Brookman v. State

232 Md.App. 489

158 A.3d 1099

Crystal BROOKMAN

v.STATE of Maryland

Marvin Randy Carnes

v.State of Maryland

No. 182 and 183, Sept. Term, 2016

Court of Special Appeals of Maryland.

Filed: April 27, 2017

Argued by Isabelle Raquin, Assistant Public Defender (Stephen B. Mercer, Chief Attorney, Isabelle Raquin, Assistant Public Defender, and Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant

Argued by Mary Ann Ince (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee

Panel: Nazarian, Arthur, Raymond G. Thieme, Jr. (Senior Judge, Specially Assigned), JJ.

Nazarian, J.

These consolidated appeals arise from due process challenges by two participants in the Montgomery County Adult Drug Court program (the "Drug Court"). The first, Crystal Brookman, was charged and sentenced to probation. She violated her probation, and was sentenced for that violation to supervised probation with the special condition that she enter and complete Drug Court. While participating in Drug Court, Ms. Brookman twice tested below the accepted level of creatinine, and the second result was treated as a positive test result pursuant to the Drug Court's Participant Handbook.

The second appellant, Marvin Carnes, pled guilty to one count of theft scheme over $1,000 and one count of identity theft. The circuit court imposed concurrent sentences of incarceration, suspending all but time served, with a three-year period of supervised probation. As a special condition of probation, the circuit court required Mr. Carnes to complete Drug Court. During Drug Court, Mr. Carnes missed a urinalysis, which was treated as a positive test result pursuant to the Adult Drug Court Policies and Procedures Manual (the "Drug Court Manual").

After separate appearances, the Drug Court imposed sanctions that included overnight incarceration on both. Both appeal, and the State contends that the sanctions aren't appealable. We hold that they are, and we vacate the sanctions orders and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. The Montgomery County Adult Drug Court Program

The Drug Court is "a post-conviction program for non-violent addicted offenders." Drug Court participants "are placed on special conditions of probation that appropriately support the goals of recovery and rehabilitation for program participants," who are "[p]laced under the supervision of the Judge assigned to the Drug Court Program." The Drug Court program, which lasts a minimum of twenty months, is broken up into four numbered phases, each with progressively less stringent conditions. Drug Court participants are required to "participate in mandatory, random, urinalysis ... [and] are subject to the possibility of an additional random urinalysis screening through a 'call-in' program."

Participants in the Drug Court consent to participate after being referred to the program and entering into a Drug Court Agreement. The Agreement specifies, among other things, that participants "understand that [they] can be asked to report for drug and alcohol testing at any time while [they are] Drug Court participant[s] and that [their] failure to report will result in a sanction by the [Drug] Court," that they "will report for drug and alcohol testing as directed," and "that any attempt to falsify a drug and alcohol test, including dilution, is grounds for termination from Drug Court." Drug Court participants must report for random urinalysis as specified in the Drug Court Manual, and "[a]ny failure to appear for random testing will be treated as a positive test result for drugs."

The Drug Court Manual considers the program's proceedings as non-adversarial because they are driven by "a common commitment to the best interests of the participant toward ending his or her addictive behaviors." The Drug Court Agreement, however, contains an exception: "Drug Court imposes graduated sanctions for lack of compliance with program requirements, including incarceration. [Participants] have the right to request and have a formal adversarial hearing before the imposition of a sanction of incarceration or before being terminated from Drug Court."

Violations of the Agreement are punished with sanctions that escalate with each subsequent violation. The Participant Handbook warns participants that they will be subject to sanctions for failing to report and comply with the Drug Court guidelines and specifies the "graduated sanctions," or "Menu of Sanctions," they face when they fail to comply with the Drug Court's program. These graduated sanctions are "vital to the support and reinforcement of the adopted treatment interventions" and leverage "[t]he rapid imposition of negative sanctions as incentives to improve compliance and to modify negative behaviors." (Emphasis omitted.) Participants must report in person to the next available Drug Court docket after they violate any terms and conditions of enrollment because "sanctions are most effective when applied immediately."

