Brookman & Carnes v. State

Nazarian, J. These consolidated appeals arise from due process challenges by two participants in the Montgomery County Adult Drug Court program (the “Drug Court”). The first, Crystal Brookman, was charged and sentenced to probation. She violated her probation, and was sentenced for that violation to supervised probation with the special condition that she enter and complete Drug Court. While participating in Drug Court, Ms. Brookman twice tested below the accepted level of creati-nine, and the second result was treated as a positive test result pursuant to the Drug Court’s Participant Handbook. ⁴⁹² The second appellant, Marvin Carnes, pled guilty to one count of theft scheme over $1,000 and one count of identity theft.

The circuit court imposed concurrent sentences of incarceration, suspending all but time served, with a three-year period of supervised probation. As a special condition of probation, the circuit court required Mr. Carnes to complete Drug Court. During Drug Court, Mr. Carnes missed a urinalysis, which was treated as a positive test result pursuant to the Adult Drug Court Policies and Procedures Manual (the “Drug Court Manual”). After separate appearances, the Drug Court imposed sanctions that included overnight incarceration on both.

Both appeal, and the State contends that the sanctions aren’t ap-pealable. We hold that they are, and we vacate the sanctions orders and remand for further proceedings consistent with this opinion. I. BACKGROUND A. The Montgomery County Adult Drug Court Program The Drug Court is “a post-conviction program for nonviolent addicted offenders.” Drug Court participants “are placed on special conditions of probation that appropriately support the goals of recovery and rehabilitation for program participants,” who are “[pjlaced under the supervision of the Judge assigned to the Drug Court Program.” The Drug Court program, which lasts a minimum of twenty months, is broken up into four numbered phases, each with progressively less stringent conditions. Drug Court participants are required to “participate in mandatory, random, urinalysis ... [and] are subject to the possibility of an additional random urinalysis screening through a ‘call-in’ program.” Participants in the Drug Court consent to participate after being referred to the program and entering into a Drug Court Agreement.

The Agreement specifies, among other things, that participants “understand that [they] can be asked to report for drug and alcohol testing at any time while [they are] Drug Court participants] and that [their] failure to ⁴⁹³ report will result in a sanction by the [Drug] Court,” that they “will report for drug and alcohol testing as directed,” and “that any attempt to falsify a drug and alcohol test, including dilution, is grounds for termination from Drug Court.” Drug Court participants must report for random urinalysis as specified in the Drug Court Manual, and “[a]ny failure to appear for random testing will be treated as a positive test result for drugs.” The Drug Court Manual considers the program’s proceedings as non-adversarial because they are driven by “a common commitment to the best interests of the participant toward ending his or her addictive behaviors.” The Drug Court Agreement, however, contains an exception: “Drug Court imposes graduated sanctions for lack of compliance with program requirements, including incarceration. [Participants] have the right to request and have a formal adversarial hearing before the imposition of a sanction of incarceration or before being terminated from Drug Court.” Violations of the Agreement are punished with sanctions that escalate with each subsequent violation. The Participant Handbook warns participants that they will be subject to sanctions for failing to report and comply with the Drug Court guidelines and specifies the “graduated sanctions,” or “Menu of Sanctions,” they face when they fail to comply with the Drug Court’s program. These graduated sanctions are “vital to the support and reinforcement of the adopted treatment interventions” and leverage “[t]he rapid imposition of negative sanctions as incentives to improve compliance and to modify negative behaviors.” (Emphasis omitted.) Participants must report in person to the next available Drug Court docket after they violate any terms and conditions of enrollment because “sanctions are most effective when applied immediately.” B. Ms. Brookman On August 28, 2012, Ms. Brookman was charged with four counts of theft and conspiracy to commit theft. She pled guilty to one count of theft over $1,000 on September 14, 2012.

On ⁴⁹⁴ October 22, 2012, the circuit court imposed a suspended sentence of incarceration for twelve months, placed her on two years’ supervised probation with the special condition that she abstain from alcohol and drug use and submit to random urinalysis, and required her to pay restitution. On December 13, 2013, Ms. Brookman admitted to violating her probation, and the circuit court sentenced her, among other things, to three years’ supervised probation with the special condition that she “[e]nter into the Mont. Co. Adult Drug Court, comply with all conditions, and successfully complete and graduate from the Mont. Co. Adult Drug Court.” As part of the Drug Court program, Ms. Brookman submitted to a urine test in July 2014 that yielded a low creatinine 1 result.

