be con- has been such individual should 12-19-21 who an 6. Under § felony committing in this committing, another previously of on at least victed convicted of imposing state, justice, occasions, first a felony after is sen- the trial and thereafter two a felony then penitentia- the commission prison sentence for to a tenced committed imposition him, en- regarded the time of ry before shall at as a on each conviction is to adding of a further term regard to whether hance the sentence “habitual criminal” without Sitko, twenty-five years. up State v. See this state in a court of the conviction occurred R.I., (1983). country. any 457 A.2d 260 If or of other state or other re- Advisory Opinion regarding parole In re to the Gov- to make decisions tences. ernor, R.I., (1980). decisions, 421 A.2d How- are reаlity, lease. These ever, knows, opin- everyone advisory future behav- predictions based on opin- ion the individual merely represents prospective parolees. scope ior of justices ions of the of this court ‍​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​​​‌​‌‌​‌​‌​​​‌​​‌‌‌​​‍and is not a the condi- ‘predictions’ these is limited * * * Re- binding precedent. Romeo v. Cranston tions outlined in 13-8-14. As § development Agency, R.I. seen, readily the board could find can be A.2d why of reasons a did number Today, majority of this court are of the up not measure to these standards.” It opinion. same is clear 13-8-9 §§ 369-70, at 367 A.2d at 709. R.I. and -10 address themselves to the Nebraska v. Inmates of Greenholtz serving length a sentence or sentences the Complex, 442 U.S. Penal and Correctional of which time imposi- was known 60 L.Ed.2d 668 99 S.Ct. tion. The lifer and criminal the habitual Court, considering a Nebraska Supreme 13-8-9, specifically are from exempted § more restric- considerably statute that and it is obvious that the concurrent and 13-8-14, rejected a prisoner’s tive than § provisos consecutive 13-8-10 refer to of the statute language contention that those sentences whose terms are definite. expectation pa- “proteetible created nothing language There is 13-8- role,” of a pointing out that the existence 13 which justify would the conclusion that statutory expectation mere did not mandate an individual such as Lerner who has been repeated adversary hearings in order guilty committing found two murders confinement. Id. at continue a convict’s pa- should receive the benefit of the same 60 L.Ed.2d at 679-80. Our role-eligibility provisions as are indicated no greater expectation statute creates serving for one who is a life sentence for Thus, having counterpart. committed one murder. Ler- than its Nebraska liberty ner was not and is not entitled to be con- Thus, Lerner had no protecta- we find that sidered for parole until he has served at ble entitlement twenty years least at the ACI. upon bestowal of work release The state’s Our examination of the state’s law him the give requisite pro- Lerner did not makes it clear spring in the of 1979 An 42- liberty. tected examination § justifiable Lerner had no expectation indicates that those clearly 56-21 parole in ten years. At that time G.L.1956 “may permitted for work release (1969 Reenactment) 13-8-14 stated that § such condi- community work” in the under a prisoner paroled would not be unless it the director of the tions and restrictions as appeared (1) to the board that the prisoner Department designate of Corrections or his deserving of such of his parole because language clearly may impose. quoted good conduct while in and thаt such prison degree the of discretion that demonstrates prisoner had shown a to reform disposition in the authorities at the ACI. is vested (2) and the would be able to secure if Lerner had in fact been Even employment upon parole and thus not be- not, in March there was a public charge. guidelines come These moment, obligation is not at the there little, upon if limitation the any, constituted prison authorities part on the discretion, for as we observed participant permanent consider him a Ouimette, 117 R.I. 367 A.2d in State v. program. ACI’s work-release (1976) (after noting provisions 704 sustained, respondents’ appeal 13-8-14), § vacated, from is appealed judgment Board, spe- because of its “The Parole with Superior Court case is remanded granted an ex- expertise, cial has been petition. to dismiss Lerner’s of discretion direction traordinarily broad amount 1366

