Callahan v. State

KRAUSER, C.J. In 1995, Charles William Callahan, appellant, pleaded guilty in the Circuit Court for Anne Arundel County to kidnapping and third-degree sexual offense and was therefore sentenced to substantial terms of imprisonment for those offenses. Upon release, he was to be placed on supervised probation for a period of five years. His probation was subject to standard conditions, requiring, among other things, that Callahan report as directed to his probation agent and follow the agent’s “lawful instructions.” In March 2009, Callahan was released from prison on “mandatory supervision release,” subject to standard and special conditions imposed by the Maryland Parole Commission. One of the special conditions required that Callahan comply with the Division of Parole and Probation’s sexual offender management program, which mandated that he submit to a polygraph test if instructed to do so.

Both Callahan’s mandatory supervision release and probation were monitored by the same agent within the Division of Parole and Probation. About two and one-half years after his release from prison, Callahan was charged with violating his probation after he failed to report for a polygraph examination. A hearing followed at which the circuit court found that Callahan’s ¹⁴⁹ conduct amounted to a failure to follow a lawful instruction of his agent and then terminated his probation. Callahan subsequently filed an application for leave to appeal, which we granted.

The issue now before us is: Whether the circuit court erred in determining that the probation agent’s order that Callahan submit to a polygraph test (a condition of mandatory supervision release, but not a condition of probation), was a “lawful instruction” he was required to follow as a condition of his probation. Because the condition that Callahan submit to a polygraph test, if instructed to do so, was imposed exclusively by the Maryland Parole Commission as part of his mandatory supervision release, we conclude that the circuit court erred in revoking Callahan’s probation for failing to follow the agent’s instruction that he appear for a polygraph test. We, therefore, remand with the instruction that the circuit court vacate its order revoking Callahan’s probation. BACKGROUND In February of 1995, Callahan was charged with kidnapping, false imprisonment, assault, rape, and multiple sexual offenses.

The victim of those crimes was a three-year old. After pleading guilty to kidnapping and third-degree sexual offense, 1 the court sentenced Callahan to twenty-five years’ imprisonment, with all but twenty years suspended, for the kidnapping offense and to a concurrent term of ten years for the sex offense. The court also imposed a five-year term of supervised probation upon release. The court later modified the kidnapping sentence to twenty-five years, with all but seventeen years suspended, and left intact the previously imposed order of probation.

Callahan gave his written consent to the order of probation. The “standard” conditions of that order included the following condition: “Report to your Probation Agent as directed and ¹⁵⁰ follow his/her lawful instructions.” The court did not attach any “special” conditions to Callahan’s probation, other than that he pay court costs and a $250 fee to the Office of the Public Defender. On or about March 5, 2009, after serving fourteen years of his sentence and having accumulated 2,156 diminution of confinement credits, Callahan was released on mandatory supervision. 2 His release was subject to numerous conditions imposed by the Maryland Parole Commission, which were set forth in a “mandatory supervision release certificate.” The certificate included standard conditions, very similar to those in the probation order, as well as a dozen special conditions. 3 One of the special conditions of his mandatory supervision release read: Comply as directed by your parole/probation agent with the Division of Parole and Probation’s sexual offender man ¹⁵¹ agement program, which may include intensive reporting requirements, specialized sex offender treatment, electronic monitoring, medication, polygraph testing, and computer monitoring. The mandatory supervision release certificate also contained an acknowledgment by Callahan that a violation of a condition could result in the Commission’s revocation of his conditional release.

The acknowledgment provided: I have read, or have had read to me, this certificate, including the reverse side which lists the standard conditions of mandatory supervision as well as any special conditions as established by a Commissioner of the Maryland Parole Commission. I understand my obligation to abide by all conditions and that I will be deemed as if released on parole. I will remain under the supervision of the Division of Parole and Probation, subject to the same laws, rules and regulations and conditions that apply to parolees, until my term of confinement expires.[ 4 ] I hereby waive extradition to the State of Maryland and expressly agree that I will not contest any effort to return me to the State of Maryland in consequence of my violating any of the terms and conditions of this mandatory supervision release. I fully understand that my violation of any of these terms and conditions may result in the revocation of my mandatory supervision release by the Maryland Parole Commission and the taking of all diminution of confinement credits I earned as of the date of my release under mandatory supervision.

(Emphasis added.) Both Callahan’s mandatory supervision release and his court ordered probation were supervised by the Division of Parole and Probation, Sex Offender Unit, and within that unit by the same agent. Although initially supervised by Agent ¹⁵² Stuart Walker, Callahan’s supervision was transferred in July 2011 to Agent Marsha Briley-Mays. On August 2, 2011, at his weekly meeting with Agent Briley-Mays, the agent instructed Callahan to report to the Maryland State Police Barracks on Kelso Drive in Baltimore at 10:00 a.m. on August 8, 2011, for a polygraph examination. 5 Agent Briley-Mays then handed Callahan a letter that contained those same instructions and that further advised Callahan that his “[flailure to report [for the polygraph test] may result in a Violation of Probation and a warrant being issued.” On August 8, 2011, Sergeant Jim Mitchell of the Maryland State Police informed Agent Briley-Mays that Callahan had failed to report for the scheduled polygraph examination. On that same day, a “retake warrant” 6 was issued, and Callahan was arrested and returned to the custody of the Department of Corrections. 7 Agent Briley-Mays then requested a violation of probation warrant.

