McKinney v. State

Moylan, J. A revocation of probation can be ordered because of triggering misbehavior that occurs not only during a period of active probation (the far more common case) but also because of misbehavior occurring before the active probationary period has even begun (the rarer case). Because the overwhelming majority of revocation cases, however, are based on violations occurring while on active probation, there has resulted the inevitable linguistic slippage of the name for that most common instance of the phenomenon being casually misused to denote the larger phenomenon itself, of which it is but a part. "Violation of probation" is thus being used as casual shorthand for "revocation of probation." The specific usurps the generic. It is an easy overgeneralization to lapse into, akin to referring to all refrigerators as Frigidaires, to all tissue as Kleenex, or to all soda pop as Coke.

Such slack usage, fortunately, is aggravating but seldom fatal. In this case, we are dealing with a revocation of probation that was not based on a violation of active probation. Because "violation of probation" is a more chronologically restrictive term than "revocation of probation," we must steel ourselves against using so potentially confusing and anachronistic a term. Revocation is our subject and our only subject.

The behavior that triggers revocation, as happened here, may occur in jail as well as on the street. A Pattern Of Recurring Domestic Violence On November 18, 2011, the appellant, Derek McKinney, entered guilty pleas to one count of first-degree assault and one count of using a handgun in the commission of a crime of violence before Judge Robert A. Greenberg in the Circuit Court for Montgomery County. Pursuant to a plea agreement, Judge Greenberg sentenced the appellant to a term of 25 years' imprisonment on the assault conviction with all but 10 years suspended, to be followed by a period of probation for three years. For the handgun conviction, the sentence was a concurrent one of 20 years, five years without the possibility of parole, and with all but 10 years suspended.

From the initial statement of facts offered in support of the guilty plea and from the subsequent sentencing procedure, it was evident that a heavy concern of both Judge Greenberg and the State was the future safety of the assault victim, Lily Mona Hakemian. Ms. Hakemian's vehicle had been stopped in rural Montgomery County at 1:30 on the morning of May 17, 2011, for a minor traffic infraction. The appellant was the front-seat passenger and Ms. Hakemian was driving. When asked for identification, the appellant had none and gave his name as Steve Johnson.

A computer check informed the stopping officer that Ms. Hakemian had an outstanding protective order against the appellant. Ms. Hakemian, moreover, appeared to be upset and to have been crying. The appellant was arrested for having violated the protective order. He had a strong odor of alcohol on his person and had watery bloodshot eyes.

From the passenger floorboard where the appellant had been sitting, the police recovered a loaded .357 Magnum Taurus revolver. The revolver was registered to Ms. Hakemian. Ms. Hakemian informed the court that she had purchased the gun for the appellant at his request because he was prohibited from doing so. The police learned from Ms. Hakemian that she had earlier gone to the appellant's residence in Bethesda that evening.

The statement in support of the guilty plea recounted: They went into the home. They went into his bedroom. The defendant had possession of the 357 Magnum. He told her to lie face down on the bed, placed the gun to her head and pulled the trigger, cycling the cylinder in the revolver.

He then ordered her to do his laundry, and in the laundry room, pointed the gun at her and instructed her to place the barrel of the gun in her mouth. The State would have presented in evidence that she believes she observed several live rounds of ammunition in the cylinder. A short time later, he and she both left the Southport Drive residence together and went to the (unintelligible) Shed Ale House (phonetic sp.) where they consumed alcohol and had some food, and to Quincy's (phonetic sp.) where the defendant consumed additional alcohol. They then left the, left Quincy's and went to the McDonald's restaurant in Gaithersburg at Montgomery County.

When they pulled into the parking lot, to the rear of McDonald's, in the Vicinity of the Sport Authority, he told her to get out of the vehicle. She did, and he fired a round from the revolver into the air. They got back in the car, went through the drive-through, and while in the drive-through, while ordering food, he pointed the gun at her and again directed her to place the barrel of the gun in her open mouth. (Emphasis supplied).

When Judge Greenberg asked if Ms. Hakemian did so, the prosecutor responded: [THE PROSECUTOR]: Yes, sir. The weapon was placed in her mouth on both occasions, making contact with her person. The State would have - and from the McDonald's restaurant, then, the vehicle went on to Route 355 north, where it was, Sergeant Lubson observed it at that intersection, Your Honor. Judge Greenberg then accepted the guilty plea.

