TN 28 (10-16)
PR 06805.012 Georgia
A. PR 16-182 Validity of Suspension of Title II Benefits During Period of Incarceration where Prisoner was Released after Court Ordered a New Trial and State Moved to Abandon Case
Date: August 30, 2016
This opinion provides a decision for a beneficiary who incurs a defect on his original court trial and the findings on the original trial are subsequently set aside. Under Georgia law, when a court grants a petition for habeas relief for a defect in the trial, the effect is not to clear the defendant of the criminal charges against him or set him free. The effect of habeas relief is to return the person to court for another trial. If the State determines that it will not prosecute a beneficiary’s case a second time, (i.e., nolle prosequi), Georgia courts have found that a nolle prosequi decision does not clear the person of his criminal charges, and does not determine his guilt or innocence. Although the State cannot try a defendant on charges for which it has already obtained an order of nolle prosequi, the State may renew prosecution if a court vacates the order of nolle prosequi or re-indicts the defendant for the same criminal offense. Because the beneficiary in this decision was confined based on a conviction and the beneficiary’s conviction was not overturned, this opinion supports our decision to suspend the beneficiary’s benefits for his conviction period.
You asked whether the number holder is entitled to back payment of disability insurance benefits (DIB) for the period in which he was incarcerated, where the number holder was convicted and incarcerated starting in 2007 and released from prison in 2015 after a court granted the number holder a new trial as habeas relief and the state subsequently filed a formal declaration that it would not further prosecute the charges on which the number holder’s incarceration was based.
Because the number holder was confined based on a conviction from June 2007 to May 2015 and the number holder’s conviction was not overturned, the Social Security Administration (SSA) properly determined NH’s DIB should have been suspended from 2007 to 2015.
According to the information provided, NH started receiving DIB in April 2001. On June, 2007, the Superior Court of H~ County, Georgia, after a jury trial, found J~, the number holder (NH), guilty of felony murder and arson. That same day, the court sentenced NH to a term of life imprisonment. SSA records reveal that NH was incarcerated beginning in June 2007. NH appealed, after which the Georgia Supreme Court affirmed the conviction. See Chapman v. State, 724 S.E. 2d 391 (Ga. 2012).
NH subsequently petitioned for habeas relief, asserting actual innocence, ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and due process violations relating to the Confrontation Clause, the prosecution’s suppression of evidence favorable to the defendant, and the prosecution’s failure to inform the jury of relevant information relating to a witness’ testimony. Upon habeas review, the court found that NH obtained ineffective assistance of appellate counsel and was subjected to due process violations relating to the Confrontation Clause, the prosecution’s suppression of evidence, and the prosecution’s failure to inform the jury of relevant information relating to a witness’ testimony. As a result, the court granted NH’s petition and determined he was entitled to a new trial. Both NH and the State appealed, after which in an order dated April 20, 2015, the Georgia Supreme Court affirmed the habeas relief the lower court awarded. Neither the habeas court nor the Georgia Supreme Court addressed NH’s claim of actual innocence. NH was released from prison in May 2015.
On June XX, 2016, the State of Georgia filed a “nolle prosequi” motion, or a motion for a formal entry into the court record declaring the State will not further prosecute the case against NH. See Atkins v. State, 663 S.E. 2d 286, 288 (Ga. Ct. App. 2008) (defining “nolle prosequi” as “a formal entry upon the record by the prosecuting officer in a criminal action by which he declares that he will no further prosecute the case, either as to some of the counts, or some of the defendants, or altogether”) (internal quotation marks omitted). The State determined new facts concerning the circumstances under which two witnesses in the original trial provided testimony and the discovery of statements contradicting the testimony of one witness negatively impacted the State’s ability to try the case against NH. The State, however, also stated in its motion that it would continue to seek new evidence that may result in future prosecution. The H~ County Superior Court granted the State’s motion the same day.
SSA intended to suspend NH’s DIB during the period of his incarceration, from June 2007 to May 2015, but inadvertently continued to pay DIB to NH from June 2007 through January 2011. Following the court order granting NH a new trial and NH’s release from prison, SSA reinstated NH’s DIB payments in June 2015 at a reduced rate to recoup the overpayment of benefits paid to NH between 2007 and 2011. NH has asked SSA to reinstate his DIB back to June 2007.
Under section 202(x) of the Act, SSA cannot pay benefits to any individual for any month (or part of a month) for which he is confined in jail, prison, or other penal institution or correctional facility for conviction of a criminal offense. See Act § 202(x)(1)(A)(i); 20 C.F.R. § 404.468(a) (2016); Program Operations Manual System (POMS) GN 02607.001A.1. Confinement is defined as residing in a correctional or mental health institution. See Act § 202(x)(1)(A)(i)-(iii); 20 C.F.R. § 404.468(c); POMS GN 02607.001B.1. Confinement ends with pardon, parole, or end of sentence and an official release. See 20 C.F.R. § 404.468(c);POMS GN 02607.160A.3.
