Conner v. State

Effrem Antoine Conner v. State of Maryland, No. 26, September Term 2020. Opinion by Harrell, J. JUDGES – DISQUALIFICATION TO ACT – PROBLEM-SOLVING COURTS RULE – Maryland Rule 16-207 does not mandate that a trial judge assigned to a drug court program grant a motion to recuse him or her from presiding over a violation of probation proceeding for a current or former drug court participant. A trial judge’s knowledge gained from involvement in drug court, both by presiding over status hearings and communicating as a member of the drug court team, is not acquired from an extrajudicial source and is not ‘personal’ knowledge necessitating recusal. JUDGES – DISQUALIFICATION TO ACT – PERSONAL BIAS – A reasonable person with knowledge of all the relevant facts would not have questioned the trial judge’s impartiality on this record based upon his prior involvement with the Petitioner arising from the drug court program.

The record does not reflect that the trial judge was the recipient of any ex parte or confidential communications relative to the Petitioner or that he had prejudged the evidence based upon knowledge acquired in the drug court. Circuit Court for Montgomery County Case Nos.: 128191C, 129945C, 129948C, 129949C, 130210C Argued: January 5, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 26 September Term, 2020 EFFREM ANTOINE CONNER v. STATE OF MARYLAND McDonald, Watts, Hotten, Getty, Booth, Biran, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) JJ. Opinion by Harrell, J. Filed: March 26, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-03-26 15:25-04:00 Suzanne C. Johnson, Clerk For the second time in three years, we confront a due process challenge arising from participation in the Montgomery County Adult Drug Court (“Drug Court”), a variety of problem-solving courts governed by Maryland Rule 16-207. Three years ago, in State v. Brookman, 460 Md. 291, 322 (2018), this Court held that a drug court must afford a participant “certain minimum due process protections” before imposing a sanction involving the loss of liberty or termination from the program.

In the present case, we are asked to determine whether a former drug court participant is denied his right to an impartial tribunal if a judge assigned to the drug court (and who, in that capacity, presided over certain events involving the participant) also presides over a revocation of probation proceeding arising from the participant’s alleged violations of drug court protocols, as well as the related conditions of his probation. In September 2016, Petitioner Effrem Connor1 pled guilty in the Circuit Court for Montgomery County in five cases involving theft charges and violations of probation. The court sentenced him cumulatively to 15 years, all suspended in favor of five years’ probation and, as a condition of probation, ordered Connor to enroll in, comply with the conditions of, and complete successfully the Drug Court program. In 2018, the State alleged that Connor violated his probation in those cases by failing to abstain from drugs and alcohol and failing to comply with the requirements of Drug 1 Petitioner’s name appears as “Connor” in the circuit court docket entries and throughout most of the record from the circuit court, including when he printed his name on his Drug Court enrollment agreement.

On appeal, his name has been spelled uniformly as “Conner” in the appellate papers. We shall use the spelling appearing on the circuit court docket entries and by Petitioner in that court. Court. Connor moved to recuse any “Drug Court Judge[]” from presiding over his violation of probation hearing.

The Honorable John Maloney, a sometimes Drug Court team member, denied the motion to recuse, presided over the revocation hearing, and found Connor in violation of his probation. The court sentenced him to serve 10 years. Connor filed an application for leave to appeal in the Court of Special Appeals, which was granted. A divided panel of that Court affirmed the circuit court judgment in an unreported opinion.2 We granted Connor’s petition for a writ of certiorari and shall affirm likewise the judgment.

BACKGROUND Beginning in the 1990s, Maryland courts began operating a variety of problem- solving courts, of which a drug court is one. Brookman, 460 Md. at 297 ; see also William McColl, Comment, Baltimore City’s Drug Treatment Court: Theory and Practice in an Emerging Field, 55 Md. L. Rev. 467 (1996) (discussing the first drug court established in Maryland in 1994). These courts are, in essence, “treatment programs operated under the auspices of the judiciary[,]” Brookman, 460 Md. at 294 , employing “a multi-disciplinary and integrated approach” to address matters otherwise “under a court’s jurisdiction[.]” Md. Rule 16-207(a)(1). In a drug court program, the court collaborates with other governmental entities, community organizations, and the parties to work to achieve the common goal of 2 Conner v. State, No. 134, Sept. Term. 2019 (Md. Ct. Spec.