As the court then turned to the actual sentencing, Judge Greenberg set out in meticulous detail every aspect of the sentence in all regards. His final words to the appellant were unequivocally clear: "You are to have no contact with Lily Hakemian." Even before that pronouncement, Ms. Hakemian had informed the court that she had visited the appellant while the charges were pending on a weekly basis and had spoken to him by telephone on numerous occasions. It was precisely to curtail such contacts that the prosecutor had requested of the jail authorities that the appellant be placed on administrative segregation for a period of 60 days. There was, moreover, a significant exchange between Judge Greenberg and Ms. Hakemian as to whether she wished to be permitted to have contact with the appellant while he was in jail.

It was clear that pre-probationary contact between the appellant and Ms. Hakemian was a subject of serious consideration. Indeed, even before announcing an absolute prohibition on any contact with Ms. Hakemian, Judge Greenberg had engaged in a lengthy dialogue with the appellant about that very subject. THE COURT: Let me first say that these cases pose particular difficulties to the Court because we have two people who obviously had some degree of affection for one another, and it sounds like still do. But I've come to learn, both from hearing these cases and from some training judges get about this problem that we call domestic abuse, and this is the kind of case, frankly, that bears all the earmarks of an extremely volatile situation.

When you love someone, you don't ask them to put a loaded handgun in their mouth, nor do you put one in your own mouth in their presence. So, I'm, with all respect to Ms. Hakemian, I'm not really so concerned with whether she wants to see you or talk to you or not, because I wasn't born yesterday, you know, I didn't just fall off the turnip truck , as they say; I'll be very surprised if Ms. Hakemian doesn't make some effort to contact you, but it isn't going to happen on my watch , if you know what I mean. You two have a relationship that is going to result in severe injury or death of one or both of you. I can't tell Ms. Hakemian what she should do with her life.

Those are choices that she needs to make, and to some extent, they're choices that you're going to need to make; but to suggest that it would be appropriate for me to pass a probationary order here that allows her to contact you, and more significantly, allows you to contact her, is something I'm just not going to do. THE DEFENDANT: Yes, sir. THE COURT: I think Mr. Helfand does have a good point with regard to the probation and the condition and the terms of it, and we'll get to that in a second. But this is a very frightening case from a number of standpoints.

And as I said, if Ms. Hakemian decides that she wants to contact you in prohibition of this Court's order, that's something that I would encourage her not to do, but she's not the subject of the probation order; you are. So, I just want to tell you that I'm going to prohibit her, prohibit you from having contact with her. But understand that even in spite of her misguided intentions, if she calls you , even though she's the one that did it, like she's the one that wrote the letters, and I have no doubt she did, she is the one that comes to see you, I have no doubt she did, she's getting you in trouble. THE DEFENDANT: Uh-huh.

THE COURT: So, if someone finds out about it, frankly, I'm not going to really care too much whether she called you or not. If she tries to get hold of you or whatever, you need to tell her, "No." I'm sorry to break up the relationship you have, but that happened back in May of 2011. (Emphasis supplied). Petition For The Revocation Of Probation The appellant failed, however, to heed Judge Greenberg's order and to discontinue any contact with Ms. Hakemian.

It was four years later, on September 20, 2015, that the State filed its Motion to Prevent Intimidation of Victim/Witness Pursuant to Section 9-304 of the Criminal Law Article. A hearing date on the motion was set for November 4, 2015. On that date, the appellant appeared without counsel. Judge Greenberg postponed the case so that the appellant could obtain the services of the Office of the Public Defender.

On February 3, 2016, the State filed, pursuant to Maryland Rule 4-347, a Petition for Revocation of Probation. A joint motion by the State and the appellant requested that both motions be considered at the same hearing. There were then numerous postponements of the hearing date on what became entitled as the State's Motion for Appropriate Relief. On May 27, 2016, the appellant's Consent Motion to Continue represented that he needed time to listen to all of the telephone recordings that the State had provided him in discovery.

