State v. Alexander

467 Md. 600

226 A.3d 1

STATE of Maryland

v.Aaron Terrell ALEXANDER

No. 1, Sept. Term, 2019

Court of Appeals of Maryland.

March 26, 2020

Argued by Cathleen C. Brockmeyer, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Eva Shell, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Irma S. Raker (Senior Judge, Specially Assigned), JJ.

McDonald, J.

In the criminal justice system, a sentencing judge generally has significant discretion in devising an appropriate sentence. A common element of a sentence is a period of probation.¹ Maryland statutes and court rules confer discretion on a sentencing judge to set the conditions and duration of probation. When a defendant violates a condition of probation, the court may modify or revoke probation. For certain types of violations, a statute specifies a presumptive sanction for the violation.

This case concerns the discretion of a court to dismiss a probation violation petition and to terminate probation. Respondent Aaron Terrell Alexander pled guilty to theft in the Circuit Court for Baltimore County in 2014. The Circuit Court imposed a sentence of imprisonment but suspended execution of that sentence in favor of three years of supervised probation – a period that was later extended to February 2019. One condition of that probation was that Mr. Alexander pay restitution. In August 2017, Mr. Alexander was charged with violating conditions of his probation, including the restitution condition. After failing to appear for a hearing, he was taken into custody and detained for 26 days up to the date of the probation violation hearing in December 2017.

At the hearing, the court noted that Mr. Alexander had already been incarcerated for longer than the presumptive sanction of 15 days imprisonment provided by statute. The court dismissed the probation violation petition without determining whether Mr. Alexander had in fact committed the alleged probation violations. The court also appeared to believe that Mr. Alexander's probation period had ended – even though, as a result of the extension to February 2019, it had not – and declared that Mr. Alexander's probation had "expired" and was "over."

In our view, the Circuit Court had discretion to dismiss the probation violation petition without adjudicating the merits of the alleged violations. In light of the fact that Mr. Alexander had already served more than the presumptive statutory sanction, the court did not abuse that discretion when it did so. While the Circuit Court also had discretion to terminate Mr. Alexander's probation before it would otherwise expire, the record does not indicate that the Circuit Court in fact exercised such discretion. Accordingly, this case will be remanded to the Circuit Court for any necessary proceedings in which the court may either exercise its discretion, indicate that it has already done so, or take any other appropriate action.

IBackground

A. Probation and the Resolution of Probation Violations Imposition and Modification of Probation

It has frequently been said that, when a court sentences a defendant following conviction in a criminal case, it is "vested with virtually boundless discretion." E.g., Lopez v. State , 458 Md. 164, 180, 181 A.3d 810 (2018) ; Logan v. State , 289 Md. 460, 480, 425 A.2d 632 (1981). In particular, it generally has the option of including a period of probation with respect to one or more counts. Maryland Code, Criminal Procedure Article ("CP"), § 6-225 ; see Meyer v. State , 445 Md. 648, 679, 128 A.3d 147 (2015). "Probation is a creature of statute, and as such, the terms of probation are derived from statutory authority." Bailey v. State , 355 Md. 287, 293, 734 A.2d 684 (1999). For example, a sentencing court may suspend the imposition or execution of a sentence of imprisonment and place the defendant on probation. CP § 6-221. Or the court may impose what is often referred to as a "split sentence," in which it suspends execution of a sentence of imprisonment, but requires the defendant to serve part of that sentence followed by a period of probation. See CP §§ 6-222(a), 6-225(b) ; see also Cathcart v. State , 397 Md. 320, 326-27, 916 A.2d 1008 (2007). In some cases in which a defendant has been found guilty, the court may choose to stay the entry of judgment, defer further proceedings, and place the defendant on probation – what is known as probation before judgment. CP § 6-220(b)(1).²

In any of those situations, probation may be supervised or unsupervised, and subject to conditions set by the court. CP § 6-220(b)(1) ("reasonable conditions"); CP § 6-221 ("conditions that the court considers proper"). In practice, the defendant's continuation on probation is made subject to various standard conditions of probation – for example, obey all laws, report as directed to probation officer, appear in court when notified to do so, make restitution. The court may also impose special conditions of probation related to the particular case or the particular defendant – for example, participate in an alcohol or substance abuse program, complete a specified number of hours of community service, refrain from contact with certain persons.³ At sentencing, the court is to advise the defendant of the duration and the conditions of probation and issue a written order that incorporates that information. Maryland Rule 4-346(a).

