Adkins v. State

ROBERT M. BELL, Judge. This case presents the single issue, whether an appeal from an order revoking a defendant’s probation and reimposing the previously suspended sentence is rendered moot by that defendant’s completing service of his sentence while the appeal is pending. The Court of Special Appeals believes that it is and, therefore, sua sponte, dismissed petitioner’s (William Adkins’) appeal. 85 Md.App. 224 , 582 A.2d 597 (1990). We now reverse. 1.

Petitioner was convicted of malicious destruction of property, unlawfully carrying a deadly weapon, and two counts of battery. His eight year sentence was suspended in favor of five years probation. Although, a little more than a year later, he was charged with violating his probation and a warrant for his arrest was issued, it was not until almost nine years more had passed that petitioner was served with the charges and the arrest warrant. Having denied the charges, 1 he moved to dismiss them, arguing that “the nine ⁶⁴³ year delay between issuance of the warrant and the revocation hearing denied him due process of law.” The motion to dismiss was denied.

Following a hearing, he was found to have violated his probation, and the court revoked that probation, reimposing, with credit for time served, 18 months of the previously suspended sentence. While his timely noted appeal to the Court of Special Appeals was pending, 2 petitioner was released from confinement, having served, as he indicated at oral argument before that court, “[the entire] eighteen-month sentence.” 85 Md.App. at 226 , 582 A.2d at 598 . As a consequence, the intermediate appellate court held that the appeal was moot. It reasoned: In this case, the serving of the sentence as a result of the probation violation was but an aspect of the direct consequences that have become irrevocable history.

There are, moreover, no collateral consequences that might accrue. It is the original conviction itself, here unchallenged, that would produce collateral consequences. The merely coincidental question of whether the sentence for that conviction was served as an inmate, as a parolee, or as a probationer has no bearing upon the collateral consequences. The direct consequences of the revocation being beyond our power to influence and there being no collateral consequences, any consideration of the merits of the revocation would be no more than an advisory opinion. 85 Md.App. at 230 , 582 A.2d at 600 .

The court thus drew a distinction between a criminal conviction, from which flowed, it noted, future “collateral legal disadvantages,” ⁶⁴⁴ and a violation of probation proceeding, from which no such consequences flowed. Adkins, 85 Md.App. at 227 , 582 A.2d at 598 , quoting Pollard v. United States, 352 U.S. 354, 358 , 77 S.Ct. 481, 484 , 1 L.Ed.2d 393, 397 (1957). We issued the writ of certiorari in order that we might consider the important issue raised by petitioner. 2. Petitioner argues that the lower appellate court erroneously concluded that the criminal conviction pursuant to which he was placed on probation, but not the finding of probation violation pursuant to which his probation was revoked, is productive of collateral legal consequences.

It is not true, he asserts, that a violation of probation finding may have only direct consequences, i.e., a new probationary term or service of the suspended sentence. He contends that even when the sentence imposed pursuant to the revocation has been fully served, the violation of probation finding still has, and may give rise to, collateral consequences sufficient to exempt an appeal from it being challenged as moot. Thus, petitioner maintains: “An adjudication that a probationer has violated his probation has substantial collateral consequences.” He directs our attention to what he perceives to be at least some of them. First, he maintains that a finding of violation of probation will have an impact upon any future contact he might have in the criminal justice system. 3 “In many cases the sentence will be more severe than it would otherwise be simply because a defendant has been previously adjudicated in ⁶⁴⁵ violation of his probation.” 4 Second, a finding of probation violation may have an adverse impact upon parole eligibility should the probation violator again be convicted of a crime and sentenced to imprisonment.

See COMAR 12.08.01.-18A(3)(a) (a factor to be considered by the Parole Commission is “[t]he offender’s prior criminal and juvenile record and his response to prior incarceration, parole or probation, or both.”). Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 638C(a) gives a sentencing court discretion to credit the time a defendant spent in custody for another offense against a sentence that a defendant is required to serve in the future. Thus, petitioner contends that, unless he is allowed to challenge the propriety of the instant violation finding and should he be convicted in the future of another offense and sentenced to imprisonment, he will not qualify for § 638C(a) credit. Because petitioner has fully served the sentence imposed as a result of the probation violation adjudication, the State argues that, unless there are collateral consequences, the case is clearly moot.

