Maus v. State

ADKINS, Judge. The three cases we now consider present a common question: When a probationer has admitted violations of probation, the probation has been revoked, and a sentence of incarceration imposed, does § 12-302(e) of the Courts and Judicial Proceedings Art. (1984 Repl.Vol.) require that further review be by application for leave to appeal, or does that statute impose that procedure only upon review of a judgment entered after a plea of guilty in a criminal case? The Court of Special Appeals believed that § 12-302(e) ⁹⁰ applies in the probation context. We do not agree and, therefore, reverse the judgment of the Court of Special Appeals in each case. 1 I. Section 12-302(e) of the Courts Article In the Circuit Court for Worcester County, Leonard Joseph Maus was charged with violations of probation.

He admitted them, presenting evidence and argument only as to disposition. The court found that he had violated probation and imposed the full five year sentence that it had originally suspended in favor of that probation. Essentially the same events occurred with respect to Nathan Donnell Wilkes in the Circuit Court for Prince George’s County (original ten year sentence reimposed) and to Richard Allen Edge in the Circuit Court for Prince George’s County (original five year sentence reimposed). Each of them noted a timely appeal to the Court of Special Appeals.

In each case the State moved to dismiss the appeal on the ground that under the circumstances, § 12-302(e) allowed no appeal as of right, but instead permitted only an application for leave to appeal. In each case the Court of Special Appeals granted the motion to dismiss. In each case we granted a petition for the writ of certiorari. We now explain why the intermediate appellate court misread the statute.

Section 12-301 of the Courts Art. provides a broad right of appeal: “Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” Section 12-302(e) limits that right. Enacted by Ch. 295, Acts of 1983, it reads: Section 12-301 does not permit an appeal from a final judgment entered following a plea of guilty in a circuit court. Review of such a judgment shall be sought by application for leave to appeal. ⁹¹ The words of this statute strongly suggest that it applies only to criminal cases. Guilty pleas are not filed in civil cases, and a revocation of probation proceeding is, in Maryland, “firmly established as a civil action____” Chase v. State, 309 Md. 224, 239 , 522 A.2d 1348, 1355 (1987).

More specifically, in Howlett v. State, 295 Md. 419, 423-424 , 456 A.2d 375, 377-378 (1983), we explained that the Maryland rules dealing with guilty pleas and how they may be tendered and accepted simply do not apply in probation revocation cases. Howlett’s teaching has now been embodied in the rules. Rule 4-346(c) explicitly states that “[t]he provisions of Rule 4-242 [dealing with pleas in criminal cases] do not apply to an admission of violation of conditions of probation.” It is, of course, just such admissions that we have before us. 2 The State, nevertheless, asserts that the purpose of § 12-302(e) was and is to lessen the workload of the Court of Special Appeals, and that this laudable purpose will be advanced by applying the statute to dispositions following admissions of probation violations. It further argues that an admission of violation in a probation revocation case is in many respects the functional equivalent of a guilty plea in a criminal case.

In both instances, for example, it asserts that the facts are established and not reviewable on appeal. “Nothing remains,” after the plea or admission “but to give judgment and determine punishment.” Sutton v. State, 289 Md. 359, 364 , 424 A.2d 755, 758 (1981) (discussing effect of guilty plea). While we are not persuaded that the analogy between guilty pleas and probation violation admissions is necessarily as perfect as the State would have it, it is at least conceivable that the legislature might have intended to ⁹² extend § 12-302(e) to the latter situation, despite the inaptness of the language used, if that was the desired result. There is no doubt that divination of the legislative goal or objective is basic to the task of statutory construction, Kaczorowski v. City of Baltimore, 309 Md. 505, 513 , 525 A.2d 628, 632 (1987), and that in seeking to ascertain that goal or objective, we often should “pursue the context of statutory language” by reviewing what may in general be characterized as “legislative history.” Kaczorowski, 309 Md. at 514-515 , 525 A.2d at 632-633 . “The purpose, in short, determined in light of the statute’s context, is the key.” Id. 309 Md. at 516, 525 A.2d at 633 . We turn, then, to consideration of the legislative history of § 12-302(e).

As we have observed, the measure was enacted by Ch. 295, Acts of 1983. But its roots extend further back than the 1983 session of the General Assembly. On 6 October 1977 the Legislative Committee of the Maryland Judicial Conference 3 “considered [Chief] Judge Gilbert’s [recommendation] that further review after a guilty plea at the circuit court level should be by application for leave to appeal” and “[t]he committee voted to propose legislation in this regard.” Md.Jud.Conf., Minutes of 6 Oct. 1977 meeting of the Legislative Committee at 4. Shortly thereafter, the Executive Secretary of the Judicial Conference wrote Delegate Owens, Chairman of the House Judiciary Committee, about a bill to “provide for an application for leave to appeal ... in connection with a conviction entered on a guilty plea in the circuit court.” Executive Secretary’s letter of 21 December 1977 to Chairman Owens at 2 [emphasis supplied].