On February 24, 2016, while in Phase 3 of the Drug Court program, Ms. Brookman was notified that another urinalysis showed low creatinine levels. The next day, Ms. Brookman filed a line demanding the presence of the analyst and technician at a hearing and for discovery related to the test results. ⁴⁹⁵ At the hearing held on February 26, 2016, two days after and “as a result of [the] low creatinine test,” Ms. Brookman’s counsel requested a continuance so that she could seek the input of a chemist “to see if [the report] is reliable” and talk to Ms. Brookman about the lab results: [W]e believe that is a violation of Ms. Brookman’s due process. We will ask the opportunity to continue this matter for me to look further into this and speak to an expert. I have spoke to ... our forensic expert, who was waiting for me to forward him the results of the Lab Corp in order to get in touch with ... an expert or general toxicologist to figure out what is going on with these results.

Ms. Brookman tested at 18.9, that is very, very close to the 20 [minimum allowable result]. We want to look into whether or not there could possibly be a margin of error or something else within Ms. Brookman that results in this. I think looking at Ms. Brookman as a whole, how she’s doing in Drug Court, how she’s working with our business case manager. I don’t think there’s any belief that she is using.

And to sanction her, to delay her graduation is not, we don’t believe is the appropriate punishment, the appropriate sanction -without further review. Counsel urged the Drug Court to not sanction Ms. Brookman that day because she wanted an “opportunity to review this information further” and “figure it out.” The State, however, requested that a sanction be imposed immediately: [T]he results are from LabCorp. I don’t think there’s any dispute that LabCorp is a certified lab. The results state very clearly that her creatinine was 18.9, which is below the established low level limit of 20.

We would ask that the sanction be imposed. This is not a violation of probation. There has not been a petition filed to violate her probation. Therefore, the standard of having the chemist and all that does not apply in this circumstance today.

I think that there, the point of the sanctions is to have an immediate response and we would ask that the sanction be imposed today based on the lab results. If they’re going to challenge that LabCorp is not reliable hearsay, then they’re going to ⁴⁹⁶ challenge every single urine analysis throughout the county. So, I don’t think that that is what they’re intending to do in terms of the reliable hearsay argument. After acknowledging its guidelines and policies, the Drug Court imposed immediate sanctions, including overnight incarceration.

Ms. Brookman filed a timely appeal and we granted Ms. Brookman’s Application for Leave to Appeal, ordering her to “address whether the sanctions imposed by the Montgomery County Drug Court, from which the application for leave to appeal was filed, is an action subject to appellate review in the Court of Special Appeals ... [, and] then address the merits of the issue on appeal.” C. Mr. Carnes Mr. Carnes was charged on December 30, 2013 with forty-six counts of theft, identity fraud, credit card fraud, conspiracy to commit theft, and related offenses. He pled guilty to one count of felony theft scheme involving property valued between $1,000 and $10,000, and one count of identity fraud on April 15, 2014. On June 11, 2014, the circuit court sentenced him to ten years’ incarceration on the felony theft scheme count and eighteen months’ incarceration on the identity fraud count, commencing on October 30, 2013, with the balance suspended in favor of three years’ supervised probation with conditions, including the condition that Mr. Carnes “enroll in, comply with all conditions of, successfully complete, and graduate from the Montgomery County Adult Drug Court Program.” Mr. Carnes worked as a truck driver. At 7:30 a.m. on February 17, 2016, when it appears from the record that Mr. Carnes was in Phase Three of the Drug Court program, he called the urinalysis line to check whether he needed to report for a drug test.

At the time of his call, the list of people to report for a urinalysis on that day had not yet been updated. So Mr. Carnes began work at 8 a.m., but at some point that day, his truck broke down, and it took him four hours to travel from Cumberland back to Montgomery County. ⁴⁹⁷ Mr. Carnes called the urinalysis line again around 1:30 a.m. on February 18, 2016 and learned that he had missed a urinalysis for the previous day. He reported immediately to a testing facility, and the test was negative. Later that day, at 9 p.m., Mr. Carnes also underwent full blood and urine tests, and those tests were negative for drugs as well.