BEVILACQUA, Justice, Chief dissenting. “the law annexed to the crime” because parole eligibility is effectively determined The majority on this court conclude that the time sentencing based on the Superior justice granting Court erred in length of the sentence. See Warden v. petition Maurice Lerner’s postconviction Marrero, 94 U.S. relief because the revocation of Lerner’s (1974); 41 L.Ed.2d Geraghty parole-eligible status is not a violation of Commission, v. United States Parole post ex facto clause or due-process (3rd Cir.1978). F.2d Additionally, clause. After careful consideration of the although the pertinent statutory provision law, record and the relevant I agree with regarding parole sentenced to justice’s trial conclusion that the revo- imprisonment, 13-8-13, life was enacted and, cation violated § the ex facto clause therefore, alleged 1970 and the crime occurred in I dissent. respectfully In view of 1969, the 1970 my position the ex version does constitute “the regarding post facto crime, claim and the fact law annexed to when adoption of this commit- position case, would be ted.” Lerner in 1970 when dispositive of was sentenced is unnecessary to address the other issues the amended version of 13-8-13 was en- § raised the parties.7 provid- acted. 2 of that statute Subsection ed: Both the United States and Rhode Island pas- “This act shall take effect provisions Constitutions contain prohibiting of acts sage parts and all acts and incon- laws, and each clause is virtu hereby repealed.” sistent are herewith Const., ally identical to the other. See U.S. I, 10; Const., I,

Art. R.I. art. Therefore, effectively only pro- this was Ball, Calder Dall.) 1 L.Ed. U.S. vision in effect at the time of the commis- Supreme United States sion of the time of sentenc- the crime and Court enumerated four types of laws that ing.8 the ex post facto clause prohibits, including: Furthermore, recent United States Su- “3d. Every changes punish- law that Marrero, preme Warden v. Court ment, and inflicts a greater punishment 2532, 41 L.Ed.2d 383 94 S.Ct. crime, than the law annexed to the when (1974), indicates that the Court would con- committed.” parole eligibility sider a revocation of I believe that the action of the Parole “punishment” within the terms third revoking Board Lerner’s sta- parole-eligible category prohibited acts enumerated in tus falls within category prohibited this v. Bull. In v. Marrero the Calder Warden acts. statutory whether a no- Court considered drug offend- parole provision for convicted parole-eligibility provisions our ers, petition- which after the repealed are contained in a different title from the was of a de- sentencing, statute certain conduct a crime and er’s was an element making providing the term of of a imprisonment “punishment” purposes fendant’s crime, issue, that 6f this they part savings discussing are still considered clause. amendment, Notwithstanding my dissenting parole board the fact that 8. After the 1970 issue, opinion only I applied addresses sentenced this statute to all position espoused continue to adhere to the my I regardless imprisonment, to life of when those Advisory Opinion dissent in In re to the imposed, that this sentences were on the basis Governor, R.I., is, (1980), 421 A.2d 535 that only legal in effect. The chief was the statute enacting Legislature that the intent of the Department of Corrections counsel of the prisoners in- § 13-8-13 in 1970 was to allow (at Attorney Department of the lengthy carcerated tenced to for gardless sentences or sen- under 1978) through in- concurred in this least terpretation. both imprisonment for life to be years, having ten re- after served many imposed of how are or sentences they the fact that are to -beserved consecutive- ly-

