Hill v. State

Edward Effion Hill v. State of Maryland, No. 1503, September Term 2019. Opinion by Beachley, J. APPELLATE JURISDICTION—PETITION FOR COMMITMENT FOR SUBSTANCE ABUSE TREATMENT—MULTIPLE FILINGS PERMITTED— FINAL JUDGMENT EX POST FACTO CLAUSE—SIGNIFICANT RISK OF INCREASED PUNISHMENT BY PROLONGING TERM OF INCARCERATION In 2011, appellant Edward Hill received a twenty-five year sentence for first-degree assault, a concurrent twenty year sentence for use of a handgun in the commission of a crime of violence, and a concurrent fifteen year sentence for possession of a firearm by a person convicted of a crime of violence. In December 2017, Hill petitioned the Circuit Court for Prince George’s County pursuant to Health General (“HG”) § 8-507 for commitment to the Department of Health for drug treatment. The court denied the petition, but suggested that Hill petition again in approximately one year.

On October 1, 2018, the General Assembly amended HG § 8-507 to prevent a court from granting a petition for commitment for a defendant convicted of a crime of violence until the defendant is eligible for parole. In March 2019, Hill again petitioned for HG § 8-507 commitment. The court granted the petition, apparently unaware of the General Assembly’s recent amendment. The Department of Health responded by informing the court that, due to the amendments to HG § 8-507, Hill could not be committed until he reached parole eligibility after May 10, 2024.

Hill then filed a motion in the circuit court asking it to backdate its decision and grant his petition. Hill further argued that application of the amended HG § 8-507 violated the Ex Post Facto Clause of the United States Constitution. The court denied Hill’s petition and held that there was no ex post facto violation. Hill timely appealed, and the State moved to dismiss the appeal, arguing that this Court lacks jurisdiction pursuant to Fuller v. State, 397 Md. 372 (2007).

Held: Motion to dismiss denied. Judgment reversed. In Fuller, the Court of Appeals held that the denial of an HG § 8-507 petition is not appealable because it is not a final judgment. Regarding final judgments, the Fuller Court held that because an inmate may file unlimited HG § 8-507 petitions, a single denial does not constitute an appealable final judgment.

Hill’s circumstances are distinguishable from Fuller’s due to the 2018 amendments to HG § 8-507. Whereas Fuller was permitted to file multiple HG § 8-507 petitions and was eligible for commitment at all times, the 2018 amendments to HG § 8-507 have effectively terminated Hill’s ability to seek a commitment until he reaches parole eligibility in 2024. The court’s denial of Hill’s petition settled the rights of the parties and effectively foreclosed any relief to Hill. Accordingly, unlike in Fuller, Hill’s denial constitutes a final judgment, and is therefore appealable to this Court.

Not only does this Court have jurisdiction to consider Hill’s appeal, but the 2018 amendments to HG § 8-507 constitute an ex post facto violation when applied to Hill. An ex post facto violation may occur where a change in the law creates a significant risk of increasing the punishment attached to a crime. Here, the 2018 amendments increased Hill’s punishment; absent the 2018 amendments, Hill would have been released from prison and committed to the Department of Health in 2019, subject to appropriate probationary conditions. The 2018 amendments, however, now require Hill to serve his sentence until at least 2024.

Because the amendments increase Hill’s punishment, they violate the Ex Post Facto Clause of the United States Constitution. Circuit Court for Prince George’s County Case No. CT101633X REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1503 September Term, 2019 ______________________________________ EDWARD EFFION HILL v. STATE OF MARYLAND ______________________________________ Beachley, Gould, Woodward, Patrick L. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Beachley, J. ______________________________________ Filed: August 26, 2020 *Leahy, Andrea M., J., did not participate in the Court’s decision to designate this opinion for publication pursuant to Maryland Rule 8-605.1. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-08-26 12:06-04:00 Suzanne C. Johnson, Clerk In 2011, appellant Edward Effion Hill was convicted of first-degree assault and related firearm crimes. At the time of Hill’s conviction, he had an essentially unrestricted right to file petitions requesting commitment to the Department of Health for substance abuse treatment pursuant to section 8-507 of the Health General Article as it existed prior to October 1, 2018. Effective October 1, 2018, however, the General Assembly amended that statute to preclude a court from ordering a commitment for substance abuse treatment for a defendant convicted of a crime of violence “until the defendant is eligible for parole.” Md. Code (2019 Repl. Vol.), § 8-507 of the Health General Article (“HG”).

