Gantt v. State

CATHELL, Judge. Andre Antoine Gantt was convicted by a jury in the Circuit Court for Baltimore City (Prevas, J.) of possession of cocaine with intent to distribute. A 15-year sentence was imposed, to be served consecutively to a federal sentence for which he was then on parole. On appeal Gantt raises the following questions: 1.

Did the trial judge err in ordering that appellant’s sentence run consecutively to a federal sentence when, at the time of sentencing, appellant’s parole from that federal sentence had not been revoked by the parole authority? 2. Did the trial judge err in permitting a police officer to testify that appellant possessed cocaine with an intent to distribute? ⁶⁵⁶ 3. Was the evidence sufficient to sustain appellant’s conviction? 4. Did the trial judge err in denying appellant’s motion for postponement? 1.

The correctness of the trial judge’s consecutive sentence depends upon a determination of whether a prisoner on parole is serving a sentence, i.e., is the sentence in esse? Parole and probation, though the terminology is used interchangeably, are clearly distinguishable. Sentencing and probation are covered, in general, in Maryland Code (1987 Repl.Vol., 1989 Supp.), Art. 27, § 641A(a), which provides in part: (1) Upon entering a judgment of conviction, the court having jurisdiction may suspend the imposition or execution of sentence and place the defendant on probation____ * * * * # (3) The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder ... and grant probation____ Article 27, § 641A(b) provides in part: The court may revoke or modify any condition of probation or may reduce the period of probation, [emphasis added] A distinction between probation and parole is found in the provisions of Maryland Code (1986 Repl.Vol., 1989 Supp.) Art. 41. Article 41, § 4-609(a) provides: Whenever any court shall suspend the sentence of any person ... and shall direct such person ... under the supervision of the Division, it shall be the duty of the said Division to supervise ... and report to said court whether or not the conditions of such probation ... are being ⁶⁵⁷ faithfully complied with by such person, [emphasis added] Article 41, § 4-501(6) provides: Probation is the conditional exemption from imprisonment allowed ... in the circuit court____ The condition of any order of probation shall be determined solely by the judge granting the same, [emphasis added] Article 41, § 4-501(5), provides that parole is a conditional release from imprisonment____ [It] entitles the recipient thereof to leave the institution in which he was imprisoned, and to serve the remainder of his term outside the confines thereof....

Each such paroled prisoner shall be deemed to remain in legal custody until the expiration of his full, undiminished term; and upon having violated the conditions of his parole, shall be remanded to the institution from which he was paroled, [emphasis added] Article 41, § 4-511, specifies: (a) If an inmate released on parole is alleged to have violated a condition of parole, one Commission member shall hear the case on revocation of the parole____ (d) [I]f the order of parole is revoked, the prisoner shall serve the remainder of the sentence originally imposed unless the Commission member ... in his discretion, grants credit for time between release on parole and revocation of parole, [emphasis added] Appeals of parole revocation decisions are to the circuit court, on the record, in the basic nature of an administrative appeal. Article 41, § 4-511(e). We said in McRoy v. State, 24 Md.App. 321 , 330 A.2d 693 (1975), that the controlling distinction is that a probationer has been conditionally released, but remains tie responsibility of the sentencing judge. The function of the Department of Parole and Probation is limited to supervising, on the court’s behalf, conformity with the probation conditions. ⁶⁵⁸ It has no direct authority over probation in the form of revocation power such as it has over parolees.

McRoy at 328, 330 A.2d 693 (citation omitted). The Fourth Circuit described the difference between judicial probation and administrative parole in Alvarado v. McLaughlin, 486 F.2d 541, 544 (4th Cir.1973), stating: “Penalty” in the statute refers to and embraces simply the sentence imposed by the Court. That sentence is in no way voided or “abated” by the subsequent grant of administrative parole. Parole is not “a suspension of sentence”____ [1] [citations omitted] Mr. Justice Blackmun, in a dissenting opinion involving the effect of a saving statute on a general parole statute, stated that: As the Fourth Circuit aptly has observed, parole “is not a release of the prisoner from all disciplinary restraint, but is rather merely ‘an extension of the prison walls’; and the prisoner while on parole remains ‘in the the legal custody and under the control of' the Parole Board.” Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653 , 94 S.Ct. 2532, 2540 , 41 L.Ed.2d 383 (1974) (citations omitted).

Appellant cites as authority for his position Johnson v. State, 40 Md.App. 591 , 392 A.2d 1157 (1978); however, Johnson is easily distinguishable from the present case. Johnson , and also Alston v. State, 38 Md.App. 611 , 379 A.2d 754 (1978), involved reneging on plea bargain agreements, or the making of plea bargain agreements that were impossible to perform. ⁶⁵⁹ The facts in Johnson indicated that a plea arrangement was agreed upon whereby the defendant’s Maryland sentence would be served concurrently with a Pennsylvania sentence which the defendant was expected to serve as a result of an anticipated Pennsylvania parole revocation. A key ingredient of the plea bargain was that he would actually serve the Maryland time concurrent with the Pennsylvania time in the Pennsylvania prison system. The record reflected that the Pennsylvania authorities had not revoked his parole; thus there was no actual Pennsylvania prison time.

