Howsare v. State

SALMON, Judge. To understand George Howsare’s contentions in this appeal, and the counter-contentions of the appellee, the State of Maryland, it is necessary to understand the procedural background surrounding Howsare’s 2001 conviction and sentencing, and what happened during the years thereafter. That background is set forth in Part I, below. I On March 5, 2001, Howsare was indicted in the Circuit Court for Charles County for various sex crimes.

All the crimes were alleged to have been committed against the daughter of a woman who lived with Howsare. At the time the crimes were committed, the victim was less than 14 years old. Count I of the indictment alleged that between July 1 and August 30, 2000, Howsare committed sexual abuse against a minor child under the age of 18, in violation of Md.Code Ann., Art. 27, section 35C(b)(l). Count II of the indictment alleged that Howsare, in violation of Md.Code Ann., Art. 27, ³⁷³ section 463, committed second-degree rape of the victim between June 22 and June 23, 2000.

Howsare, on August 8, 2001, entered a plea of guilty to Count I and entered an Alford plea 1 to the crime charged in Count II. The Honorable Richard Clark sentenced Howsare, in accordance with a plea agreement, to 20 years imprisonment for the crime alleged in Count II. The commencement date of that sentence was February 5, 2001. As to Count I, the court sentenced appellant to 10 years imprisonment, all suspended in favor of five years supervised probation.

Immediately after sentencing, the State’s Attorney nolle prossed the three remaining counts in the indictment. Two weeks after sentencing, Howsare filed a motion to reconsider his sentence. That motion was promptly denied. On January 9, 2006, Howsare, pro se, filed a petition for post-conviction relief in which he alleged, among other things, ineffective assistance of counsel.

A supplemental petition for post-conviction relief was filed on June 19, 2006, after an attorney entered his appearance on Howsare’s behalf. A hearing on the post-conviction petition took place on June 29, 2006. At one point in the post-conviction hearing, the presiding judge, the Honorable Robert L. Nalley, opined that if he were in the position of the prosecutor, he would concede that Howsare was entitled to a new trial. The judge then asked Howsare if a new trial was what he really wanted, noting that another judge might not be as “lenient” as the original sentencing judge.

This question provoked a colloquy between Howsare, his attorney, and Judge Nalley. The result of this exchange was an agreement between the court and Howsare that if the latter withdrew his petition for post-conviction relief, with prejudice, the court would sign an order for evaluation by the Maryland Department of Health and Mental Hygiene. Pursuant to this June 29, 2006 agreement, the court ³⁷⁴ signed an order prepared by Howsare’s counsel that read as follows: In resolution of Petitioner’s request for post conviction relief, it is the 31 st day of July 2006; ORDERED that, as his sole post conviction relief, Petitioner is hereby granted the right, pursuant to Md. Health Gen.Code Ann. § 8-505, to a[n] alcohol and drug evaluation by the Maryland Department of Health and Mental Hygiene; and it is further; ORDERED, that the Assignment Office shall appoint a Judge to preside over the H.G. §§ 8-505 and 8-507 matter; and it is further ORDERED, that the Petitioner’s Petition for Post Conviction Relief and Supplemental Petition for Post Conviction Relief are hereby WITHDRAWN WITH PREJUDICE. The Maryland Department of Health and Mental Hygiene (“DHMH”) on September 6, 2006, notified the circuit court that it had evaluated Howsare and recommended that he receive in-patient residential treatment for his drug and alcohol problems.

On October 31, 2006, Judge Nalley held a hearing to consider the DHMH’s recommendation. At the hearing, Howsare consented to the recommended treatment and testified that his long history of problems with the legal system stemmed from his addiction to alcohol and crack cocaine. It was also revealed at the hearing that Howsare currently was then serving an 8 year sentence imposed by the Circuit Court for St. Mary’s County. The St. Mary’s County sentence ran concurrently with the sentences imposed in the subject case.

Judge Nalley said at the hearing that he recognized that he could not order appellant to have drug treatment pursuant to section 8-507 of the Health General Article (“H.G.”), unless the Circuit Court for St. Mary’s County concurred. With the understanding that he would not sign an order until the St. Mary’s County Circuit Court gave its approval, Judge Nalley said that if the St. Mary’s County Court agreed he would ³⁷⁵ commit Howsare to Second Genesis, a drug treatment program. The judge went on to say: We will stay ... we will not suspend, not modify, but stay the execution of the fourteen years, sixty-seven day balance, 2 of the active sentence in this case in Count 2, effective at nine a.m. on November 30, '06 to endure until 9 a.m. on May 30th of '08. That’s an eighteen month period ... [W]e will commit Mr. Howsare for treatment, pursuant to Section 8-507 [of the Health General Article].... ... [I]f Mr. Howsare is successful ... it’s certainly no more expensive to deal with him this way than it is to keep him where he is.

