Conaway v. State Johnson v. State

Tomekia Conaway v. State of Maryland, No. 69, September Term 2018. Luke Daniel Johnson v. State of Maryland, No. 76, September Term 2018. Opinion by Harrell, J. HEADNOTE[S] COURTS AND JUDICIAL PROCEEDINGS – TECHNICAL VIOLATIONS OF PROBATION – POST-CONVICTION APPEALABILITY Maryland Code, Courts and Judicial Proceedings, Title 12, Subtitle 3 provides the framework for a party to appeal a final judgment in a civil or criminal case entered by a circuit court. Section 12-302(g) of that Subtitle requires a probationer to seek review of an order of a circuit court revoking probation by application for leave to appeal.

A probationer, in order to challenge a circuit court’s order revoking probation for a technical violation and sentencing him/her to incarceration, must do so by filing an application for leave to appeal, rather than a direct appeal. CRIMINAL PROCEDURE – JUSTICE REINVESTMENT ACT – PRESUMPTIVE INCARCERATION LIMITS FOR TECHICAL VIOLATIONS OF PROBATION The Justice Reinvestment Act of 2016, codified in relevant part as § 6-223(d) of the Maryland Code, Criminal Procedure, places presumptive limits on the period of reincarceration for probationers who commit technical violations of their probation. Those presumptive limits are 15 days for the first violation, 30 days for the second, and 45 days for the third. A judge, however, has discretion to impose a period of lawful incarceration that exceeds the presumptive limits if the judge finds the probationer creates a risk to public safety, himself/herself, a victim, or a witness.

Tomekia Conaway v. State of Maryland Circuit Court for Dorchester County IN THE COURT OF APPEALS Case No. 09-K-07-012926 OF MARYLAND Argued: April 9, 2019 SEPTEMBER TERM, 2018 Luke Daniel Johnson v. State of Maryland Circuit Court for Washington County Case No. 21-K-80-006054 No. 69 Argued: May 6, 2019 TOMEKIA CONAWAY v. STATE OF MARYLAND No. 76 LUKE DANIEL JOHNSON v. STATE OF MARYLAND Barbera, C.J., *Greene McDonald Watts Hotten Getty Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ. Opinion by Harrell, J. Filed: July 11, 2019 Pursuant to Maryland Uniform Electronic Legal *Greene, J., now retired, participated in the hearing Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. and conference of Conaway only while an active member of this Court; after being recalled pursuant 2019-07-26 12:14-04:00 to the MD. Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this Suzanne C. Johnson, Clerk opinion as applicable to the Conaway case. These two cases are decided in a consolidated opinion because of similarities in the flagship question posed in each case – whether the Justice Reinvestment Act of 2016 (“JRA”), as codified, grants probationers found to have committed a technical violation of probation the right to appeal directly to the Court of Special Appeals (versus proceeding by an application for leave to appeal) from a circuit court’s order of violation of probation and resulting sentence that exceeds the presumptive limits of incarceration for a technical violation.1 Petitioner Tomekia Conaway (“Conaway”) admitted, after a series of hearings and failing second (and third) chances given by the trial judge, to violating her probation by failing to complete successfully a drug treatment program.

The judge, in the Circuit Court for Dorchester County, revoked ultimately her probation and sentenced her to 15-years of incarceration. In response, Conaway filed a “Notice of Appeal or Alternatively Application for Leave to Appeal.” The Court of Special Appeals, on 11 June 2018, directed that the case proceed as an application for leave to appeal. Conaway proceeded accordingly. The intermediate appellate court issued a mandate denying her application as read and considered.

Conaway petitioned this Court for a writ of certiorari, asserting a right of direct appeal to the intermediate appellate court. The Court granted that petition. Conaway v. State, 462 Md. 554 , 201 A.3d 1227 (2019). 1 Petitioner Johnson presents two additional issues not raised by Petitioner Conaway. Petitioner Luke Daniel Johnson (“Johnson”) sought post-conviction relief and moved to reopen a proceeding relating to a 1980 conviction for first-degree rape and third- degree sexual offense.2 A judge, in the Circuit Court for Washington County, granted the motion.

After a hearing, Johnson received credit for time served and was released, subject to five years of supervised probation, with conditions. Johnson committed subsequently two technical violations of the conditions of his probation. The judge determined Johnson committed a “public safety violation” and sentenced him to ten years of incarceration. Johnson noted an appeal and filed an Application for Leave to Appeal with the Court of Special Appeals.

