McRoy v. State

Lowe, J., delivered the opinion of the Court. In the arena provided contestants in an adversary system, it is not surprising that the atmosphere of conflict may occasionally affect the referee. It is inevitable that at some time, some adversary will lose perspective and view as an enemy the judge sitting opposite him rather than the opponent sitting next to him. If these forays develop personal feelings the one toward the other, the defendant, who should demand the total attention of all participants, may become the loser.

There remains contemporary purpose in the hoary aphorism “veritas nimium altercando amittitur” — by too much altercation, truth is lost. Appellant, James Henry McRoy, was found to have violated his probation after four and one-half years of a five year probationary sentence on an original charge of indecent exposure. Since it was proven that during the period of probation, appellant had been convicted of criminal activity, ³²³ absconded from custody, did not have steady work, did not report job changes as required, did not avail himself of psychiatric help and regularly used drugs, it would seem that the decision to revoke probation was not an unjust one. The road leading to that result was, however, a rocky one indeed.

Appellant appeared before the Circuit Court for Montgomery County on October 17, 1973 following his arrest on bench warrant issued May 17, 1973. He was released on bond. Appellant had not obtained counsel for his October 17, 1973 hearing on violation of probation, nor was counsel appointed. The attorney who had been appointed to represent McRoy when the original sentence was imposed appeared pursuant to notice.

Upon questioning by the court the attorney stated that he had represented McRoy in the conviction for which probation was now subject to revocation; however, he had not represented him at, nor known of, two criminal trials since the original representation. He argued that the State should have filed a formal petition alleging violation of probation and for that reason, as well as to provide him time to prepare, the hearing should be postponed. Paradoxically, he then stated he had not entered his appearance in this case. Being so advised the court asked what standing the attorney had to represent McRoy, to which he replied: “Because you ordered me to appear here by your letter directly to me to which I feel there is a return receipt somewhere.

I had to sign a return receipt.” The court responded: “I don’t remember. If I wrote you, I may have written you saying we are putting you on notice that your former client had been charged with violating probation and leaving it up to you to decide whether you wanted to enter your appearance so you have no standing.” The hearing was then held without benefit of counsel for ³²⁴ McRoy, and the court struck the suspension and reimposed the five year sentence. On November 14, 1973 correspondence by appellant to the court was treated as a petition for review of sentence. Counsel then entered his appearance on appellant’s behalf on January 16, 1974 and pursuant to his motion of March 5, 1974 the appellant’s letter was “docketed as a motion for modification of sentence under [Md. Rule] 764,” nunc pro tunc.

The order conceded that the October 17, 1973 proceeding “did not substantially comply with the requirements of Gagnon [v. Scarpelli, 411 U. S. 778 ]” 1 and thus ordered the: ³²⁵ “State’s attorney to prepare papers giving notice to the defendant of the violations of probation charged against him and giving him notice of a hearing so that he may be afforded an opportunity to show cause why his probation should not be revoked. Said hearing should be on the merits since defendant, through counsel, had indicated his waiver of any right to a Gagnon-type preliminary hearing.” ³²⁶ Apparently still dissatisfied, counsel for appellant filed a “Motion to Vacate Order of October 17, 1973 and Parts of Order of March 5, 1974,” arguing that notwithstanding the admission of noncompliance with Scarpelli, the order of March 5, 1974 was “void as a matter of law and must be vacated.” Counsel then argued in his petition and here, that the court does not have the authority to order the State’s Attorney to prepare and file a petition for revocation of probation. This motion was denied on April 24, 1974 immediately preceding the hearing on the merits. At the hearing the State provided evidence that while on probation appellant was convicted on two counts of indecent exposure, one count of robbery and three counts of larceny.

Further evidence indicated appellant’s addiction to heroin, poor employment record and avoidance of supervision. Probation was revoked and the five year sentence reimposed. However, once again appellant’s hearing proceeded with little or no assistance of counsel. Piqued as the result of an altercation with the trial judge, counsel declined to participate, save for an occasional sporadic intrusion.