May even be cheaper. It should be more productive than what’s going on where he is now. And, it puts us in a position to feel a little more comfortable about the situation when eventually he gets out. And, I don’t know when that’s going to be.

There are all kinds of possibilities there. In response to Howsare’s question regarding what would happen upon his return to court if he were successful in completing the Second Genesis program, Judge Nalley stated: That is to say that we look at the situation and I would expect anybody who is acting in my stead then would look at the situation as it appears then. Under normal circumstances, it would not be unreasonable to ... to perhaps suspend the rest of the sentence. I don’t know.

But, I’m not ... I’m not promising that’s going to happen, but that’s certainly in the cards. You don’t make absolute promises. Sometime between October 31, 2006 and January 31, 2007, the approval for drug treatment was obtained from the Circuit Court for St. Mary’s County.

On January 31, 2007, the ³⁷⁶ Circuit Court for Charles County filed an Order that read as follows: ORDER FOR COMMITMENT TO THE DEPARTMENT OF HEALTH AND MENTAL HYGIENE FOR DRUG OR ALCOHOL TREATMENT, PURSUANT TO SECTION 8-507 OF THE HEALTH GENERAL ARTICLE The Court, having found that the Defendant has an alcohol and/or drug dependency, having considered the report of the Defendant’s evaluation, having found that the treatment that the Department of Mental Health and Hygiene (“DHMH”) recommends to be appropriate and necessary, having obtained the written consent of the Defendant to obtain treatment and permit reporting back to the Court, and having learned that Defendant’s 8-year sentence in St. Mary’s County will not act as a detainer on Defendant as of February 14, 2007, it is this 30th day of January, 2007: ORDERED, that the Defendant is committed to the Department of Health and Mental Hygiene (“DHMH”) for inpatient/residential treatment at Second Genesis beginning as soon as a treatment bed becomes available and ending upon completion of treatment; and it is further ORDERED, that supervision of the Defendant shall be provided by DHMH in that the Defendant shall be released to DHMH when a treatment bed becomes available at Second Genesis; and it is further ORDERED, that DOC shall transport the Defendant to Second Genesis for treatment on a date in which a treatment bed becomes available, and shall return the Defendant to Court upon the Defendant’s completion of treatment; and it is further * * * ❖ ORDERED, that the Department shall notify the Court upon Defendant’s completion of treatment and shall provide ³⁷⁷ the Court with the discharge recommendations; and it is further ORDERED, that Second Genesis shall transport the Defendant when notified by DHMH to do so and at DHMH’s directions shall return the Defendant to the Court; and it is further ORDERED, that the Commitment Order be amended to reflect that EXECUTION OF THE BALANCE OF SENTENCE IS HEREBY STAYED UPON THE DATE OF BED AVAILABILITY UNTIL COMPLETION OF TREATMENT, with credit for time served. By counsel, on February 12, 2007, Howsare filed a motion for modification of sentence. The motion, after accurately setting forth the procedural background of this case, read as follows: ♦ Since the balance of Mr. Howsare’s sentence was stayed (and not suspended) in order for him to attend treatment, it is Counsel’s understanding that, upon completion of treatment, Mr. Howsare must seek a modification of sentence in order to have the remainder of the sentence suspended, as allowed by H.G. § 8-507 upon successful completion of treatment. ♦ Pursuant to Md. Rule 4-345(b), a Motion for Modification of Sentence must be filed within 90-days after imposition of the sentence. Consequently, counsel respectfully requests that the motion be held sub curia until Mr. Howsare completes treatment. ♦ Upon successful completion of treatment, Mr. Howsare will request a hearing on this motion.

WHEREFORE, Mr. Howsare respectfully requests that this Court: A. HOLD THIS MOTION SUB CURIA until counsel requests a hearing on said motion upon Mr. Howsare’s successful completion of treatment. Howsare remained incarcerated until a bed at Second Genesis became available on June 27, 2007, at which time he was ³⁷⁸ transported to the Second Genesis facility. He remained at Second Genesis until January 30, 2008. He then began an after-care program and was monitored by the Department of Parole and Probation.

