Furda v. State Of Md.

193 Md.App. 371

997 A.2d 856

Mark E. FURDAv.STATE of Maryland.

No. 3053, Sept. Term, 2007.

Court of Special Appeals of Maryland.

July 2, 2010.

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Walter S. Booth of Bethesda, MD, for appellant.

Brenda Gruss (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: DAVIS, HOLLANDER and MEREDITH, JJ.

HOLLANDER, J.

In this appeal, we must determine whether an involuntary hospital admission under Maryland law, for the purpose of an emergency mental health evaluation, constitutes a “commitment” under federal law, so as to bar the admittee's right to possess a regulated firearm in Maryland. The issue is rooted in events that began in February 2003, when the Montgomery County Sheriff's Department served a domestic protective order on Mark Furda, appellant, and transported him for an emergency mental evaluation, based on a petition filed by Karen Furda, who was then appellant's wife. At about the same time, the sheriffs seized numerous weapons from appellant's home, including regulated firearms.

On July 26, 2005, in the Circuit Court for Montgomery County, Furda pleaded guilty, as a subsequent offender, to one count of violating a domestic protective order issued in September 2004. See §§ 4-506 and 4-509 of the Family Law Article of the Maryland Code. The court sentenced Furda to a suspended one-year term of incarceration and two years of probation.

On September 13, 2006, while on probation in the protective order case, Furda filed a “Motion,” pro se, in that case, seeking the return of his archery equipment and “other related items” that were seized in 2003. The court denied the motion, without prejudice, on November 1, 2006. On July 30, 2007, a few days after the expiration of his probation, appellant filed another pro se “Motion,” asking for the “release of all [his] property held for safe keeping by the Montgomery County Sheriff's Department.” Then, on October 31, 2007, through counsel, and before the court had ruled on the July 2007 Motion, appellant filed a “Motion To Return Property,” requesting return of the weapons that had been seized in 2003.

After a hearing on November 7, 2007, the circuit court denied the Motion in an Order of the same date (docketed November 9, 2007). It concluded inter alia, that appellant was prohibited from possessing firearms under 18 U.S.C. § 922(g)(4), because he had previously been “involuntarily committed to a mental institution....” Appellant's Motion for Reconsideration, filed on December 3, 2007, was denied on January 16, 2008.

This appeal followed on February 13, 2008.¹ Appellant poses one question:

1. Did the Trial Court abuse its discretion by not granting Mr. Furda's Motion to Reconsider because Mr. Furda was not barred by Federal, Maryland State, or Montgomery County law from possessing firearms as he had never been “committed” within the definition of Federal law, Maryland State law, or Montgomery County law; and he did not have an adequate opportunity to respond to the State's allegations concerning whether he has been “committed” when it was raised for the first time just before the November 7, 2007 Motion argument?

The State has filed a Motion to Dismiss the appeal, based on several grounds.

For the reasons set forth below, we shall deny the State's motion, reverse the circuit court, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant's former wife, Karen Furda, obtained a temporary protective order against appellant in February 2003. According to an “Incident Report” submitted on February 28, 2003, by a deputy in the Montgomery County Sheriff's Department,² Mr. Furda was served with “a temporary Protection Order” on February 27, 2003, at 11:00 p.m. See Furda v. Furda, Case No. 0601 SP006212003 (District Court for Montgomery County). He was also served with an order for an emergency mental evaluation, based on a petition filed by Ms. Furda.³ Pursuant to Ms Furda's consent, the Sheriffs searched the Furdas' home and recovered approximately fifteen rifles, one handgun, a large quantity of miscellaneous ammunition, knives, a bow, and arrows.

In the early morning of February 28, 2003, Furda arrived at Montgomery General Hospital (the “Hospital”). By the end of that day, he was transferred to Potomac Ridge Behavioral Health (“Potomac Ridge”) for “involuntary admission,” based on a certification by two physicians that “the individual presents a danger to the life or safety of the individual or of others.” Furda was also described as having “a mental disorder and need[ing] treatment.” A hearing to determine whether appellant would be released or detained involuntarily was set for March 4, 2003, at 9:30 a.m. However, Furda was discharged from Potomac Ridge on March 4, 2003, at 10:56 a.m.⁴

According to the record, Ms. Furda obtained a Final Protective Order against Mr. Furda on March 6, 2003. It stated, in part: “While this Protective Order is in effect you may be subject to a federal penalty under the 1994 amendment to the Gun Control Act, 18 U.S.C. Section 922(g)(8), for possessing, transporting, or accepting a firearm.”

