DiMeglio v. State

FREDERICK J. SHARER (Retired, Specially Assigned), J. Appellant, Joseph Julian DiMeglio, avers in his brief that in the jurisdictions of this State where “DUI/drug courts” function it is common for sanctions to be imposed by those courts, and that frequently defendants are subsequently further punished upon violation of the conditions of probation imposed by sentencing judges. Because that is precisely the outcome of his alcohol-related traffic violations, he argues that his Fifth Amendment double jeopardy rights have been violated. Appellant was arrested and charged, in the District Court for Anne Arundel County, with various offenses, including driving while impaired by alcohol. This case was transferred to the Circuit Court for Anne Arundel County on appellant’s demand for a jury trial.

On October 1, 2009, and November 5, 2009, following hearings, the circuit court denied appellant’s motion to dismiss the case on double jeopardy grounds. Thereafter, the parties agreed to proceed on a not guilty plea on an agreed statement of facts, and the court found appellant guilty of driving while impaired by alcohol. Appellant was subsequently sentenced to one year and 60 days, which was suspended in favor of probation, with conditions. Appellant timely appealed and, as slightly rephrased, presents the following questions for our review: 1.

Did the motions court err in denying appellant’s motion to dismiss on double jeopardy grounds? 2. Is a knowing and intelligent waiver of the right to be free from double jeopardy required when a defendant agrees to participate in DUI Court? For the following reasons, we shall affirm. 1 ²⁹⁰ FACTUAL and PROCEDURAL HISTORY A chronology of pertinent events with respect to the District Court and circuit court cases follows. 2 On May 26, 2007, appellant was charged in the District Court for Anne Arundel County with various offenses, including driving while under the influence (Case Number EG44342). On January 30, 2008, and prior to trial, this case was referred to the DUI Court for Anne Arundel County.

Although we have not been provided with a transcript of appellant’s first appearance in the DUI Court, the record indicates that, in exchange for appellant’s agreement to plead guilty to a violation of § 21-902(b) of the Transportation ²⁹¹ Article 3 , the parties and the court entered into the following agreement: DUI/DWI TREATMENT COURT This agreement, between the Defendant, the State’s Attorney and the Court, is intended to secure the participation of the defendant in the DUI/DWI Treatment Court program. In consideration for the opportunity to participate in the program, the defendant agrees to the following special conditions: 1. Defendant agrees to sign all authorizations for the release of information requested. Defendant realizes that this condition is necessary to coordinate treatment and any other needed services and to monitor compliance. 2.

Defendant agrees to keep all treatment and other required appointments scheduled by Clinical Care Monitoring Program staff (CCM), treatment and other resource providers and to attend all [scheduled court appearances for progress reviews. 3. Defendant agrees to submit to drug and alcohol testing as directed. 4. An individualized treatment plan will be developed with the defendant and contain his/her requirements and stated goals and objectives. The treatment plan will indicate schedule and type of counseling, substance abuse treatment, and other areas of need such as health, employment and education.

The Defendant agrees to participate in treatment and other recommended services. The Defendant agrees to pay for all services as appropriate. Defendant agrees that if he/she fails to comply with the DUI/DWI Treatment Court requirements, or tests positive for a prohibited substance, the treatment or other service provider may immediately make adjustments: a. Increase treatment or service intensity ²⁹² b.

Increase drug/alcohol testing c. Increase progress review schedule d. Refer to other treatment or service provider, and e. Any other sanctions, including termination from treatment and/or other services.

Defendant agrees to comply with the new conditions until review by the Court at the next scheduled progress review. Defendant will have the opportunity to be heard at that review. The Court is not limited by the above sanctions in the event of a finding that this agreement has been violated. The Court can impose sanctions including community service, daily monitoring, house arrest, incarceration and termination from the DUI/DWI treatment court program.

The length of the program and conditions of any probation will reflect the success of the defendant’s treatment outcome, recommended continuing care, criminal record, and the Court’s desire to help the defendant maintain a productive, sober life. Appellant began treatment pursuant to the agreement, and appeared in the DUI court on what appears to have been a monthly basis. Then, on January 18, 2009, appellant was again arrested and charged in the instant case with various offenses, including, driving while impaired by alcohol. This case would later be transferred to the circuit court on appellant’s demand for a jury trial.

Four days later, on January 22, 2009, as part of his scheduled review in the DUI Court, appellant appeared before the District Court in Case Number EG44342, the earlier case. (Hon. Thomas J. Pryal, presiding). At that hearing, the court informed appellant that he did not have to talk about the new charges, and that “[y]ou don’t have to talk about the facts of the new case, understand that.