Legislation was introduced. Senate Bill 617 and House Bill 881, both of 1978, contained language almost identical to that of present § 12-302(e). Neither bill emerged from committee. The same results occurred at the 1979 legislative session, when S.B. 326 and H.B. 887 both died in committee.

The ⁹³ Senate Judicial Proceedings Committee file, however, contains the following comment on S.B. 326: The Bill provides that review of final judgment in cases when the Defendant entered a guilty plea shall be on petition ... praying [for] leave to appeal and not by right as now exists. This procedure ... is aimed at reducing the number of frivolous appeals after conviction following the Defendant’s entry of a guilty plea. Senate Judicial Proceedings Committee file on S.B. 326 (1979) [emphasis supplied]. This document, like the Executive Secretary’s 1977 letter, has a distinctly “criminal” sound, with its mention not only of “guilty plea” but also of “conviction.” The Judicial Conference at that point temporarily suspended further activity on the proposal.

Minutes of 30 July 1979 meeting of Criminal Law Subcommittee of the Legislative Committee at 2. But the concept was resuscitated by the Commission to Study the Judicial Branch of Government. That Commission (often denominated the “Fisher Commission” in recognition of its Chairman Charles 0. Fisher, Esq.) was created pursuant to Resolution 25 of 1981.

As directed by that Resolution, the Commission studied “all aspects of the operations of the Judicial Branch of government” including the operations of the appellate courts. In its report, it identified “the major problem of the appellate level” as “the workload of the Court of Special Appeals.” Report of the Commission to Study the Judicial Branch of Government (1982) at 14 [hereinafter Report ]. After a perceptive analysis of this problem and various possible solutions, it rejected major proposals for structural and jurisdictional changes, emphasizing instead procedural and administrative approaches. Report at 15-37.

It did, however, identify “one narrow area for the addition of discretionary review by the Court of Special Appeals.” Report at 28. It recommended that ⁹⁴ review of a conviction following a plea of guilty should be ... made discretionary. Such a proposal was made by the Judicial Conference in 1979. The Commission reasoned: A guilty plea is an admission of guilt.

When sentence is imposed following such a plea, the factual details of the criminal offense and the issues of guilt or innocence are usually no longer issues for appellate review. Generally, the only appellate issues are whether the plea was knowingly and voluntarily entered with full appreciation of the potential consequences, whether a particular plea bargain was followed, and whether the sentence was lawful. These issues can readily and properly be handled through the application for leave to appeal process. Adoption of this recommendation would affect an estimated 100 cases annually (about 5.8 percent of the court’s 1981 Term filings).

Report at 28 [emphasis supplied; footnotes omitted]. We again note the vocabulary of the criminal law—“conviction,” “guilty plea,” “sentence,” “guilt or innocence,” “plea bargain.” It is difficult to believe that the 12 distinguished judges and lawyers who comprised three-quarters of the Commission did not understand the meaning of these terms and did not use them in their technical senses. Supporting this view is the last sentence quoted from the Report. The Commission, as we have seen, proposed only “one narrow area” of change in appellate jurisdiction.

It noted that only about 100 Court of Special Appeals cases would have been affected by the proposal during the 1981 term. This statistic also indicates that the Commission was thinking in terms of guilty pleas in criminal cases, for a statistical universe that extended to admissions in revocation of probation cases would no doubt have been larger. 4 ⁹⁵ In any case, the Report was distributed to all members of the General Assembly and the document’s recommendations produced, among other things, the introduction of S.B. 540 and H.B. 1117 at the 1983 legislative session. The Judicial Proceedings and Judiciary Committees held a joint hearing. S.B. 540 received a favorable report and eventually became Ch. 295.

Significantly, the Judicial Proceedings Committee’s report on S.B. 540 describes the “Legislative Intent” of the bill in these terms: “The purpose of this bill is to reduce the work load of the Appellate Courts by limiting access to the Court of Special Appeals in criminal cases involving guilty pleas.” [Emphasis supplied.] This history demonstrates that the legislative goal was indeed to reduce the workload of the intermediate appellate court, but to do so with respect to a carefully limited class of cases: those in which a circuit court judge had accepted a guilty plea in a criminal case. The language of the statute is perfectly consistent with that goal. We hold that § 12-302(e) does not restrict the statutory right of appeal in revocation of probation cases. We reverse the judgment of the Court of Special Appeals in each of these three cases.