The State moved to dismiss the appeal, and the Court of Special Appeals granted the State’s motion on 19 November 2018. This Court granted Johnson’s petition for a writ of certiorari. Johnson v. State, 463 Md. 145 , 204 A.3d 189 (2019). Johnson’s application for leave to appeal remains pending.

I. FACTUAL BACKGROUND A. Conaway Conaway was charged in the Circuit Court for Dorchester County in 2008 with first- degree murder and related charges. She entered a negotiated guilty plea to second-degree murder and was sentenced to 30 years in prison, with all but 20 years suspended. The trial judge ordered also that Conaway serve five years of supervised probation upon her release from incarceration. 2 The Court of Special Appeals, in Johnson’s direct appeal in 1982, reversed the third-degree sexual offense conviction. -2- In 2013, Conaway filed a motion to modify her sentence. The circuit court modified the sentence to 30 years in prison, with all but 15 years suspended.

The probation requirement remained the same. In 2015, Conaway (while still incarcerated) filed a request for an evaluation, pursuant to Md. Code, Health-Gen. § 8-505.3 The court granted the request. As a result, the circuit court suspended the balance of Conaway’s executed sentence upon her 3 That section reads, in pertinent part: In general (a)(1)(i) Except as provided in paragraph (2) of this subsection, before or during a criminal trial, before or after sentencing, or before or during a term of probation, the court may order the Department to evaluate a defendant to determine whether, by reason of drug or alcohol abuse, the defendant is in need of and may benefit from treatment if: 1. It appears to the court that the defendant has an alcohol or drug abuse problem; or 2.

The defendant alleges an alcohol or drug dependency. * * * Court ordered evaluation (d)(1) If a court orders an evaluation under this section, the evaluator shall: (i) Conduct an evaluation of the defendant; and (ii) Submit a complete report of the evaluation within 7 days to the: 1. Court; 2. Department; and 3. Defendant or the defendant's attorney.

(2) On good cause shown, a court may extend the time for an evaluation under this section. (3) Whenever an evaluator recommends treatment, the evaluator's report shall: (i) Name a specific program able to immediately provide the recommended treatment; and (ii) Give an actual or estimated date when the program can begin treatment of the defendant. -3- admission to a substance abuse program. Conaway was released from prison in 2016 and began her probationary period. Conaway’s probation officer filed a Violation of Probation Request for Warrant in July 2017.

The petition alleged that Conaway violated conditions of her probation. A hearing was held in October 2017. At the hearing, Conaway admitted to violating Rule 13 of the conditions of her probation. Rule 13 required her “to submit to and successfully complete and pay required costs for alcohol and drug testing and treatment as directed” by her probation agent.

Conaway failed to show up for drug treatment on numerous occasions and was discharged ultimately from the Dorchester County Addictions Program. Her probation agent recommended a 15-day sanction for a first-time technical violation, consistent with the codified portions of the JRA.4 At the conclusion of the hearing, the judge deferred sentencing until January 2018, to give Conaway another chance to resume a treatment program and see how she would fare during the intervening time.5 The deferred sentencing hearing was held in January 2018. Conaway’s probation agent stated that Conaway enrolled and began a new treatment program. In short order, however, she was discharged from the program because she failed to attend on multiple occasions.

The court, during this hearing, deemed Conaway a threat to public safety “because of the underlying charges and the substance abuse issues[.]” As such, the judge 4 See infra Section II. 5 The judge stated the delay was to gain “a real clearer picture” of how Conaway would act between the revocation hearing and the rescheduled sentencing date. -4- revoked Conaway’s probation, postponing sentencing until later that day so the court could calculate her time served. When court reconvened, Conaway pled her case. She claimed that she was unaware that she had been discharged from the treatment program. Explaining her absences, Conaway said she had been caring for her mother, and that she had spoken to her counselor about making a weekly schedule.

In her words, Conaway was “waiting . . . to be set up to go into these classes.” The judge, moved apparently by Conaway’s remonstrations, decided to give her another opportunity to avoid incarceration. He placed Conaway back on probation and deferred further consideration for 60 days, until March 2018, to see if she could comply with the relevant condition of her probation. The March 2018 sentencing hearing proved, however, to be “strike three.” The probation agent informed the circuit court that Conaway began a new drug treatment plan and program in Dorchester County, in compliance with the condition of her probation. She moved thereafter to Talbot County and stopped attending the program.