App., filed 26 June 2020). -2- “[r]estor[ing] defendant as a productive, non-criminal member of society[.]” Administrative Office of the Courts, Problem-Solving Courts, Drug Treatment Courts, https://mdcourts.gov/opsc/dtc, last visited 11 Mar. 2021 [archived at https://perma.cc/FFN2-GS3C]. “A typical drug court program is divided into several phases of diminishing intensity as the participant progresses in accordance with the program’s goals.” Brookman, 460 Md. at 296 (footnote omitted). Regular status hearings presided over by judges assigned to the program encourage compliance with treatment and the protocols. Id. at 296-97 . Graduated sanctions, “some of which derive from the court’s coercive powers[,]” may be imposed for violations of the program rules.

Id. at 297 . The Circuit Court for Montgomery County established its Drug Court in 2004. Id. at 300 . Its stated mission “is to reduce recidivism by providing intensive services and supervision to address substance dependence and criminal thinking.” Montgomery County Circuit Court, Adult Drug Court, available at https://www.montgomerycountymd.gov/cct/drug-court.html, last visited 11 Mar. 2021 [archived at https://perma.cc/5U29-Z7ZV].

To achieve that goal, the Drug Court “provides an alternative to traditional case processing and disposition that emphasizes the value of[] [c]ollaborative treatment planning, case management, and judicial decision-making[.]” Id. The program is intended to last a minimum of 20 months. Id. -3- As detailed in Brookman, in the ordinary course, a defendant enters the Drug Court as a condition of probation after a guilty plea or being charged with violating probation.3 Id. at 300. If the defendant graduates from Drug Court, his or her probation is terminated.

Id. A team collaborates to help the defendant reach that goal, comprising “the judge (referred to as the team leader), the program coordinator, the prosecutor, defense counsel, case managers, and treatment providers.” Id. at 301. If a defendant violates the terms and conditions of the program, including by missing scheduled appointments or by a positive urinalysis test result, he or she is subject to receiving a range of sanctions up to and including incarceration and, ultimately, termination from the program. Id. at 301-02.

Non- compliance with the program rules also may result in violation of probation proceedings. FACTS AND PROCEEDINGS On 22 September 2016, after pleading guilty in five cases and receiving a suspended sentence conditioned upon his entry into, compliance with, and completion of Drug Court, Connor signed and executed a Drug Court enrollment agreement.4 Among the fourteen numbered paragraphs of the agreement were included provisions whereby he agreed to “comply with the expectations and requirements of Drug Court”; to “attend and participate 3 This represents a post-adjudication model, which differs from a pre-adjudication approach in which a participant may enter a drug court “prior to any substantive disposition of the case.” See Tamar M. Meekins, Risky Business: Criminal Specialty Courts and the Ethical Obligations of the Zealous Criminal Defender, 12 Berkeley J. Crim. L. 75, 87 (2007). 4 Consistent with Rule 16-207(e), before enrolling, participants in the Drug Court sign a written agreement that provides information about the requirements of the program, its protocols, the sanctions that may be imposed for noncompliance, and any rights waived by participation in the program. Md. Rule 16-207(e)(1). -4- in substance abuse treatment” as directed by the circuit court; and to abstain from drugs and alcohol.