Ms. Furda obtained another protective order on September 21, 2004. Then, on February 1, 2005, she filed an “Application for Statement of Charges,” claiming that Mr. Furda “violated the protective order repeatedly....” Thereafter, on March 3, 2005, Furda was charged in the Circuit Court for Montgomery County in a one-count Information with

fail[ing] to comply with [the Protective Order] ... dated September 21, 2004, issued under Section 4-506 of the Family Law Article, that ordered the respondent to refrain from contacting and attempting to contact Karen Furda, by contacting her in writing, and is a subsequent offender, in violation of Section 4-509 of the Family Law Article against the peace, government, and dignity of the State.

On July 26, 2005, appellant pleaded guilty to “Protective Order-Fail to Comply/Subsequent Offender,” for which he received a suspended one-year term of incarceration and two years of probation. See State v. Furda, Case No. 101933, Circuit Court for Montgomery County. We shall refer to the domestic violence proceedings collectively as the “Protective Order Case.”

On September 13, 2006, while Furda was still on probation in the Protective Order Case, he filed a pro se “Motion,” seeking the return of his archery equipment and “other related items.” According to the docket entries, the court denied the Motion, without prejudice, on November 1, 2006.⁵ On July 30, 2007, just after appellant completed his two-year probation in the Protective Order Case, appellant filed another pro se “Motion,” asking for “the release of all of [his] property held for safe keeping by the Montgomery County Sheriff's Department.” The State opposed the Motion. At a hearing on September 10, 2007, the court set October 31, 2007, as the deadline for filing memoranda, and scheduled a hearing for November 7, 2007.⁶

On October 31, 2007, through counsel, appellant filed a “Motion To Return Property,” with an accompanying Memorandum of Law. He asserted that “there is nothing in Maryland Law or Federal Law barring [appellant] from possessing firearms.” In its opposition, the State said, in part:

8. The Defendant is a prohibited person under Federal Law and therefore, cannot possess a Firearm. Title 18 U.S.C. Section 922(g)(4) prohibits “ a person who has either been adjudicated as mental defective or have [sic] been committed to a mental institution.” 18 U.S.C. 922 does not state a set period of time that the person must be committed to such institution. (Emphasis in original).

9. The State has sent subpoenas to Potomac Ridge Behavioral Health Center to bring certified copies of medical records of the Defendant's involuntary commitment via EPP ^[7] on February 28, 2003. Karen Furda, the Defendant's wife at the time, would testify that the Defendant was committed to Montgomery General Hospital on the 28th and was transferred later that day to Potomac Ridge where the Defendant remained until he was discharged on March 4, 2003.

The court held a hearing on November 7, 2007, at which non-testimonial evidence was presented. Appellant appeared at the hearing.

Appellant's counsel explained that appellant was seeking the return of all items seized by the Sheriff in 2003, with the exception of his “Browning 30-caliber,” which the parties acknowledged was illegal for appellant to possess. Appellant's attorney argued that, given the expiration of both the probation and the protective order, “there's absolutely nothing in Federal law, State law, or local law that would bar him from owning, possessing firearms.”

Based on Mr. Furda's medical records, admitted without objection as State's Exhibit 1, the State urged the court to find that appellant was prohibited from possessing weapons under 18 U.S.C. § 922(g)(4). Further, the State argued:

I don't believe the Court has jurisdiction at this time. The probation was fully terminated at the end of July, I think it was and I put in here July 26 was the end of his probation. Mr. Furda did not file this until July 30th. Now I know it's four days, but still, probation the case was done, so I believe that at that point there was no active criminal case and this was filed under the original Criminal Case of 101933 and therefore it was a closed case, the Court does not have jurisdiction. And I would ask that because of the fact he failed to file this within the appropriate time while there was still an active case, you do not have jurisdiction to make this decision.

According to the State, “Mr. Furda was told on multiple occasions by Lieutenant Rhinestat ... from the Sheriff's Department that he had a certain procedure he had to follow to file for return of his guns.” The State insisted that the required procedure “was to file a written application with the Sheriffs Department and then they would have to look to Federal and...