Johnson v. State

Luke Daniel Johnson v. State of Maryland, No. 1134, Sept. Term 2019. Opinion by Arthur, J. DUE PROCESS—PROBATION REVOCATION—JUSTICE REINVESTMENT ACT With the primary goal of reducing Maryland’s prison population, the General Assembly enacted the Justice Reinvestment Act. 2016 Md. Laws, ch. 515. Among the Act’s comprehensive reforms were significant amendments to the statute governing probation revocations, Maryland Code (2001, 2018 Repl. Vol.), § 6-223 of the Criminal Procedure Article.

These amendments introduced the concept of a “technical” violation of probation and placed presumptive limits on the duration of incarceration that may be imposed for such a violation. A court may impose a period of incarceration that exceeds those contained in the statute’s presumptive limits only if the court expressly finds and states on the record that adhering to that sentence would create a risk to public safety, a victim, or a witness. The statutory presumption is not an evidentiary presumption that a party must submit evidence to rebut, but rather is a limitation on the court’s discretion. A probationer must make a timely objection if a court does not expressly find and state on the record that adhering to the presumptive limits on incarceration will pose a threat to public safety, a victim, or a witness they need to object at the time.

Absent a timely objection, the issue is not preserved for appellate review. Before the court determines whether it may depart from the presumptive limits on incarceration because a probationer poses a risk to public safety, a victim, or a witness, the probationer has a due process right to confront and cross-examine the witnesses whose testimony forms a basis for the court’s findings. Circuit Court for Washington County Case No. 21-K-006054 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1134 September Term, 2019 ______________________________________ LUKE DANIEL JOHNSON v. STATE OF MARYLAND ______________________________________ Nazarian, Arthur, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Arthur, J. ______________________________________ Filed: July 29, 2020 *Judge Donald E. Beachley 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 2021-01-11 17:07-05:00 Suzanne C. Johnson, Clerk In 1980, Luke Daniel Johnson was convicted of first-degree rape in the Circuit Court for Washington County. The court sentenced him to life in prison. In 2015, the court granted post-conviction relief, vacating Johnson’s conviction. A year later, the court accepted Johnson’s guilty plea and sentenced Johnson to life in prison, but suspended all but the 36 years that he had already served.

He was released, subject to five years of supervised probation. Johnson was later reincarcerated and charged with violating two conditions of his probation. He acknowledged that he committed two technical violations for which the presumptive maximum sentence is 15 days of incarceration. Over Johnson’s objection, the court received unsworn testimony from a witness who was not subject to cross- examination.

Based on that testimony, the court concluded that Johnson had committed a “public safety violation.” The court revoked Johnson’s probation and sentenced him to life in prison, with all but 10 years suspended, followed by three years of supervised probation. This Court granted Johnson’s application for leave to appeal. We shall vacate the judgment and remand the case to the Circuit Court for Washington County for proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND1 On October 20, 1980, Luke Daniel Johnson was tried in the Circuit Court for Washington County on charges of first-degree rape, second-degree rape, committing a 1 Portions of this section are taken directly from Conaway v. State, 464 Md. 505 (2019). third-degree sexual offense, and assault.

The charges arose from events that occurred when Johnson was 19 and the victim was 17. After a one-day jury trial, Johnson was convicted of first-degree rape and of committing a third-degree sexual offense. The trial judge sentenced Johnson to life in prison on the rape conviction. On appeal, this Court affirmed the rape conviction, but reversed the third-degree sexual offense conviction.

In 2015, the circuit court granted post-conviction relief to Johnson under Unger v. State, 427 Md. 383 (2012), and vacated his conviction. In May 2016, Johnson entered an Alford plea to first-degree rape.2 The judge sentenced him to life in prison, suspending all but 36 years, one month, and four days, and giving him credit for 13,183 days of time served. The court also imposed five years of supervised probation. Johnson’s probation included two standard conditions: report as directed and follow his supervising agent’s lawful instructions; and get permission from his supervising agent before changing his address, changing his job, or leaving the state.

There were, additionally, three special conditions: (1) he had to submit to evaluation and attend and successfully complete mental health treatment; (2) he could have no direct or indirect conduct with the rape victim; and (3) he was not to enter or be found near any Sheetz store in Washington County. The conditions of Johnson’s probation were later modified to require that he participate in a sex offender tracking and monitoring 2 An Alford plea is “a guilty plea containing a protestation of innocence.” Bishop v. State, 417 Md. 1, 19 (2010) (quotation marks omitted). For most purposes, an Alford plea is the “functional equivalent of a guilty plea.” Id. at 20 . 2 program,3 submit to alcohol and drug treatment, and abstain from alcohol, illegal substances, and the abusive use of any prescription drug. In April 2017, Johnson’s supervising agent reported that Johnson had traveled to West Virginia on three separate occasions without her permission.