Connor acknowledged that he understood that he could be directed to submit to drug and alcohol testing at any time; that his failure to do so would result in a sanction; that “using or possessing any [drugs or alcohol] will result in a violation of the terms of [his] probation”; and that “any attempt to falsify a drug and alcohol test, including dilution,” would be grounds for termination from Drug Court. He averred that he understood that failure to complete Drug Court would result in his being terminated from the program and “sentence[d] . . . in accordance with the law.” At the same time, Connor executed a “Consent for Disclosure of Confidential Alcohol and Drug Abuse Treatment and Related Medical Information” form, in which he consented to “ongoing verbal and written communication about [his] compliance status” with alcohol and substance abuse treatment to the circuit court, including judges; defense counsel; the State; and other persons involved with the Drug Court program. He consented explicitly to those communications for the purposes of “reporting on and monitoring [his] treatment, attendance, prognosis, and compliance with the terms and conditions of [his] probation” and for the purpose of “discussing, commenting, and assessing [his] status and progress as a participant in the Drug Court Program in accordance with the Drug Court’s reporting and monitoring criteria[.]” Connor began his participation in Drug Court on 13 October 2016. Over the course of 19 months, he appeared for 56 status hearings in the circuit court.5 Judges presiding over 5 Judge Maloney presided over a quarter of those hearings. -5- his hearings imposed graduated sanctions, including incarceration, for Connor’s noncompliance with the program’s terms.

In the first six months, he received a written warning for failing to appear for a substance abuse treatment meeting. In April 2017, he admitted to using alcohol twice, tested positive for metabolites of alcohol and cocaine, and recorded low creatinine levels6 on multiple occasions. In October 2017, Connor again was sanctioned for low creatinine levels, which were treated as his third positive urinalysis for purposes of the program. In January 2018, Connor tested positive for cocaine and was sanctioned.

The events giving rise to the revocation of probation proceedings under scrutiny here occurred on 23 July 2018. On that date, Maynor Corea, a lab technician at the urinalysis collection facility, observed Connor using a suspected external device to provide a false sample of urine. Mr. Corea reported this to his supervisor, Larry Stewart, the therapist who oversees the therapy arm of Drug Court. Consequently, Connor was directed to appear for a Drug Court hearing the next day before Judge Maloney, who revoked his bond pending the filing of a violation of probation petition.

Thereafter, the State charged that Connor violated standard condition 8 and special condition 16, both of which required him to abstain from drugs and alcohol, and special condition 36, requiring him to comply with the requirements of Drug Court, based upon 6 As this Court explained in Brookman, creatinine is “a waste product in human blood” that is “eliminated from the body in urine.” 460 Md. at 303 n.13. Low creatinine levels in a urinalysis test can indicate that the test subject diluted their urine by consuming excessive amounts of water. Id. -6- the alleged false urine sample, as well as all of Connor’s previous violations of Drug Court rules.7 His violation of probation hearing was scheduled ultimately for 8 November 2018 before Judge Maloney, one of four judges on the Circuit Court for Montgomery County who are intermittently part of the Drug Court team. In advance of the hearing, Connor filed a motion to recuse any of the Drug Court judges from presiding over his violation of probation (“VOP”) hearing.

The State opposed the motion. Connor argued that it would create an appearance of impropriety for Judge Maloney (or one of the other Drug Court judges, regardless of whether they presided actually over any part of his participation) to preside because they were privy to extrajudicial communications concerning his progress in recovery and were familiar intimately with the other members of the team – including Mr. Stewart – whose credibility the court would be assessing in the VOP hearing. Connor attached nine exhibits to his motion, including several emails that were sent to Judge Maloney and the other members of the team pertaining to the allegation that Connor used an external device to provide a false urine sample. The first email, dated 23 July 2018, was from Jenna Davis, the problem-solving court coordinator, to Judge Maloney, and reported that Connor had been “observed using a device to provide someone else’s urine” on that date.