Because Hill was convicted of first-degree assault—a crime of violence—he contends that the legislature’s amendments violate the Ex Post Facto Clause found in Article I of the United States Constitution and Article 17 of the Maryland Declaration of Rights. In response to Hill’s appeal, the State filed a motion to dismiss, arguing that Court of Appeals precedent requires dismissal of the appeal for lack of jurisdiction. As we shall explain, we conclude that we have jurisdiction to review the denial of Hill’s petition. We further conclude that the 2018 amendments to HG § 8-507, as applied to Hill, violate the Ex Post Facto Clause of the United States Constitution.

FACTUAL AND PROCEDURAL BACKGROUND In 2011, Hill was convicted of first-degree assault, use of a handgun in the commission of a crime of violence, and possession of a firearm by a person convicted of a crime of violence. He was sentenced to twenty-five years for the assault charge; twenty years, concurrent, for use of a handgun; and fifteen years, concurrent, for possession of a firearm. On December 15, 2017, Hill filed a motion pursuant to HG § 8-507 requesting commitment to the Department of Health in order to receive drug treatment. At a hearing on March 13, 2018, the Circuit Court for Prince George’s County denied the petition, stating: [A]s I indicated, I fully intend to grant this motion at some point. . . .

I’m just not ready to do it today and let me tell you why. . . . [T]here were a couple of other prior criminal events and particularly in the armed robbery which is also a crime of violence. Normally, for a crime of violence, the parole considerations is [sic] fifty percent (50%). You haven’t even served a third and that is sort of the minimum that I think would be appropriate. . . . I know this is disappointing and discouraging, but the reason you’re here is so you can hear me say that if you continue on the path that you’re currently on, you do everything you should do, you continue to progress, I will grant this motion in about a year.

On March 4, 2019, Hill again petitioned for HG § 8-507 commitment. After a hearing on May 10, 2019, the court granted the petition, pending availability of a bed. The court stated its reasoning for granting the petition as follows: You . . . are an example of someone who did everything you could to get better. You got your GED.

You have been engaged in a lot of programs. You have a letter from your supervisor at the plant. You have done what we hope as a society prison will do for everybody, and that is make some change in your focus and your approach and, as you said, in your decision-making. So I recognize it’s a very serious crime, and I recognize the position of the victim’s family.

I am going to sign the Health General Commitment for you. On May 23, 2019, the Department of Health sent a letter to the court indicating that, as a result of amendments to HG § 8-507, Hill would not be eligible for the treatment program “until parole eligibility after May 10, 2024.” At the time of Hill’s conviction, Hill was eligible for commitment pursuant to HG § 8-507(a), which then provided: 2 Subject to the limitations in this section, a court that finds in a criminal case or during a term of probation that a defendant has an alcohol or drug dependency may commit the defendant as a condition of release, after conviction, or at any other time the defendant voluntarily agrees to participate in treatment, to the Department for treatment that the Department recommends, even if: (1) The defendant did not timely file a motion for reconsideration under Maryland Rule 4-345; or (2) The defendant timely filed a motion for reconsideration under Maryland Rule 4-345 which was denied by the court. On October 1, 2018, however, the General Assembly amended HG § 8-507, disallowing commitment for prisoners convicted of crimes of violence until they become eligible for parole. The statute now reads: (a) (1) Except as provided in paragraph (2) of this subsection and subject to the limitations in this section, a court that finds in a criminal case or during a term of probation that a defendant has an alcohol or drug dependency may commit the defendant as a condition of release, after conviction, or at any other time the defendant voluntarily agrees to participate in treatment, to the Department for treatment that the Department recommends, even if: (i) The defendant did not timely file a motion for reconsideration under Maryland Rule 4-345; or (ii) The defendant timely filed a motion for reconsideration under Maryland Rule 4-345 which was denied by the court.

(2)(i) If a defendant is serving a sentence for a crime of violence, as defined in § 14-101 of the Criminal Law Article, a court may not order the Department to treat a defendant under this section until the defendant is eligible for parole. (ii) Nothing in this paragraph may be construed to prohibit a defendant who is serving a sentence for a crime of violence, as defined in § 14- 101 of the Criminal Law Article, from participating in any other treatment program or receiving treatment under the supervision of the Department under any other provision of law. (Emphasis added). 3 In response to the Health Department’s May 23, 2019 letter, Hill filed a motion asking the court to “issue an order back[-]dating the [c]ourt’s decision to the March 13, 2018 hearing date to permit the defendant to be placed into treatment in the Maryland Department of Health.” At the August 16, 2019 hearing on Hill’s motion, Hill argued that application of the amended HG § 8-507 violated the ex post facto prohibition in Article I of the United States Constitution and Article 17 of the Maryland Declaration of Rights. The circuit court found no ex post facto violation, and consequently determined that it could no longer grant Hill’s petition, stating, I do feel bad about what I said in that I cannot go forward with that.