Because the purpose of these trips was assertedly to drive a co-worker home, the agent recommended that no action be taken at that time. Approximately two months later, Johnson’s supervising agent requested a warrant for Johnson’s arrest because of alleged violations of probation. The agent again cited the three instances when Johnson drove to West Virginia. In addition, she claimed that he had taken a job at a carnival without her permission and had gone to Ocean City without her permission.

The circuit court granted the agent’s request and issued a warrant. Johnson was arrested on August 22, 2017. He has remained incarcerated ever since. On March 12, 2018, the circuit court held a hearing on the alleged probation violations.

By that time, Johnson had been re-incarcerated for more than six months. At the hearing, Johnson admitted to obtaining employment at the carnival from July 21 to July 23, 2017, without his supervising agent’s permission, and traveling to West Virginia three times without permission. He denied traveling to Ocean City without 3 Specifically, Johnson was required to participate in the state-wide COMET program. “COMET” is an acronym for Collaborative Offender Management Enforcement Treatment. See Russell v. State, 221 Md. App. 518 , 521 n.3, 523-24 (2015). 3 the agent’s permission.

The judge found that Johnson had violated the conditions of his probation, but did not announce that he had decided to revoke the probation. The judge voiced his concern, however, that Johnson was not a “very good candidate for probation, as far as lighting around to West Virginia and places he’s not supposed to, to be.” The judge mentioned allegations that Johnson had propositioned a young woman, 17 years of age, who worked at the carnival with him. Defense counsel responded by stressing that Johnson is not a registered sex offender4 and noted that the prosecutor would likely “agree there is actually nothing illegal about him talking to somebody over the age of sixteen.” The State informed the court that “the seventeen year old from the carnival [was] present” and asked the court to “give her an opportunity to speak[.]” The State said that the witness was “willing to address the [c]ourt” and “even indicated that if necessary, she would get on the stand and get under oath if [the court] wished to question her under oath.” Over defense counsel’s objection, the judge allowed the young woman to address the court, without being sworn or subject to cross-examination. She elaborated on Johnson’s interactions with her, stating: I was working for the carnival when I met [Johnson].

During working for the carnival, the –– for [Johnson]’s birthday, he was talking about going to Ocean City for three days. He said he wanted to take me with him without my parents knowing. He wanted to take me and my mom 4 The Maryland General Assembly first enacted the Maryland sex offender registration statute in 1995. Doe v. Dep’t of Pub.

Safety & Corr. Servs., 430 Md. 535, 545 (2013). Retroactive application of the statute to sex offenders who committed their crimes before the statute went into effect on October 1, 1995, has been deemed unconstitutional. Id. at 553 . 4 to his car, but me first, and do something to me in the back seat, unknowingly, which I didn’t want to do, so I didn’t go.

He would come up and talk to me and my mom every single day while working at the carnival. He would call me names like – you look beautiful, you look cute. I would say thank you to the beautiful part, but looking cute made me feel uncomfortable. But he would kind of flirt with my mom, which would flatter us, but, so.

Under the Justice Reinvestment Act (2016 Md. Laws, ch. 515), Johnson’s violations of probation were “technical” in nature. The Act presumes that the maximum sentence of incarceration is 15 days for a first technical violation, 30 days for a second technical violation, and 45 days for a third technical violation. Md. Code (2001, 2018 Repl. Vol.), § 6-223(d)(2) of the Criminal Procedure Article.

That presumption could be rebutted, however, if the court found that adhering to that limit “would create a risk to public safety, a victim, or a witness.” Id. § 6-223(e)(2). The State urged the court to find that Johnson was a danger to public safety and requested that Johnson be returned to prison for 10 years, “so that by the time when he gets out, maybe he would realize that he cannot prey on young women and children in our society.” The State acknowledged that “there was nothing inherently illegal” in Johnson’s interactions with the 17-year-old co-worker,5 but argued that his conduct showed that he had “not gotten over his predilections that landed him in jail in the first place.” 5 See generally Md. Code (2002, 2012 Repl. Vol.), § 3-307(a)(4)-(5) of the Criminal Law Article (prohibiting a person over the age of 21 years from engaging in a sexual act or vaginal intercourse with another if the victim is 14 or 15 years old); id. § 3- 324 (prohibiting a person from soliciting a minor to engage in certain unlawful sexual activities). 5 Defense counsel, attempting to mitigate Johnson’s probation violations, stressed that the trips to West Virginia involved giving someone a ride home from work and that initially he was only reprimanded for these “good deed[s].” Defense counsel also explained that Johnson went to work for three days at the carnival because he was unexpectedly laid off from his construction job and “simply was seeking employment in order to get money to pay his bills.” Finally, counsel noted that, in addition to the 36 years that Johnson served for his rape, he had already served seven months for his probation violations. The circuit court judge sided with the State: You were ultimately released after serving a whole lot of time – thirty-six years in prison – and you’d think Mr. Johnson, that you’d have – if not a probation requirement – the good sense to avoid hitting on teenage kids after what you went to prison for all those years.

