Catlin v. State

WENNER, Judge. Appellant, Carl Franklin Catlin, III, contends upon appeal that the Circuit Court for Montgomery County should not have revoked his probation and directed the execution of a five year sentence of imprisonment. Specifically, he mounts a three-pronged attack on the judgment of the circuit court: • I. The conduct alleged to have violated his probation did not occur within the five year statutorily prescribed maximum period of probation.

II

The imposition and subsequent suspension of a twenty year sentence of imprisonment at a prior revocation of probation proceeding was illegal.

III

The circuit court failed to exercise its discretion when it reimposed the term of imprisonment prescribed in the original sentence. We shall affirm the judgment of the circuit court. Procedural History On November 18, 1982, appellant pled guilty to and was convicted of distribution of cocaine (count 2) and of conspiracy to distribute cocaine (count 3). For the conviction of distribution of cocaine, he was sentenced by Judge David L. Cahoon to three years imprisonment, two years of which were suspended in favor of three years of probation.

For the conviction of conspiracy to distribute cocaine, the docket entries reflect that the imposition of sentence was suspended “subject to successful completion of probation imposed in count 2.” The probationary term commenced upon appellant's release from imprisonment on September 9, 1983. On April 25, 1985, upon finding that appellant had violated his probation, Judge Cahoon directed the execution of the remaining two years of imprisonment for the conviction of distribution of cocaine. Judge Cahoon then imposed a sentence of twenty years imprisonment for the conviction of ⁶³⁷ conspiracy to distribute cocaine. That sentence was suspended on condition that appellant serve two years of probation upon his release from imprisonment.

On March 18, 1988, Judge Richard B. Latham determined that appellant had again violated conditions of his probation. As a result, probation was revoked, and appellant was sentenced to five years of imprisonment. Subsequently, appellant filed a motion to reconsider the sentence. He urged the court to suspend the balance of his sentence upon the condition that he participate in and complete the residential treatment program at Second Genesis.

On September 14, 1988, the motion was granted, and appellant was placed on three years probation. Appellant absconded from Second Genesis within one week. Ultimately, after a hearing, Judge William M. Cave revoked appellant’s probation and directed the execution of the five year term of imprisonment. This appeal followed.

I. The legislature has prescribed that the probationary period which an offender may be compelled to undergo cannot exceed a total of five years. 1 Ann.Code of Md. (1987 Repl.Vol., 1989 Cum.Supp.) Art. 27, §§ 641A and 642. 2 This ⁶³⁸ limit applies to the initial probationary period, as well as to the total of any successive terms imposed upon revocation of probation. Id.; Christian v. State, 62 Md.App. 296, 306 , 489 A.2d 64 (1985). The violation charged, of course, must have actually occurred during the probationary period. Wilder v. State, 63 Md.App. 106, 111 , 492 A.2d 324 , cert. denied, 304 Md. 97 , 497 A.2d 819 (1985).

Bearing that in mind, appellant as ⁶³⁹ serts that the maximum five year period of probation had expired before he absconded from Second Genesis. If that is true, it follows that the ground for the April, 1989 revocation is eliminated. Christian, supra, 62 Md.App. at 300 , 489 A.2d 64 . On the other hand, the State asserts that the probationary period does not include the time during which appellant was incarcerated.

If the State is correct, the violation would have occurred well within the five year maximum period of probation. For the reasons we shall now explain, we adopt the State’s position. In Christian, supra, we had occasion to construe the five year statutory limitation on the period of probation. Christian’s original three year sentence of imprisonment was suspended in favor of three years of probation.

Christian was subsequently charged with a violation of probation. He again received a suspended sentence upon condition that he complete an additional three years of probation. A second charge of violation of probation was filed within the extended period of probation. As a result, Christian’s probation was extended for an additional year.

Yet a third charge of violation of probation was filed within the extended period of probation, but beyond the maximum five year period. After a hearing, execution of the original sentence of imprisonment was ordered. Upon appeal, Christian contended that length of his probation was illegal because it had been extended to nearly seven years. We agreed.

We reversed Christian’s conviction for having violated probation and the sentence imposed because the “violations that caused Christian’s eventual imprisonment all occurred in 1984, after Christian’s probation had terminated by operation of law.” Id. at 310 , 489 A.2d 64 . Based upon our holding in Christian , appellant now argues that his probation had expired before the violation occurred which eventually caused his imprisonment. While our decision in Christian is instructive, it is not dispositive of appellant’s contention. Christian’s terms of probation, unlike those of appellant, were not interrupted by any periods of incarceration.