That’s a pending case, ... with legal implications, but what’s been going on since I last saw you.” Appellant replied that DUI Court had been helping him and that, “[n]o matter what the outcome of the other trial might be, but I would hope that you wouldn’t put me out of this program.” ²⁹³ Appellant informed the court that the new charges (the case that is the subject of this appeal) occurred in Anne Arundel County when he “rear-ended” a vehicle near Hilltop and Bay Ridge Avenue. Appellant told the court that he had been at his sister’s house earlier that day and had consumed a number of beers. Appellant decided to drive home and “totaled” a company vehicle. The court addressed appellant as follows: THE COURT: But I cannot understand, I have to just say this because I can’t let this end without it, I understand you have a terrible problem that you are dealing with in alcoholism and that is something that’s difficult to control, if it can be controlled, but you don’t have to drive.

That’s the problem here. Is if you had some alcohol at your sister’s house, and I don’t know why they would even not knock that drink out of your hand, I can’t understand it, but I don’t know what the situation is, but whatever. You drink there, you didn’t have to drive. And that’s the problem that’s going to haunt you at this point, not the drinking part.

But, you know, if you had come in here and said, you know, I had a couple of beers watching the game, that’s obviously something that we can deal with much more easily than what’s going on here, okay? I’m not going to crucify you for this, but I just have to say that because it’s something you have to recognize as part of my job here. Okay? I don’t know what’ll happen in terms of the rest of this program, because a lot of that’s up to the State and what they want to do with this new charge.

MS. LASEAR 4 : They’re not going to roll this in. THE COURT: I’m sure they won’t. Okay.

MS. LASEAR: (apparently addressing appellant) But you’re going to have to—you will have to court [sic] on this charge. They will not roll this new charge in. They already said that. ²⁹⁴ APPELLANT: I don’t even know what that means.' MS.

LASEAR: They will not make your new charge part of the DUI court program. You are going to have to go, it’s suggested you get an attorney or a public defender, and you are going to have to go to trial for this new case. And the judge, I doubt it will be Judge Pryal, whatever judge it is— THE COURT: It won’t be me. MS.

LASEAR:—it will just be a whole other case. It will have nothing to do with this. The State will not allow that case to be part of this. I’ve already talked to them.

THE COURT: All right. I can tell you also that my guess is that at some point they are going to ask that you be removed from this program. That hasn’t happened at this point, at least they haven’t said anything. But if history is any indicator I believe that’s what will happen, okay?

So that’s just something we are going to have to deal with as we move forward, we are not going to deal with that today, but you need to keep that in mind, okay? I’m sorry about all this, okay? * * * THE COURT: I have, you know, like I said, I have good feelings about you, I like you personally, that doesn’t change whatever is going to happen though. And, you know, it’s devastating for everyone involved and I don’t want to linger on the devastating part of it, okay? Because all of us are going to have to get over that and decide what we are going to do next, okay?

So you can deal with SCRAM, okay? Obviously where there has to be a sanction I’m going to revoke your PR for the weekend, Friday and— APPELLANT: I don’t know what that means, Your Honor. THE COURT: I’m going to impose a sanction for your using, for drinking. Getting this DWI.

APPELLANT: Oh. Yes, sir. THE COURT: All right? So I’m going to revoke your PR.

I’m going to have you locked up at the detention center for this weekend. Friday at 6:00. ²⁹⁵ APPELLANT: You are going to have me locked up? THE COURT: I am. Yes.

Friday at 6:00 until Sunday at 6:00. At that point, the court inquired whether appellant had a lawyer and appellant replied that he did. After further discussion about treatments appellant had undertaken, the following ensued: THE COURT: All right. Well, there are things in your life other than this that I’m sure you would be proud of.

You said you had a good education, you have a lot of things. This—getting DWI’s is obviously a major problem, it doesn’t have to define you either. And, you know, obviously you are going to have to deal with this. I don’t know what’s going to happen with the case.

I don’t know whether the State has a good case or bad case, I don’t know how that’s going to work out, okay? I have no idea. What I do know is that it was something that you shouldn’t have been doing while you were on this program, okay? I can deal with that and so the sanction is going to be imposed.