And I do find it’s a public safety violation. The violation of going to West Virginia are [sic] technical. Working without permission – technical. I certainly do believe [the supervising agent] would not have permitted you to work at a carnival where lots of children come with, with your history in this case.

But the, the conditions of probation, while they were only, you know, you live where you’re supposed to, don’t travel without permission, and didn’t include no contact with seventeen year old ladies, it still troubles me after all of this time that this was something that you engaged in. And therefore the sentence is going to be life in the Division of Correction, suspend all but a, but an additional ten years – that’s a suggestion of [the State], which I think is reasonable. I think you deserve 6 to have an opportunity to see the light of day again, and hopefully not repeat this type of behavior.6 The court did not expressly find and state on the record that adhering to the presumptive limit of 15 days would create a risk to public safety. Johnson noted an appeal to this Court on March 19, 2018, and filed an application for leave to appeal less than a month later.

This Court dismissed the first appeal on the State’s motion. The Court of Appeals granted Johnson’s petition for writ of certiorari and ultimately affirmed this Court’s decision in a consolidated opinion, Conaway v. State, 464 Md. 505 (2019) (holding that in seeking review of revocation of probation, probationers are required to proceed by application for leave to appeal rather than by direct appeal). Shortly after the Court of Appeals issued its opinion, we granted Johnson’s still-pending application for leave to appeal. QUESTIONS PRESENTED Johnson presented four questions for our review, which we have condensed and rephrased: 1.

Did the circuit court err in concluding that there was sufficient evidence to rebut the statutory presumptive limit on a period of incarceration for a first technical violation of probation? 2. Did the circuit court err when it imposed a sentence of incarceration in excess of the statutory presumptive limit, although it did not find and state on the 6 In addition to the conditions of the previous probation, the court required that Johnson have “no contact with any child under eighteen” and “[n]o contact with [the witness] or any member of her immediate family.” 7 record that adhering to the presumptive limit would create a risk to public safety, a victim, or a witness? 3. Did the circuit court violate Johnson’s due process rights when it allowed the complainant to address the court in an unsworn statement that was not subject to cross-examination? 7 For the reasons discussed herein, we shall hold that, in a violation of probation hearing, where the technical rules of evidence do not strictly apply, the presumptive sentences for technical violations are not akin to evidentiary presumptions that the State can rebut only by introducing admissible evidence. We shall also hold that Johnson failed to preserve his complaint that the court did not expressly find and state on the 7 Johnson formulated his questions as follows: 1.

Did the circuit court clearly err in concluding there was sufficient evidence to rebut the statutory presumptive limit on a period of incarceration for a first technical violation of probation, and then imposing a ten-year sentence of incarceration, which is over 240 times longer than the presumptive limit of fifteen days? 2. Did the circuit court err and violate Johnson’s due process rights when it allowed the complainant to address the court in an unsworn statement that was not subject to cross-examination, and then relied on that statement in finding that Johnson had committed a “public safety violation” that justified a sentence of incarceration in excess of the statutory presumptive limit? 3. Did the circuit court err when it imposed a sentence of incarceration in excess of the statutory presumptive limit, although it did not find and state on the record, after consideration of the factors listed in Md. Code Ann., Crim. Proc. §6 - 223(e)(2), that adhering to the presumptive limit would create a risk to public safety, a victim, or a witness? 4.

Did the circuit court err when it sub silentio revoked Johnson’s probation based on conduct that was neither illegal nor a violation of any condition of probation? 8 record that adhering to the presumptive limit would create a risk to public safety. Finally, we shall hold that the court violated Johnson’s due process rights when it allowed the young woman to address the court without permitting Johnson to cross-examine her. STANDARD OF REVIEW A probation revocation proceeding typically involves two stages: “(1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation.” Hammond v. State, 436 Md. 22, 31 (2013) (citing Wink v. State, 317 Md. 330, 332 (1989)). “At the second stage, that of whether the court’s discretion should be exercised to revoke probation, appellate review is for an abuse of discretion.” Wink v. State, 317 Md. at 338 . “[A]buse of discretion will be found only if the trial court has erroneously construed the conditions of probation, has made factual findings that are clearly erroneous, or has acted arbitrarily or capriciously in revoking probation.” State v. Dopkowski, 325 Md. 671, 678 (1992) (citation omitted). DISCUSSION I. The Justice Reinvestment Act and Statutory Framework In 2016, the General Assembly enacted the Justice Reinvestment Act. 2016 Md. Laws, ch. 515.8 The Act’s primary goal was to reduce Maryland’s prison population and invest the resultant savings in “strategies to increase public safety and reduce 8 The Act became effective on October 1, 2017. 9 recidivism.” Revised Fiscal and Policy Note for Senate Bill 1005 (June 2, 2016).

To achieve that purpose, lawmakers relied on the research and recommendations of the Justice Reinvestment Coordinating Council, which was asked to “develop a statewide policy framework of sentencing and