As a general rule, a period of probation imposed by a circuit court may not exceed five years. CP § 6-222(a)(3)(i) 1.⁴ However, in cases in which restitution is a condition of probation, a circuit court may extend the period of probation, with the defendant's consent, up to an additional five years for the purpose of the defendant making restitution. CP § 6-222(b) - (c).

A court that has included a period of probation in a sentence may later modify the duration or conditions of probation. Such a modification may be initiated by either the defendant, a person supervising the defendant's probation, or the court itself on its own initiative. Maryland Rule 4-346(b). After giving the defendant an opportunity to be heard, the court may "modify, clarify, or terminate any condition of probation, change its duration, or impose additional conditions." Id. In addition, the court "may end the period of probation at any time." CP § 6-223(a). Pertinent to this case, if a defendant still owes restitution when probation is terminated, the overdue restitution account is to be referred for collection to the Central Collection Unit. CP § 11-616(a).⁵

Violations of Probation and Probation Revocation

A court may be called upon to decide whether to modify or revoke a defendant's probation when it is alleged that the defendant has violated a condition of that probation. To begin such a proceeding, the court – either on its own initiative or upon the filing by the State's Attorney or a probation officer of a petition charging a probation violation – may issue a warrant for the defendant or a notice requiring the defendant to appear in court. CP § 6-223(b) ; Maryland Rule 4-347(a)-(b).⁶ Pending resolution of the alleged probation violation, the court may order that the defendant be confined or be released, with or without bail. CP § 6-223(c).

A probation violation proceeding typically involves two steps. Wink v. State , 317 Md. 330, 332, 563 A.2d 414 (1989).

First, the court must hold a hearing at which it determines, by a preponderance of the evidence, whether the defendant committed the alleged violation. Maryland Rule 4-347(e)(1) ; Wink , 317 Md. at 340-41, 563 A.2d 414. The hearing is to be scheduled such that the defendant has "a reasonable opportunity to prepare a defense to the charges." Maryland Rule 4-347(e)(1). At the hearing, the defendant may admit or deny the alleged violation, testify, present witnesses, and cross-examine adverse witnesses. Maryland Rule 4-347(e)(2). The hearing may be conducted informally, without strict adherence to the rules of evidence. Id. The hearing procedures are designed to comply with a defendant's constitutional due process rights. State v. Brookman , 460 Md. 291, 315-16, 190 A.3d 282 (2018) (citing Gagnon v. Scarpelli , 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ); see also Maryland Rule 4-346(b) (court may modify or terminate conditions of probation "after giving the defendant an opportunity to be heard").

Second, if the court finds that the defendant has violated a condition of probation, it must decide whether to modify or revoke probation. See CP §§ 6-223, 6-224.⁷ If the court decides to revoke probation, the maximum period of imprisonment depends on how the defendant was placed on probation. If the court previously entered a judgment of conviction but suspended imposition of a sentence, the court may revoke probation and impose any sentence allowed by law for the offense of conviction. CP § 6-224(b)(1)(ii). If the court previously entered a judgment of conviction and suspended execution of a sentence, it may sentence the defendant to "all or any part of the period of imprisonment imposed in the original sentence." CP § 6-224(b)(1)(i). If the court previously entered probation before judgment, it may enter judgment, proceed as if the defendant had not been placed on probation, and sentence the defendant to any sentence allowed by law for the offense of conviction. In any of these scenarios, the court "enjoys many options." State v. Dopkowski , 325 Md. 671, 678-79, 602 A.2d 1185 (1992). Among other things, the court may "suspend all or part of a sentence and place the defendant on further probation on any conditions that the judge considers proper." CP § 6-224(b)(2).

Recently, the General Assembly has established presumptive limits on the sanction for certain types of probation violations.

Justice Reinvestment Act Amendments

In 2016, the General...