1367 reasons, courts, Court noted the two following decisions of its or the acts of ad- others, for executive boards or offi- among concluding ineligibil- ministrative or cers, doings corporations or indi- ity is an element of a defendant’s 162, 222-23, viduals.” Id. at 33 at punishment: S.Ct. at 463. 57 L.Ed. “First, only prisoner an unusual could be to think that he expected was not suffer Court, however, qualified The Ross ing penalty a he eligibil when was denied declaring: statement Ross, ity parole. See United v. States uniformly holding “But whilst thus 376, (CA2 1972); 464 F.2d 379 United legisla- the provision against is directed 1196, DeSimone, v. 468 States F.2d 1199 acts, tive, judicial, this court with but not * * * (CA2 Second, 1972). a repealer uniformity regarded likе has it as reach- parole eligibility previously available to ing every legislative form in which the imprisoned offenders would clearly exerted, of a whether it be power State present the serious the ex question under constitution, a constitutional amend- a I, 9, 3, facto clause of art. cl. ment, legislature, an enactment of the a Constitution, imposed of whether it a by-law municipal corpo- or ordinance of a ‘greater punishment or more severe than ration, regulation or a or order of some prescribed by law at the time of the exer- instrumentality other of the State offense,’ Dakota, ... Rooney v. North cising delegated legislative authority.” 319, 264, 265, 162-63, 223, 196 325 49 U.S. S.Ct. Id. at at 57 L.Ed. at S.Ct. [25 (1905) added). L.Ed. (emphasis See 463-64. 494] Fitzharris, (CA9 Love v. 460 F.2d 382 person imprisoned by A a court is turned 1972); cf. Lindsey Washington, v. agency, over to an administrative 797, U.S. 397 S.Ct. 81 L.Ed. [57 1182] board, for execution of his sentence. As (1937); Minnesota, Holden v. 137 U.S. Fazzano, this court stated in v. 96 R.I. 491-92 34 L.Ed. S.Ct. [11 194 A.2d in con- (1890); Calder v. Bull U.S. 734] [3 sidering separation-of-powers question: 390], (1798); 3 Dall. 390 L.Ed. [1 648] have power “Courts no determine United ex rel. States Umbenhowar system; this is within the ex- penological McDonnell, (N.D.Ill. F.Supp. jurisdiction Legislature.” clusive 1934).” 662-63, power exercised that 2538, 41 L.Ed.2d at 392. enacting chapter provides title which I would conclude from these comments that board, enu- for the creation a revocation of status af- parole-eligibility functions, guide- and sets out merates granted ter it has been inflicts func- performance lines for the of those greater punishment a prisoner. such (1981 Reenactment) tions. G.L.1956 See point disagreement my- between to 13-8-29. 13-8-8 the 13-8-1 §§ self and the other members of the court is Legislature granted parole board the resolution of the issue of whether prison- to exercise control over a authority policy re- alteration pursuant statutory er’s sentence garding the 13-8-13 which § 13-8-8 states: guidelines. Section eligi- resulted in the revocation of Lerner’s any of- person “Whenever a convicted of for is a “law” within the mean- bility parole imprisoned be sentenced to be fense shall the ex facto clause. institutions for a in the adult correctional months, (6) than his period of more six Oregon, 33 S.Ct. Ross subject the con- sentence shall be to such Court, L.Ed. 458 the in dis- parole the board as hereinafter trol of the of action that the ex cussing type provided.” prohibits, clause stated: to the legisla- delegates authority This the “The is aimed at statute prohibition State, parole sys- administer the parole and not at the board to power tive tem pursuant subsequent to the provisions were to be served or concurrently consecu- which set requirements forth the minimum tively, eligible would be for parole after parole for eligibility for sentences of differ- serving years. ten ent types and duration. See 13-8-9 to §§ interpretation This was consistently ap- function, 13-8-13. In performing this plied to Lerner’s case from at least August parole parole eligibili- board sets a date for 1976 until approximately October 1979. In ty particular of a prisoner relying on the 1976, at specific request the director terms of the relevant statute as understood Corrections, Department by the board.9 both the legal depart- chief counsel parole Lerner’s board as- ment and Attorney approved sumed control over his sentence when he interpretation applied to Lerner. began serving point, term. At that Based the understanding that he parole board made a determination of when eligible would be for in ten parole years, Lerner eligible would be for parole pursu- brought Lerner was before the classifica- 13-8-13, ant which specifically pro- § tion in serving board 1976 after seven years vides for the “Parole of prisoners life and and sent to security the minimum section of prisoners with lengthy sentences.” Section After serving eight ACI. Lerner years, 13-8-13, prior to its granted amendment in was furloughs approximately onсe effect, which had only prospective stated: a month.11 In March 1979 Lerner was con- eligible sidered parole for and went before “In prisoner case of a sentenced to im- parole board for the first time.12 ‍​‌‌‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​​​‌​‌‌​‌​‌​​​‌​​‌‌‌​​‍Parole life, prisonment for permit such may denied, was he returned and was issued time after such prisoner has minimum-security facility. He was served not (10) years impris- less than ten * * brought again Septem- before the board onment again ber and the board denied him The statute contains no limitations restrict- parole. ing its applicability prisoners “serving” life sentences —it is clearly applicable In October because of an assistant imprisonment.” to life attorney general’s questioning of Lerner’s “sentenced section, There is no distinction made in this