The Circuit Court for Charles County held a hearing concerning Howsare’s motion for modification of sentence on May 9, 2008. At the hearing, all parties agreed that Howsare had successfully completed the Second Genesis program. Howsare testified, without contradiction, that he was currently living with his girlfriend, had opened his own painting business, had purchased two motor vehicles for that business, and had obtained the proper business license and vehicular insurance required by law. He also testified that he had established credit and had purchased equipment necessary to conduct his business, and was fully compliant with all terms of probation.

At the May 9, 2008 hearing, Howsare’s counsel asked the court to reimpose the original sentence but suspend all of it in favor of probation. Counsel stressed that if Howsare did not obey the conditions of probation, the court could require that Howsare go back to prison to serve the remainder of his sentence. The prosecutor vigorously opposed the motion to reconsider. She said that appellant had “raped and abused his girlfriend’s daughter from the time she was just eleven years old until the time she was fourteen.” 3 In the prosecutor’s words: “The community is entitled to its pound of flesh in this case.

And, we want a pound of flesh back. We want him back in DOC. That’s where he belongs. He should not be anywhere else for what he did to that victim in this case.” ³⁷⁹ The circuit court declined to modify Howsare’s sentence.

In explaining his decision, Judge Nalley said: I agree with everything Mr. Ribiello [Howsare’s counsel] said on [Howsare’s] behalf. And frankly, I am pleasantly ... pleased that, . . . you got your life together. But frankly, I think that, ... I can’t walk in other peoples’ shoes.

I just can’t imagine how the parents of a child, to say nothing of the child herself, could deal with the enormity of and the heinousness of [your] behavior. The judge went on to say that it was his job “to discourage people from giving in to their own visceral inclinations” as Howsare had done. He said: We have another pretty firm rule around here, that it doesn’t make good sense for one Judge to second guess another. And, I am sure I said at the time that I signed the commitment order that Mr. Howsare’s, you know, in State custody, and if he can get ... he personally can get some therapeutic benefit out of this kind of arrangement rather than vegetating, fine.

The court concluded by saying that he thought that the considerations to which the prosecutor gave voice were “paramount ones in this type of case.” And, therefore, he refused to grant the motion to modify sentence. The court gave Howsare credit for six years and 271 days (2432 days) time served. Howsare, on May 27, 2008, filed a motion for reconsideration of sentence. To date, no action has been taken on that motion.

Howsare filed a notice of appeal to this Court on Monday, June 9, 2008. On that same date, Judge Nalley instructed the Clerk of the Court to give Howsare an additional 20 days credit for time served. An amended commitment order was issued by the Clerk on June 10, 2008, awarding Howsare 2451 days credit (6 years and 290 days) for time served. On June 20, 2008, Judge Nalley directed the Clerk to once again modify Howsare’s commitment.

He issued a memoran ³⁸⁰ dum and order clarifying that Howsare was actually entitled to credit against his original sentence in the amount of 6 years and 360 days. The court’s final calculation was arrived at by granting Howsare credit for six years and 143 days served in the Department of Corrections prior to June 27, 2007, plus 217 days served in residential treatment at Second Genesis. 4 The final amended commitment, dated June'23, 2008, states that Howsare’s sentence was to begin on May 16, 2001. II The State has filed a motion to dismiss this appeal. According to the State, the main reason the appeal should be dismissed is because appellant is appealing the May 9, 2008, denial of his motion to modify sentence.

As the State correctly points out, denial of a motion to modify a sentence is not appealable. See Hoile v. State, 404 Md. 591, 617-18 , 948 A.2d 30 (2008); Fuller v. State, 397 Md. 372, 395 , 918 A.2d 453 (2007). Appellant did not file a written opposition to the motion to dismiss. But, at oral argument in this Court, counsel for appellant advised that his client was appealing the failure of Judge Nalley to follow the procedures that he was required to follow once he granted appellant’s request for treatment under Section 8-507 of the Health General Article.