The court revoked her probation and sentenced her to 15 years in prison. In explaining his decision, the trial judge referred to his prior decisions regarding Conaway’s probation status, but did not reiterate that applying the presumptive statutory penalty would create a risk of safety to anyone in particular or generically. Conaway filed pro se a notice of appeal to the Court of Special Appeals from the circuit court’s revocation of her probation. Four days later, defense counsel entered an appearance and filed a “Notice of Appeal or Alternatively Application for Leave to -5- Appeal.” The latter paper asserted that the circuit court erred in two ways: 1) exceeding the 15-day maximum sentence allowed under the Justice Reinvestment Act for a first technical violation of probation; and, 2) doing so without finding that adhering to the presumptive 15-day limit would create a risk to public safety, a victim, or a witness.

The Court of Special Appeals issued an order, on 11 June 2018, directing “that the case will proceed as an application for leave to appeal.” The intermediate appellate court ordered additionally the State to file an Answer to Conaway’s application. After considering Conaway’s application for leave to appeal and the State’s Answer, the Court of Special Appeals issued a mandate denying her application for leave to appeal as “read, considered and denied.” B. Johnson Johnson was charged in the Circuit Court for Washington County, in 1980, with first-degree rape, second-degree rape, third-degree sexual offense, and assault. After a trial, a jury convicted him of first-degree rape and third-degree sexual offense. The trial judge sentenced Johnson to life in prison on the rape conviction.

In 2015, a judge granted post-conviction relief to Johnson, vacating his conviction and ordered further proceedings. Thereafter, Johnson entered an Alford plea.6 The judge sentenced him to life, suspending all but thirty-six years, one month, and four days. He 6 An Alford plea draws its name from North Carolina v. Alford, 400 U.S. 25 , 91 S. Ct. 160 (1970). In such a plea, a defendant enters “a guilty plea containing a protestation of innocence.” Bishop v. State, 417 Md. 1, 19 , 7 A.3d 1074, 1085 (2010).

The Alford plea “waives challenges to adverse rulings on pretrial motions and all procedural objections, constitutional or otherwise, limiting appeals to jurisdictional defects and challenges based on the propriety of the trial court's acceptance of the plea.” Id. -6- received also credit for 13,183 days of time served, with five years of supervised probation upon his relief. Johnson’s probation included two standard conditions: (1) report as directed and follow his supervising agent’s instructions; and, (2) notify his supervising agent before changing his address, changing his job, and/or leaving the state. There were, additionally, three special conditions: (1) submit to evaluation and attend and complete successfully mental health treatment; (2) have no direct or indirect conduct with the first-degree rape victim; and (3) do not enter or be found near any Sheetz store in Washington County. The conditions included also that he participate in a sex offender tracking and monitoring program, submit to alcohol and drug treatment, and abstain from alcohol, illegal substances, and abusive use of any prescription drug.

In April 2017, Johnson’s supervising agent reported that Johnson had traveled to West Virginia on three separate occasions without her permission. Considering that the purpose of these trips was assertedly to drive home a co-worker of Johnson’s, the agent recommended that no action be taken at that time against Johnson. Approximately two months later, Johnson’s supervising agent requested a warrant for Johnson’s arrest. The agent reiterated the three earlier instances when Johnson drove to West Virginia.

She claimed also that he had gone to Ocean City without her permission and, additionally, taken a job at the Walkersville carnival without her permission. The circuit court issued a warrant. Johnson was arrested on 22 August 2017. He has remained incarcerated since that date. -7- At a hearing on his alleged probation violations, Johnson admitted: (1) to obtaining employment at the carnival from 21-23 July 2017 without the supervising agent’s advance permission, and (2) traveling to West Virginia three times without permission.

He denied traveling to Ocean City without the agent’s permission. The judge found that Johnson had violated the conditions of his probation, but did not announce at that time that he had decided to revoke the probation. The judge voiced his concern, however, that Johnson was not a “very good candidate for probation.” He highlighted Johnson’s trips to West Virginia, other places he was not supposed to be, and allegations that he had propositioned a seventeen-year-old female who also worked at the carnival.7 The young woman addressed the court, without being subject to cross-examination, over defense counsel’s objection. She elaborated on Johnson’s interactions with her, stating: “he wanted to take me to Ocean City for three days.