Unlike the intermediate appellate court, however, citing Robbins v. Christianson, 904 F.2d 492, 495 (9th Cir.1990), explicating Lane v. Williams, 455 U.S. 624 , 102 S.Ct. 1322 , 71 L.Ed.2d 508 (1982), 5 it acknowledges that an appeal of a finding of probation violation is ⁶⁴⁶ not moot, even though the defendant has served his sentence, where that defendant demonstrates collateral consequences. This is to be contrasted with the situation in which the underlying conviction is being appealed, in which event, the existence of collateral consequences is presumed. See Sibron v. New York, 392 U.S. 40, 55 , 88 S.Ct. 1889, 1898 , 20 L.Ed.2d 917, 930 (1968). In the former case the State contends, to qualify as “actual collateral consequences,” they must be shown to be “concrete and not speculative,” characteristics applicable to a conviction, as opposed to a probation violation finding.

Examples of concrete, non-speculative collateral consequences offered by the State are “disentitlement to the voting franchise or the holding of public office, the use of the conviction to impeach future testimonial credibility, and the use of the conviction to support enhanced punishment.” Adkins, 85 Md.App. at 226 , 582 A.2d at 599 . The State contends that, since petitioner’s appeal challenged only “the propriety of how he was to serve his sentence, that is, whether Adkins should have been incarcerated or on probation,” and not the underlying conviction, the collateral consequences petitioner offers to avoid mootness are speculative and non-statutory, the Court of Special Appeals properly dismissed the appeal. Both the intermediate appellate court and the State draw an impermissible distinction between an appeal of the underlying conviction and an appeal of an adjudication of probation violation. There is no support in the case law for this distinction.

Moreover, our examination of Lane v. Williams, 455 U.S. 624 , 102 S.Ct. 1322 , 71 L.Ed.2d 508 (1982), on which the State principally relies, convinces us that the State has misinterpreted its holding. 3. The test of mootness is whether, when it is before the court, a case presents a controversy between the parties for which, by way of resolution, the court can fashion an effective remedy. Robinson v. Lee, 317 Md. 371, 375 , 564 A.2d 395, 397 (1989); State v. Peterson, 315 Md. 73, 79-82 , ⁶⁴⁷ 553 A.2d 672, 675-77 (1989); Attorney General v. AA School Bus, 286 Md. 324, 327 , 407 A.2d 749, 752 (1979). Where there are no direct consequences, “a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Sibron v. New York, 392 U.S. at 57 , 88 S.Ct. at 190 , 20 L.Ed.2d at 931-32 ; Carafas v. LaValle, 391 U.S. 234, 237 , 88 S.Ct. 1556, 1559 , 20 L.Ed.2d 554, 558 (1968). 6 In Lane , the defendants pled guilty to burglary and were sentenced to a term of imprisonment, without, however, being told that, in addition to the term of imprisonment to which they had been sentenced, they would also have to serve a mandatory three years on parole.

After their release from custody, they were returned to prison as parole violators, one of them because of a subsequent conviction. Each filed a petition for writ of habeas corpus alleging that, because he was not informed of the mandatory parole term, he was incarcerated in violation of the due process clause of the 14th Amendment. As relief, Williams sought an order “freeing him from the present control” of the warden and from “all future liability” under his original sentence. (Footnote omitted). 455 U.S. at 627 , 102 S.Ct. at 1324 , 71 L.Ed.2d at 512 .

Southall, the other defendant, sought his “immediate release.” 455 U.S. at 628 , 102 S.Ct. at 1325 , 71 L.Ed.2d at 513 . By the time the case reached the Supreme Court, both had been released from custody. The Supreme Court held that “since respondents elected only to attack their sentences, and since those sentences expired during the course of these proceedings, this case is moot.” 455 U.S. at 631 , 102 S.Ct. at 1327 , 71 L.Ed.2d at 515 . Its reasoning is significant.

The Court observed that ⁶⁴⁸ there were two ways the defendants could have proceeded in their attempt to remedy the error they alleged in their guilty pleas. They could have sought: (1) to set aside their convictions and plead anew, or (2) relief in the nature of specific performance of the plea agreement as they understood it. 455 U.S. at 630 , 102 S.Ct. at 1326 , 71 L.Ed.2d at 514 . If respondents had sought the opportunity to plead anew, this case would not be moot. Such relief would free respondents from all consequences flowing from their convictions, as well as subject them to reconviction with a possibly greater sentence____ Thus, a live controversy would remain to determine whether a constitutional violation in fact had occurred and whether respondents were entitled to relief that they sought, (citation and footnote omitted) 455 U.S. at 630-31 , 102 S.Ct. at 1326 , 71 L.Ed.2d at 514-15 .

