Harmon v. State

HOLLANDER, Judge. In this case, we must examine two sentences imposed upon Sheri May-Dawn Hannon, appellant, by the Circuit Court for Charles County. One was imposed shortly after appellant pleaded guilty to the charge of forgery. The other was imposed a few months later, after appellant had begun to serve the probationary portion of her original sentence.

Appellant was initially sentenced on April 15, 1999, to a term of three years’ imprisonment, with all but 90 days suspended, and three years’ probation. During the brief period of incarceration, the court agreed to allow appellant to participate in a work release program. While on work release, however, appellant was accused of alcohol consumption, in violation of the program’s rules. That violation led the court to hold an evidentiary hearing on July 23, 1999, after appellant had already been released on probation.

Following the hearing, the court found appellant in violation of the rules of work release. It then modified the sentence it had previously imposed, changing it to a one-year sentence, to commence almost a year later, on July 4, 2000, with probation upon release. On appeal, Harmon poses the following six questions on appeal: I. Did the trial court err in admitting evidence of the breath test, when its admission violated [Maryland Code, Transportation Article] § 16-205.2 and [Mary ⁴⁵⁵ land Code, Courts and Judicial Proceedings Article] CJ § 10-914?

II

Did the court err in finding appellant in violation of her probation, when her probation had not yet begun?

III

Did the court err in imposing some of the back-up time without ever revoking probation?

IV

Did the court err in its sentence, in: 1.) making the sentence begin in the future, 2.) making the beginning date indeterminate? V. Did the court err in illegally increasing appellant’s sentence?

VI

Did the court fail to give appellant adequate notice, since the condition which the court found she violated was not written on the probation order? We answer the first question in the affirmative, and so shall vacate the circuit court’s imposition of the modified sentence on July 23, 1999. Accordingly, we decline to answer appellant’s remaining questions. FACTUAL SUMMARY On February 19, 1999, appellant pled guilty to the crime of forgery, for which she was initially sentenced on April 15, 1999.

At that sentencing, the court stated: [Defendant], the sentence is 3 years to the Division of Corrections dating from the 12th of April to give you credit against the sentence for 2 days, not including today, during which you were incarcerated in connection with this matter. I am going to suspend all but 90 days of that and place you on probation for a period of 3 years, following your release from serving the 90 days. The Probation order reads that you will report to the assigned agent and follow his lawful instructions, work regularly as he directs you, get permission before changing your home address or leave the State. You will not own, possess, use or have under your control any dangerous weapons or firearms.

And obey all laws. ⁴⁵⁶ Notify the probation agent at once if arrested for anything. Let him visit your home. Come to court when told to. You will not illegally possess, use or sell any narcotic drug, controlled dangerous substance or paraphernalia.

Pay the court costs as assessed by the clerk through the Probation Department by the first of September and pay the Probation Department’s monthly supervision fee. If they require you to do drug testing you cooperate and pay any related cost. I am not ordering them to do it but if they do you cooperate. You will reimburse the Public Defender for [your lawyer’s] services in the amount of $100 through the Probation Department by the first of September.

And during the period of probation you will not set foot on the premises of any commercial establishment in Charles County. That means any place that sells goods and services. It includes doctors offices and movie theaters. And you will report in person to the local Division of Parole and Probation within 48 hours of your release.

I am including a work release authorization here,[defendant] and there is a note on the probation order that says that the probation order will commence only if the work release is successfully completed. As far as I am concerned they can let you out to go to the job interviews and I will make an exception to the prohibition to the commercial establishments in Charles County if you are working there but you don’t go to any other if it is not an employer. The work release will involve you setting up a schedule with the jail staff and abide by that. You don’t make detours coming to or from jail and abide by the rules of occupancy of the jail.

You don’t come back with any inappropriate chemicals on or in you and cooperate with any effort to police that. You don’t go home while on a released status and you will pay room and board at the jail that won’t exceed $15 a day and that is payable in monthly installments and payable in ⁴⁵⁷ full before you are released. In fact they won’t let you out until it is paid. (Emphasis added).