The court noted that the subsequent events could not have been contemplated, and then held: In addition, appellant is clearly being denied an essential element of the bargain, to wit: his immediate return to Pennsylvania. Whether or not the Maryland courts have the power to return appellant to Pennsylvania to serve his time there is beside the point. The crucial consideration here is that appellant has not been given that which he justifiably contemplated as the quid pro quo for his guilty pleas. Johnson, supra at 597 , 392 A.2d 1157 .

In Johnson we also said as dicta: It is entirely conceivable that Pennsylvania could either wait until the Maryland time has been served before reimposing the balance of appellant’s sentences or reimpose those sentences so as to run consecutively to those now being served in Maryland. Id. at 597 , 392 A.2d 1157 . When discussing the uncertainty as to the intent of Pennsylvania authorities we, because we were dealing with a breach of a plea agreement, did not fully consider that such language might be interpreted in a manner inconsistent with the fact that a person on parole (as opposed to probation) is, as we have said, actually serving his sentence outside the prison walls. To the extent that the dicta in Johnson has been interpreted to indicate that a person on parole is not serving a sentence, that interpretation is repudiated. ⁶⁶⁰ We said in State v. White, 41 Md.App. 514, 515 , 397 A.2d 299 (1979), that a judge must relate the sentence he imposes to the status quo at the moment of sentencing____ He may not, however, presume to bind the future.

To do so would be, ipso facto, to usurp the sentencing prerogative of some other judge operating in a near or distinct time yet to be. [emphasis added] We later noted in DePietrantonio v. State, 61 Md.App. 528 , 487 A.2d 676 (1985), that our language in White had, in dealing with subsequent sentencing as to probationers, created confusion and that we were “extirpating] it at its root.” DePietrantonio was concerned with the imposition of sentences on a defendant who was then on probation. When we referred to the necessity of there being a sentence, then in esse, in order for there to be imposed a consecutive sentence, we were in no way asserting that a parolee is not serving a sentence in esse. We said in that case that “[a] judge cannot imbue the sentence he is then imposing, in any controlling fashion, with power over the future judicial actions of others.” Id. at 533 , 487 A.2d 676 . Parole and parole revocations are not judicial acts.

They are administrative acts concerned primarily with removing a person from within the walls of prison, to serve his sentence elsewhere, or to return him behind the walls upon a violation of the administrative conditions of parole. Parole is a preliminary step to release by administrative authorities, not a sentencing act by a judge. At the sentencing hearing, appellant’s counsel inquired of Judge Prevas, “[a]re you allowed to run it [the sentence] consecutive to a sentence he has not yet received?” The trial judge stated “[w]hen you’re on parole, you’re actually serving your sentence on the street____” We agree. Accordingly, we hold that a person who is on parole is actually serving a sentence outside the prison walls.

Thus, a judge sentencing a parolee on a subsequent offense may make that subsequent sentence consecutive to the sentence ⁶⁶¹ the parolee is serving, i.e., the sentence from which he is on parole. We emphasize that pursuant to the provisions of Art. 41, § 4-517, any Maryland parolee convicted of a new offense while on parole is deemed to have been sentenced consecutively to the parolee’s prior sentence, unless the sentencing judge expressly directs otherwise. Sentencing judges should be cognizant of the possibility that if the parole authorities (especially in foreign jurisdictions) do not revoke his parole—or until they do—such a defendant given a consecutive sentence to be served upon the termination of an earlier sentence may well remain free from physical restraint until the conclusion of that prior sentence or until a retake warrant is issued by the Department of Parole and Probation. 2. At trial, Officer Morcomb testified over objection that the quantity of small and large bags of cocaine indicated that the appellant “was actually selling drugs.” He was asked the basis for his opinion and responded, “due to the quantity of narcotics that were recovered from the bag.” Officer Morcomb had previously been offered as an expert “to testify as to the numbers, the sizes and the expense of them; would be in the showing of the intent to distribute based upon the sheer packaging of them____” After extensive voir dire the court accepted Morcomb as an expert. 2 On appeal, Gantt did not challenge the trial court’s acceptance of Officer Morcomb as an expert.

Initially, we observe that the following exchange took place without objection, and that it immediately preceded the testimony which Gantt asserts was objectionable: ⁶⁶² Q. In your experience as a narcotics seizing officer, as an expert in that area, from—you’ve arrested purchasers? A. Yes, I have. Q. —and from the purchasers you’ve arrested, how many bags of cocaine are normally recovered from individuals? A. Usually one.

