*1 HUMPHREY STATE OF RONALD MARYLAND Tеrm, 97, September [No. 1980.] April Decided J., and argued before cause Smith, Murphy, C. JJ. Rodowsky, Eldridge, Cole, Digges, Davidson Defender, with Córtese, Assistant Public A. Claudia brief, for Murell, Defender, Public was Alan H. whom appellant. General, Attorney McDonald, Assistant E.
Patricia General, brief, Sachs, Attorney on the H. Stephen whom appellee. *2 J., opinion of the Court. delivered the Murphy, Davidson, JJ., J., J., dissent. and Smith and C. Rodowsky, Rodowsky, infra, page which dissenting opinion a filed J., J., concur. C. Smith, Murphy, proba- under which This case concerns the circumstances ques- it involves the particularly, More tion be revoked. probationer this case a had whether under the facts of tion probation. the conditions of his in violation of one of acted Baltimore, the Criminal Court of July On 30 the convicted (probationer), was petitioner, Humphrey Ronаld The entries breaking entering. of assault and docket sentenced to two consecutive probationer show that the was terms, was sus- two-year the execution of sentence probation the was released on pended, probationer and that day, the trial court period years. for a of three On the same pro- that indicated that the probation” entered an "order for subject general bationer released on to certain probation was and to conditions as follows: Defendant to "special conditions specify The order did not Drug probation receive treatment.” of, of, kind time within which treatment was extent to be received. hearing probation
On 26 a revocation November probationer alleged was held. The sole violation was that order that special had violated the condition of the treatment.” required Drug him "to receive only hearing, the wit- At the revocation State’s (officer). The probationer’s probation ness was the officer assigned probationer’s as the officer testified that he was was days probationer seven after the supervisor about wanted to placed probationer At all times the During the program. enrolled in drug rehabilitation voluntarily sought probationer initial probation, week of both the During probation, treatment. the second week of to obtain a probationer repeatedly attempted and the officer pro- community-based treatment in various placement advised the officer agency failed. One grams. Their efforts fit their criteria” for admission. "didn’t рrobationer not locate the officer that could A informed referral service probationer admit the abuse would rate and [prior] extensive failure the [probationer’s] "due to ” That referral service advised violence.’ 'propensity towards in its office he probationer was officer that while had to be removed disorderly manner and acted in a "not told the Finally, the referral service police. unacceptable because he to return agency.” their through incident the days three after this officer testified that in an intoxicated at the officer’s office arrived result, proba- to have the arranged the officer
state. As a on 13 Hospital Mental Crownsville State tioner sent to *3 September 1979. On 19 August City where he remained Jail to the Baltimore transferred hearing. 1979 revocation of until the 26 November testified that hearing, the officer further At the revocation at an examination conducted based on the results of Department the Medical Hospital, Mental Crownsville State probationer of Parole and Probation concluded Nonetheless, the community supervision. to not amenable opinion of the officer that he still asserted wa^ and his drug addiction probationer could be treated for his if one would community-based program in a problem alcohol accept him. stay he wanted "to off testified that probationer
The problem a with alcohol and having but that he was drugs” day "every report to the officer willing Demerol. He was to stay jail. to out of The necessary” given if another chance if admitted into a attempted to be repeatedly had Indeed, his insistence on program. rehabilitation the disturbance that caused program admission into such a He had the referral service office. involving police they got "until the referral service office refused to leave police in a chair” until the into and sat [him] [he] leave, him to he left. police arrived. When the told said: the triаl court hearing, the conclusion At decent yon pretty are a happens is "I think what with involved know, getting you if are you guy, something you, in few you get pills But if drugs. These violence. toward you propensity this have an in in you come to have afford can’t programs people. threaten manner aggressive angry to do know what 1 don’t you. So them want None of belong in don’t you. You say this to you. I will you.” get can I it for where help need but jail. You added.) (Emphasis reimposed