On the other hand, because, during the pendency of the appeal, the only consequence they sought to remove expired, there was no further relief the court could give, id.; consequently, there was no longer a live controversy. 455 U.S. at 633 , 102 S.Ct. at 1328 , 71 L.Ed.2d at 516 . The Court of Appeals for the Seventh Circuit had held that the defendants’ parole violations had sufficient collateral consequences as to avoid a mootness determination. The Supreme Court did not agree: The doctrine of Carafas and Sibron is not applicable in this case. No civil disabilities such as those present in Carafas result from a finding that an individual has violated parole.

At most, certain nonstatutory consequences may occur; employment prospects, or the sentence imposed in a future criminal proceeding, could be affected ... the discretionary decisions that are made by an employer or a sentencing judge, however, are not governed by the mere presence or absence of a recorded violation of probation; these decisions may take into consideration, and are more directly influenced by, the underlying conduct that form the basis for the parole ⁶⁴⁹ violation. Any disabilities that flow from whatever respondents did to evoke revocation of parole are not removed—or even affected—by a District Court order that simply recites that their parole terms are “void.” Respondents have never attacked, on either substantive or procedural grounds, the finding that they violated the terms of their parole. Respondent Williams simply sought an order “freeing him from the present control” of the Warden and from “all future liability” under his original sentence; Southall sought his “immediate release” from custody. Through the mere passage of time, respondents have obtained all the relief that they sought.

In these circumstances, no live controversy remains, (citations & footnotes omitted) (emphasis added) 455 U.S. at 632-33 , 102 S.Ct. at 1327-28 , 71 L.Ed.2d at 515-16 . The Court addressed the collateral consequences issue in a context different from that presented by the facts sub judice. Its comments must be considered in light of the relief the defendants sought. At no time did the defendants, as the Court pointed out, seek to do anything more than remove the consequences of the misinformation they received, i.e. the parole period, which, in turn, would void their incarceration.

Therefore, the Court did not have to, and, thus, did not, decide whether, had the propriety of the finding of probation violation been raised, an appeal on that ground would have been rendered moot by the service of the sentence. Cases applying Lane recognize the distinction drawn by that case. See Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir.1987) (challenge to penalty only; remedy requested would not affect collateral consequences stemming from “record of petitioners’ conduct”), Aaron v. Pepperas, 790 F.2d 1360, 1362 (9th Cir.1986) (since petitioner did not challenge validity of his conviction, no collateral consequences from fact that prison sentence set at particular length of time); Adams v. Killeen, 115 Idaho 1034 , 772 P.2d 241, 242 (App.1989) (no collateral consequences where de ⁶⁵⁰ fendant, who challenged only conditions of detention, was transferred from jail at which those conditions were imposed as result of jail disciplinary hearing); State v. Jelle, 201 Mont. 111 , 651 P.2d 1257, 1259 (1982) (challenge to sentence only). But see Bobbins, 904 F.2d at 496 (applying Lane where, in parole revocation context, the challenge was to the “finding of misconduct that caused his parole to be revoked or his sentence to be lengthened”).

Others have held that the Lane rationale, when applied to factual situations similar to that sub judice, rendered moot probation violation appeals. See Marshall v. District of Columbia, 498 A.2d 190, 192 (D.C.1985); Smith v. United States, 454 A.2d 1354 (D.C.1983). See also United States v. Sultani, 704 F.2d 132, 133 (4th Cir.1983), which goes further than Lane . Although the defendant in Sultani contended on his appeal that the evidence on which his conviction was based was legally insufficient, 704 F.2d at 133 , the court held: The sentence was imposed on January 6, 1982, and was fully served by the date on which this appeal was reached for argument.

Defendant successfully completed the period of probation without further infraction of federal motor vehicle regulations, and so he is beyond the time that the jail sentence can be made active. We therefore dismiss his appeal as moot, because we perceive no subsequent collateral prejudice which defendant is suffering or will suffer____ Unlike the situation in Lane , in this case, facing a term of imprisonment of eight years upon violation and revocation of his probation, petitioner chose to deny the charged violations. Also, unlike Lane , and contrary to the State’s argument here, he chose to contest any probation violation adjudication on procedural grounds. - By presenting a due process challenge based upon inordinate delay, petitioner challenged not simply the sentence he ultimately received, but, as well, the propriety of there being any violation of probation proceeding at all. See State v. Berry, 287 Md. 491, 500 , 413 A.2d 557, 562 (1980).

See also Beach v. State, ⁶⁵¹ 75 Md.App. 431, 439-41 , 541 A.2d 1012, 1015-16 (1988); Boone v. State, 55 Md.App. 663, 667 , 465 A.2d 1195, 1198 (1983). While it is true, as the State points out, petitioner has not