parole-eligible, status as the chairman of or elsewhere in this chapter, between a confirma- again requested board prisoner’s receiving one life sentence or sev- tion of the that had been in effect practice eral life sentences to concurrently be served new years several from the administra- or consecutively. Consequently, tion in the office. The Attorney General’s adopted board the position Attorney response that under General’s was that аny prisoner impris- 13-8-13 sentenced to erroneous practice life, onment regardless many of how language that the intent of the 13-8- sentences were whether imposed they prisoner 13 was that a sentenced to consecu- testimony 9. Neither the board nor the 11. Lemer’s in the United States Dis- Boyle empowered Judge particular trict indicated that Court before to mandate a con- “system” up They interpretation there was a set for lifers. legal- struction or of a statute as years, eligible after ten ly would be binding. interpretation The construction and security for transfer to the minimum judi- of statutes is an exclusive function of the years, facility for fur- after seven ciary. Const., See Rhode Island amend. eight years. periods loughs These time after 1 and §§ 2. allegedly presumed were based on all lifers’ parole-eligibility years dates ten from the date 10. This version of the statute took effect of incarceration. repealed prior provi- 1970 and all inconsistent Previously, provided sions. the statute that a date in March 1979 was arrived at imprisonment sentenced to life must calculating years ten from the time of Lemer’s twenty years serve not less than before becom- pretrial August incarceration in 1969 minus a ing eligible See P.L. ch. participation in the few months credit fоr his § program. blood-donor tive life sentences must serve not less than interpretation administrative which sub- ten years jects prisoner already on each life sentence sentenced to imposed punishment before more severe has the same becoming eligible for As a parole. lengthening effect as a new statute result of this in policy, reversal Lerner was * * * present term each ‘alters the situa- returned to the security facility maximum disadvantage’ tion of the accused to his furlough and denied all This privileges. * * * prohibited by and each is the Con- change practice regarding application stitution.” Id. at 385. 13-8-13, of which resulted in the revoca- § status, parole-eligible tion of Lerner’s after board was parole charged by consistently adhering to practice a different ap- with the enforcement and years, at least three violates the clearly plication of the parole-eligibility provisions prohibition against facto laws. within control 13- sentences its under § 8-8. There existing pro- was no court I believe Lerner relying is correct in meaning nouncement on the intended Fitzharris, the case of Love v. 460 F.2d 382 13-8-13 when the parole initially board § (9th Cir.1972), because the facts are virtual- to Lerner’s applied case. The ly identical. The minor distinctions made policy construing board followed its majority do not affect the thrust of statute to require that a sentenced reasoning of the case or its applicability imprisonment to life years must serve ten to Lerner’s situation. becoming eligible before parole, regard- The Love case interpretation involved the less of how many imposed sentences were of the relationship between a general penal- or how were to be they served.13 Subse- code provision regarding parole eligibility quently, as result of consultation with the of consecutively sentenced prisoners and a Attorney new the latter during mandatory minimum-imprisonment require- part of the parole board revised its ment for the particular offense committed. policy regarding parole prison- After informing Love of his parole-eligibili- ers sentenced to consecutive life terms. ty date provision, under one Depart- There pronouncement was still no court re- ment of Corrections revised policy its re- garding meaning garding the relationship between these pro- Therefore, 13-8-13.14 the original prac- visions, which resulted in being Love’s re- tice of the subsequent board and the quired to serve longer period imprison- change policy had the force and effect of ment before becoming eligible parole. change law. The poli- In affirming the granting petition of Love’s cy resulted in the revocation of Lerner’s for habeas corpus, the Ninth Circuit Court existing parole-eligible required status and of Appeals stated: longer that he serve a period imprison- “Absent a court pronouncement on the being ment before considered parole-eligible matter, the interpretation of the relation- again, thereby inflicting pun- a more severe ship between the placed upon statutes ishment.15 I would therefore hold that this them agency administrative action of the board violates the ex charged with their enforcement has the post facto clause of the United States * * * force and effect of law. A new Rhode Island Constitutions. policy established, however, approved legal (1980). 13. This the chief It is well an Department counsel for the advisory opinion by binding. of Corrections and this court is not Attorney General. See, Governor, e.g., Opinion to the 109 R.I. 284 A.2d changed practice 14. After the board Attorney as a result of the advice of the new emphasized only 15.It must be Lerner General, requested advisory the Governor parole. seeks to retain his status as opinion regarding applica- from this court asserting any right He is not to release on tion of 13-8-13 to sentenced to two Advisory consecutive life terms. See In re Governor, R.I., Opinion to the 421 A.2d 535

Case Details

Case Name: Lerner v. Gill

Court Name: Supreme Court of Rhode Island

Date Published: Aug 5, 1983

Citation: 463 A.2d 1352

Docket Number: 82-208-C.A.

Court Abbreviation: R.I.