The recordings were of threatening phone calls the appellant had made to Ms. Hakemian from jail. By letter on December 29, 2016, Judge Greenberg requested updated information on the possible parole/early release date of the appellant. The judge rescheduled the postponed hearing for February 21, 2017, and expressed his concern "for the victim's safety at the present time should [the appellant] be released before the February hearing." From Judge Greenberg's expression of concern for Ms. Hakemian's safety, it was clear that he did not want the appellant's probation even to begin. He was obviously looking for a way to secure Ms. Hakemian's safety against any risk posed by the appellant's even being on the street.

It was clear that probation had not yet even begun. For the appellant now to claim, therefore, that he had no idea that Judge Greenberg's final order at the sentencing hearing that he was to have "no contact with Lily Hakemian" had any applicability at any time before his probation actually began is disingenuous. At the aborted hearing on November 4, 2015, when the appellant showed up without counsel, the State explained to the appellant that it had filed its motion to prevent him from intimidating Ms. Hakemian. It also explained that the appellant could be subject to the revocation of his probation if it were found that he had committed a criminal offense even before his probation began.

Judge Greenberg, moreover, stressed the importance for the appellant to retain counsel and he cautioned the appellant not to say anything at that time. He further warned the appellant that he would be at risk if he had contact with Ms. Hakemian. This was pre-probationary behavior that was being discussed. The ultimate hearing on the State's motion to revoke probation took place on February 21, 2017.

The State produced evidence of five collect phone calls that the appellant had made from jail to Ms. Hakemian. In the course of those calls, the appellant blamed Ms. Hakemian for ruining his life by "snitching" to the police about his putting the gun in her mouth. The appellant blamed her for his incarceration. He threatened, "If you want me to kill [you], keep running your mouth." The appellant characterized himself as "a sociopath" and threatened to make her "pay for the 10 years [she] put him in jail." He cautioned her to enjoy the next couple of years because they were going to be her last.

He threatened to "murder" her, to "burn [her] ass up until [her] fucking heart stops," and to dump her body "in the river." The appellant ordered Ms. Hakemian to answer his phone calls and he told her, "I'm going to wind up beating your fucking brains in, when I get home I will take care of your ass. I'm not only abusive, I'm going to murder you." Judge Greenberg found that the calls placed by the appellant were not simply threatening in nature to the assault victim with whom the appellant had been cautioned and admonished by the court to discontinue contact, but were also literal violations of two criminal statutes. One was Section 32-19 of the Montgomery County Code of Ordinances, dealing with "Obscene, indecent or threatening language over telephone." That ordinance provides in pertinent part: If any person shall use obscene or indecent language or shall threaten any person with physical harm or shall make indecent proposals to any person by means of the telephone he shall be subject to punishment for a class A violation as set forth in section 1-19 of chapter 1 of the County Code. (Emphasis supplied).

The other violation was of a Maryland statute, Criminal Law Article, Sect. 3-804, which provides in pertinent part: (a) A person may not use telephone facilities or equipment to make: ... (2) repeated calls with the intent to annoy, abuse, torment, harass, or embarrass another[.] The appellant was, moreover, in violation of two earlier protective orders. Judge Greenberg then reimposed the original sentences of November 18, 2011, with no portion of the sentences being suspended and with no probationary period to follow. The Contentions Having been granted leave to appeal the revocation of probation on January 10, 2018, 1 the appellant now contends: I. THE LOWER COURT LACKED THE AUTHORITY TO FIND THAT MR.

MCKINNEY VIOLATED PROBATION BEFORE IT COMMENCED.

II

HOLDING A VIOLATION OF PROBATION HEARING UNDER THE CIRCUMSTANCES OF THIS CASE VIOLATED MR. MCKINNEY'S RIGHT TO DUE PROCESS.

III

THE LOWER COURT IMPOSED AN ILLEGAL SENTENCE. Probation May Be Revoked At Any Time The appellant's key contention is simplistic. He asserts that no one, certainly not he himself, can be guilty of "violat[ing] probation before it commenced." If he means, as he clearly seems to say, that one cannot commit an act (the act that is the violation) at a time that has not yet come to pass, he is simply stating a truism. A tautology!

Such a statement is self-evidently true. We cannot defy Newtonian physics. We cannot defy Aristotelian logic. We may not move at will in and out of a time warp.