Q. And in your experience as a narcotics officer, how many bags are recovered from a distributor of narcotics? A. Usually more than 10. There was no objection to this testimony. 3 There had already been testimony that the number of bags of contraband involved in the case at bar totalled 13 small bags and 11 big bags. The Court of Appeals in Simmons v. State, 313 Md. 33 , 542 A.2d 1258 (1988), said that: Expert testimony is admissible notwithstanding that it is presented in the form of an opinion relating to an ultimate issue. ♦ # * * * * The critical determination is whether the jury will be aided by the opinion, not whether the jury could draw the inference or conclusion from the testimony independent of the opinion. * * * >}e * * [A] trial judge is given broad discretion in ruling on the admissibility of expert testimony.

Seldom will the decision in this regard constitute grounds for reversal. Simmons at 42-43, 542 A.2d 1258 (emphasis in original, citations omitted). ⁶⁶³ While upholding a trial judge’s refusal to let in such ultimate issue testimony on the grounds that it would not have aided the jury because it was not sufficiently scientifically accepted under State v. Collins, 296 Md. 670 , 464 A.2d 1028 (1983), we said in White v. State, 66 Md.App. 100 , 502 A.2d 1084 (1986), that “[ejxpert opinion which will aid the trier of fact is admissible even on issues of ‘ultimate fact.’ ” Id. at 114 , 502 A.2d 1084 (citation omitted). Judge Prevas, in informing the jury of his acceptance of the officer as an expert, said: A court can allow a person to testify as an expert witness and, therefore, go beyond merely reciting what they saw or heard ... in an area where it would be helpful to the jury to know something that they did not necessarily have in their own experience. Thus, he opined that the officer’s testimony would aid the jury.

He was correct. For the reasons stated, we perceive no reversible error. 3. Gantt states that the evidence was insufficient to sustain his conviction. Both Officer Morcomb and Officer Hatcher testified that they observed the appellant throw a red bag down near a parked car.

Officer Hatcher retrieved the bag. It contained 13 small baggies of cocaine and 11 large baggies of cocaine. The substance was analyzed and found to be cocaine. Expert testimony indicated that distributors normally possess 10 or more bags of cocaine.

The jury certainly could, and did, find every element of the crime beyond a reasonable doubt when the evidence was viewed in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct 2781 , 61 L.Ed.2d 560 (1979); Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980). 4. Gantt’s allegation that the trial court erred in denying him a postponement causes us some concern. We ⁶⁶⁴ discuss first the facts that relate to the request for a postponement.

The docket entries reflect that appellant’s counsel, Ms. Ranier, entered her appearance in the circuit court on November 29, 1988 (or earlier). 4 The facts indicate that on January 26, 1989, she put on the record that “we [Public Defender’s office] really couldn’t be in this case to begin with” and that the defendant was told “he was to notify me by February 14th if he needed our services.” She later said that on February 10th “we [Public Defender’s office] attempted to call him ... on his phone.” She then sent him a letter on February 10th, asking him if he had retained a private lawyer and, if so, requesting information about the lawyer. She further informed Gantt that if he didn’t have a private lawyer he had to come to her office on February 13th so that the matter could be prepared for court. At that time trial was scheduled for March 3rd. 5 In her February 10th letter she also requested that appellant furnish her with a list of witnesses, their addresses and telephone numbers. The defendant admitted receiving this letter.

He nevertheless failed to respond. Ms. Ranier testified that Gantt did not show up on the 13th; she then sent him another letter on the 14th or 15th of February, in which she stated: “[Y]ou were to advise me by February 14th if you needed my services to represent you____ Since I have not heard from you, I can only assume that you have retained private counsel to represent you. If this is not true, you must notify me immediately as I am doing nothing in preparation for your trial.” Ms. Ranier did not hear from Gantt and did not prepare for trial. At trial, she first requested permission to withdraw her appearance.

The request was denied by a motion’s judge. She also informed the trial court of those facts, which we ⁶⁶⁵ have set out, which she asserted caused her to be unprepared for trial. She again requested a postponement. It was denied.

After counsel’s motion to withdraw was denied, the trial judge opined that “[s]he has read the offense report, and Ms. Myers has the witnesses available here for Ms. Ranier to cross-examine [interview], and I’ll issue body attachments for any witnesses [6] that she wants to bring in and give her time to interview that person before she puts them on the stand.” Judge Prevas then addressed the appellant, telling him that he had a right to discharge his attorney “or waive his right to counsel,” saying: You understand that even though Ms. Ranier’s not satisfied with how ready she is because of the fact that you never talked to her and never answered her letters, that she’s going to have to represent you today and you’re going to trial today, you have the right—limited right to fire her and represent yourself. You don’t intend to do that. Is that right? * * * * * * [Y]ou’ve got two choices. You’ve got Ms. Ranier, who is not real happy about the fact that you didn’t give her a lot to work with, or you can have no lawyer whatsoever and try the case all by yourself.

Which of those three options do you want to do? [7] THE DEFENDANT: Well, I think I may have to go with her, then. The following exchange then occurred between counsel and the court: ⁶⁶⁶ MS. RANIER: ... I still am not comfortable and.

I don’t feel competent in trying a case by the seat of my pants, which is how I