The “Statement of Charges” attached to the warrant alleged that Callahan had “violated the following conditions of supervision”: 1. REPORT TO YOUR PROBATION AGENT AS DIRECTED AND FOLLOW HIS/HER LAWFUL INSTRUCTIONS. By failing to report as instructed by this Agent to the Maryland State Police Barracks for a polygraph examination on 8/8/2011. ¹⁵³ By failing to adhere to the conditions of his mandatory release order and the state and federal laws as instructed by this Agent, treatment providers and any other representative who has engaged Mr. Callahan during his community supervision. On 8/2/2011, this Agent verbally and in writing advised Mr. Callahan that he was scheduled for a polygraph examination on 8/8/2011 at 10:00 am located [sic] the Maryland State Police Barracks located [sic] 8909 Kelso Drive Baltimore, Maryland 21221.

This Agent was advised by Sgt. Mitchell via telephone that Mr. Callahan failed to report. 8. OBEY ALL LAWS. By admitting to having possession of child pornography.

During sex offender counseling, Mr. Callahan admitted to his counselor Dr. Baccus, to having child pornography in his possession. By failing to adhere to the conditions and guidelines set forth by the Maryland Parole Commission. Mr. Callahan is required as a condition of his mandatory release to adhere to policies and laws which govern the supervision of sex offenders in Maryland. Mr. Callahan failed to report for a polygraph examination as instructed and mandated in his Mandatory Release Order.

Furthermore, by failing to report for the scheduled polygraph and having child pornography in his possession, Mr. Callahan has conducted himself in [sic] manner which poses a danger to his community and public safety which also violates a condition of his mandatory release. On October 24, 2011, the circuit court convened a violation of probation hearing, but, notwithstanding the allegation of possession of child pornography, the only probation violation that was addressed at the hearing was Callahan’s failure to follow Agent Briley-Mays’s instruction that he report for a polygraph test. When the hearing commenced, Agent BrileyMays testified that Callahan had not reported to the Maryland State Police Barracks for the polygraph examination sched ¹⁵⁴ uled for August 8th, despite her instruction to Callahan to do so. Although Callahan’s counsel conceded that, by faffing to report for the polygraph test, Callahan had violated a condition of his mandatory supervision release, he insisted that, because the court’s probation order did not require him to submit to such testing, Callahan could not be found in violation of probation for faffing to comply with Agent Briley-Mays’s polygraph instruction.

The court disagreed, stating: The question before the Court is whether or not the Defendant violated his probation for failing to follow the lawful order of his probation agent. It’s not whether or not he failed to take a polygraph, it’s whether or not he followed a lawful order of his agent. And when I look at the conditions of the mandatory supervision form and which the Defendant signed, the— under special conditions of mandatory supervision release number 34 indicates “comply as directed by your parole and/or probation agent with the Division of Parole and Probation Sex Offender and Management Program, which may include intensive reporting requirements, specialized sex offender treatment, electronic monitoring, medication, polygraph testing, and computer monitoring,” and as such I believe that the agent’s instruction, his probation agent’s instructions that he report for a polygraph exam was a lawful order that she was permitted to make and that the Defendant failed to comply with a lawful order. The court then terminated Callahan’s probation, and at a subsequent disposition hearing ordered that Callahan serve the remainder of his twenty-five year sentence.

DISCUSSION Callahan claims that, by “meld[ing] together a probation order and parole order to form the legal basis for its ruling that appellant violated his probation,” the circuit court “violate[d] the separation of powers doctrine” and “exceedfed] the scope of the court’s sentencing authority under the proba ¹⁵⁵ tion order.” 8 The State simply counters that the agent’s directive that Callahan report for the polygraph examination was a lawful instruction and that the circuit court correctly concluded that his failure to follow that directive violated the first condition of his probation. We begin our review of Callahan’s claim with the observation that, “[a] court’s decision to revoke probation must be based on the violation of a valid condition of probation.” Smith v. State, 306 Md. 1, 7 , 506 A.2d 1165 (1986). To be valid, conditions of probation “must be reasonable and have a rational basis.” Watson v. State, 17 Md.App. 263, 274 , 301 A.2d 26 , cert. denied, 268 Md. 754 (1973). And they “must be clear, definite and capable of being properly comprehended and understood not only by the individual upon whom they are imposed but by those responsible for their enforcement.” Id.

The condition at issue here was a standard condition in the circuit court’s order of probation which read: “Report to your Probation Agent as directed and follow his/her lawful instruc ¹⁵⁶ tions.” And, Callahan’s mandatory supervision release certificate contained a similar condition: “Report as directed to and follow your Parole Agent’s instructions.” Thus, the conditions of Callahan’s mandatory supervision release and his probation appear, to some extent, to overlap. But that does not mean, as we shall see, that they then can be conflated. Indeed, mandatory supervision release is obviously much more in the nature of parole than in the nature of probation. In fact, the only significant difference between the two appears to be that parole is granted at the discretion of the Maryland Parole Commission while mandatory supervision release is mandated by statute when certain conditions are met.

Therefore, what we said of probation and parole in Simms v. State, 65 Md.App. 685 , 501 A.2d 1338 (1986), applies to probation and mandatory supervision release. That is to say, that, although probation and parole may share “some of the same characteristics,” they “are quite