Thereafter, court revoked two-year sentences. two consecutive Special Appeals the Court of probationer appealed which, judgment affirmed the opinion, unreported in an 1530, September No. Humphrey v. the trial court. curiam). The probationer Term, 1979, July (per filed granted. we certiorari that for a writ of petition then filed a Special of the Court judgment shall reverse We Appeals. liberty long as he his as entitled to retain
A is Pro- probation. of his by the conditions substantially abides has fact revoked unless bation not be conditions of of one or more acted violation 1756, 778, 784-85, Ct. 93 S. 411 U.S. Gagnon Scarpelli, v. 479-80, 471, Brewer, (1973); 408 U.S. Morrissey v. 1760-61 420, 425, (1972); State, Md. v. Swan 92 S. Ct. State, 238 Md. 692-93 See Scott 90 A.2d (1965); Superintendent Jett v. 275-76, 208 A.2d 580-81 *4 640-41, 633, Males, 209 Md. Reformatory Md. for Statе 346, State, (1956); App. Md. 580, v. 15 120 A.2d 583-84 Rites State, (1972); 6 Md. 347-56, 554, Wilson v. 290 A.2d 555-60 379, 397, 402-03, 382-83 251 A.2d App. revoked the State may be
Generally, probation before one complied has not prove probationer must then, ordinarily Even or more lawful conditions of proves probationer be revoked if not from resulted but rather his failure was not willful comply to 168 through of his own. beyond his control and no fault
factors (5th Boswell, 171, 173-75 v. F.2d Cir. E.g., United States 605 (failure 1979) restitution); Taylоr, make United States v. to 1963) (failure (4th fines); 339, pay Cir. to 321 F.2d 340-41 1101, Romero, 106, 107-08, v. Colo. 559 P.2d People 192 (failure (1976) fees); attorney’s payment to make 1101-02 451, 452-54, 835, Silcott, 177 494 P.2d 836-37 People v. Colo. (1972) (failure payments); Donneil v. support to make child 1979) (Fla. (failure State, 805, to com App. 377 2d 805 So. Nakamura, 59 v. drug program); State plete rehabilitation (failure (1978) 378, 380-83, 759, to 581 P.2d 761-63 Haw. v. State drug program); treatment accepted residential (1968) 43, 44-47, 709, P.2d 710-13 Oyler, 92 Idaho 436 (fаilure beverages”); the use of alcoholic to "refrain from 223, 228-29, 238-50, 141 Moretti, Super. 50 N.J. State v. (failure (1958) 810, 813-14, gainful to obtain 819-27 A.2d 921, 921, Bowman, 2d App. 73 Div. People v. employment); (failure (1980) 242, psychiatric to obtain N.Y.S.2d 243 423 (Tex. 331, treatment); State, 332-34 486 S.W. 2d Butler v. 1972) (failure faithfully employ at suitable Crim. to "work ment”). course, carry to this probationer fails Of if the burden, is a question whether to revoke E.g., of the trial court. United matter within discretion 1978) (8th Burkhalter, Cir. F.2d 605-07 v. States (failure Scott, atMd. training). See vocational take 220 Md. 272-73, 579; Edwardsen 208 A.2d at Swan, 132, 135-36 (1959); Md. at 88-89, 151 A.2d proba to revoke trial determination A.2d at 692. The court’s purpose court "for the appellate an tion is reviewable any has been abused determining whether that discretion placed has been construction way, or whether an erroneous Swan, [probation].” ofthe by the trial on the conditions judge Md. at 90 A.2d аt alleged was that the Here the violation sole probation order that special condition had violated special treatment.” That Drug "to receive required him Drug "receive only required of or the extent of the kind specify treatment.” It did require It did not to be received. *5 169 a commu- from drug treatment in to receive accepted to be prescribe not It did program. drug treatmеnt nity-based The evi- or terminate. begin was to treatment drug when that within at most establishes by the State dence adduced drug received had not the probationer period two-week a drug community-based specific from certain treatment to show failed evidence The State’s programs. treatment drug kind of receiving some probationer that community-based in a participation other than treatment addition, that to show In it failed drug program. treatment drug some kind obtain would not Thus, the rec- of time. period a reasonable treatment within acted finding support does not ord Rites, his See special violation of the 560; Wilson, at App. 6 Md. 354, A.2d at 290 App. 15 Md. at 403, 251 A.2d at the probationer that
Moreover, evidence establishes on only placed after liberty for two weeks was at repeаted he made period that entire throughout that commu from various placement obtain a faith efforts to good denied He was drug programs. treatment nity-based any engaged he not because programs, to these admission but rather probation, placed after he was misconduct Thus, the record shows misconduct. previous of his because par opportunity deprived community-based ticipate in a proba Because the beyond his control.