And what’s going to happen in terms of the rest of the program, again, I don’t know. The court stated: “[a]ll right, here is what we are going to do, I’ve imposed a sanction, we’re going to set a review, February 5th.” The court suggested that appellant contact a lawyer and return to court on February 5, 2009. 5 ²⁹⁶ It is clear that appellant was caused to serve time in jail for having violated the terms of his DUI court agreement, imposed following the prior violation, as a result of having been charged with a subsequent violation. On July 27, 2009, appellant prayed a jury trial in what was to become the instant case. This case was transferred to the Circuit Court for Anne Arundel County, where it was captioned as 02-K-09-001672.

According to the record now before us, approximately one month later, on August 20, 2009, appellant was found guilty in District Court Case Number EG44342, the case that was the subject of the DUI Court agreement, of driving a vehicle while impaired by alcohol. Appellant was sentenced to 120 days with credit for time served. Appellant immediately appealed to the Circuit Court for Anne Arundel County, where it became Case Number 02-K-09-001898. Sentence in that case was stayed pending the appeal.

Although not entirely clear, we presume that the conviction served to terminate appellant’s participation in the DUI Court. On October 1, 2009, appellant moved to dismiss the instant case, (Circuit Court Case Number 02-K-09-001672), on double jeopardy grounds. A hearing was held the same day on appellant’s motion, (Hon. Paul A. Hackner, presiding), at which appellant testified on his own behalf.

The transcript of that hearing revealed the following: appellant admitted that he was arrested on January 18, 2009 (the current offense), and appeared in the DUI Court on January 22, 2009. He also admitted that he had a “colloquy with the Court” on January 22, 2009, and testified that there was a discussion whether he had been drinking, and whether he had been arrested and charged as a result. Appellant recalled that, at that time, Judge Pryal told him to return to court with counsel on February 5, 2009. According to appellant, there was a discussion at this hearing concerning a possible sanction for the January 18, 2009 incident.

Responding to questions from his attorney, appellant testified that “you gave an argument to Judge Pryal that I had not ²⁹⁷ been found guilty of any other charges and that a sentence shouldn’t be imposed upon me because a trial was going to be eminent [sic] for the incident----” Nonetheless, appellant said, Judge Pryal sentenced him to a weekend in jail, which he served that weekend. Appellant concluded his direct examination by agreeing with counsel that he had expressed concerns whether it was “constitutional” for him to be subject to further punishment. On cross-examination, appellant testified that he told Judge Pryal that “I had thought that I had drank four beers.” After this, Judge Pryal “sanctioned me and sent me to jail.” Appellant also confirmed that he told Judge Pryal he had been charged with drunk driving. Following appellant’s testimony, the motions court heard argument.

The court asked appellant’s counsel if the act of consuming alcohol violated the terms of the DUI Court agreement. Counsel declined to comment, stating “there hasn’t been any evidence to that submitted, I’ll say that much.” Defense counsel contended that “[djrinking is one of the elements of the offense of drinking and driving.” Therefore, counsel continued, “the behavior that he was being sanctioned for is embraced in the offense that he’s charged with here today.” The prosecutor responded that appellant had not established that he was being prosecuted twice for the same offense. The court, over objection, took judicial notice of how DUI Court works, stating that he served on the Drug Court for four years. The prosecutor contended: Well, Your Honor, then you know that when somebody is on DUI Court or Drug Court they have not yet been sentenced, the case is not over, and that person is actually in the status of being on pretrial release.

When the Defendant went in and admitted to Judge Pryal that he had had four beers, he was on pretrial release, he acknowledged to having four beers, and we use the word sanction of course because this is just part of the terminólo- ²⁹⁸ gy that we use when we’re in DUI Court or DWI Court. In fact, his pretrial release was revoked, Your Honor. We do this all of the time. When people are out on bond and they are awaiting some portion of their trial to come and they violate a condition of that pretrial release we sanction them.

We take some action. We revoke that pretrial release and we incarcerate them. Never is this held to be any type of violation of their constitutional right against double jeopardy. Never is it held to be a second prosecution for the same offense.

The court denied the motion stating: Even if I were a complete .unknown or even if the Drug Court were completely unknown to me and I didn’t take judicial notice of anything I would reach the conclusion that what we have here is Judge Pryal either lawfully or unlawfully sanctioned your client for his having admitted to drinking four beers. So maybe if it wasn’t a condition—let’s pretend it wasn’t a condition of Drug Court or DUI Court that your client abstained from using any substances, including alcohol—let’s engage in that hypothetical—then at best Judge Pryal knew of some conditions that I don’t know, because I’m not taking judicial notice of it. Or at worse Judge Pryal did something that was unlawful. But whatever he did he did the [sic] as a result of an admission that was made and not as a result of a conviction for a crime that has not yet before [sic] tried, i.e., the fifth DUI.