Ms. Davis copied the rest of the 7 Although this petition could not be found by us in the record transmitted to us, we gleaned this information from a transcript where Judge Maloney recited the alleged violations. -7- team, including Connor’s attorney. Ms. Davis requested that Connor be brought to court “as soon as possible” for remand “pending further discussion by the team.” Judge Maloney replied to that email immediately and directed that Connor should appear before him the next morning at 9 a.m. Mr. Stewart replied the next morning, prior to the hearing, and set out the “[s]equence of events” surrounding the false urine incident in detail. Mr. Stewart attached to his email an email he received from Mr. Corea, the lab technician, further describing the details of that incident.

Mr. Stewart stated that, considering Connor’s “multiple historic positives and his current use of a device of deception,” the treatment team would recommend that he be terminated from Drug Court. Judge Maloney held a hearing on the motion to recuse and denied it. He explained that he took “motions for recusal very seriously” and was cognizant of a Committee note to Rule 16-207 that cautioned that, in a post-termination revocation of probation proceeding, the court should “be sensitive to any exposure to ex parte communication or inadmissible evidence that the judge may receive while participant was in the Drug Court Program, and I’m sensitive to that, but sees [sic] from these e-mails the best I have is allegations.” He directed the State to present live testimony at the revocation hearing from Mr. Corea, rather than relying upon hearsay statements from Mr. Stewart. Judge Maloney also addressed the content of the emails with which he was presented: I do not know that person [referring to Mr. Corea].

It’s again, secondhand statements. I would have to read these e-mails again. To be honest, I hadn’t seen them since July. I most likely did read them, or I had my secretary count for the month of October how many Drug Court e-mails there are.

She had 190. That does not include individual ones I have with just -8- attorneys about matters, or just with the case manager, just with fellow judges, or some combination thereof, and I can’t remember really many with treatment. It’s just not the nature of Drug Court that I e-mail his treatment, with one exception I ask for information about graduation, if they have anything I should say about them when somebody’s graduated, but, otherwise, it’s just not the nature of how Drug Court works that the Court contacts treatment. Again, as I’ve already said for the record, I didn’t remember these e- mails.

This motion is what made me remember it. The only concerning part about a treatment provider saying – the name of the witness whose name I can’t remember, what’s the name? . . . . [‘]Mr. Corea is the best.[’] I don’t know what that means how you’re the best urine collector, but I don’t think that goes to credibility. And, likewise, again, this Court often has probation agents that the Court’s worked with for 15 or 20 years. As to this one allegation of the twenty-four allegations [in the violation of probation charges], I’ll be hearing from a witness I’ve never seen before, and I can equally judge the credibility of this witness, I believe, and Mr. Connor as to that one of twenty-four allegations.

Judge Maloney acknowledged that he was confronted by the competing duty to recuse, when required, and the duty to preside, when appropriate. In his view, it would create “complete havoc” if Connor’s blanket rule argument were embraced and judges were required to recuse from presiding over sanction hearings based upon involvement in Drug Court. He noted that Drug Court functions because it creates “relationship[s]” between participants and the judges and that the relationships permit the participants to be “upfront and honest with their disease, and to embrace change, and to change their drug habits, criminal habits into productive, healthy lives.” Judge Maloney recognized that recusal might be required in some cases, but did not believe it was warranted in Connor’s case: I just don’t think this is that case, because I don’t think the allegations and the facts disputed, again, I don’t know what I’m going to hear, but it sounds like two different people, two different versions, and it might just be nothing -9- with other allegations that are already addressed. . . . . So, I’ll deny the motion to recuse at this point.

The next day, the parties appeared for the VOP hearing. The State called Jocelyn O’Rourke, the Drug Court case manager; Mr. Stewart; and Mr. Corea to testify. Ms. O’Rourke testified generally about Connor’s involvement in the program and identified case management notes that detailed his prior sanctions, as well as positive urinalysis results from one date in September 2017; five dates in April 2017; and one date in January 2018. She explained that by “accepting” a sanction for a positive urinalysis result, Connor was in effect “admitting” to the alleged violation.

