ORDERS:
ORDER
I. STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Barkim L.A. Shabazz, an inmate
incarcerated with the South Carolina Department of Corrections ("Department") since April 27, 1998, when he was sentenced to five
years for each of three crimes committed on May 22, 1997. The sentences for two of Inmate Shabazz's crimes were to run concurrent
with the sentence of the third crime. After Inmate Shabazz was told that his maxout date was November 15, 2002, and that he was
ineligible for parole, Inmate Shabazz filed a grievance on October 6, 1999. He received a Final Decision from the Department on
December 28, 1999. On January 25, 2000, Inmate Shabazz filed an action seeking review of the Department's Final Decision in the
Court of Common Pleas of Richland County. On March 30, 2000, Inmate Shabazz filed this appeal with the Division.
II. BACKGROUND
On April 27, 1998, Inmate Shabazz pleaded guilty to one count each of carjacking, malicious injury to property, and escape. As a
result, he was sentenced to five years for each crime, with the sentences for carjacking and malicious injury to property to run
concurrent with the sentence for escape. The sentence for escape was to run consecutive to Inmate Shabazz's prior sentences.
Pursuant to Inmate Shabazz's May 1998 request, the Department computed Inmate Shabazz's maxout date to be November 26, 2001.
The Department also informed him that he would become eligible for parole on November 29, 1999. Later, in October 1999, after
recomputing his maxout date, the Department informed Inmate Shabazz that his maxout date was November 15, 2002. In addition,
the Department's Disposition of Inmate Request stated, "You do not have a parole date. Your carjacking sentence has a mandatory
requirement of 4yrs 2 months and 30 days and is a non-parole sentence."
The Code of Laws of South Carolina classifies crimes as either felonies or misdemeanors. It further categorizes felonies into Classes
A through F. S.C. Code Ann. § 16-1-90 (1993). Class A, B, and C felonies are considered "no parole offenses." S.C. Code Ann. §
24-13-100 (1997). An offender guilty of a "no parole offense" earns "good time" credit at a rate of 3 days per month instead of the 20
days per month offenders of parole offenses are eligible to earn. See S.C. Code Ann. § 24-13-210(A), (B) (1995). On May 22, 1997,
carjacking was a Class "D" felony and carried a sentence of not more than fifteen years. See S.C. Code Ann. § 16-1-90(D) (1993); §
16-3-1075(B)(1) (1993). In 1998, however, the legislature reclassified carjacking as a Class "C" felony and increased the maximum
sentence to twenty years. S.C. Code Ann.§ 16-1-90(C) (1998); § 16-3-1075(B)(1) (1998).
III. ANALYSIS
The Division's jurisdiction to hear this matter is derived entirely from the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In Al- Shabazz, the Supreme Court created a new avenue by which inmates
could seek review of final decisions of the Department of Corrections in "non-collateral" matters, i.e., matters in which an inmate
does not challenge the validity of a conviction or sentence, by appealing those decisions to the Division and ultimately to the circuit
court pursuant to the Administrative Procedures Act. 338 S.C. at 373, 376, 527 S.E.2d at 752, 754. In its appellate capacity, the
Division is concerned with ensuring that the constitutional rights of the appellants are not violated.
A violation of the Ex Post Facto provision of the State and Federal Constitutions arises when a change in the law applied retroactively
increases the punishment for a crime. Jernigan v. State, 340 S.C. 256, 531 S.E.2d 507 (2000). The relevant inquiry in such a case is
"whether the legislative amendment 'produces a sufficient risk of increasing the measure of punishment attached to the covered
crimes.'" 531 S.E.2d at 509. A retroactively applied amendment that negatively affects an inmate's eligibility for parole works to
increase his punishment and thus is an ex post facto violation. See State v. Matthews, 296 S.C. 379, 385, 373 S.E.2d 587, 591 (1988)
(retroactive application of statute providing for ten-year increase in prison time before inmate becomes eligible for parole is ex post
facto violation).
In the instant case, the Department's application of Title 16 of the South Carolina Code of Laws to Inmate Shabazz's carjacking plea
results in an ex post facto violation. For crimes he committed on May 22, 1997, Inmate Shabazz pleaded guilty to one count of
carjacking as defined by S.C. Code Ann. § 16-3-1075(B)(1) (1993), the statute in effect at the time Inmate Shabazz committed the
crime. At that time, carjacking was classified as a Class "D" felony and thus was a parole offense. Carjacking was not made a "no
parole offense" until May 26, 1998, See S.C. Code Ann. § 16-1-90(C) (1998), over a year after Inmate Shabazz committed the crime
and a month after he was sentenced. (1) Therefore, the Department's designation of Inmate Shabazz's carjacking offense as a "no
parole offense" violates the ex post facto clause.
Moreover, the Department's erroneous designation of Inmate Shabazz's carjacking offense as a "no parole offense" affects more than
just Inmate Shabazz's ability to be paroled. By statute, inmates serving sentences for "no parole offenses" are eligible to earn good
time at a rate of three days per month. In contrast, inmates serving sentences for parole offenses are eligible to earn good time at a
rate of twenty days per month. Therefore, based on the Department's erroneous application of Title 16, Inmate Shabazz has earned
seventeen fewer days of good time credit per month of good behavior than he is entitled to earn.
I conclude that this case must be remanded to the Department to reevaluate Inmate Shabazz's eligibility for parole and to recalculate
his maxout date by applying the law that was in effect on the date that Inmate Shabazz committed the crime of carjacking.
IV. ORDER
Accordingly, IT IS THEREFORE ORDERED that this case be remanded to the Department to reevaluate Inmate Shabazz's
eligibility for parole by applying the appropriate laws in effect on May 22, 1997.
IT IS FURTHER ORDERED that the Department recalculate Inmate Shabazz's maxout date by applying the appropriate laws in
effect on May 22, 1997, to include crediting Inmate Shabazz with seventeen days per month of good behavior for time already served.
AND IT IS SO ORDERED.
_________________________________
JOHN D. GEATHERS
Administrative Law Judge Division
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 19, 2000
Columbia, South Carolina
1. Despite the Department's contention in its Brief, the offense of Carjacking to which Inmate Shabazz pleaded guilty, S.C. Code
Ann. § 16-3-1075(B)(1), has never been classified a Class "B" felony. Prior to the 1998 amendment, however, the offense of
Carjacking With Great Bodily Injury, S.C. Code Ann. § 16-3-1075(B)(2), was classified as a Class "B" felony. |