But I feel very strongly that I would be violating the law if I tried to find a way around what our Legislature has said. And of all people, I should not be doing that. . . . So I’m sorry . . . . I just don’t see any way I can now commit him to the Department of Health.

Hill then noted this appeal. We shall provide additional facts as necessary. MOTION TO DISMISS The State preliminarily moves to dismiss Hill’s appeal. In its motion, the State argues that this Court lacks jurisdiction to consider the appeal pursuant to Fuller v. State, 397 Md. 372 (2007).

While we recognize the similarities between Fuller and the instant case, we nevertheless conclude that, although the circuit court’s denial of Fuller’s HG § 8- 507 petition did not constitute a final judgment, the denial of Hill’s petition does. Accordingly, this Court has jurisdiction to consider Hill’s appeal. 4 In Fuller, the Court of Appeals was tasked with “determining whether an order denying an inmate commitment to a drug treatment program pursuant to [HG § 8-507] is appealable.” Id. at 375. In 1979, Fuller received a life sentence for first-degree murder. Id. at 377.

Later that same year, Fuller pleaded guilty to first-degree rape and robbery with a deadly weapon, and consequently received a concurrent life sentence for those crimes. Id. at 377–78. In 2005, Fuller, representing himself, filed a petition for commitment to a drug treatment program pursuant to HG § 8-507. Id. at 378.

The circuit court summarily denied Fuller’s petition, and Fuller noted an appeal to this Court. Id. As part of his appellate argument that the circuit court erred in denying his petition, Fuller also claimed that this Court “had jurisdiction to entertain the appeal under either the final judgment rule or the collateral order doctrine.” Id. This Court disagreed and dismissed the appeal, holding that Fuller’s petition was not appealable due to lack of jurisdiction.

Id. at 379 (citing Fuller v. State, 169 Md. App. 303, 308-09 (2006)). The Court of Appeals granted Fuller’s petition for writ of certiorari, but ultimately affirmed this Court’s dismissal, holding that “the denial of a petition for commitment for substance abuse treatment pursuant to [HG § 8-507] is not an appealable order.” Id. at 380. The Court of Appeals began its discussion by outlining Fuller’s argument. Id.

First, Fuller claimed that the denial of his petition constituted a final judgment pursuant to Md. Code (1973, 2002 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article 5 (“CJP”) and was therefore appealable.1 Id. Alternatively, Fuller argued that even if the denial of his petition did not constitute a final judgment, his petition was nevertheless appealable pursuant to the collateral order doctrine. Id.

Additionally, Fuller analogized his petition for commitment to a motion for modification of sentence pursuant to Maryland Rule 4-345(e). Id. The Court of Appeals rejected these arguments. The Court first explained the scope of the right to appeal in Maryland, stating that, “In Maryland, the right to seek appellate review is statutory; the Legislature can provide for, or preclude, the right of appeal.” Id. at 382 (citing CJP § 12-301).

The Court noted that “An appeal, ordinarily, must await the entry of a final judgment.” Id. at 383 (citing CJP § 12-302). “To be a final judgment, the decision ‘must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.’” Id. (quoting Sigma Reprod. Health Ctr. v. State, 297 Md. 660, 665 (1983)). The Court then explained that the collateral order doctrine is an exception to the final judgment rule: One exception to the final judgment rule is the collateral order doctrine, that applies to a narrow class of orders, referred to as collateral orders, which are offshoots of the principal litigation in which they are issued and which are immediately appealable as ‘final judgments’ without regard to the posture of the case.

Id. (some quotation marks omitted) (quoting Jackson v. State, 358 Md. 259 , 266–67 (2000)). The Court began its analysis by rejecting Fuller’s comparison of the denial of an 1 CJP § 12-301 has remained unchanged since 1991. 6 HG § 8-507 petition to a motion to correct an allegedly illegal sentence. Id. at 387, 389.

