State v. Brookman

460 Md. 291

190 A.3d 282

STATE of Maryland

v.Crystal BROOKMAN

State of Maryland

v.Marvin Randy Carnes

No. 29, Sept. Term, 2017

Court of Appeals of Maryland.

July 31, 2018

Argued by Mary Ann Ince, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen., Maryland, Baltimore, MD), on brief, for Petitioners/Cross-Respondents

Argued by Isabelle Raquin, Assigned Public Defender (Stephen B. Mercer, Assigned Public Defender, Raquin Mercer LLC, Rockville, MD), on brief, for Respondents/Cross-Petitioners

Panel Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

McDonald, J.

The past three decades have seen the growth, in Maryland and elsewhere, of treatment programs operated under the auspices of the judiciary. In those programs, sometimes identified by the generic phrase "problem-solving courts," judges, counsel, probation officers, and treatment professionals work together to address an underlying issue that brings an individual into the criminal justice system. Problem-solving courts focus on therapy for the individual defendant, in the hope that both the individual and society will be better off in the long run. Preeminent among such programs are those known as "drug courts."

Drug court programs are conceived of as collaborative rather than adversarial. However, the coercive powers of the court under the criminal law are used as an important instrument to achieve the program's goals. This creates a tension: For a drug court's goals to be achieved, there must be swiftness and certainty of sanction for violation of its protocols. For the criminal justice system to work, there must be due process and respect for appellate rights.

These consolidated cases concern whether a circuit court's exercise of its coercive powers to incarcerate a drug court program participant in aid of the swiftness and certainty of program sanctions (1) is subject to appellate review and (2) can violate the participant's right to due process.

Respondents Crystal Brookman and Marvin Carnes were defendants in separate criminal prosecutions in the Circuit Court for Montgomery County. The Circuit Court determined that each was eligible to participate in the court's drug court program as a special condition of probation after each pled guilty in their respective cases. Each did so and fared well in the program for many months.

In early 2016, Ms. Brookman was alleged to have had a negative urinalysis – based not on a positive finding of illicit drugs, but on a test result that suggested she may have attempted to dilute her urine. At approximately the same time, Mr. Carnes appeared late for a randomly-scheduled drug test. At subsequent hearings concerning their respective alleged violations of the program conditions, each was represented by counsel. Ms. Brookman's counsel asked for a postponement to gather and present evidence contesting her test result; Mr. Carnes' counsel asked the court to consider mitigating evidence before imposing the program sanctions. However, in both cases, the Circuit Court declined to exercise discretion and imposed immediate sanctions from the program's sanctions menu. In both cases, those sanctions included overnight incarceration.

Ms. Brookman and Mr. Carnes filed applications for leave to appeal, which were accepted by the Court of Special Appeals and consolidated for appellate review. The intermediate appellate court held that Ms. Brookman and Mr. Carnes had the right to seek appellate review of the incarceration sanction. Upon that review, it held that the procedure followed in the Circuit Court did not comply with the requirements of due process.

We agree with the holdings of the Court of Special Appeals.

IBackground

A. Drug Court Programs

1. Problem-Solving Courts and Emerging Issues

Although one would hope that most courts contribute to the solution of society's problems, the phrase "problem-solving court" is generally used to denote a special docket in a trial court that targets defendants whose presence in the criminal justice system appears to be traceable, at least in part, to an underlying issue such as substance abuse.¹ To address that underlying issue, participants in the program are subject to a highly structured probation that includes treatment and monitoring. A typical drug court program is divided into several phases of diminishing intensity as the participant progresses in accordance with the program's goals.² To encourage a participant's compliance with treatment and monitoring, most programs require frequent status review hearings involving a judge assigned to the program and other court personnel. As a further incentive for participants to comply with the program's conditions, violations of program requirements are generally punished with a series of graduated sanctions, some of which derive from the court's coercive powers.³