because of factors condition, comply special with the repeatedly tried to tioner affecting during others misconduct engaged in no act of complying from prevented and was period, probationary beyond his of factors condition because special with the proba control, finding support the record does not proba special condition of acted in violation of the tioner 805; Donneil, 2d at Rathburn v. 353 E.g., tion. 377 So. (Fla. 1977); Nakamura, 59 Haw. at App. So. 2d 902-03 Welch, 380-83, 761-63; App. v. 78 Ill. 3d People 581 P.2d (1979); 95-97 184, 184-87, Dec. 397 N.E.2d 33 Ill. (La. 1978); Lassai, 1390-91 366 So. 2d State 921-22, N.Y.S.2d at 243-44. Bowman, Div. 2d at App. 141, 143-45, Turner, Div. 2d See, App. People v. e.g., 409, 410-13 N.Y.S.2d *6 sufficient to show that the failed to adduce facts
The State by substantially special abide the condi did not erred Accordingly, the trial court when tion of his probation. it revoked the Judgment Special of Court of reversed. Appeals remanded to that Court Case judg- reverse the directions to ments of the Criminal Court of Baltimore. by Mayor paid
Costs to be the City of Baltimore. Council J., Rodowsky, dissenting: respectfully
I dissent. us,1 that appears appel before From what is available age 34 at the time of lant, (Humphrey), Humphrey Ronald drugs on since he was 16. hearing, had been the revocation the house him out of put mother had May 1979 his On returned, he one-half hour later at about 8:00 a.m. About his sister with a 9-inch the house and chased broke into breaking and conviction on Upon knife. butcher totalling four charges, sentences entering and on assault sus of the sentences was Execution years imposed. were placed proba supervised pended and the defendant order that one of the written appears tion. It from the sentence of execution of suspension the of the conditions drug receive treatment.” was: "Defendant to from November A handwritten letter dated appeal an order for as which has been treated Humphrey, revocation, that the conditions states from the order of drug availability treatment of the a trial court can assure 1. We note that requisite time as imposition until such by postponing of sentence drug been made. arrangements have for only to relates Baltimore transcript Court of the Criminal 1. The from transcript of but no hearing the revocation of November sentencing provided. has been get an] back on of "were of execution sentence suspension program [sic] recieve treatment.” out-patient methadone specification further that there was appears It therefore sentencing at the probation articulated the condition of Humphrey to understand hearing sufficient pro- methadone community based referred to condition gram. at the revocation statements judge’s on the trial
Based
per
Humphrey was
obviously considered that
hearing, he
pills
hе
a few
"got
toward violence if
propensity
with a
son
fairly
can
condition
something” in him. The
effect a
trial court to
read to be an effort
constructive to
would be both
which
of rehabilitation
public.
protect
same time
Humphrey and
"receive”
Humphrey
probation,
cir
treatment,
under the
clearly
actual treatment
meant
*7
Nothing
of that would
here.
short
presented
cumstances
willing
was
satisfy
judge
under which the trial
the condition
The condition was
execution of sentence.
suspend
to
[trial]
is
of "whether the
court
one under the test
proper
justice
ends of
its
will subserve the
satisfied that
action
the defendant.”
public
both the
the best interests of
154, 156,
States,
53 Ct.
287 U.S.
S.
Burns v. United
(1932).
L. Ed.
variation on condi-
many ways,
presents
In
this case
of
suspension
the execution
sentence which
tions of
of
of,
in,
the fаcts Wilson
recognized
presented
but was not
The condition
A.2d 379
App.
Md.
violating
charged
in that case was
appellant
which the
(U.S.
11os
"May
Lexington, Ky.