Instead, the Court suggested that an HG § 8-507 petition more closely resembles a petition for writ of habeas corpus because both are statutory causes of action. Id. at 389. Turning to the appealability of habeas petitions, the Court noted that, prior to 1945, a petitioner could not appeal the denial of a habeas petition because the “denial was not a final judgment in as much as the petitioner had the ability to repeatedly apply for a writ of habeas corpus.” Id. at 390–91. In 1945, however, the General Assembly, recognizing that a single petitioner effectively had the right of thirty-six appeals by filing separate applications to each judge in the State, finally “provided an aggrieved party with the statutory right to appeal the denial of a petition for writ of habeas corpus or from a ‘final order of the Court’ in habeas corpus proceedings[.]” Id. at 391–92.

Comparing the right to appeal in habeas petitions to that of HG § 8-507, the Court stated, The General Assembly, then, in the history of habeas corpus petitions, proactively and clearly conferred the right of appeal to petitioners denied relief, whereas this Court had refused appellate review because the petition in issue could have been filed repeatedly. This was not done in [HG § 8-507] when petitioners were given the opportunity to repeatedly file their suit. We generally presume that the Legislature acts with full knowledge of prior and existing law, legislation, and policy, and obviously could have provided an appellate remedy for the denial when a petition could be repeatedly filed. Id. at 393 (citations omitted).

The Court next considered whether the denial of Fuller’s petition constituted a final judgment. Id. at 393. The court noted that it had “consistently held that a final judgment from which an appeal will lie is one which settles the rights of the parties or concludes the 7 cause.” Id. at 393 (quoting In re Special Investigation No. 231, 295 Md. 366, 370 (1983)). Holding that Fuller’s denial did not constitute a final judgment, the Court stated, the denial of Fuller’s petition did not settle Fuller’s ability to seek commitment pursuant to [HG § 8-507] for substance abuse treatment.

Under [HG § 8-507], a petition may be filed at any “time the defendant voluntarily agrees to participate in treatment.” Thus, petitions may be filed repeatedly and the denial of a single petition does not preclude Fuller from filing another. Id. at 394. As an example of a final judgment, the Court cited In re Special Investigation No. 236, 295 Md. 573 (1983). There, “the issue was whether the grant of a motion to obtain the return of financial records from a grand jury constituted a final judgment.” Fuller, 397 Md. at 394 (citing In re Special Investigation No. 236, 295 Md. at 575 ).

The Court determined that the granting of that motion constituted a final judgment because “‘[o]nce that motion was granted there was nothing more to be done in [that] particular case’ because the documents would have been returned to the petitioner, and out of the grand jury’s control.” Id. (citing In re Special Investigation No. 236, 295 Md. at 575 ). Whereas the return of the financial records “‘settled the rights of the parties and terminated the cause’ for good[,]” “the denial of Fuller’s petition did not settle his rights under [HG § 8- 507] for good because his ability to seek commitment under the statute was not terminated.” Id. (quoting In re Special Investigation No. 236, 295 Md. at 575 ).2 2 The Court went on to hold that the collateral order doctrine exception to the final judgment rule did not apply, thus concluding that Fuller’s denial was not appealable.

Fuller, 397 Md. at 395 . Because we conclude that Hill’s denial does constitute a final judgment, we need not determine whether the collateral order doctrine applies here. 8 Although Fuller’s ability to seek commitment under the statute was not terminated when the Court decided his case in 2007, the 2018 amendments have effectively terminated Hill’s ability to seek commitment pursuant to HG § 8-507. We explain. Regarding final judgments, The Court of Appeals has frequently stated that the accepted test for finality is whether the court’s ruling has the effect of putting the parties out of court and denying them the means of further prosecuting the case or the defense.

See, e.g., Houghton v. Cty. Comm’rs of Kent Cty. (Houghton II), 307 Md. 216, 221 (1986). According to the Court: “To have the attribute of finality, the ruling must be so final as either to determine and conclude the rights involved or to deny the appellant the means of further prosecuting or defending his or her rights and interests in the subject matter of the proceeding.” [Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)] (italics removed).

A ruling is final if it is “unqualified” and if “nothing in the trial court’s action suggested any contemplation that a further order be issued or that anything more be done.” Doehring v. Wagner, 311 Md. 272, 275 (1987); see [Miller & Smith at Quercus, LLC v. Casey PMN, LLC, 412 Md. 230, 243 (2010)]. Judge Kevin F. Arthur, Finality of Judgments and Other Appellate Trigger Issues 5 (3d ed. 2018). Causion v. State, 209 Md. App. 391 (2013), provides useful guidance in determining the finality of the circuit court’s decision here. In Causion, this Court held that the denial of a request to disclose grand jury proceedings constituted a final judgment and was therefore appealable.

