Johnson v. State

LUKE DANIEL JOHNSON v. STATE OF MARYLAND

No. 1134

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

July 29, 2020

DUE PROCESS—PROBATION REVOCATION—JUSTICE REINVESTMENT ACT

With the primary goal of reducing Maryland's prison population, the General Assembly enacted the Justice Reinvestment Act. 2016 Md. Laws, ch. 515. Among the Act's comprehensive reforms were significant amendments to the statute governing probation revocations, Maryland Code (2001, 2018 Repl. Vol.), § 6-223 of the Criminal Procedure Article. These amendments introduced the concept of a "technical" violation of probation and placed presumptive limits on the duration of incarceration that may be imposed for such a violation. A court may impose a period of incarceration that exceeds those contained in the statute's presumptive limits only if the court expressly finds and states on the record that adhering to that sentence would create a risk to public safety, a victim, or a witness.

The statutory presumption is not an evidentiary presumption that a party must submit evidence to rebut, but rather is a limitation on the court's discretion.

A probationer must make a timely objection if a court does not expressly find and state on the record that adhering to the presumptive limits on incarceration will pose a threat to public safety, a victim, or a witness they need to object at the time. Absent a timely objection, the issue is not preserved for appellate review.

Before the court determines whether it may depart from the presumptive limits on incarceration because a probationer poses a risk to public safety, a victim, or a witness, the probationer has a due process right to confront and cross-examine the witnesses whose testimony forms a basis for the court's findings.

Circuit Court for Washington County

Case No. 21-K-006054

REPORTED

Nazarian, Arthur, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Arthur, J.

*Judge Donald E. Beachley did not participate in the Court's decision to designate this opinion for publication pursuant to Maryland Rule 8-605.1.

In 1980, Luke Daniel Johnson was convicted of first-degree rape in the Circuit Court for Washington County. The court sentenced him to life in prison.

In 2015, the court granted post-conviction relief, vacating Johnson's conviction. A year later, the court accepted Johnson's guilty plea and sentenced Johnson to life in prison, but suspended all but the 36 years that he had already served. He was released, subject to five years of supervised probation.

Johnson was later reincarcerated and charged with violating two conditions of his probation. He acknowledged that he committed two technical violations for which the presumptive maximum sentence is 15 days of incarceration. Over Johnson's objection, the court received unsworn testimony from a witness who was not subject to cross-examination. Based on that testimony, the court concluded that Johnson had committed a "public safety violation." The court revoked Johnson's probation and sentenced him to life in prison, with all but 10 years suspended, followed by three years of supervised probation.

This Court granted Johnson's application for leave to appeal. We shall vacate the judgment and remand the case to the Circuit Court for Washington County for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND¹

On October 20, 1980, Luke Daniel Johnson was tried in the Circuit Court for Washington County on charges of first-degree rape, second-degree rape, committing athird-degree sexual offense, and assault. The charges arose from events that occurred when Johnson was 19 and the victim was 17.

After a one-day jury trial, Johnson was convicted of first-degree rape and of committing a third-degree sexual offense. The trial judge sentenced Johnson to life in prison on the rape conviction. On appeal, this Court affirmed the rape conviction, but reversed the third-degree sexual offense conviction.

In 2015, the circuit court granted post-conviction relief to Johnson under Unger v. State, 427 Md. 383 (2012), and vacated his conviction. In May 2016, Johnson entered an Alford plea to first-degree rape.² The judge sentenced him to life in prison, suspending all but 36 years, one month, and four days, and giving him credit for 13,183 days of time served. The court also imposed five years of supervised probation.

Johnson's probation included two standard conditions: report as directed and follow his supervising agent's lawful instructions; and get permission from his supervising agent before changing his address, changing his job, or leaving the state. There were, additionally, three special conditions: (1) he had to submit to evaluation and attend and successfully complete mental health treatment; (2) he could have no direct or indirect conduct with the rape victim; and (3) he was not to enter or be found near any Sheetz store in Washington County. The conditions of Johnson's probation were later modified to require that he participate in a sex offender tracking and monitoringprogram,³ submit to alcohol and drug treatment, and abstain from alcohol, illegal substances, and the abusive use of any prescription drug.