In Edge’s case, this means that he is entitled to pursue his properly-noted appeal in that court. Since both Maus and Wilkes have presented additional issues to us, involving alleged errors at the circuit court level, we must give further consideration to their cases.

II

Maus’s Case: Art. 27 § 638C(a) Maus’s original sentencing (so far as this case is concerned) was in January 1982. On that occasion his five-year sentence for storehouse breaking was suspended ⁹⁶ in favor of a five-year period of probation. One condition of probation was that Maus enroll in and complete the Second Genesis, Inc., drug rehabilitation program. The record indicates that Maus had both alcohol and CDS problems, with the former predominating.

Maus entered Second Genesis’s facility in Alexandria, Virginia, in April 1982. He resided there until March, 1984, when he was authorized to leave Second Genesis and live in the community. He was discharged by Second Genesis in June 1984, having successfully completed the program. In August he was arrested in Prince George’s County and charged with driving while intoxicated.

He was convicted of this offense and later (in Baltimore City) of storehouse breaking. For these (and other lesser) violations of the standard conditions of probation, Maus was tried on several occasions in the Circuit Court for Worcester County, the most recent one in September 1986. 5 As we have recounted, the outcome was revocation of probation and imposition of the original five year sentence. At the 1986 revocation hearing, Maus presented evidence of his successful completion of the Second Genesis program. He also introduced evidence about the nature of the program.

In essence, this showed that Second Genesis provides “a structured, supervised environment seven days a week, twenty-four hours a day.” The main therapeutic technique is “[e]ncounter group therapy____” During the first 12 months of the program, “the residents’ entire routine takes place within the facility.” Residents are required to perform jobs in categories which include: “kitchen, dining room, maintenance and administration.” After successful completion of the first in-facility year, residents are permitted to secure jobs in the community. During the initial stages of this second phase of treatment, ⁹⁷ they continue to reside in the facility. Later on, however, the residents move into the community, returning only to attend group meetings at Second Genesis. On the basis of this evidence, Maus argues that his stay at Second Genesis was the functional equivalent of imprisonment.

Therefore, he contends, credit should be awarded for time spent at the Second Genesis facility by virtue of the provisions of art. 27, § 6380(a). The trial judge did not agree; neither do we. Art. 27, § 638C(a) in pertinent part provides: Any person who is convicted and sentenced shall receive credit against the term of a definite or life sentence or credit against the minimum and maximum terms of an indeterminate sentence for all time spent in the custody of any state, county or city jail, correctional institution, hospital, mental hospital or other agency as a result of the charge for which the sentence is imposed or as a result of the conduct on which the charge is based____ [Emphasis supplied.] The subject of credit against a sentence for time spent in a halfway house, a residential treatment center, or similar facility has been variously treated by our sister states. A number of jurisdictions have chosen to allow credit for time spent in facilities of this type.

In People v. Rodgers, 79 Cal.App.3d 26 , 144 Cal.Rptr. 602 (1978), the court held that credit for time spent in a halfway house must be awarded where probation is revoked and an actual sentence imposed. There, the probationer had, as a condition of probation, spent time in a halfway house known as Delancey Street Foundation. The relevant statute, however, expressly included halfway houses among the creditable facilities, and the court took cognizance of legislative history to the effect that the statute was intended to provide credit for stays in ⁹⁸ any live-in drug rehabilitation program, whether public or private. Id. at 30-32 , 144 Cal.Rptr. at 604-606 . 6 A more sweeping decision is Lock v. State, 609 P.2d 539 (Alaska 1980).

There, the Supreme Court of Alaska decided that a probation-conditioned sojourn in a residential rehabilitation program not unlike that of Second Genesis qualified for credit under a statute allowing credit for “time spent in custody.” Id. at 545 . A more recent Alaska case elaborates on the reasoning underlying its decision in Lock : [Ijncarcerative facilities share a number of common characteristics: their residents are invariably sent there by court order; the facilities require residency, and residency requirements are sufficiently stringent to involve a definite element of confinement; residents of the facilities are subject to twenty-four hour physical custody or supervision; any periods during which residents may be permitted to leave the facility are expressly limited both as to time and purpose; while in the facility, residents are under a continuing duty to conform their conduct to institutional rules and to obey orders of persons who have immediate custody over them; and residents are subject to sanctions if they violate institutional rules or orders and to arrest if they leave the facility without permission. Nygren v. State, 658 P.2d 141, 146 (Alaska 1983). Many of these criteria apply to Second Genesis.