He wanted to take me and my mom to his car, but me first, and do something to me in the back seat, unknowingly, which I didn’t want to do, so I didn’t go.” After her statement, a recounting occurred regarding some of the evidence from the 1980 trial.8 7 Johnson’s supervising agent learned that he had taken a job at the carnival through his transgression with the minor. The girl refused Johnson’s offer to go to his car and “perform certain acts,” alerted her parents, who, in turn, contacted Johnson’s supervising agent. 8 This discussion included, among other things, Johnson’s assertion that “the sex was consensual,” why a fourteen-year-old girl he was with at the time of the incident had screamed and run away from him, why the rape victim jumped out of his car and ran into a bar, and how the victim stated she did not want initially to prosecute. Defense counsel addressed alleged procedural deficiencies in the 1980 trial and noted that the “alleged conversation at the carnival” did not violate any condition of Johnson’s probation. -8- The State requested that Johnson be returned to prison for ten years. His transgressions, according to the State, demonstrated that he was a danger to the public.

Defense counsel, attempting to mitigate Johnson’s probation violations, stressed that the trips to West Virginia involved only giving someone a ride home from work, and that he was only reprimanded initially for these “good deed[s].” Also, defense counsel explained why Johnson went to work for three days at the carnival: [Johnson] was working [previously] for a gentleman … doing construction type renovations. And [his employer] lost his contract and as a result had to lay off Johnson. And as it’s alleged in condition three, that Mr. Johnson worked without permission for three days … the reason was, he had, you know simply was seeking employment in order to get money to pay his bills. It’s my understanding that … the management of the carnival, they found out why he was – what his conviction was, and they let him go as a result of his conviction.

The circuit court judge sided with the State. He found that Johnson committed technical violations of his probation, and that his violations were “a public safety violation.” Expressing his concern about Johnson’s conduct regarding the seventeen-year- old female at the carnival, but recognizing that such conduct did not violate any of the conditions of probation, the judge stated: “it still troubles me after all of this time that this was something that you engaged in.” The judge sentenced Johnson to life, with all but ten years suspended. -9- QUESTIONS PRESENTED First, we consider the State’s threshold query, raised in Conaway only, whether certiorari was granted improvidently, as well as certain preservation issues. If that is overcome, we analyze next, as a single query, the flagship question presented by both Conaway and Johnson:9 Does Md. Code, Crim. Proc. § 6-223(e)(4), which provides that a “finding under paragraph (2) of this subsection . . . is subject to appeal under Title 12, Subtitle 3 or Subtitle 4 of the Courts Article,” give a right of appeal to a probationer or defendant who receives an enhanced sentence based on a finding under paragraph (2) of § 6-223(e)?

For the reasons that we shall elaborate, the question presented by Conaway is one we shall engage on its merits. As to her and Johnson’s common question, we hold that probation violators in their positions must seek appellate review by application for leave to appeal. Because of this holding, we leave Johnson’s second and third questions10 for the Court of Special Appeals to consider in Johnson’s pending application for leave to appeal. 9 Johnson’s Question 1 encompasses Conaway’s query, which was: “[i]n light of the JRA’s language, may a defendant obtain appellate review of such a finding or decision by filing a notice of appeal, or is an application for leave to appeal required?” 10 Johnson’s second and third questions are: 2. Was the evidence presented at the hearing sufficient to rebut the presumption established by paragraph (1) of Crim.

Proc. § 6-223(e), after consideration of the factors set forth in paragraph (2)? 3. Did the trial court err when it sentenced Petitioner to life in prison, suspending all but forty-six years with credit for time served, for his first technical violation of probation, without following necessary procedures, including compliance with Crim. Proc. § 6-223(d)(3)? - 10 - STANDARD OF REVIEW We review questions regarding the appealability of orders or judgments without deference to the decisions below. Monarch Acad.

Baltimore Campus, Inc. v. Baltimore City Bd. of Sch. Commissioners, 457 Md. 1, 40 , 175 A.3d 757, 781 (2017). DISCUSSION I. Was Certiorari Granted Improvidently in Conaway’s Case? The State claims that we do not have jurisdiction to consider Conaway’s appeal and should dismiss it.