In April 2017, Johnson's supervising agent reported that Johnson had traveled to West Virginia on three separate occasions without her permission. Because the purpose of these trips was assertedly to drive a co-worker home, the agent recommended that no action be taken at that time.

Approximately two months later, Johnson's supervising agent requested a warrant for Johnson's arrest because of alleged violations of probation. The agent again cited the three instances when Johnson drove to West Virginia. In addition, she claimed that he had taken a job at a carnival without her permission and had gone to Ocean City without her permission.

The circuit court granted the agent's request and issued a warrant. Johnson was arrested on August 22, 2017. He has remained incarcerated ever since.

On March 12, 2018, the circuit court held a hearing on the alleged probation violations. By that time, Johnson had been re-incarcerated for more than six months.

At the hearing, Johnson admitted to obtaining employment at the carnival from July 21 to July 23, 2017, without his supervising agent's permission, and traveling to West Virginia three times without permission. He denied traveling to Ocean City withoutthe agent's permission. The judge found that Johnson had violated the conditions of his probation, but did not announce that he had decided to revoke the probation.

The judge voiced his concern, however, that Johnson was not a "very good candidate for probation, as far as lighting around to West Virginia and places he's not supposed to, to be." The judge mentioned allegations that Johnson had propositioned a young woman, 17 years of age, who worked at the carnival with him. Defense counsel responded by stressing that Johnson is not a registered sex offender⁴ and noted that the prosecutor would likely "agree there is actually nothing illegal about him talking to somebody over the age of sixteen."

The State informed the court that "the seventeen year old from the carnival [was] present" and asked the court to "give her an opportunity to speak[.]" The State said that the witness was "willing to address the [c]ourt" and "even indicated that if necessary, she would get on the stand and get under oath if [the court] wished to question her under oath." Over defense counsel's objection, the judge allowed the young woman to address the court, without being sworn or subject to cross-examination. She elaborated on Johnson's interactions with her, stating:

I was working for the carnival when I met [Johnson]. During working for the carnival, the — for [Johnson]'s birthday, he was talking about going to Ocean City for three days. He said he wanted to take me with him without my parents knowing. He wanted to take me and my momto his car, but me first, and do something to me in the back seat, unknowingly, which I didn't want to do, so I didn't go.

He would come up and talk to me and my mom every single day while working at the carnival. He would call me names like - you look beautiful, you look cute. I would say thank you to the beautiful part, but looking cute made me feel uncomfortable. But he would kind of flirt with my mom, which would flatter us, but, so.

Under the Justice Reinvestment Act (2016 Md. Laws, ch. 515), Johnson's violations of probation were "technical" in nature. The Act presumes that the maximum sentence of incarceration is 15 days for a first technical violation, 30 days for a second technical violation, and 45 days for a third technical violation. Md. Code (2001, 2018 Repl. Vol.), § 6-223(d)(2) of the Criminal Procedure Article. That presumption could be rebutted, however, if the court found that adhering to that limit "would create a risk to public safety, a victim, or a witness." Id. § 6-223(e)(2).

The State urged the court to find that Johnson was a danger to public safety and requested that Johnson be returned to prison for 10 years, "so that by the time when he gets out, maybe he would realize that he cannot prey on young women and children in our society." The State acknowledged that "there was nothing inherently illegal" in Johnson's interactions with the 17-year-old co-worker,⁵ but argued that his conduct showed that he had "not gotten over his predilections that landed him in jail in the first place."

Defense counsel, attempting to mitigate Johnson's probation violations, stressed that the trips to West Virginia involved giving someone a ride home from work and that initially he was only reprimanded for these "good deed[s]." Defense counsel also explained that Johnson went to work for three days at the carnival because he was unexpectedly laid off from his construction job and "simply was seeking employment in order to get money to pay his bills." Finally, counsel noted that, in addition to the 36 years that Johnson...