She testified further that all the above conduct violated the Drug Court rules. Mr. Stewart testified that Connor failed to appear for urine collection on 18 July 2018. He appeared the next two days, but both times provided an insufficient quantity of urine to be tested. On Friday, 20 July 2018, upon learning that the quantity of urine was insufficient, an employee called Connor and asked him to return to give a second sample.

Connor did not return that day. The following Monday, Connor appeared. Mr. Stewart received a call from Mr. Corea asking him to come to the collection room. Mr. Corea advised Mr. Stewart that Connor had been observed using an external device while providing a sample.

Mr. Stewart directed Connor to take off his clothes to demonstrate that he did not have an external device hidden there, but Connor refused. Mr. Stewart offered to stay late to give Connor the opportunity to provide another sample, but Connor declined. Mr. Corea testified that he accompanied Connor into the collection room on Monday, 23 July 2018. While Connor faced the toilet to give a sample, Mr. Corea observed -10- him through mirrors positioned on either side of the toilet.

As Connor held the collection cup in his right hand, Mr. Corea observed him squeezing a clear pouch with his left hand. Consequently, Mr. Corea advised Connor that he was rejecting the sample and then contacted Mr. Stewart to report the incident. At the close of the evidence, the court ruled that Connor violated standard probation condition 8, special condition 16, and special condition 36. With respect to the first two conditions, which required Connor to abstain from using drugs or alcohol, Judge Maloney relied upon urinalysis test results admitted into evidence through Ms. O’Rourke that reflected positive test results, as well as the Drug Court case management notes reflecting when Connor was sanctioned and that he did not “contest[] the sanctions.”8 The court noted that Connor admitted to testing positive for alcohol on 14 April 2017 and again on 16 April 2017, according to Ms. O’Rourke’s case notes.

In finding by a preponderance of the evidence that Connor tested positive for cocaine, Judge Maloney noted that he had presided over a Drug Court hearing on 1 March 2018 at which Connor “didn’t dispute” the positive test result: I commend him for that, and that’s what we look for. That’s part of the therapeutic model is admitting to mistakes, admitting to errors in order to address them. If you don’t admit your mistakes, you can’t address them; that’s well-renowned in the Drug Court and therapeutic literature. And, so, I commend him for confronting those previous positives, though I don’t see 8 In the circuit court, Connor argued that it violated the prohibition against double jeopardy for him to be charged with violating his probation based upon conduct for which he had been sanctioned already within the Drug Court program.

Judge Maloney rejected that argument. Connor challenged that ruling in the Court of Special Appeals, which affirmed Judge Maloney’s ruling. Conner did not petition for certiorari on that score and it is not before this Court. -11- how now I could make a finding that he didn’t, in fact, test positive on those events. Turning to special condition 36, requiring Connor to enroll in, comply with, and complete successfully the Drug Court program, Judge Maloney reasoned that Connor violated this condition by the same conduct discussed already, as well as by other conduct, including his failure to attend treatment on 13 March 2017; by providing urine samples with low creatinine levels on 13 April 2017, 18 April 2017, 24 April 2017, 26 April 2017, and 27 September 20179; by failing to contact his case manager with sufficient frequency between 11 August and 17 August 2017; and by failing to appear for urine collection on 18 July 2018, as detailed in the Case Management notes.

The court credited also Mr. Corea’s testimony that he observed Connor use an external device on 23 July 2018 to provide a false urine sample. The court then heard argument before sentencing Connor to serve, cumulatively, 10 years, with credit for 477 days time served. Connor also was terminated from Drug Court. The Court of Special Appeals granted Connor’s application for leave to appeal and, in an unreported opinion, affirmed the judgments.

Conner v. State, No. 134, Sept. Term 2019 (Md. Ct. Spec. App., filed 26 June 2020). The panel majority held that the record did not support Connor’s contention that Judge Maloney relied on personal knowledge regarding disputed evidentiary facts to find that he had violated his probation and found 9 The court found that one of the low creatinine levels noted by Ms. O’Rourke was sufficiently close to the “cutoff” that it did not support a finding that Connor had diluted intentionally his urine. -12- that the out-of-state cases holding that drug court judges had erred by not recusing were inapposite. Conner at ⁷-9.