Indeed, in Christian , we express ⁶⁴⁰ ly did not “consider what effect an offender’s conduct may have on tolling the probationary period.” Id., 62 Md.App. at 306, n. 5 , 489 A.2d 64 . We said “[t]olling, if recognized, may produce a chronological period of probation in excess of the statutory maximum.” Id. See also Boone v. State, 55 Md.App. 663, 668-669 , 465 A.2d 1195 (1983), cert. denied, 298 Md. 394 , 298 A.2d 394 (1984) (whether probationer’s evasion of supervision tolled the probationary term not decided). We now hold, based upon the circumstances before us in the case sub judice, that the periods of time during which appellant was imprisoned for having violated his probation tolled the probationary term to the extent of the duration of the imprisonment.

We hasten to point out that our holding does not mean that imprisonment will always automatically toll the probationary term. In order to preserve the court’s jurisdiction, for the probationary term to be tolled ordinarily there must be a formal extension of the term of probation as a result of revocation proceedings. See White v. United States, 564 A.2d 379 (D.C.App.1989). Our holding today is in accord with the disposition of similar questions in other jurisdictions.

In construing former § 3651 of 18 U.S.C., 3 a statute containing a five year limitation upon the period of probation similar to that of Maryland, federal courts have recognized circumstances under which a probationary period may be extended beyond the maximum term prescribed by the statute. We think that the rule in the federal courts was best articulated by the Fourth Circuit in United States v. Workman, 617 F.2d 48 (4th Cir.1980): ⁶⁴¹ The calculation of the five-year limitation period has been the subject of considerable litigation. The unifying principle implicit in the resulting decisions is that a probationer can not obtain credit against the five-year period for any period of time during which he was not, in fact, under probationary supervision by virtue of his own wrongful act. The focus has been on whether the probationer’s wrongful act resulted in the termination of probationary supervision, rather than on a simple, mathematical computation of five years from the date the probationary term began.

Consequently, in computing the five year period courts have excluded the time period during which a probationer is imprisoned on an unrelated offense, e.g., United States v. Gerson, 302 F.2d 430 (6th Cir.1962) (intervening state confinement); United States v. Gelb, 175 F.Supp. 267 (S.D.N.Y.), aff'd, 269 F.2d 675 (2nd Cir.), cert. denied, 361 U.S. 822 , 80 S.Ct. 66 , 4 L.Ed.2d 66 (1959) (intervening federal confinement); is in jail for another offense and for a violation of probation, e.g., United States v. Lancer, 508 F.2d 719 (3rd Cir.1975); or is outside the jurisdiction of the court voluntarily and not under the supervision of a probation officer. United States v. Green, 429 F.Supp. 1036 (W.D.Tex.1977). Id. at 51: 4 This appears to us to be the rule in a majority of the federal circuits, 5 as well as in a majority of the State ⁶⁴² courts which have considered the issue. 6 Moreover, we believe that our holding is consonant with the nature and purpose of probation. Probation is a matter of grace or clemency, Bryant v. State, 71 Md.App. 143, 145 , 524 A.2d 106 , cert. denied, 310 Md. 276 , 528 A.2d 1287 (1987), the chief purpose of which is to facilitate the reformation and rehabilitation of the probationer.

Christian, supra, 62 Md.App. at 304-305 , 489 A.2d 64 . The policy behind Maryland’s probation statutes is that rehabilitation, if it is to be achieved at all, will be achieved within a five year period. Id. It can hardly be said, then, that the underlying principles of probation would be served during the time when a probationer is incarcerated and beyond the reach of probationary supervision.

Furthermore, the legislature did not intend that a term of imprisonment and a term of probation be simultaneously served. See Matthews v. State, 304 Md. 281, 285 , 498 A.2d 655 (1985). In the case sub judice, it is undisputed that appellant’s probation began on September 9, 1983. It is also undisputed that the conduct which caused the revocation that spawned this appeal, i.e., the appellant having absconded from Second Genesis, occurred on November 4, 1988.

As ⁶⁴³ we calculate it, that amounts to five years, one month and twenty six days. Nevertheless, as we have mentioned, during that period, appellant served two terms of imprisonment for having violated his probation. Each of those periods of imprisonment tolled the term of appellant’s probation. Consequently, the violation that eventually caused appellant’s imprisonment occurred well within the maximum five year period of probation.

There was no error.

II

Penultimately, appellant contends that the imposition at the first revocation proceeding of a twenty year term of imprisonment for the conviction of conspiracy to distribute cocaine was illegal. This is so, he argues, because the sentence for the conviction of conspiracy to distribute cocaine was imposed because he had violated conditions of the probation imposed for the conviction of distribution of cocaine. The question we must now decide is whether the original probation order included both convictions. We believe that it did.

Accordingly, we hold that it was proper for