Murder convict won't serve time for escape Good conduct credit is applicable, judge rules

December 19, 1997|By Michael Dresser | Michael Dresser,SUN STAFF

Convicted murderer James McKeldin Simms will apparently be a free man by Christmas after all.

An Anne Arundel County judge said yesterday that Simms -- whose life term for a murder 30 years ago in Calvert County was suspended last month -- is entitled to his freedom Wednesday despite an additional six-month sentence he received for a 1980 escape.

Circuit Judge Eugene M. Lerner rejected arguments by the state Attorney General's office that the credits Simms earned for good conduct while serving the murder sentence could not be applied to the escape sentence. The judge said the law entitles Simms to such credits.

Lerner declined to issue a release order at yesterday's hearing, saying he could not do so before the 46-year-old inmate has officially been released on the murder charge.

But the judge scheduled a hearing on a motion to order Simms' release for 10 a.m. Christmas Eve, one hour after he is scheduled to appear in Howard County Circuit Court for the formal termination of his life sentence for murder.

"He's going home," said Ralph S. Tyler, Simms' lawyer, after the hearing. Tyler had appealed to Gov. Parris N. Glendening to seek a commutation of the escape sentence, but the judge's action could make that request unnecessary.

Unless the judge changes his mind or a higher court intervenes, Simms will be legally free for the first time since he was arrested at the age of 16 exactly 30 years today for a crime he has consistently denied committing.

After his first trial ended with a hung jury, Simms was convicted in June 1969 in Howard County -- where the case was moved -- of killing Doris Mae Gibson, 42, during a holdup at the Robert King Grocery Store in Sunderland in December 1967. The judge sentenced him to life in prison.

Last month, a three-judge panel of the Howard County Circuit Court suspended the remainder of Simms' life sentence, ruling that he had served long enough. The panel acted after Circuit Judge Dennis M. Sweeney found in April that Simms' previous counsel had failed years ago to inform his client of his right to appeal his sentence.

But soon after the decision to release Simms on the murder charge, corrections officials discovered that he had also been given a six-month sentence -- to be served after the life term -- for escaping from a work detail in 1980. According to Tyler, Simms spent 173 days as a fugitive before being returned to prison.

Lerner indicated his intention to free Simms after hearing sometimes acrimonious arguments between Tyler and Scott S. Oakley, an assistant attorney general representing the state Correction Division.

Oakley argued that the diminution-of-sentence credits prisoners normally accrue for good conduct do not apply to inmates serving a life term. Even if they did, he said, they should not apply to a second, consecutive sentence.

Tyler dismissed Oakley's arguments as "crazy," contending that the state's "pretzel-like" interpretation of state law would penalize a defendant who prevailed in a court appeal.

"They should be ashamed," said Tyler, a former deputy state attorney general. "I'm ashamed for them if they're not."

Lerner agreed with Tyler, telling Oakley his position was "contrary to what the statute says."

Earlier, Lerner handed the state a short-lived victory by ruling that he had no power to cut or rescind the original escape sentence -- which he had imposed -- because the time for him to do so had expired.

Pub Date: 12/19/97

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