At the February 26, 2016 hearing “regarding] a failure to appear for a urinalysis,” Mr. Carnes sought to present evidence that he did not actually miss the urinalysis appointment. When asked whether Mr. Carnes appeared on February 17 to give a urinalysis, his counsel responded that she “d[id]n’t know what the State’s evidence [wa]s going to be.” The Drug Court judge responded that “there’s no State’s evidence” and “no evidentiary requirement.” Mr. Carnes argued that the sanctions menu was not exclusive and did not cover his late urinalysis, which should not “require the same drastic sanction ... as a missed urinalysis” because he hadn’t skipped the drug test to hide that he was using drugs. Counsel argued further that a strict application of the menu of sanctions without an opportunity for the court to consider Mr. Carnes’s circumstances violated his due process rights. Counsel pointed out that other members of the Drug Court team did not agree that Mr. Carnes should be sanctioned.

Instead, counsel asked the Drug Court to view the sanctions menu as guidelines. Moreover, she argued that a demotion in the Drug Court program would disrupt Mr. Carnes’s efforts to reunite his family (he lost his children in 2012). And finally, Mr. Carnes asked that his overnight incarceration occur on an evening other than the one of his hearing. The State asked the Drug Court to treat all participants the same, according to the menu, and not to consider sanctions on a case-by-case basis.

In addition, the State suggested that the whole situation could have been avoided if Mr. Carnes had called his case manager, which he did not do. The Drug Court imposed the sanctions in the menu, disagreed with Mr. Carnes that the menu of sanctions were guidelines, and denied his request to change the menu. The ⁴⁹⁸ court stressed the need for fairness among all program participants and for the integrity of the program’s structure. The court told Mr. Carnes that he had called the urinalysis line too early and should have called back later, and that his efforts to remedy the situation occurred too late.

The court did, however, grant Mr. Carnes’s request that his incarceration occur on another night. Mr. Carnes filed a timely appeal, and we granted Mr. Carnes’s Application for Leave to Appeal, with the same briefing direction that we gave to Ms. Brookman. We will discuss additional facts below, as necessary.

II

DISCUSSION Both appellants present essentially identical arguments on appeal. Each contends that the sanctions imposed by the Drug Court should be subject to appellate review, and that the Drug Court violated their rights to due process by imposing immediate sanctions that included, among other things, incarceration, without allowing them an adversarial hearing. 2 We hold that Drug Court sanctions are appealable, and we vacate the sanctions orders and remand to the Drug Court for an adversarial hearing that complies with Maryland Rule 16-207(f). 3 ⁴⁹⁹ A. The Sanctions Imposed By The Drug Court Are Subject To Appellate Review In This Court. Ms. Brookman and Mr. Carnes contend that “sanctions imposed by Drug Court at a formal adversarial hearing are subject to appellate review over the final judgments of a criminal court.” (citing Brown v. State, 409 Md. 1, 9 , 971 A.2d 932 (2009)). They distinguish non-adversarial sanctions, which “would ordinarily not constitute a final judgment,” from sanctions imposed after a “formal adversarial hearing,” which “may constitute a final judgment for appeal purposes.” (Emphasis in original.) They contend that “the Drug Court action at a formal adversarial hearing is a final judgment because no further action by the Drug Court is reasonably expected related to the violation of that special condition of probation.” The State counters that “the imposition of sanctions pursuant to [their] participation in drug court ... does not constitute a ‘final judgment,’ ” that they were “not subject to sanctions involving a ‘loss of liberty’ in addition to the restrictions resulting from [their] probationary status,” that the circuit court complied fully with Rule 16-206(e), and there is no statutory right to appeal from Drug Court sanctions.

The State is right, as a general matter, that “appellate jurisdiction is dependent upon statutory grant of power.” Lohss v. State, 272 Md. 113, 116 , 321 A.2d 534 (1974), superseded on other grounds by State v. Rush, 174 Md.App. 259 , 921 A.2d 334 (2008); see also Seward v. State, 446 Md. 171, 176 , 130 A.3d 478 (2016) (citing Pack Shack, Inc. v. Howard Cty., 371 Md. 243, 247 , 808 A.2d 795 (2002)) (“The right to appeal is entirely statutory in Maryland.”). Maryland Code (1973, 2013 Repl. Vol.), § 12-308 of the Courts and Judicial Proceedings Article (“CJ”), defines this Court’s appellate jurisdiction, and “[e]xcept as provided in § 12-307 of this subtitle,[ 4 ] the Court of Special Appeals has exclusive initial appel ⁵⁰⁰ late jurisdiction over any reviewable judgment, decree, order or other action of a circuit court, and an orphans’ court.” So, are these reviewable judgments? Normally, that depends on whether they satisfy the “final judgment rule”: Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.