So it’s not a situation it seems to me where your client had been doubly punished or faces the prospect of being doubly punished for the same offense. Clearly the facts may coincide, and clearly the same act that gave rise to a sanction in the Drug Court may also be a part of the operative set of facts that might give rise to a conviction if he is convicted in this court on the DUI that he’s presently charged with. But I think the case law is replete with instances where the same series of conduct or same acts may subject somebody to multiple sanctions. That could include administra ²⁹⁹ tive sanctions, getting your license revoked, that’s been argued ad nauseam as to whether that’s considered double jeopardy, parole revocations, probation revocations, and I think consistently the courts have held that that does not simply because one set of events give rise to multiple sanctions that does not invoke the double jeopardy clause of the constitution.

Thereafter, on October 6, 2009, appellant filed a motion for reconsideration, accompanied by a transcript of the January 22, 2009 hearing in District Court Case Number EG44342. The State responded, and the court conducted a hearing on the motion on November 5, 2009. No testimony was received at this hearing, but the court did admit the transcript from the January 22, 2009 hearing in the DUI Court. While recognizing that it was likely that the conditions of DUI Court included that appellant obey all laws and not drink, defense counsel continued to assert that the weekend in jail imposed by the DUI Court amounted to a sanction for drinking and driving, the basis of the new charges.

Counsel further contended that appellant did not waive any rights to challenge this prosecution on double jeopardy grounds by entering into the DUI Court agreement. The court did not consider waiver to be an issue. The State responded that appellant’s appearance before the DUI Court on January 22, 2009, was not a “prosecution.” As we have noted, neither defense counsel nor the prosecutor were present at that hearing before Judge Pryal. The State argued: The State didn’t request any type of sanction, incarceration, fine, additional treatment, the State was not even there, Your Honor.

There was no prosecution, there was no charging document, there was no evidence presented by the State. In fact the only evidence presented was by Mr. Dimeglio himself. We’re then brought to the matter of whether he was being punished. And Your Honor, I would ask you to look ³⁰⁰ at the procedural posture of the case at that point.

He was in DUI Court, he had pled guilty at that point, he had not been sentenced. He was out on his own personal recognizance having not been sentenced. There were conditions on that. He was to follow the terms of the DUI Court, including go to treatment, including no new charges, including follow the instructions of your case manager, and don’t consume alcohol.

Don’t consume alcohol. 6 The State further suggested that the weekend in jail was equivalent to a revocation of pretrial release for violation of a condition. After hearing further argument from appellant’s counsel, and after making clear that, during the DUI Court hearing, Judge Pryal stated: “I’m going to impose a sanction for your using, for drinking. Getting this DUI,” the court denied appellant’s motion for reconsideration. The court stated: So in this case we don’t have that.

In this case what we have is a violation of a conditional release that was the condition upon which the Defendant was allowed to participate in a Drug Court. Unquestionably the violation consisted of some part of the same set of facts or the same conduct which will ultimately have to be proved by the State in this current DUI case, but it was a sanction imposed in connection with the previous case, not with the current case. In other words, Judge Pryal could not have even if he had wanted to sentenced the Defendant to anything more than what he had suspended or what he could have sentenced him for in the first case. He could not have put him on probation in this case.

All he had was what was allowable under the preexisting case. ³⁰¹ The question of a waiver and so forth I think is one that we don’t even get to. Because as I say, I don’t believe that Mr. Dimeglio’s Fifth Amendment rights have been violated, and it’s not a question of whether the [sic] waived them or not. So the revocation of bail in the Drug Court context is a sanction for violating the—what we I think referred to last time as case number four—whereas in this case, which is case number five, there had not yet been jeopardy attached, and so there is no basis to grant the motion to dismiss ... and the motion for modification will be denied. On November 18, 2009, before Hon.

William C. Mulford, II, appellant pleaded guilty in Case Number 02-K-09-1898—the prior charge—to driving while impaired, and entered a not guilty plea on an agreed statement of facts in the instant case to driving while impaired. Because appellant raises no challenge to the sufficiency of the evidence in the instant case, we need not detail the agreed statement of facts. Washington v. State, 190 Md.App. 168, 171 , 988 A.2d 61 (2010). This timely appeal followed. 7 DISCUSSION 1.

