Schwartz v. State

SEAN D. SCHWARTZ v. STATE OF MARYLAND

No. 815

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

January 7, 2020

Circuit Court for Montgomery County

Case No. 112929

UNREPORTED

Reed, Friedman, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

Opinion by Friedman, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

In 2009, Sean D. Schwartz pleaded guilty to and was convicted of conspiracy to commit first-degree burglary in the Circuit Court for Montgomery County. On January 22, 2010, the circuit court sentenced Schwartz to 15 years in prison, with all but 15 months suspended, along with five years of probation upon his release. Schwartz was charged with violating his probation, and, on May 18, 2017, the circuit court revoked his probation and imposed a sentence of 11 years of executed prison time.

Schwartz filed an application for leave to appeal the revocation of his probation to this Court, which we granted. Schwartz asks us to consider whether the circuit court erred by ruling that his period of probation was tolled, when the applicable statute does not provide for tolling. For the reasons that follow, we hold that the circuit court did not err in finding that Schwartz's period of probation was tolled on several occasions and that, as a result, his term of probation was active when the circuit court found him to be in violation of his probation.

FACTS AND LEGAL PROCEEDINGS

In May 2009, Schwartz and two other men were indicted on charges of first-degree burglary, conspiracy to commit first-degree burglary, and theft. On October 30, 2009, Schwartz entered a guilty plea to the conspiracy charge, and the circuit court agreed to bind itself to a 15-month cap on executed jail time.

On January 22, 2010, the circuit court sentenced Schwartz to 15 years in prison, all but 15 months suspended, along with a five-year period of supervised probation, to begin upon his release from detention. The circuit court's order required Schwartz to, inter alia: (1) submit to, successfully complete, and pay required costs for alcohol and drugevaluation, testing, treatment, and education; (2) attend 90 self-help group meetings in 90 days; (3) abstain from the use of alcohol and illegal drugs; (4) submit to a mental health evaluation, complete mental health treatment, and take any medications prescribed for psychological conditions; and (5) pay $10,000 restitution to the victim of the theft.

Schwartz was released from prison on August 17, 2010, beginning his period of probation. On August 31, 2011, the circuit court issued a bench warrant for Schwartz's arrest for violation of probation ("VOP"), based on the Division of Parole and Probation's assertions that Schwartz had been non-complaint with the conditions of his probation by refusing to submit to and complete an alcohol and drug treatment program. Upon being given a second chance to comply, Schwartz entered a treatment center but left after a short period of time without informing his parole officer or his addictions counselor. He had also failed to: (1) report to his probation officer; (2) attend 90 self-help group meetings within 90 days; and (3) make any payment toward the $10,000 restitution.

Schwartz's whereabouts remained unknown until he was arrested at his home on July 13, 2012. On July 16, 2012, Schwartz was released on bond pending his VOP hearing. At a September 24, 2012 hearing, Schwartz admitted to the circuit court that he had violated the terms of his probation. The circuit court deferred sentencing for three weeks, with the hope that Schwartz would, within that time period, be accepted to drug court.¹

On October 25, 2012, the circuit court revoked Schwartz's probation and sentenced him to 13 years in the Montgomery County Department of Corrections ("MCDOC") as of September 24, 2012, with the balance suspended, along with three years' supervised probation upon release.² As "a condition of probation," Schwartz was to serve the remaining nine months of his original 15-year sentence at a correctional facility in Montgomery County, to be transferred to the Pre-Release Center. The Pre-Release Center recommended his transfer, and the circuit court approved the transfer on November 7, 2012. The order remanding Schwartz to the Pre-Release Center was suspended effective December 23, 2012, and Schwartz was released to live with his grandmother in Wheaton.

At a February 22, 2013 status hearing, the circuit court learned that Schwartz had tested positive for cocaine. The circuit court remanded Schwartz to the correctional facility to be transferred to the Pre-Release Center for a period of nine months "as a condition of probation which can be suspended at any time by order of Drug [court]." On March 4, 2013, Schwartz was transferred to the Work Release/Pre-Release Center. On March 15, 2013, the February 22, 2013 order was suspended, and Schwartz was released, effective March 16, 2013, to reside at Eaton Sober House.

