Alabama Court of Criminal Appeals Grants Credit to Prisoner’s LWOP Sentence
by Douglas Ankney
On February 9, 2024, the Alabama Court of Criminal Appeals held that even though Henry Neal Ferguson III had been sentenced to life in state prison without the possibility of parole (LWOP), he was entitled to a sentence credit for the time he served in jail before sentencing.
The odd-sounding result—even with credit, Ferguson’s sentence still has no end—sprang from a habeas corpus petition he filed against the state Department of Corrections (DOC) in St. Claire County Circuit Court in February 2023. That recalled the facts of his case, beginning with a May 1993 arrest for first degree assault that landed him in the Talladega County Jail (TCJ). He escaped the following month, and while on the run, a grand jury indicted him in February 1994 for attempted murder. Ferguson was captured and returned to TCJ in June 1994, and two months later he was convicted of attempted murder. The circuit court sentenced him to LWOP as a habitual felon in September 1994.
Ferguson argued in the habeas petition that he was due credit for the time spent in TCJ before sentencing—less those days he was on the run. The circuit court denied his petition, reasoning that his LWOP sentence would not be reduced by any credit. Ferguson appealed, contending that he was entitled to the jail credit based on Ala. Code § 15-18-5(a) and 6 (1975).
The Alabama Court of Criminal Appeals observed that the version of § 15-18-5 in effect when Ferguson was sentenced provided credit for the “actual time spent incarcerated pending trial,” which must be “certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.” Since, “[a] defendant’s sentence is to be determined by the law in effect at the time of the commission of the offense,” according to Moore v. State, 40 So.3d 750 (Ala. Crim. App. 2009), and “there is no room for judicial construction of the statute and the clearly expressed intent of the legislature must be given effect,” per Lay v. State, 82 So.3d 9 (Ala. Crim. App. 2011), the Court agreed with Ferguson that he was due a credit.
The “plain meaning” of the relevant statute, the Court opined, “requires [DOC] to certify ‘[t]he actual time [Ferguson] spent incarcerated pending trial.’” Although “this certification will not shorten Ferguson’s prison sentence,” the Court continued, it is required by statute and “based on the record before us, we cannot say that [DOC’s] failure to make certification in Ferguson’s case is harmless.” In fact, the Court observed, failure to give Ferguson the jail credit could potentially affect his ability for various benefits within the prison system and his ability to receive a commuted sentence. Thus the Court concluded that the certification required by § 15-18-5 “is not conditioned on the possible release date of an inmate, and it is thus distinguishable from a mandatory provision.”
The case was then remanded to the circuit court with instructions to hold an evidentiary hearing on Ferguson’s claim for pretrial jail credit, requiring DOC to certify from his records the amount of jail time he served before conviction and sentencing. Ferguson is to be commended for successfully prosecuting his claim pro se. See: Ferguson v. Ala. Dep’t of Corr., 2024 Ala. Crim. App. LEXIS 5 (Ala. Crim. App.).