The panel dissenter reasoned that Judge Maloney “failed to consider whether [his] ‘impartiality might reasonably be questioned’ due to ‘personal knowledge of facts that are in dispute.’” Conner at ¹⁰ (Friedman, J., dissenting) (quoting Md. Rule 18-102.11). He maintained that the case should be remanded for Judge Maloney to assess whether he received ex parte communications or inadmissible information pertaining to Connor. Conner at ¹¹-12. QUESTION PRESENTED We granted certiorari to ponder a single question: Given that Drug Court is a non-adversarial, team-based treatment program in which participants are expected to openly discuss relapses and other setbacks in their recovery, should a judge who supervised a defendant in Drug Court generally recuse from the defendant’s subsequent violation of probation proceeding when the conduct that allegedly violated the conditions of probation was the subject of Drug Court hearings, meetings, and correspondence?

Conner v. State, 471 Md. 71 (2020). STANDARD OF REVIEW Although a defendant in a revocation of probation proceeding is not entitled to the “full panoply of rights” accorded a criminal defendant, he or she is entitled to due process, which includes the right to an impartial tribunal. Bailey v. State, 327 Md. 689, 698 (1992); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (holding that a probationer is entitled to a hearing “under the conditions specified in Morrissey v. Brewer”); Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (parolee entitled to a “neutral and detached hearing -13- body” before parole may be revoked). “[B]ecause judges occupy a distinguished and decisive position[,] . . . they are required to maintain high standards of conduct.” Jefferson- El v. State, 330 Md. 99, 106 (1993). Consequently, by Rule, a judge must disqualify “himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including[,]” as pertinent, when a judge has “personal knowledge of facts that are in dispute in the proceeding.” Md. Rule 18-102.11(a)(1). “Generally speaking, a judge is required to recuse himself or herself from a proceeding when a reasonable person with knowledge and understanding of all the relevant facts would question the judge’s impartiality.” Matter of Russell, 464 Md. 390 , 402 (2019) (citation omitted).

On the other hand, “there is a strong presumption . . . that judges are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified.” Jefferson-El, 330 Md. at 107 (citations omitted); Boyd v. State, 321 Md. 69, 80 (1990) (judges are presumed to be impartial); accord Attorney Grievance Comm’n v. Shaw, 363 Md. 1, 11 (2001); In re Elrich S., 416 Md. 15, 33 (2010). Consequently, “the decision to recuse oneself ordinarily is discretionary and will not be overturned except for abuse.” Shaw, 363 Md. at 11 (citing Jefferson-El, 330 Md. at 107 ). DISCUSSION A. The Problem-Solving Courts Rule The predecessor to Rule 16-207 was adopted in the wake of this Court’s decision in Brown v. State, 409 Md. 1, 4 (2009), in which a drug court participant challenged the jurisdiction of the Circuit Court for Baltimore City drug court to sanction participants and -14- raised concerns about double jeopardy implications if participants were sanctioned for the same conduct within a drug court program and, after termination, within a revocation of probation proceeding. In rejecting the jurisdictional challenge, this Court held that a drug court is “essentially a division of the circuit court” and derives its power to incarcerate a defendant as a sanction for non-compliance from its general powers under the criminal law.

Brookman, 460 Md. at 315 (citing Brown, 409 Md. at 1 ). The Rule10 identifies a problem-solving court as “a specialized court docket or program that addresses matters under a court’s jurisdiction through a multi-disciplinary and integrated approach incorporating collaboration by the court with other governmental entities, community organizations, and parties.” Md. Rule 16-207(a)(1). Subsection (e) governs the form and contents of the written agreement a participant must execute before enrolling in a program. That agreement must advise the defendant of the program requirements; “the protocols of the program, including protocols concerning the authority of the