Id. at 394 . There, thirteen years after a grand jury indicted him on charges of first-degree murder and use of a handgun to commit murder, “Causion filed a motion seeking disclosure of confidential grand jury testimony pursuant to Md. Rule 4- 642(d) and a request for a hearing on that motion.” Id. at 395 . Following the denial of his 9 motion, Causion appealed, and the State moved to dismiss, arguing that this Court lacked jurisdiction to review the appeal. Id. at 397 .

We disagreed with the State and held that the denial of Causion’s motion constituted a final judgment because the court’s denial “settled the rights of the parties in that it denied Causion’s request to obtain access to the proceedings of the grand jury. There was nothing more that the court could do to give effect to its ruling and Causion sought no other relief.” Id. at 398–99. In reaching this holding, we rejected an argument similar to that which the State has made here—that a movant’s apparent ability to file multiple requests on the same issue eliminates the finality of a denial. Id. at 400–01.

In Causion, the State analogized Causion’s appeal to that in Fuller, noting that, like in HG § 8-507, “there is nothing in Rule 4-642 that prevents a movant from filing multiple requests for access to grand jury records.” Id. We rejected this analogy, however, stating that, While [HG § 8-507] permits multiple petitions for commitment, there is nothing in Rule 4-642 that suggests that a person may file repeated requests for disclosure of grand jury records. To be sure, there is nothing in the rule that explicitly prohibits repeated motions but, as principles such as law of the case and claim and issue preclusion suggest, it is the policy of the State that courts should provide a final resolution to justiciable issues in a single proceeding. [HG § 8-507] is the exception, not the rule, and for us to hold otherwise would be to expose the circuit courts to repeated requests for identical relief, a policy completely at variance with traditional concepts of judicial efficiency and finality of judgment. Id. at 402.

We find this reasoning persuasive. Where a statute or rule permits a party to file multiple identical requests for relief, but legal principles such as law of the case or issue 10 preclusion prevent the court from exercising its discretion, the court’s denial effectively constitutes a final judgment. Like the final judgment in Causion, the circuit court’s decision here that the Ex Post Facto Clause did not apply, and that the 2018 amendments prohibited it from granting Hill’s commitment, “settled the rights of the parties in that it denied [Hill’s] request” for commitment until Hill becomes eligible for parole. Id. at 399.

These circumstances rendered the circuit court’s decision a final judgment because “[t]here was nothing more that the court could do to give effect to its ruling and [Hill] sought no other relief.” Id. Although HG § 8-507 generally permits unlimited petitions for commitment, the 2018 amendments now restrict courts from committing violent offenders for treatment until they have reached parole eligibility. As Hill points out in his answer to the State’s motion, “The point in Fuller about a defendant being allowed to file ‘at any other time’ means more than the ability to physically present a piece of paper to the court.” We agree. Here, the circuit court determined that the 2018 amendments precluded it from committing Hill pursuant to HG § 8-507 until he attained parole eligibility in 2024.

And the court’s express determination that application of the 2018 amendments to Hill do not violate the Ex Post Facto Clause is final in that it denies Hill any possibility of being granted an HG § 8-507 commitment until after he reaches parole eligibility. To that extent, the ruling is “unqualified” and “nothing in the trial court’s action suggested any contemplation that a further order be issued or that anything more be done.” Doehring, 311 Md. at 275 . Accordingly, the denial of Hill’s HG § 8-507 petition constitutes a final judgment, and this Court has jurisdiction to consider the appeal. We now turn to Hill’s ex post facto claims. 11 DISCUSSION Hill argues that the retroactive application of HG § 8-507(a)(2)(i) violates the Ex Post Facto Clause of both the U.S. Constitution and Article 17 of the Maryland Declaration of Rights.

Relying on language in Fuller that a “petition for commitment does not affect the length of a sentence, only where a portion of it is to be served,” 397 Md. at 389 , the State responds that the 2018 amendments do not violate ex post facto prohibitions because they do not affect the length of Hill’s sentence. We disagree with the State and hold that the 2018 amendments as applied to Hill violate the U.S. Constitution’s proscription of ex post facto laws because the amendments create a “significant risk” of increasing Hill’s punishment by prolonging his term of incarceration.3 Our starting point is the United States Constitution, which provides that “No State shall . . . pass any . . . ex post facto Law[.]” U.S. Const. art. I, § 10, cl. 1. To understand the United States Supreme Court’s interpretation and application of the Ex Post Facto Clause, we begin with Collins v. Youngblood, 497 U.S. 37 (1990).

Because of misleading language in prior Supreme