Double Jeopardy Appellant’s primary contention on appeal is that the motions court erred in denying his motion to dismiss on double jeopardy grounds. He argues, as he did below, that the sanction imposed by the DUI Court in Case Number EG44342—a weekend in jail—was, in fact, punishment for his act of ³⁰² drinking and driving in this case. Therefore, he concludes, the court’s sentence in this case amounted to a violation of his right to be free from double jeopardy. The State again responds that the sanction imposed by the DUI Court was solely for appellant’s failure to abide by the terms of the DUI Treatment plan.

The State posits that jeopardy did not attach in this case when appellant appeared in the DUI Court on January 22, 2009. The Double Jeopardy Clause provides that no person shall “be subject to the same offence to be twice put in jeopardy of life or limb.” U.S. Const., Amend. V. This constitutional guarantee is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. State v. Long, 405 Md. 527, 535-36 , 954 A.2d 1083 (2008) (citing Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969)).

The Court of Appeals has stated that the “double jeopardy analysis is a two-step process. We determine first whether the charges arose out of the same act or transaction, and second, whether the crimes charged are the same offense.” Jones v. State, 357 Md. 141, 157 , 742 A.2d 493 (1999). The Double Jeopardy Clause prohibits three distinct abuses: 1) the second prosecution for the same offense after acquittal; 2) the second prosecution for the same offense after conviction for that offense; and 3) the imposition of multiple punishments for the same offense. Taylor v. State, 381 Md. 602, 610 , 851 A.2d 551 (2004).

It is the latter with which we are primarily concerned in this appeal. Here, the charges in District Court Case Number EG44342, concerning an incident of driving while impaired on May 26, 2007, and Circuit Court Case Number 02-K-09-1672, concerning an incident of driving while impaired on January 18, 2009, are not the same act or transaction. This case does not involve a second prosecution for the same offense. Appellant asserts that the category of double jeopardy “applicable to this case is that which prohibits multiple punish ³⁰³ ments for the same offense.” Appellant’s argument is that the sanction imposed by the DUI Court on January 22, 2009, was punishment for the subsequent charges.

The State responds that appellant was not punished in this case on January 22, 2009, (when the sanction was imposed by the DUI court) because appellant was not then in initial jeopardy in this case. The Court of Appeals has explained: The Supreme Court has held “that a defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge” or that “ ‘jeopardy attaches’ when the trial commences.... ” United States v. Jorn, 400 U.S. 470, 479, 480 , 91 S.Ct. 547, 554, 555 , 27 L.Ed.2d 543 (1971). The problem in particular cases is in determining when a defendant is “put to trial” or when “the trial commences.” It is generally held that, with respect to a jury trial, a defendant is placed in jeopardy when the jury is selected and sworn.... As to a non-jury trial, the normal rule is that the trial commences, and thus jeopardy attaches, when the judge begins to hear or receive evidence.

Usually, this will be when the first witness begins to testify. However, it could be when documentary evidence is submitted, such as a stipulation or the record of prior proceedings, ..., or when the defendant pleads guilty to the charges and thus establishes his guilt,.... Blondes v. State, 273 Md. 435, 444-445 , 330 A.2d 169 (1975) (some citations omitted). Further, this Court has stated that “[i]n order for jeopardy to attach, a defendant must risk a determination of guilt.” Odem v. State, 175 Md.App. 684, 700 , 931 A.2d 1135 (2007) (citing Serfass v. United States, 420 U.S. 377, 392 , 95 S.Ct. 1055 , 43 L.Ed.2d 265 (1975)).

And, “a defendant does not risk a determination of guilt when a trial court determines a preliminary matter without reaching the merits of the case.” Odem, 175 Md.App. at 700 , 931 A.2d 1135 . ³⁰⁴ We are persuaded that appellant was not in initial jeopardy in this case when he appeared before the DUI Court on January 22, 2009. Notably, neither the prosecutor nor defense counsel were then present. No evidence in the traditional sense was received by the court. Further, appellant was never sworn or subject to cross-examination.

The DUI court hearing did not have the traditional hallmarks of a non-jury trial. Moreover, although appellant volunteered information about the new and separate charge, the DUI Court made clear that it was not deciding appellant’s guilt concerning the new charge. Indeed, the court advised appellant that “[y]ou don’t have to talk about the facts of the case, understand that. That’s a pending case, ... with legal implications, but what’s been going on since I last saw you.” Additionally, the court stated: “I don’t know what’ll happen in terms of the rest of this program, because a lot of that’s up to the State and what they want to do "with this