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David Hanson v. State
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MAINE SUPREME JUDICIAL COURT		Reporter of Decisions
Decision:1998 ME 221
Docket:Yor-97-639
Argued:	September 11, 1998
Decided:	October 1, 1998


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and 
	ALEXANDER, JJ.

DAVID HANSON

v.

STATE OF MAINE

WATHEN, C.J.


	[¶1] Petitioner David Hanson appeals from a judgment of the Superior
Court (York County, Brodrick, J.) denying his petition for post-conviction
review.  Petitioner argues that the reinstatement of criminal sentences, after
he was discharged from those sentences, violates his due process rights. 
Finding no fundamental unfairness, we affirm the judgment.
	[¶2] The facts as developed at the hearing on post-conviction review
may be summarized as follows: In 1987, petitioner entered guilty pleas to
aggravated assault (17-A M.R.S.A. § 208 (1983)), two counts of reckless
conduct with a firearm (17-A M.R.S.A. § 211 (1983)), and one count of
falsifying physical evidence (17-A M.R.S.A. § 455 (1983)).  The charges were
set forth in three separate indictments.  The count of aggravated assault and
one count of reckless conduct were set forth in the first indictment.  The
second charge of reckless conduct was set forth in the second indictment,
and the charge of falsifying physical evidence was set forth in a third
indictment.
	[¶3] With respect to the first indictment, the court sentenced
petitioner to ten years for aggravated assault and five years for reckless
conduct.  The court imposed a sentence of five years with all but two and a
half years suspended for the second charge of reckless conduct, and 364
days for falsifying physical evidence.  All sentences except the last were to
be served consecutively.
	[¶4] After petitioner commenced serving his ten year sentence for
aggravated assault, the District Attorney filed a presentence detention
certificate mistakenly stating that petitioner had spent 523 days in custody
pending final disposition of that charge and the reckless conduct charge in
the first indictment.  In accordance with the District Attorney's certificate,
the Maine State Prison credited petitioner with 523 days.  With credit for
good time, he was discharged from that sentence on August 25, 1992.
	[¶5] Petitioner then commenced serving the consecutive sentence
imposed for reckless conduct in the same indictment.  The prison once
again credited him with 523 days of time served, and he was discharged
from that sentence on October 9, 1994.  Petitioner then commenced
serving the consecutive sentence imposed for reckless conduct in the
second indictment, and he is currently serving that sentence.  Throughout
his imprisonment, petitioner has received standard monthly reports that
show an advancing release date.  He applied for and was accepted into
programs reserved for prisoners entering their final six months of
incarceration and has made plans for his release.
	[¶6] In 1995, after the first two sentences had been discharged, the
Attorney General's Office, responding to a victim's concerns regarding
petitioner's release date, discovered errors in the District Attorney's
presentence detention certificate.  The State then filed a corrected
certificate stating that petitioner was entitled to only 311 days of credit with
respect to the first indictment because he had been released on bail for 212
of the 523 days.  Beyond that, the State certified that pursuant to 17-A
M.R.S.A. § 1253(2) (1983 & Supp. 1997),{1} petitioner was entitled to credit
on only one of the charges, not both.  The prison subsequently reinstated
212 days on the first sentence served and 523 days on the second sentence
served, thereby extending petitioner's final release date.
	[¶7] Petitioner petitioned for post-conviction review alleging that his
due process rights had been violated by the recalculation of his sentences. 
The Superior Court denied defendant's petition and this appeal followed.
	[¶8] Petitioner does not disagree that he was detained for only 311
days prior to disposition and that the original certificate was in error.  In
State v. Brooks, 589 A.2d 444 (Me. 1991), we held that a defendant is "not
entitled to presentence credit on a subsequent charge if this would result in
an award of presentence detention credit greater than the total number of
days actually spent in jail." Id. at 448.  We explained that 17-A M.R.S.A. §
1253(2)  dictates that a criminal defendant cannot be credited with
presentence detention on multiple sentences that are to run consecutively. 
See id.  Although the facts in Brooks involved a subsequent charge, the same
principle applies to consecutive sentences arising from contemporaneous
charges set forth in the same indictment.  Therefore, granting petitioner
311 days of presentence credit on both the aggravated assault and the
reckless conduct sentences violated the statute by crediting him with more
than a day-for-day allowance for the time he served prior to sentencing.  
	[¶9] Petitioner contends, however, that the reinstatement of portions
of his sentences after discharge violates his due process rights.  In Austin v.
State, 663 A.2d 62 (Me. 1995), we noted that "[a]lthough the State generally
is not prohibited from reinstating a criminal sentence that has been reduced
unlawfully, there are temporal limits imposed by due process and notions of
fundamental fairness on corrective actions." Id. at 63.  In the most extreme
circumstances, the reinstatement of a discharged sentence could be
fundamentally unfair and thus violative of due process.  See id. at 64.
	[¶10] In Austin, we referred to the factors found relevant in DeWitt v.
Ventetoulo, 6 F.3d 32 (1st Cir. 1993), in determining whether due process
was violated when a sentence was reinstated.  See Austin, 663 A.2d at 64. 
On the facts presented in DeWitt, the court identified as relevant the lapse
of time between the error and the revision of the sentence, the defendant's
contribution to the mistake, the reasonableness of the defendant's
intervening expectations, the prejudice resulting from the revision of the
sentence, and the diligence exercised by the State in correcting the
mistake.  See DeWitt, 6 F.3d at 35.  An additional consideration is whether
the defendant remains in execution of the sentence being corrected.  See
id.; Austin, 663 A.2d at 65.
	[¶11] We are not persuaded that the Superior Court erred in ruling
that petitioner's due process rights were not violated by the correction of
his sentences for aggravated assault and reckless conduct.  Although there
was significant delay in correcting the presentence detention certificate,
the prejudicial impact of that delay is tempered by the fact that petitioner
was never released from incarceration.  In DeWitt, the defendant had been
released for nine months and had reestablished family and social ties when
the State attempted to correct its mistake.  See DeWitt, 6 F.3d at 35.
	[¶12] Although petitioner did not contribute to the State's
miscalculation, his expectation of release and the administrative treatment
of his sentences were based upon incorrect and unlawful credits.  The
correction of these sentences prejudiced him only in that his expectation
concerning a final release date had to be adjusted and his participation in
prerelease programs was delayed.  The detriment to a defendant must
involve "'prejudice and harm beyond frustrated expectations' to be
constitutionally redressable." Littlefield v. Caton, 856 F.2d 344, 348 (1st Cir.
1988) (citing Lerner v. Gill, 751 F.2d 450, 459 (1st Cir. 1985)).  Despite the
obvious importance of a settled release date, the detriment to petitioner
must be more extreme in order to foreclose the State from correctly
applying the law.
	[¶13] Although there is no evidence that the State has undertaken a
comprehensive review of presentence detention credits since we clarified
the law in Brooks, the State's compelling interest in correctly imposing
imprisonment outweighs Hanson's interest in a final release date.  The
Superior Court did not err in concluding that this is not an extreme case in
which the reinstatement of the sentences was fundamentally unfair.
	The entry is:
				Judgment affirmed.
                                                                  
Attorney for petitioner:

Kenneth D. Keating, Esq, (orally)
P O Box 605
Springvale, ME 04083

Attorneys for State:

Andrew Ketterer, Attorney General
Joseph A. Wannamacher, Asst. Atty. Gen., (orally)
6 State House Station
Augusta, ME 04333-0006