As some courts and commentators have noted, the use of coercive powers, coupled with the informal, collaborative nature of the program, can raise issues as to whether a participant has received the procedural due process guaranteed to criminal defendants and probationers.⁴ Moreover, because of the intensive monitoring of the participant without counsel, or with counsel who is regarded as a member of a treatment team rather than an advocate, there can be ethical issues, such as the potential for ex parte communications between the judge and a defendant.⁵

2. Problem-Solving Courts in Maryland

Problem-solving court programs were first established in Maryland in the early 1990s.⁶ According to the most recent annual report of the Office of Problem Solving Courts, there are 53 such programs associated with circuit courts and the District Court, focused on various underlying issues that bring individuals within the jurisdiction of the judicial system – substance abuse, mental health issues, truancy, and veterans' issues. See https://www.courts.state.md.us/sites/default/files/import/opsc/pdfs/annualreports/fy2017opscannualreport.pdf (last visited June 4, 2018).

Nature of a Problem-Solving Court

In 2009, this Court was presented with the issue of whether a "problem-solving court" had fundamental jurisdiction, such that it could sanction a criminal defendant who violated a program condition. The Court held that, because the "drug court" in question was essentially a division of the circuit court – a court of original general jurisdiction – it had the fundamental powers of the circuit court. Brown v. State , 409 Md. 1, 971 A.2d 932 (2009). The Court held that the question whether the procedures of the drug court violated due process could be addressed through "well-developed mechanisms for correcting any violations" – i.e ., appellate review and extraordinary writs. 409 Md. at 8-9 & n. 1, 971 A.2d 932. Whether the particular drug court program actually violated due process and the code of judicial conduct because of ex parte communications that a judge might have under the program was apparently raised at oral argument of the case,⁷ but not resolved by the decision. The following year, this Court adopted a rule that governs the operation of existing problem-solving courts and the creation of new programs and that addressed at least some of the issues raised, but not decided, in Brown .

Maryland Rule 16-207

In 2010, this Court first adopted a rule governing "problem-solving court programs." That rule is currently codified as Maryland Rule 16-207.⁸ That rule describes "problem-solving court program" as "a specialized court docket or program that addresses matters under a court's jurisdiction through a multi-disciplinary and integrated approach incorporating collaboration by the court with other governmental entities, community organizations, and parties." Maryland Rule 16-207(a)(1).

In order to be accepted into such a program, a prospective participant – presumably a defendant in a criminal case in most instances – must execute a written agreement. Maryland Rule 16-207(e)(1). The written agreement is to set forth the requirements and protocols of the program, the range of sanctions that may be imposed against a participant, and any waiver of rights by the participant (e.g., waiver of a right to counsel).⁹ As a further condition of acceptance into the program, the trial court is to examine the prospective participant on the record concerning the agreement and make an explicit finding that he or she is acting knowingly and voluntarily. Maryland Rule 16-207(e)(2).

A program may allow for the imposition of immediate sanctions. Maryland Rule 16-207(f). However, if such a sanction would involve a loss of liberty or termination from the program, the participant is entitled to notice, an opportunity to be heard, and the assistance of counsel before the court makes its decision. Id.¹⁰ The rule also provides that a participant who is terminated from a program is to receive credit for time spent incarcerated while in the program against a sentence that is to be served as a result of termination from the program. Maryland Rule 16-207(g).

3. Montgomery County Adult Drug Court Program

The setting for the issues in this case is a problem-solving court program in the Circuit Court for Montgomery County known as the Montgomery County Adult Drug Court Program. It was first established in December 2004. According to the Policies and Procedures Manual for the program, it is a "collaborative effort ... to break the cycle of substance abuse" by providing the structure required for a participant to become alcohol and drug free. The program is limited to non-violent addicted offenders following conviction.¹¹ A defendant may be directed to the program as a condition of probation following a guilty plea or as a consequence of being charged with a violation of probation. An eligible defendant must consent to participation in the program. Upon successful completion of the program, the participant is released from probation.

The program, which requires a minimum of 20 months to complete, is divided into four phases. Participants advance...