Although he does not say so explicitly, appellant’s counsel evidently contends that due to this failure to follow proper procedure, the order dated January 31, 2007 that stayed appellant’s sentence, amounted to an illegal sentence, which is appealable. See Hoile, 404 Md. at 617 , 948 A.2d 30 . A review of Howsare’s brief, when read in conjunction with his counsel’s oral argument, reveals that the appellant takes the following position: 1) that when, as here, a defendant who is presently incarcerated asks a judge to send him to drug and/or alcohol treatment pursuant to sections 8-505 and 8-507 ³⁸¹ of the Health General Article, the court can only do so if the court suspends the balance of the defendant’s sentence he is then serving; 2) if the defendant successfully completes drug treatment, the defendant should be brought back to court for a hearing; 3) at that hearing the court has the discretion either to send the defendant back to prison or to suspend the remainder of the sentence. It is the position of appellant that Judge Nalley, “in effect,” did suspend his sentence prior to allowing him to undergo drug and alcohol treatment.

Therefore, in appellant’s view, the hearing held on May 9th was not one to modify a sentence pursuant to Rule 4-345, but was instead, a hearing contemplated by the H.G. Art., § 8-507. Under all the circumstances of this case, we believe that the State is mistaken when it contends that appellant is attempting to appeal the denial of a motion to modify sentence. Accordingly, we will deny the motion to dismiss the appeal. 5 II Effective October 1, 2006, H.G. Article § 8-507 was amended to read, in material part, as follows: (a) In general.—Subject to the limitations in this section, a court that linds in a criminal case 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, ³⁸² 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. (b) Prerequisites.—Before a court commits a defendant to the Department under this section, the court shall: (1) Offer the defendant the opportunity to receive treatment; ' (2) Obtain the written consent of the defendant: (i) To receive treatment; and (ii) To have information reported back to the court; (3) Order an evaluation of the defendant under § 8-505 or § 8-506 of this subtitle; (4) Consider the report on the defendant’s evaluation; and (5) Find that the treatment that the Department recommends to be appropriate and necessary.

(c) Reports of defendant’s records.—Immediately on receiving an order for treatment under this section, the Department shall order a report of all pending cases, warrants, and detainers for the defendant and forward a copy of the report to the court, the defendant, and the defendant’s last attorney of record. (d) Services.— (1) The Department shall provide the services required by this section. (2) A designee of the Department may carry out any of the Department’s duties under this section if appropriate funding is provided. (e) Admission to facility.—■ (1) A court may not order that the defendant be delivered for treatment until: ³⁸³ (i) The Department gives the court notice that an appropriate treatment program is able to begin treatment of the defendant; (ii) Any detainer based on an untried indictment, information, warrant, or complaint for the defendant has been removed; and (iii) Any sentence of incarceration for the defendant is no longer in effect.

(Emphasis added.) Prior to the October 1, 2006 amendment, section 8-507(a) provided “[t]his section applies only to a defendant for whom: (1) no sentence of incarceration is currently in effect; and (2) no detainer is currently lodged.” See Md.Code (.1982, 2005 RepLVol.). The General Assembly has stated that the purpose of the 2006 amendment of H.G. § 8-507 was: For the ‘purpose of removing a limitation that a certain commitment made by a court for treatment for a defendant until an alcohol or drug dependency applies only to certain defendants for whom no sentence of incarceration is currently in effect or detainer is currently lodged: requiring that the Department of Health and Mental Hygiene, on receiving an order to treat a defendant with an alcohol or drug dependency, order a certain report of pending cases, warrants, and detainers of the defendant; requiring the Department to forward a copy of the report to the court that committed the defendant, the defendant [sic], and the defendant’s last attorney of record; providing that a court may not order a defendant delivered to the Department for treatment until any detainer based on an untried indictment, information, warrant, or complaint is removed and any sentence of incarceration is no longer in effect; and generally relating to commitment procedures for defendants with an alcohol or drug dependency. Chapter 338, Law of 2006 (emphasis added). It is difficult to see how at least one part of the General Assembly’s legislative purpose was fulfilled by the 2006 amendment.

After all, the statute as amended, like its imme ³⁸⁴ diate predecessor, stated that a court could not order a defendant to be delivered for treatment until any sentence of incarceration for the defendant was no longer in effect. The State contends that unless the provisions of Md. Rule 4-345 are complied with, the court has no power to suspend a sentence or modify it in any way. This argument would be persuasive, were it not for the fact that H.G. § 8-507 allows the circuit court to order drug treatment even if the defendant did not file a motion for reconsideration within 90 days (the time limit set forth in Md. Rule 4-345), and may also order commitment even if a defendant filed a timely motion for reconsideration that had previously been denied. A statute trumps a Rule if the statute is, as here, enacted after the rule.