On May 21, 1999, the Charles County Sheriffs Office wrote a memorandum to the trial court, advising that on May 5, 1999, appellant was suspended from the work release program at the detention center because of “positive alcohol readings of .07 and .05.” The sheriffs office further advised that, “[u]n-less overruled by the courts,” appellant would remain suspended. Thereafter, on June 7, 1999, the court issued an Order indicating that it had been advised that Ms. Harmon had been “excluded from the work release program [at the Charles County Detention Center] for contravention of its rules in that she possessed an alcoholic beverage on May 5, 1999.” Therefore, the court said that it “proposes to revoke the probation authorization in this case,” and ordered a hearing. On July 12, 1999, the Clerk issued a notice advising that a hearing was scheduled on July 23, 1999, to “Revoke Probation Authorization.” At the outset of the hearing on that date, defense counsel moved to dismiss, asserting numerous grounds. The following transpired: [DEFENSE ATTORNEY]: I would ... make a motion to dismiss this because Ms. Harmon’s probation commenced upon release [from the detention center], according to paragraph one of her order for probation....

THE COURT: That is precisely why the order is worded the way it is. We realize there is no probation in effect right now and the question is whether it should go into effect. [DEFENSE ATTORNEY]: 1 guess my point was then due to the ambiguity, it ought to— THE COURT: It is not an ambiguity and there are cases talking about it. So that motion is denied. That is a motion to dismiss. ⁴⁵⁸ [DEFENSE ATTORNEY]: Thank you for considering it.

I would move to dismiss, Your Honor, though, inasmuch as she did not commit a new crime, only an alleged work release violation and suffered loss of work release and loss of good time credits— THE COURT: I assume those were administrative sanctions imposed by the jail, not anything the court did. Am I right? ' [DEFENSE ATTORNEY]: I think so, Your Honor, but I would argue to reimpose additional jail time now for the same thing would violate double jeopardy principles. * * * I would also, move to dismiss because the law only authorizes reimposition of sentence for a violation of condition of probation, not for a pre-condition of probation. The law doesn’t authorize the court to set that pre-condition to probation commencing, so to give Ms. Harmon any more of her sentence at this point would constitute an illegal increase in her sentence, violating the rule that on[c]e sentence has been imposed, it may not be increased. THE COURT: I will tell you this.

If you are proven right, T think you are wrong, but if you are proven right, that will be the death nail [sic] to work release in this jurisdiction. How in the world are we going to enforce it? What incentive would a customer have for complying with the rule? [DEFENSE ATTORNEY]: Certainly, the jail rules, if they don’t comply with work release, they lose it, is the incentive to comply. THE COURT: So the week before he is about to get out, the guy decides the hell with it, I will go out and have a few beers, he has not broken any law, he has simply staggered back into the jail on time, and they revoke the last couple days of his work release.

What incentive does a guy have ⁴⁵⁹ not to do that unless there is the threat that worse things could happen once the active jail term is over. I grant you, the guy is doing a straight six month jail sentence and there is no split sentence, nothing hanging over his head. I grant you that the only threat is they might keep him in the last couple of days where he otherwise could go to work, I grant you that. [DEFENSE ATTORNEY]: Your honor, I would have to respectfully move to dismiss because the court’s order of June 7, 1999, does not state any condition or clause of probation that she is charged with violating. THE COURT: She is not accused of violating any condition of probation.

That is clear. We said that a moment ago. [DEFENSE ATTORNEY]: Okay. I guess my authority would be Rule 4-847(a), which says the court needs to do that. THE COURT: Even if she had done something prohibited in the probation order, it wouldn’t be a probation violation because the probation has never gone into effect.

Your client is agreeing with me on that. She is nodding her head. [DEFENSE ATTORNEY]: Now, she is on probation. THE COURT: I am sorry — had not at the time that order was written. You are on probation, now, Maam — I am sorry.