A conviction is a court verdict that finds a defendant guilty upon conclusion of a trial or upon accepting a guilty plea or other plea that is equivalent to a guilty plea the result of a criminal trial that ends in a judgment or sentence that the individual is guilty as charged. See POMS GN 02607.001B.2; POMS GN 02607.160A.2.a. A beneficiary is not considered “convicted” if a court sets aside his or her guilty plea or overturns his or her prior conviction. See POMS GN 02607.001B.2. The primary rationale underlying the prisoner suspension-of-payment provision is that a convicted criminal defendant is maintained at public expense and has no need for a continuing source of social security income. See POMS PR 06805.012A (PR 00-219, Nov. 16, 1999). If a court overturns a conviction and no additional court proceedings are required, SSA will reinstate a beneficiary’s suspended benefits and repay any benefits withheld. See POMS GN 02607.200A.3.a.
Under Georgia law, when a court grants a petition for habeas relief for a defect in the trial, the effect is not to exonerate the defendant of the charges against him or entitle him to be released. See State v. Hernandez-Cuevas, 415 S.E.2d 713, 715 (Ga. Ct. App. 1992); Brown v. State, 156 S.E.2d 28, 28 (Ga. 1967). The effect of habeas relief for such purposes is instead to remand the defendant to the custody of the trial court for a legal trial. See Hernandez-Cuevas, 415 S.E.2d at 715; Brown, 156 S.E.2d at 28.
As previously noted, “nolle prosequi” is a formal entry by the State declaring that it will not further prosecute a case. See Atkins, 663 S.E.2d at 288. Georgia courts have found that such an entry does not clear the charges to which it applies, and does not adjudicate innocence or guilt, unless the defendant has been placed in jeopardy. See Richards v. State, 476 S.E.2d 598, 601 (Ga. Ct. App. 1996). Although the State cannot try a defendant on charges for which it has already obtained an order of nolle prosequi, the State may renew prosecution if a court vacates the order of nolle prosequi or re-indicts the defendant for the same offense. See Buice v. State, 528 S.E.2d 788, 789-91 (Ga. 2000); Bell v. State, 672 S.E.2d 675, 676 (Ga. Ct. App. 2009).
The evidence provided shows that NH was confined in prison for the conviction of a criminal offense until May 2015. See Act § 202(x)(1)(A)(i); 20 C.F.R. § 404.468(c); POMS GN 02607.001B.1; POMS GN 02607.160A.3. Neither the habeas relief NH obtained that resulted in his release nor the nolle prosequi order overturned NH’s conviction. While confined, the prison met NH’s basic living needs, and NH was maintained at public expense until May 2015. Therefore, section 202(x) of the Act required SSA to suspend NH’s DIB until he was released from confinement and there is no basis to reinstate any benefits to NH during this period of confinement.
Based on the evidence provided, NH was confined in prison based on a conviction of a criminal offense from June 2007 to May 2015. Because the conviction was not overturned, SSA properly determined NH’s DIB should have been suspended from June 2007 to May 2015.
Mary Ann Sloan
Regional Chief Counsel
By: Natalie Liem
Assistant Regional Counsel
B. PR 00-219 Legal Opinion as to whether Social Security benefits should be suspended during periods of incarceration for individuals inappropriately denied "early release" by the Florida Department of Corrections
DATE: November 16, 1999
In your November 7, 1999, memorandum you asked our legal opinion as to whether Social Security benefits should be suspended for periods of incarceration after the termination date provided for in a revised sentence. It is our legal opinion that section 202 (x) of the Social Security Act ("Act") requires benefits be suspended while an individual is actually confined in a jail, prison, or other penal institution or correctional facility pursuant to a conviction of a felony, defined as an offense punishable by imprisonment for more than one year. It is the nature of the offense and the possible sentence rather than the actual length of the period of incarceration that determines whether the suspension of benefits statute applies. Therefore, any subsequent revision of the sentence does not change the clear mandate of the statute.
The record file indicates that Quentin S~, who is 13 years of age, was charged with making terroristic threats in violation of Ga. Code Ann. ~16-11-37. On July 29, 1985, Judge Ben G~, Jr., of the Juvenile Court of Berrien County, Georgia, placed Quentin S~ in the Regional Youth Development Center pursuant to Ga.Code Ann. ~15-11-18.
Your memorandum states that Mr. B~ asked the Social Security Administration ("SSA") to repay benefits that were suspended for the period May 1994 through April 1999, apparently a portion of the period he was imprisoned for committing a felony. You point out that Mr. B~'s Title II benefits were reinstated in March 1999 when he was released from prison. Mr. B~ contends he is due benefits from April 1994 to March 1999 because the Florida Department of Corrections inappropriately failed to implement an early release program for which he was eligible.
Mr. B~ apparently relies on the 1998 case of Gomez v. Singletary to support his request for repayment. In Gomez, the Florida Supreme Court found the Florida Department of Corrections inappropriately denied some prisoners early release credit due them based on the date they committed their crimes. The court held that by changing the early release program available to the prisoners at the time they committed their crime, the Department of Corrections violated the ex post facto clause of the United States Constitution. The only remedy the court ordered was that the Department of Corrections provide the prisoners the appropriate credits toward early release. There is nothing in the Gomez decision effecting the statutory requirement that SSA suspend benefits otherwise due prisoners.