B. Ms. Brookman

On August 28, 2012, Ms. Brookman was charged with four counts of theft and conspiracy to commit theft. She pled guilty to one count of theft over $1,000 on September 14, 2012. On October 22, 2012, the circuit court imposed a suspended sentence of incarceration for twelve months, placed her on two years' supervised probation with the special condition that she abstain from alcohol and drug use and submit to random urinalysis, and required her to pay restitution. On December 13, 2013, Ms. Brookman admitted to violating her probation, and the circuit court sentenced her, among other things, to three years' supervised probation with the special condition that she "[e]nter into the Mont. Co. Adult Drug Court, comply with all conditions, and successfully complete and graduate from the Mont. Co. Adult Drug Court."

As part of the Drug Court program, Ms. Brookman submitted to a urine test in July 2014 that yielded a low creatinine¹ result. On February 24, 2016, while in Phase 3 of the Drug Court program, Ms. Brookman was notified that another urinalysis showed low creatinine levels. The next day, Ms. Brookman filed a line demanding the presence of the analyst and technician at a hearing and for discovery related to the test results.

At the hearing held on February 26, 2016, two days after and "as a result of [the] low creatinine test," Ms. Brookman's counsel requested a continuance so that she could seek the input of a chemist "to see if [the report] is reliable" and talk to Ms. Brookman about the lab results:

[W]e believe that is a violation of Ms. Brookman's due process. We will ask the opportunity to continue this matter for me to look further into this and speak to an expert. I have spoke to ... our forensic expert, who was waiting for me to forward him the results of the Lab Corp in order to get in touch with ... an expert or general toxicologist to figure out what is going on with these results.

Ms. Brookman tested at 18.9, that is very, very close to the 20 [minimum allowable result]. We want to look into whether or not there could possibly be a margin of error or something else within Ms. Brookman that results in this. I think looking at Ms. Brookman as a whole, how she's doing in Drug Court, how she's working with our business case manager. I don't think there's any belief that she is using. And to sanction her, to delay her graduation is not, we don't believe is the appropriate punishment, the appropriate sanction without further review.

Counsel urged the Drug Court to not sanction Ms. Brookman that day because she wanted an "opportunity to review this information further" and "figure it out." The State, however, requested that a sanction be imposed immediately:

[T]he results are from LabCorp. I don't think there's any dispute that LabCorp is a certified lab. The results state very clearly that her creatinine was 18.9, which is below the established low level limit of 20. We would ask that the sanction be imposed. This is not a violation of probation. There has not been a petition filed to violate her probation. Therefore, the standard of having the chemist and all that does not apply in this circumstance today. I think that there, the point of the sanctions is to have an immediate response and we would ask that the sanction be imposed today based on the lab results. If they're going to challenge that LabCorp is not reliable hearsay, then they're going to challenge every single urine analysis throughout the county. So, I don't think that that is what they're intending to do in terms of the reliable hearsay argument.

After acknowledging its guidelines and policies, the Drug Court imposed immediate sanctions, including overnight incarceration. Ms. Brookman filed a timely appeal and we granted Ms. Brookman's Application for Leave to Appeal, ordering her to "address whether the sanctions imposed by the Montgomery County Drug Court, from which the application for leave to appeal was filed, is an action subject to appellate review in the Court of Special Appeals ... [, and] then address the merits of the issue on appeal."

C. Mr. Carnes

Mr. Carnes was charged on December 30, 2013 with forty-six counts of theft, identity fraud, credit card fraud, conspiracy to commit theft, and related offenses. He pled guilty to one count of felony theft scheme involving property valued between $1,000 and $10,000, and one count of identity fraud on April 15, 2014. On June 11, 2014, the circuit court sentenced him to ten years' incarceration on the felony theft scheme count and eighteen months' incarceration on the identity fraud count, commencing on October 30, 2013, with the balance suspended in favor of three years' supervised probation with conditions, including the condition that Mr. Carnes "enroll in, comply with all conditions of, successfully complete, and graduate from the Montgomery County Adult Drug Court Program."

Mr. Carnes worked as a truck driver. At 7:30 a.m. on February 17, 2016, when it appears from the...