The probation order had not become effective at the time, either the entry of that order or of the event that is the subject of the order complaint. [DEFENSE ATTORNEY]: That I sort of make the same argument inasmuch as there is no condition of probation that is for this court to specify she is in violation of pursuant to Rule 4-347(e)2A. Therefore, the case ought to be dismissed, but I will move on. I would move to dismiss because Ms. Harmon has not been charged with violating the terms of her release. In the absence of committing a new crime— ⁴⁶⁰ THE COURT: She hadn’t even been released at the time this order was passed. [DEFENSE ATTORNEY]: That is true.

THE COURT: If she had, I didn’t know it. [DEFENSE ATTORNEY]: My remark was going to tie it in with the Matthews and Savoy cases. I was going to say, absent her committing a new crime before the probation begins, it doesn’t permit her probation to be revoked before it even starts. I would move to dismiss, because striking probation authorization is in essence a probation termination per Rule 4-346(b). The incident must occur during the period of probation and she was not on probation at the time of this alleged infraction.

Under Rule 4-345, the court cannot increase sentence, and we would just argue again, I think that revoking probation authorization would be illegal. (Emphasis added). The court rejected all of appellant’s arguments. In sum, the court ruled: [T]he short answer is there is case law that authorizes a court to revoke a previously entered probation order that has not yet gone into effect but has been entered when the court has learned of new misbehavior and not necessarily rising to the level of criminal on the part of it, or for that matter, new circumstances concerning the defendant’s condition which may or may not have existed at the time of the original probation authorization.

Some of them maybe not even involving any kind of culpability, may have been circumstances beyond the control of the defendant, which have, again, the cases have sanctioned the revocation or modification of a probation order under those circumstances which resulted in the defendant’s being in less comfortable or convenient circumstances than he was originally. The State then presented the testimony of two correctional officers. Officer David Smith testified that one of his respon ⁴⁶¹ sibilities was to conduct orientation sessions for new inmates at the detention center, to inform them of the rules regarding work release. He testified that on April 23, 1999, a few days after appellant was sentenced, he advised her of the rules contained in the work release contract.

Further, he testified that he gave appellant a copy of the inmate handbook and told her to abide by the general rules and guidelines contained in it. A piece of paper with appellant’s signature, acknowledging receipt of the handbook, was admitted into evidence. In addition, the signed work release contract was received in evidence. Paragraph 10 of the work release contract states: “I agree not to use, possess or introduce into the Work Release Center any weapons, alcoholic beverages, narcotics or drugs (unless under doctor’s orders).” Officer Michael Carista testified that on May 5, 1999, his supervisor escorted appellant from the lobby to the cell block area.

Carista explained that his supervisor told him to give appellant a “preliminary breath test” (“PBT”). When he approached appellant, he smelled a light odor of alcohol on her breath. Carista then administered the PBT to appellant. The State asked Carista to relate the results of the test.

At that point, appellant’s attorney objected. He argued that, under Md.Code (2001), Transp. Art., § 16-205.2(c), a PBT may not be used by the State in any court action because, unlike the breathalyzer test, it is not yet deemed reliable. Appellant also contended that the results were inadmissible because the State did not timely provide them, in accordance with Md. Code (2001), Cts. '& Jud.

Proc. Art. (“C.J.”) § 10-914. That provision requires the State to furnish certain test information to the defense at least ten days before the hearing. C.J. § 10 — 914(f)(3).

Yet, defense counsel was not provided with a copy of the PBT until the morning of the hearing. The defense attorney argued, in part: A preliminary breath test is not to be used as evidence by the state in any court action. Any evidence pertaining to a preliminary breath test may not be used in a civil action. ⁴⁶² This is according to the Transportation Article 16-205.2(c). That is because it is not deemed reliable enough for use, in a court of law, certainly in one alleging driving while intoxicated, and that is because, Your Honor, it does not meet the scientific standard necessary to render it reliable enough to be admissible in a court of law.

Unlike the more formal breathalyzer testing machine, the preliminary breath test hasn’t gained general acceptance in the scientific community to warrant reliance on it sufficient enough to make it admissible in a court of law.... The State countered: We are in the same stance in terms of burden of proof and rules of evidence as in a violation of probation case. We would suggest that the rules are somewhat more relaxed and the court we would feel would be entitled to consider