The crux of the misunderstanding on this occasion related to whether or not counsel agreed to waive a preliminary hearing on behalf of his client. We are without benefit of the terms of the agreement since it was made in chambers between hearings without record. The court’s interpretation was simply stated: “Mr. Massengill, you and I had a talk in chambers and it was agreed, you agreed as I understood it, that you would waive a preliminary hearing because it would be a waste of time to cover the same ground twice.” As the trial judge pointed out, however, counsel’s “recollection of what transpired at [the] meeting in chambers differed] substantially from the Court’s.” Counsel’s recollection was of a somewhat complicated and “iffy” agreement which he details in his March 18, 1974 Motion to Vacate. ³²⁷ “That counsel for Defendant told the Court that if the correct procedure was followed and the Order of October 17, 1973 was vacated and the State’s Attorney decided that, under the circumstances it was in the best interests of the citizens of the State of Maryland that a Petition for Revocation of Probation be filed against the Defendant after the Order of October 17, 1973 was vacated and such a Petition was filed and counsel was appointed by the Public Defender to represent the Defendant on such a Petition, that counsel would waive a preliminary hearing since the Court recognized the seriousness and complexity of the attempt to revoke probation after the Defendant has ‘served’ four and one-half years of the probation period and would need counsel to assist him in his defense.” Whatever the agreement on preliminary hearing, counsel began the second hearing by again asserting his unpreparedness and consequent inability to defend appellant. He stated overtly “I do not intend to participate in this hearing this morning,” because “I am not prepared to proceed . . .

This hearing is entirely and completely improper and I am not prepared and cannot represent this man without a chance to prepare the case.” His request for postponement as well as his prayer for leave to withdraw was denied. When asked by the court at the conclusion of the State’s case “Do you wish to put your client on the witness stand, or not,” counsel again responded “I am not prepared to proceed in this matter. I have advised the Court of that; and I do not.” That state of unpreparedness is attested by the record which reflects nearly negligible participation. Appellant first contends that he was denied due process because the charges amounting to a violation of probation were not under oath and that he was not provided a written statement of charges. ³²⁸ Probable Cause for Revocation Appellant analogizes the issuance of a bench warrant for a probation violation to the procedure for obtention of a search and seizure or initial arrest warrant.

While some similarity may exist, the affidavit required of the latter is not essential to the former. The controlling distinction is that a probationer has been conditionally released, but remains the responsibility of the sentencing judge. The function of the Department of Parole and Probation is limited to supervising, on the court’s behalf, conformity with the probation conditions. Md. Code, Art. 41, § 124.

It has no direct authority over probation in the form of revocation power such as it has over parolees. As the court’s agent, it reports on misconduct which violates the terms of probation. Md. Code, Art. 41, § 124 (a). If the violations are technical such reports may be informally conveyed; however, if the violations are substantial as in this case where probationer was convicted of other crimes, a detailed and lengthy “Special Report” is filed with the court.

Such a report outlining the appellant’s defalcations appears in the record preceding the issuance of the bench warrant. The record reflects the factual basis from which the judge may conclude the conditions of probation have been violated and probable cause to issue the bench warrant exists. Although due process rights in general encompass probation revocations, Gagnon v. Scarpelli, supra, “the full panoply of rights due a defendant in such proceedings does not apply to parole [probation] revocations.” Morrissey v. Brewer, 480. To hold otherwise and require the supervising agent who is acting as an arm of the court to provide his report under oath, or, in the present case, invalidate the result of not one but two hearings would strain technical due process beyond the safeguards contemplated by the Supreme Court. “Parole [probation] arises after the end of the criminal prosecution, including imposition of sentence.

Supervision is not directly by the court but by an administrative agency, which is ³²⁹ sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every individual is entitled, but only the conditional liberty properly dependant on observance of special. . . restriction.” Morrissey, 480. We have said in Knight v. State, 7 Md. App. 313 , 321 that the process is informal in character and not subject to the limitations imposed by law upon a trial leading to conviction: “the facts do not have to come to the knowledge of the court in the manner required by rules of evidence.” This record reveals that the judge had ample basis in terms of probable cause to justify issuance of a warrant. Cf, Scarlett v. State, 201 Md. 310 .

Written Notice Appellant next complains that the charges were unwritten citing the Scarpelli recitations of the minimum standards of due process which Scarpelli quotes from Morrissey v. Brewer. “They include ‘(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.’ ” Scarpelli at 786, citing Morrissey at 489. Appellant emphasizes that the first of these “minimum standards” requires “written” notice. Again we think appellant’s stress of technical procedure is in error. The ³³⁰ recitation of “minimum requirements of due process” defined the extent of the court’s review and was not intended to prescribe particular procedural rules.

To the contrary the recitation is preceded by a denial of that intention: “We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds.” In Maryland the procedural steps are outlined in Knight v. State, supra, at 321. The requirement of notice is simply stated to be that “the probationer must be seasonably informed of the substance of the charge against him.” 2 This comports with the use of the term “notice” generically and the Scarpelli phrase to which our attention was directed by appellant “ . . . a probationer or parolee is entitled to