The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended. In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment. CJ § 12-301 (emphasis added).

A “final judgment” is “a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.” CJ § 12-101. The core defining principle is whether the judgment fully resolves the claims or issues before the court: “[A] final judgment” is one that “either determine[s] and conclude^] the rights of the parties involved or den[ies] a party the means to ‘prosecut[e] or defend! ] his or her rights and interests in the subject matter of the proceeding.’ ” In re Billy W., 386 Md. 675, 688 , 874 A.2d 423 [ ](2005) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767 [ ](1989)) (some alterations in original). Important is whether “any further order is to be issued or whether any further action is to be taken in the case.” Id. at 689, 874 A.2d 423 [ ]. Douglas v. State, 423 Md. 156, 171 , 31 A.3d 250 (2011) (alterations in original).

Our courts have not had occasion to consider whether decisions of the Drug Courts to impose sanctions qualify as final judgments. Courts in other jurisdictions have tended to distinguish decisions arising from drug court programs from traditional court decisions, even when, as here, the same court ⁵⁰¹ issues the decision. See Dunson v. Commonwealth, 57 S.W.3d 847, 850 (Ky. Ct. App. 2001) (“While this particular drug treatment program is known as the ‘Fayette County Drug Court’ and while it is operated through this state’s Court of Justice, the ‘Drug Court’ is not a ‘court’ in the jurisprudence sense; it is a drug treatment program administered by the court system.

Accordingly, [the defendant's termination from this particular drug treatment program was not subject to due process protections any more than his participation in a private drug treatment program would have been, or his participation in any other rehabilitation program such as anger management counseling or a job training program.”); State v. Jakubowski, 822 A.2d 1193, 1194 (Me. 2003) (citation omitted) (“Drug court is not a separate court, but a program within the Superior and District Courts in which heightened judicial attention is given to defendants with substance abuse problems.”); State v. Perkins, 378 S.C. 57 , 661 S.E.2d 366, 367-68 (2008) (stating that the court had no authority to “evaluate and assess the manner in which the [drug court] administrators execute the rules and regulations of the [drug court]” and thus it refrained from interjecting itself into “wholly internal and specific [matters] to each [Drug Court] Program and to each participant”). But in DiMeglio v. State, 201 Md.App. 287, 289, 304 , 29 A.3d 663 (2011), we recognized that the “DUI/drug courts” impose sanctions for violations of the program rather than deciding a participant’s guilt or not on the underlying charges. And although both appellants here were sanctioned, both continued in the program itself, albeit under terms that reflected the violation. Thus, we agree with the State that decisions to impose sanctions for violations of the terms of the Drug Court program are not final judgments in the § 12-301 sense.

Even so, subsection (g) of CJ § 12-302 covers the appealability of probation revocation orders, and that seems a better fit: (g) Probation revocation.—Section 12-301 of this subtitle does not permit an appeal from an order of a circuit court revoking probation. Review of an order of a circuit court ⁵⁰² revoking probation shall be sought by application for leave to appeal. Defendants have a right to appeal a revocation of probation because probation may not be revoked, in whole or in part, on the basis of an improper ground. See, e.g., Baldwin v. State, 324 Md. 676, 684 , 598 A.2d 475 (1991).

Again, no Maryland case has applied these provisions or principles to sanctions arising from a drug court. 5 In DiMeglio , though, we held that there is “no substantive distinction between a sanction imposed for a violation of probation and a sanction imposed in a DUI/Drug Court.” 201 Md.App. at 305 , 29 A.3d 663 . And in reaching this conclusion, we accepted the reasoning of the Supreme Court of North Dakota in In the Interest of O.F., 773 N.W.2d 206, 208 (N.D. 2009), which “consider[ed] the purposes of the drug court, and [found] that they were similar to those a