In accord with Lock v. State, supra, is People v. Stange, 91 Mich.App. 596 , 283 N.W.2d 806 (1979). There, the court awarded credit for time spent in a drug rehabilitation center pursuant to a statute requiring “credit ... for ... time served in jail prior to sentencing.” Id. at 600-601 , 283 N.W.2d at 808 . A similar result was reached in Commonwealth v. Usher, 264 Pa.Super. 435 , 399 A.2d 1129 (1979), although on some ⁹⁹ what different facts. There, the court awarded credit for time spent in a residential drug and alcohol treatment facility where the applicable statute mandated “credit for any days spent in custody,” id. at 438 , 399 A.2d at 1130 ; the court relied upon what it regarded as significant “restraint” on liberty at the facility.

The restraints included hourly head counts and immediate notification of police, probation authorities and the court if persons left the facility. Id. at 437 , 399 A.2d at 1130 . These restraints appear to be greater than those imposed upon Maus. Other jurisdictions have declined to award credit for time spent in a drug rehabilitation center or similar facility as a condition of probation.

New Jersey, for instance, has refused to award credit for time in a drug rehabilitation facility where the applicable statute mandated credit “for any time [the defendant] has spent in custody in jail or in a state hospital.” See State v. Reyes, 207 N.J.Super. 126, 141-145 , 504 A.2d 43, 51-53 (1986). [Emphasis supplied.] Emphasizing that participants were not locked in, and departure from the facility was not the criminal offense of escape, the court reasoned that “[attendance at such a program is not the equivalent of ‘custody’ so long as there are no physical restraints and a participant retains the option to leave without committing an additional crime.” Id. at 144 , 504 A.2d at 52 . Interpreting similar statutes under analogous circumstances, several courts have reached results that are in accord with State v. Reyes, supra. See People v. Radar, 652 P.2d 1085, 1086-1087 (Colo. 1982) (no credit awarded under statute granting credit for time spent in “confinement” where defendant spent time at a halfway house); Pennington v. State, 398 So.2d 815, 817 (Fla.1981) (denying credit to defendant for time spent at a drug rehabilitation facility under statute allowing “credit for all ... time spent in the county jail ”) [emphasis in original]; State v. Freeman, 95 Ill.App.3d 297, 299-300 , 50 Ill.Dec. 846, 848-849 , 420 N.E.2d 163, 165-166 (1981) (no credit given for time in drug treatment facility under statute allowing credit “for ¹⁰⁰ time spent in custody”); State v. Babcock, 226 Kan. 356, 361-362 , 597 P.2d 1117, 1122 (1979) (defendant awarded no credit for stay in halfway house as a condition of probation where statute mandated that credit be given for time “spent ... in jail ...”); Grant v. State, 99 Nev. 149, 150-151 , 659 P.2d 878, 879 (1983) (defendant who had spent time at residential drug treatment facility was not “in confinement” within the meaning of Nev.Rev.Stat. § 176.055 because he was free to leave the facility at any time); People ex rel. Robinson v. Warden, New York City Correctional Institution for Women, 58 A.D.2d 559, 560 , 396 N.Y.S.2d 19, 20 (1977) (defendant was not “in custody” while at a live-in drug treatment program within the meaning of N.Y.Penal Law § 70.30 and thus was not entitled to credit against her sentence); State v. Nagle, 23 Ohio St.3d 185, 186-188 , 492 N.E.2d 158, 159-160 (1986) (statute mandating “reduction of ... sentence by the total number of days the prisoner was confined” held not to require credit for time spent in a drug rehabilitation facility as a condition of probation) [emphasis added]; State v. Bell, 369 N.W.2d 140, 143-144 (S.D.1985) (no credit awarded for time in an alcohol treatment program under statute allowing credit for “imprisonment ... in the county jail or state penitentiary ...”) [emphasis supplied]; and State v. Cobb, 135 Wis.2d 181, 183-185 , 400 N.W.2d 9, 10-11 (1986) (court denied credit to defendant for his stay at drug abuse treatment center on the grounds that he was not “in custody” within the meaning of Wis.Stat. § 973.155(l)(a)).