In 1980, the Senate Committee on Finance expressed its concern about the increasing number of prisoners receiving Social Security benefits. The Committee believed the basic purpose of the Social Security programs were not served by paying benefits to prisoners. The Committee was explicit that the "disability program exists to provide a continuing source of monthly income to those whose earnings are cut off because they have suffered a severe disability. The need for this continuing source of income is clearly absent in the case of an individual who is being maintained at public expense in prison."
In 1983 Congress amended section 202 of the Act to eliminate all monthly Social Security benefit payments to any person for any month during which that person is confined to a jail, prison, or other penal institution or correctional facility pursuant to his or her conviction of a felony. This amendment is found at section 202(x)(1)(A) and reads as follows:
(1)(A) Notwithstanding any other provision of this subchapter, no monthly benefits shall be paid under this section or under section 423 of this title to any individual for any month during which such individual
(i) is confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of an offense punishable by imprisonment for more than 1 year (regardless of the actual sentence imposed) . . . .
Assuming Mr. B~ is correct in his assertion that he was one of the prisoners inappropriately denied early release credit due him and was kept in prison too long, he nonetheless was confined in prison for committing a felony and the prison was meeting his basic living needs. Mr. B~ was being maintained at public expense in prison. The controlling statue required that his Title II benefits be suspended. It is our legal opinion that Mr. B~'s request for repayment has no legal basis and should be refused.
Mary Ann S~
Regional Chief Counsel
By: Robert G~
Assistant Regional Counsel
C. PR 85-033 S~, Quentin P. - SSN ~ Suspension of Benefits to Prisoners
DATE: December 23, 1985
SUSPENSION AND TERMINATION — CIRCUMSTANCES REQUIRING SUSPENSION — GEORGIA
Under the law of Georgia, where a 13-year-old beneficiary, accused of making terroristic threats was dealt with totally within the framework of the Juvenile Court, held; he has not been convicted of a crime and is, therefore, eligible for continued benefits.
(S~, Quention P. - SSN ~ - RAIV [J~] - to ARC, Progs., Atl., 12/23/85)
In your memorandum, you requested our legal opinion as to whether Quentin S~ 's benefits can be suspended since he has been placed in a Juvenile Detention Center for committing terroristic threats.
The record file indicates that Quentin S~, who is 13 years of age, was charged with making terroristic threats in violation of Ga.Code Ann. ~16-11-37. On July XX, 1985, Judge Ben G~, Jr., of the Juvenile Court of B~ County, Georgia, placed Quentin S~ in the Regional Youth Development Center pursuant to Ga.Code Ann. ~15-11-18.
The record further indicates that on August XX, 1985, Judge G~ entered an order adjudicating Quentin to be delinquent and committed him to the Georgia Department of Human Resources for care, (i.e., mental health counseling and drug abuse counseling), supervision, and planning as provided for in the children and youth act.
The mere fact that a child has been adjudicated a delinquent and detained is not enough by itself to suspend the payment of benefits. Under the regulations, before benefits can be suspended, the beneficiary must be confined pursuant to a conviction of a felony.
Section 202(X)(1) of the Act, as amended (42 U.S.C. §402(X) (1)) , provides, in part:
[N]o monthly benefits shall be paid under this section or under Section 223 to any individual for any month during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to his conviction of an offense which constituted a felony under applicable law.
Under Georgia law, when a juvenile is adjudicated to be a delinquent by a Juvenile Court, the adjudication is not regarded as a criminal conviction. T.L.T.v. State, 212 S.E.2d 650, 133 Ga. App. 895 (1975); Carrindine v. Ricketts, 223 S.E.2d 627, 236 Ga. 283 (1976). This is true even though the act proscribed may form the basis for a criminal conviction as well as for an adjudication of delinquency. However, the accused must be dealt with totally within the framework of the Juvenile Court or, otherwise, he can be convicted of a crime. Carrindine, supra.
Ga.Code Ann. ~15-11-38 provides that:
An order of disposition or other adjudication in a proceeding under this chapter is not a conviction of a crime and does not impose any civil disability ordinarily resulting from a conviction nor operates to disqualify the child in any civil service application or appointment.
Since the record indicates that Quentin was dealt with completely within the juvenile system, he was not convicted of a crime. Therefore, he does not fall within the purview of Section 202(X) (1) and, consequently, his benefits cannot be suspended.
. The request for this legal opinion also noted the number holder is challenging an overpayment the Social Security Administration is collecting on his now reinstated DIB benefits. However, the number holder’s challenge to this overpayment, i.e., that it should be overturned because he did not cash those benefit checks, appears to be a request for reconsideration of the agency’s initial overpayment determination, not a legal question where the answer is contingent on any of the evidence provided in support of this request. See 20 C.F.R. §§ 404.902, 404.905, 404.907 (2016).
. All references to 20 C.F.R. are to the 2016 version.