Schwartz was again charged with a VOP on or about March 18, 2013, after testing positive for cocaine and alcohol use. A bench warrant was issued on April 26, 2013.Schwartz was advised of the warrant that same day but failed to turn himself in until he was picked up on the bench warrant approximately two weeks later, on May 9, 2013.

On July 25, 2013, the circuit court entered an order that "as a condition of probation," Schwartz was sentenced to nine months in the MCDOC, with transfer to the Pre-Release Center, with the balance of an unserved portion of the sentence suspended by the drug court. On August 1, 2013, the circuit court approved a transfer to the Pre-Release Center for Schwartz to participate in the correctional program. On October 3, 2013, the order remanding Schwartz to the Pre-Release and Reentry Services Program was suspended, and Schwartz was released effective October 4, 2013 to reside at Moline Oxford House.³

Schwartz was again referred to the circuit court for a VOP on or about July 10, 2014, after testing positive for cocaine use on June 29, 2014. On July 2, 2014, the circuit court remanded Schwartz to the correctional facility to be held without bond until the VOP hearing on August 21, 2014.

At the August 21, 2014 VOP hearing, Schwartz again admitted to violating the terms of his probation by testing positive for cocaine. The circuit court revoked his probation and sentenced him to 13 years in prison with the MCDOC, with credit for 360 days served. the circuit court did not impose any period of probation. Schwartz moved for reconsideration of his sentence.

After spending 190 days in prison, on February 26, 2015, Schwartz requested that he be returned to drug court, which the State did not oppose. The circuit court granted Schwartz's motion for reconsideration, suspended the balance of the 13-year sentence that had been imposed on August 21, 2014, and determined that the balance of the sentence was 11 years. The circuit court sentenced Schwartz to that 11 years, suspending all, with three years of supervised probation, on the condition that he return to drug court.

The circuit court imposed a sentence, "as a condition of probation," of nine months in the correctional facility to be served at the Pre-Release Center. On June 23, 2015, the order remanding Schwartz to the MCDOC was suspended and Schwartz was released, effective June 25, 2015, to reside at Moline Oxford House.

The Department of Motor Vehicles ordered Schwartz to install an ignition interlock on any vehicle he drove, but he was caught driving a rental vehicle without the device. Additionally, Schwartz had not been staying at Oxford House, instead spending nights at his mother's home without permission to do so.

On April 7, 2016, after engaging in what the circuit court deemed "dishonest behavior," Schwartz was arrested and held until a VOP hearing on May 12, 2016, at which point the court planned to consider whether to terminate Schwartz's participation in the drug court. At the May 12, 2016 hearing, Schwartz again admitted to violating the terms of his probation, by driving without an interlock device on his vehicle and by failing to obey all the rules of drug court. The circuit court deferred sentencing until July 21, 2016, remanding Schwartz to custody until he could be transferred to the Pre-Release Center.

By July 21, 2016, Schwartz had only been at the Pre-Release Center for ten days because he was "held in jail" on a pending charge of driving on a suspended license. The circuit court sentenced Schwartz to 11 years in the MCDOC, with credit for 216 days and the remaining days suspended, along with three years' probation, which, according to the circuit court, began on February 26, 2015. On October 14, 2016, the circuit court suspended the order returning Schwartz to the MCDOC, effective October 18, 2016, and released him to live at Rock Creek Oxford House.

On March 28, 2017, the circuit court noted that Schwartz had not been at Rock Creek Oxford House for four days and had missed a court-mandated urinalysis testing. His drug court case manager had been unable to locate him, so the court issued a bench warrant for Schwartz, who was to be held without bond. Schwartz's whereabouts were unknown until he was apprehended on April 25, 2017.

On May 12, 2017, Schwartz filed a written motion to dismiss the violation of probation for lack of jurisdiction, arguing that the April 18, 2017 VOP petition, relating to an alleged March 25, 2017 probation violation, was filed after his term of probation had expired by operation of law. "Even accounting for his incarceration on the violations of probation," the motion stated, Schwartz had served five years and 229 days on probation prior to the March 2017 violation, and his probation had therefore expired on September 5, 2016.

The State...