We choose to exercise our discretion to consider the merits of her question and, consequently, reject the State’s urging. The State maintains that a probationer may not seek certiorari review of a naked denial of an application for leave to appeal. In making this argument, the State relies on Title 12 of the Courts and Judicial Proceedings Article. That Title states, in relevant part: “[a] review by way of certiorari may not be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted . . .

(5) [l]eave to appeal from an order of a circuit court revoking probation.” MD. CODE, CTS. & JUD. PROC. § 12-202. We have certiorari jurisdiction when the Court of Special Appeals rejects an application for leave to appeal with an opinion elaborating its reasoning or decides not to consider an application as a matter of law.11 The State points out that there is no indication here that the Court of Special Appeals denied Conaway’s application by an opinion on its 11 Stachowski v. State, 416 Md. 276, 292-94 , 6 A.3d 907, 916-17 (2010). - 11 - merits.

We have considered numerous times the question of our jurisdiction to consider and grant certiorari review of the Court of Special Appeals’s dispositions of applications for leave to appeal. See, e.g., Unger v. State, 427 Md. 383 , 48 A.3d 242 , (2012); Stachowski v. State, 416 Md. 276 , 6 A.3d 907 (2010); Cianos v. State, 338 Md. 406 , 659 A.2d 291 (1995); Sherman v. State, 323 Md. 310 , 593 A.2d 670 (1991); Grayson v. State, 354 Md. 1 , 728 A.2d 1280 (1999). Adding to its argument that certiorari review was granted in error, the State posits that Conaway raised her appealability claim for the first time in this Court, rendering it also unpreserved and improperly before us.12 It finds succor for this position in Maryland Rule 8-131(b)(1): Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals . . . the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court of Appeals. Conaway failed to challenge the Court of Special Appeals’s 11 June 2018 Order directing the case to proceed as an application for leave to appeal, so the State urges that her direct appeal claim is being raised for the first time in this Court. 12 In a twist, Conaway retorts that we should decline to address the State’s waiver/non-preservation argument because it failed to preserve this issue for our consideration.

Ordinarily, we only consider issues that have been raised in a certiorari petition or cross-petition. MD. RULE 8-131(b)(1). Here, the State did not file a cross- petition to present its waiver argument.

Rather than wade through the thorns in this thicket, we shall exercise our discretion to consider Conaway’s question on its merits, for the sake of judicial economy, because the question presented here is “important, likely to recur and, if answered, would provide guidance to the bench and bar.” - 12 - Despite the principle embodied in Rule 8-131(b)(1), exceptions may be granted in “extraordinary circumstances.” See Scott v. State, 454 Md. 146, 189 , 164 A.3d 177, 202 (2017), cert. denied, 138 S. Ct. 652 , 199 L. Ed. 2d 531 (2018) (“[T]his Court has the discretion to consider an issue that was not preserved for this Court's review where ‘extraordinary circumstances’ provide a reason to do so.”). We may exercise our discretion and answer an unpreserved question when the question on which we granted certiorari was one of “public importance . . . which is likely to recur.” Montgomery Cty. v. May Dep't Stores Co., 352 Md. 183, 201 , 721 A.2d 249, 258 (1998). The State concedes that the question presented by Conaway “is important, likely to recur and, if answered, would provide guidance to the bench and bar. . . .” Notwithstanding this concession, it claims that it is unnecessary for us to overlook Conaway’s non- preservation because the same issue is pending our consideration in Johnson. We agree that this issue is important, likely to recur (as it was argued in Johnson in this Court the month following argument in Conaway), and our response on the merits will provide useful guidance to the bench and the bar.

We shall exercise our discretion and review Conaway’s contentions on the merits, despite the non-frivolous procedural arguments raised by the State. In addition, it would seem anomalous, under the circumstances, were we to refuse to decide Conaway’s question when we will consider essentially the same question in Johnson. - 13 - II. A Brief Overview of the Justice Reinvestment Act, as Codified in the Maryland Code. The JRA, as Senate Bill 1005-2016, was adopted by the Maryland General Assembly.

Governor Hogan signed the JRA into law. The primary goal of the JRA was to reduce selectively Maryland’s prison population and use the resultant monetary savings to provide treatment to offenders before, during, and after incarceration. It attempted to achieve this purpose through three methods. First, the JRA reduced the maximum penalties for convictions on drug