James v. Butler, 378 Md. 683, 692 , 838 A.2d 1180 (2003). Section 8-507(a), as currently written, allows the court to commit the defendant to drug treatment as a condition of his release after conviction or at any other time. That provision, when read in tandem with the sub-section of section 8-507 prohibiting a court from ordering a defendant into drug or alcohol treatment until any sentence of incarceration for that defendant is no longer in effect, leads us to conclude that the court may utilize the powers set forth in 8-507 by suspending the sentence even if the provisions of Md. Rule 4-345 are not met. Aside from its argument based on Rule 4-345, the State also maintains that section 8-507 means that once a defendant is sentenced and a motion for reconsideration is denied, the defendant must complete his or her sentence before the defendant becomes eligible for the drug treatment contemplated in H.G. Article § 8-505 and 8-507.

The only authority provided to us by the State in support of this argument is Fuller v. State, 397 Md. 372 , 918 A.2d 453 (2007). The State says, in a footnote found in its brief: [T]he Court of Appeals ruled [in Fuller ] that a court may, at any time, order a defendant for treatment under Section 8-507, as long as the defendant agrees to participate in treatment. Id. at 389 , 918 A.2d 453 . Yet, the statute then ³⁸⁵ and now provides: “A court may not order that the defendant be delivered for treatment until ....

(ii) Any detainer based on an untried indictment, information, warrant, or complaint for the defendant has been removed; and (iii) Any sentence of incarceration for the defendant is no longer in effect.” Id. at 377 n. 1, 918 A.2d 453 ; see Health Gen. Art., § 8-507(e). The [Fuller ] Court did not address how a court may order treatment when a sentence of incarceration is still in effect, as was the sentence here. The State contends that a court’s authority over the sentence is limited by Maryland Rule 4-345 and that, but for the authority conferred by Rule 4-345, a court does not have authority over a sentence, whether to stay or modify it.

Later, in the body of its brief, the State argues that the Fuller Court “concluded” that a motion for modification and a petition for treatment were not comparable. 397 Md. at 395 , 918 A.2d 453 . The State then quotes Fuller as follows: Unlike a motion for modification, a petition for commitment does not affect the length of a sentence, only where a portion of it is to be served. It also initiates a statutory cause of action separate from the conviction, and may be filed repeatedly “at any other time the defendant voluntarily agrees to participate in treatment.” 397 Md. at 389 , 918 A.2d 453 . The State’s argument is not persuasive.

First, as the Court of Appeals pointed out in Hoile, 404 Md. at 615-16, n. 22 , 948 A.2d 30 , the two sentences found in Fuller (just quoted) were merely “dicta” and were “only included in [the Fuller opinion] for [the] purpose of comparison and was of little actual value in determining the outcome of that case.” Aside from being dicta, the first sentence of the Fuller case relied upon by the State is ambiguous insofar as it states that “a petition for commitment [for drug or alcohol treatment] does not affect the length of a sentence, only where a portion of it is to be served.” It is unclear whether the words “does not affect the length of a sentence” means the executed portion of the ³⁸⁶ sentence or the entire sentence, which, of course, would include the suspended portion. We construe the statement set forth in Fuller as meaning that the length of the sentence, including the suspended part, is not affected by the filing of a petition for commitment. This is made clear by the case of State v. Thompson, 332 Md. 1 , 629 A.2d 731 (1993). William Thompson, a repeat drug offender, was convicted of drug offenses in the Circuit Court for Baltimore County.

The statute Thompson violated required that ten years of the sentence imposed be without the possibility of parole. Id. at 4 , 629 A.2d 731 . For the crimes of conspiracy to violate the controlled dangerous substance laws and conspiracy to distribute cocaine, the sentencing court imposed concurrent sentences of fifteen years incarceration on each count, ten years of which were to be served without the possibility of parole. Id. at 3 , 629 A.2d 731 .

The balance of the sentences were suspended and Thompson was placed on five years probation. As a condition of release, however, Thompson was committed to Second Genesis. 6 Id. The probation order required that Thompson, upon release, submit to periodic urinalysis at the Department of Parole and Probation. Id.

At Thompson’s sentencing, the State argued that the defendant, if he were committed for treatment, should be remanded to the Department of Corrections to serve the balance of his mandatory minimum sentence even if he successfully completed the drug program. Id. The State maintained that section 8-507 “does not allow [the sentencing judge] to avoid the ten years without parole” provision of the statute. The circuit court rejected that argument and the State appealed.

The Court of Appeals said: [G]iven the history of drug rehabilitation legislation, the failure of