Humphrey v. State

Rodowsky, J., dissenting: I respectfully dissent. From what is available before us, 1 it appears that appellant, Ronald Humphrey (Humphrey), age 34 at the time of the revocation hearing, had been on drugs since he was 16. On May 21, 1979 his mother had put him out of the house at about 8:00 a.m. About one-half hour later he returned, broke into the house and chased his sister with a 9-inch butcher knife.

Upon his conviction on breaking and entering and on assault charges, sentences totalling four years were imposed. Execution of the sentences was suspended and the defendant was placed on supervised probation. It appears from the written probation order that one of the conditions of the suspension of execution of the sentence was: "Defendant to receive drug treatment.” A handwritten letter dated November 31, 1979 from Humphrey, which has been treated as an order for appeal from the order of revocation, states that the conditions of the ¹⁷¹ suspension of execution of sentence "were to get back on 1 an] out-patient methadone program and recieve [sic] treatment.” It therefore appears that there was further specification of the condition of probation articulated at the sentencing hearing sufficient for Humphrey to understand that the condition referred to a community based methadone program. Based on the trial judge’s statements at the revocation hearing, he obviously considered that Humphrey was a person with a propensity toward violence if he "got a few pills or something” in him.

The condition of probation can fairly be read to be an effort by the trial court to effect a program of rehabilitation which would be both constructive to Humphrey and at the same time protect the public. The condition of probation, that Humphrey "receive” drug treatment, clearly meant actual treatment under the circumstances presented here. Nothing short of that would satisfy the condition under which the trial judge was willing to suspend the execution of sentence. The condition was a proper one under the test of "whether the [trial] court is satisfied that its action will subserve the ends of justice and the best interests of both the public and the defendant.” Burns v. United States, 287 U.S. 216, 221 , 53 S. Ct. 154, 156 , 77 L. Ed. 266, 269 (1932).

In many ways, this case presents the variation on conditions of suspension of the execution of sentence which was recognized in, but was not presented by the facts of, Wilson v. State, 6 Md. App. 397 , 251 A.2d 379 (1969). The condition which the appellant in that case was charged with violating was: "May go to Lexington, Ky. (U.S. Government 11 os pital)-School.” Wilson tried to get into the program at Lexington but was not successful. The trial judge had revoked probation because admission into the Lexington program was the only basis on which the trial judge had suspended sentence.

That revocation was reversed as unjustified under the facts and under a proper construction of the condition of suspension as specified. However, Judge Orth, speaking for the Court of Special Appeals, said at 403 of 6 Md. App., 251 A.2d at 382-83: ¹⁷² In the instant case, if the condition of suspension of the sentence was that the appellant be accepted in the educational program at Lexington so that the mere non-acceptance would violate the condition no matter what the reason, it is not apparent from the order the appellant was charged with violating, nor indeed, is it clear from the remarks of the court at the penalty stage of the trial. It may well be that this is what the court intended but if so it did not conform the probation order it signed to that intention. In the instant case, it is established without contradiction that Humphrey did not receive treatment at an out-patient methadone program.

It is also uncontradicted in the record that Humphrey was not eligible for such a program because his past failures manifested that he was not amenable to community based treatment. I believe, as Wilson indicates, that the trial court has the power to make actual receipt of treatment the condition governing its willingness to allow a convicted person with known dangerous propensities to roam the streets. This is what the trial court did in this case and the nonfulfillment of the condition is not really disputed. More fundamentally, however, I believe the majority has inappropriately applied a fault standard to this case to determine "violation” of this condition.

"Probation revocation, like parole revocation, is not a stage of a criminal prosecution ...,” although, because it results in a loss of liberty, certain procedural due process requirements must be met. Gagnon v. Scarpelli, 411 U.S. 778, 782 , 93 S. Ct. 1756, 1759-60 , 36 L. Ed. 2d 656, 661-62 (1973). The emphasis of the majority is on whether Humphrey substantially abided by, or acted in violation of, the condition in the period after imposition of the condition. There is merit to recognizing as a defense to probation revocation that the performance of a condition