Thus, as these cases show us, the majority of courts construing sentence-credit statutes similar to § 6380(a) do not award credit for time spent in a drug treatment center or similar facility as a condition of probation. The cases are of limited value to us, however, since each construes a particular statute in light of local legislative history or judicial gloss. Although we must try to approach § 6380(a) in a similar fashion (i.e., by examining its own legislative history), we are nevertheless cognizant of the majority approach. ¹⁰¹ In Fleeger v. State, 301 Md. 155, 165 , 482 A.2d 490, 495 (1984), we identified one purpose of the statute as “to ensure that a defendant receive as much credit as possible for time spent in custody as is consistent with constitutional and practical considerations.” In that case, however, we did not have occasion to construe the language now before us. The critical words in the statute are “time spent in the custody of any state, county or city jail, correctional institution, hospital, mental hospital, or other agency____” The word “custody” can have a great variety of meanings and so can the words “other agency.” A mere reading of the statute does not make clear whether a legislative purpose was to allow credit for time spent in a private, tightly-controlled facility such as Second Genesis.

Unfortunately, moreover, the files of the Department of Legislative Reference contain nothing that helps explain the key language. Section 6380(a) was enacted by Ch. 735, Acts of 1974. The title of Ch. 735 tells us no more than the statutory language does. One amendment made during its passage, however, may contain a clue.

When Ch. 735 was introduced as H.B. 650 (1974), the phrase on which we now focus referred to “time spent under the supervision or under the custody of any state, county or city jail” etc. The words “under the supervision or” were deleted by amendment. That deletion may have been designed to emphasize the incarcerative nature of the custody that would qualify for credit—mere supervision would not be enough. That is, the “custody” had to be involuntary and pursuant to a court commitment to a public institution. Turning more generally to the language of § 638C(a), it bears some resemblance to § 3.6(a) of the ABA Standards for Criminal Justice—Standards Relating to Sentencing Alternatives and Procedures (Approved Draft 1968). 7 In ¹⁰² deed it appears that the ABA Standards served as a model for § 6380(a).

See Joint Committee of Maryland Judicial Conference and Maryland State Bar Association to Implement the ABA Standards for Criminal Justice, Report and Recommendations (1974) at pp. 32-34 (discussing credit to be awarded to a criminal defendant for time served with reference to § 3.6 of the ABA Standards). In its Report the Joint Committee noted that § 70.30(3) of the proposed Criminal Code of the State of Maryland Commission on Criminal Law (otherwise known as the “Bruñe Commission”) “generally conforms with the [ABA] Standards, § 3.6.” Joint Committee Report and Recommendations, supra, at p. 33. The Joint Committee gave its endorsement to the proposal. Id. at pp. 33-34.

Thus, the ABA Standards will provide important guidance to us in our interpretation of § 638C(a). Comment b to § 3.6 best illustrates the scope of that standard. It provides the following in pertinent part: It also should be noted that subsection (a) is designed to assure that credit is awarded in instances where special treatment is imposed as a result of the conduct which underlies the criminal charge. The “pending sentence” language would clearly include, for example, any time spent in a diagnostic facility for the purpose of compiling a report under a provision like section 4.6., infra____ To shift to another context, the Advisory Committee would agree with the provision in Title I of the Narcotics Rehabilitation Act of 1966 to the effect that credit be given for time spent as the result of a civil commitment for addiction if criminal proceedings based on conduct which led to the commitment are subsequently resumed ____ The language “or the underlying conduct on which such a charge is based” is intended to secure this result. ¹⁰³ ABA Standards—Standards Relating to Sentencing Alternatives and Procedures, supra, comment b, at pp. 192-193. [Emphasis supplied; citations omitted.] Title I of the Narcotics Rehabilitation Act provides as follows: (a) If the United States district court believes that an eligible individual is an addict, the court may advise him at his first appearance or thereafter at the sole discretion of the court that the prosecution of the criminal charge will be in abeyance if he elects to submit to an immediate examination to determine whether he is an addict and is likely to be rehabilitated through treatment.

In offering an individual an election, the court shall advise him that if he ... is determined to be an addict who is likely to be rehabilitated, he will be civilly committed to the Surgeon General for treatment.... [Emphasis supplied.] Narcotics Rehabilitation Act, 28 U.S.C. § 2902 (a) (1977). The Act also makes escape while civilly committed to such a facility punishable as a criminal offense. Id., § 2902(e); Escape and Rescue Act, 18 U.S.C. § 751 (1979). Thus, under ABA Standard 3.6, a criminal defendant civilly committed to a drug treatment facility during the pendency of criminal proceedings must be credited for time spent in the facility if the proceedings later resume, conviction results and an actual sentence is imposed.

Therefore, under § 3.6(a) of the ABA Standards, credit may be awarded for time spent in a drug treatment facility. But that may occur only when the defendant is civilly committed to the treatment facility and when, in cases of unauthorized departure, he or she is guilty of the crime of escape. 8 ¹⁰⁴ Maryland courts, too, have authority to civilly commit criminal defendants to treatment facilities. See Md.Code Ann. (1982), § 8-510 of the Health-Gen. Art.