Government
go
was:
program at
get
tried to
into the
pital)-School.” Wilson
judge
trial
had
not successful. The
Lexington but was
Lexington
into
admission
revoked
because
judge
the trial
had
only
on which
program was the
basis
was reversed as
revocation
suspеnded sentence. That
construction
proper
and under a
unjustified under the facts
However, Judge
suspension
specified.
of
as
condition
Orth,
said at 403
Appeals,
speaking
Special
for the Court
In the instant if the suspension condition of of the sentence was that appellant be accepted in the program educational at Lexington so that the non-acceptanсe mere would violate the condition no reason, matter what the it apparent is not from the order the appellant charged with violating, nor indeed, it is clear from the remarks of the court at the penalty stage of the trial. It well be that this is what the court intended but if it so did not conform order signed it to that intention. case,
In the instant it is established without contradiction that Humphrey did not treatment аt out-patient receive an program. methadone It is also uncontradicted in the record that Humphrey eligible was not for such a because past failures manifested that he was not amenable to community believe, based indicates, treatment. I as Wilson that the trial court has power to make actual receipt treatment the governing its willingness to allow a person convicted dangerous with known propensities to roam the streets. This is what the trial court did in this case and the nonfulfillment of the really condition is not disputed. fundamentally,
More however, I majority believe the has inappropriately applied a fault standard to this case to deter mine "violation” of this revocation, condition. "Probation revocation, like parole is not a stage of a criminal prosecu ...,” tion although, because results in a liberty, loss of certain procedural process due requirements must be met. *8 Gagnon v. Scarpelli, 778, 782, 411 1756, U.S. 93 S. Ct. (1973). 1759-60, 36 656, L. Ed. 2d 661-62 emphasis The ofthe majority is on whether Humphrey substantially by, abided of, or acted in violation the condition in the period after imposition of the condition. There is merit recognizing to as a defense to probation revocаtion that performance the of a beyond condition was the control of probationer, the e.g., the inability of an indigent probationer to specified make a res My titution. point simply is that' concept always the is not dispositive.
173
hearing, on
a
revocation
probation
At
first
of
level
is
"viola-
a condition
a
of
whether nonfulfillment
issue of
directed
unfortunately
little attention
tion,”
bеen
has
there
probationer’s
of
on the
lack
fault
by
courts to when
defensive.
attention has been
might not be
Some
part
a
insanity
as
presented
is
where
problem
to the
directed
(2d
Mercado,
Cir.
The author of a Judicial L. Violator, 5 U.C.L.A.-Alaska Mentally Ill Probation Trumbly deci (1976), Rev. prompted which was *9 sion, are at suggests types that there least two of situations involving probationary unintentional violations of condi fault, analysis tions to which an based on the lack of control, inability inapplicable. of the seems type primary goal proba "The first of case occurs when the of something proba tion is other than the rehabilitation of the tioner, so that whether he makes an honest effort or not is important less than whether he is able to meet the condi imposed.” type tions Id. at 296.2 The second of case in which faith suggested good it is of the not controlling "arises where the violation results from a beyond factor his control but not external to him. Unlike the case, in usual which the unintentional violation is caused some outside condition which is both unrelated to the alleviated, easily potentiаl violator’s for rehabilitation and suitability the violation here does bear on the of the violator probation.” for continued Id. at 296-97.
I
recognize
foregoing reasoning
would
in the instant
case. Once it was
that
that
established
Humphrey actually
community
receive
in a
fulfilled,
based program could not be
there was a "violation”
support
which could
revocation. The trial
had to
court thеn
Humphrey
determine whether
was suitable for continued
imposed upon
release without that control
him. The trial
reluctantly
court in essence concluded that he was not and
originally imposed
ordered that the sentence
be served. In so
acted, my
in
doing
opinion,
power
he
within his
and discre-
tion.
States,
2. Illustrative of this class of case is Genet v. United
tion was not as an instrument rehabilitation nor as an element punishment, continuing but as a assurance to the welfare of the children. dissipated, though through When that reason for even fault, say the defendant’s affirmative the Tenth Circuit was unable to discretion was abused. me Judge Smith have authorized Judge Murphy Chief expressed this the views they concur to state *10 dissenting opinion. POTTER LEWIS v. JOHN LEWIS
MARY ELIZABETH Term, 1980.] September [No. April2
Decided