We may not manipulate the fourth dimension. That would, indeed, be jumping the gun. Fortunately, no such anachronism occurred in this case. Ordinarily, a violation of probation is something that takes place outside the prison gates after a term of active probation has begun and the probationer is on the street.

Not only did no such thing happen in this case, but no one remotely suggested that any such thing happened. The critical event, the timing of which must be closely examined, was not a violation of active street probation but the antecedent revocation of an award of probation that had not yet begun. The indisputably controlling law is the opinion of Judge McAuliffe for the Court of Appeals in Matthews v. State , 304 Md. 281 , 498 A.2d 655 (1985). In Matthews the new criminal offense, violation of the controlled dangerous substance laws, that triggered the revocation of probation occurred, as here, before the period of active probation had actually begun and while Matthews was still serving his prison sentence (albeit on work release).

At the very outset of the opinion, Matthews announced what would be its ultimate holding: We here decide that ... Appellant's probation was properly revoked upon proof of criminal activity occurring between the grant of probation and its formal commencement. 304 Md. at 283 , 498 A.2d 655 (emphasis supplied). Matthews's new criminal offense had occurred at a time before his probation had actually begun but that did not in any way inhibit the authority of the court to revoke that probation before it had begun. Having determined that Appellant's probation could not lawfully begin until his actual release from imprisonment, we turn to the question of whether his right to probation may be revoked for criminal acts committed after sentencing but before commencement of probation .

Article 27, § 641A(b) provides that "[t]he court may revoke or modify any condition of probation or may reduce the period of probation." This broad grant of authority to revoke probation does not contain any limitation as to when the power may be exercised , and we therefore find no statutory bar to the revocation of probation before it has begun. 304 Md. at 288 -89 , 498 A.2d 655 (emphasis supplied). Judge McAuliffe's opinion quoted with approval, at 304 Md. at 290 , 498 A.2d 655 , from Martin v. State , 243 So.2d 189 , 190-91 (Fla. App. 1971), as it, and numerous other state cases, stood for the proposition that an implied condition of every suspended sentence or grant of probation is that the defendant shall obey all laws. The question here is whether a defendant probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence.

We think not . (Emphasis supplied). Matthews , 304 Md. at 290 , 498 A.2d 655 , also quoted with approval Wilcox v. State , 395 So.2d 1054 , 1056-57 (Ala. 1981), for the principle that "a condition implicit in every ... probationary sentence [is] that Defendant ... will not commit another criminal offense." [ W]here ... Defendant commits a felony while under a probationary sentence, although prior to the effective date of the probationary portion of the sentence , and its terms and conditions are not yet expressly prescribed, the sentencing court is nevertheless authorized to revoke Defendant's probation for violation of a condition implicit in every suspended or probationary sentence : that Defendant, while under such sentence, will not commit another criminal offense.

(Emphasis supplied). Matthews wrapped up its survey of the national caselaw by quoting with approval, 304 Md. at 291 , 498 A.2d 655 , from Commonwealth. v. Dickens , 327 Pa. Super. 147 , 475 A.2d 141 , 144 (1984) : If, at any time before the defendant has completed the maximum period of probation, or before he has begun service of his probation , he should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation and that the granting of the same would not be in subservience to the ends of justice and the best interest of the public, or the defendant, the court could revoke or change the order of probation. .... The commission of a new crime violates an implied condition of the order imposing probation.

(Emphasis in original). Judge McAuliffe's conclusion then nailed its landing. We are persuaded that a trial court has the authority to revoke probation for criminal acts committed after the imposition of sentence but before service of probation based on a condition implicit in the grant of probation that the defendant obey all laws. Our statutory scheme does not preclude the revocation of probation before it commences and the purposes for granting probation would be effectuated by recognizing this authority. 304 Md. at 292 , 498 A.2d 655 (emphasis supplied; footnote omitted).

See also Wilson v. State , 70 Md. App. 527 , 537, 521 A.2d 1257 (1987) ("Use of marijuana falls within the ruling in Matthews . If on remand the trial court is 'reasonably certain' that appellant voluntarily ingested marijuana, then MD. ANN. CODE art. 27, § 287 is implicated and this may be a proper basis for revocation.").

Matthews v. State Is Alive And Well The appellant's response to the clear command of