Miller v. State

ROBERT M. BELL, Judge. This appeal requires us to decide whether a probationer’s admission is sufficient to sustain the hearing court’s finding of violation of probation and reimposition of that portion of the sentence that had previously been suspended. We hold, on the facts of this case, that it is. On October 14, 1985, Joseph W. Miller, appellant, was convicted in the Circuit Court for Montgomery County of daytime housebreaking.

He was sentenced to a term of six-and-a-half years imprisonment. All but 15 months of that sentence were suspended and appellant was placed on five years probation. Two of the conditions of probation were: Condition 4: Obey all laws. Condition 5: Notify his probation agent at once if arrested.

On October 10, 1986, alleging that appellant had violated these conditions, appellant’s probation agent requested the court to revoke the probation. At the revocation hearing held on May 12, 1987, appellant’s counsel, in appellant’s presence, addressed the court as follows: We are before the Court, Your Honor, on a petition to violate probation filed October 8th by Mrs. Argo Nulls of the Division, and a supplement filed November 17th. Your Honor, the sum, really, of the violation petition alleges a failure to obey all laws and a failure to notify the probation agent if arrested. We would be admitting the failure to notify the probation officer of a new arrest and we would be admitting the violations which resulted in two circuit court cases, Numbers 43807 and 43803 in the Circuit Court for Montgomery County, for which a ²⁹⁷ plea memorandum has been filed, and it is Mr. Miller’s wish, and he has so instructed me, that we would prefer to go forward to disposition this morning.

The court did not make any inquiry of appellant until after it had heard from both the State and appellant’s counsel on disposition. At that time, appellant responded “No” to the court’s question whether he had anything to add. The court found appellant to be in violation of his probation and reimposed the suspended, and unserved portion, of appellant’s sentence. Appellant presents three reasons why we should reverse the lower court’s order: 1.

The admission of guilt was not shown to have been entered freely and voluntarily. 2. The evidence failed to show that appellant violated his probation. 3. The trial judge erred by failing to specify his reason for revoking the probation. 1 In Howlett v. State, 295 Md. 419 , 456 A.2d 375 (1983), on which both appellant and the State rely, the probationer appeared at a revocation hearing with counsel, who, in response to the court’s inquiry, stated that the probationer admitted the violation. After the State, in setting forth the facts upon which it relied, stated that the probationer had been convicted of conspiracy and receiving stolen goods, the court inquired whether the probationer admitted those convictions.

The court did not accept her attorney’s affirmative response; the court put the question directly to the probationer, who then specifically and personally admitted the convictions. Thereafter the court accepted probationer’s admission and found her in violation of the terms of her probation. The court affirmed the hearing court’s judgment. After rejecting the probationer’s contention that her admission was equivalent to a guilty plea, 295 Md. at 423 , 456 A.2d ²⁹⁸ 375 , the court addressed the probationer’s due process argument and found it to be without merit.

It explained: Nothing in Gagnon [v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973) ], or in Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972), involving parole revocation hearings, requires that any particular litany be followed to determine whether a probationer or parolee understands and acts voluntarily and knowingly during the course of revocation proceedings. All that the record is required to disclose in probation revocation hearings is that the charge was explained to the probationer in understandable terms and that his responses demonstrated that his actions were knowing and voluntary. That determination can only be made on a case-by-case basis, taking into account all relevant circumstances in their totality as disclosed by the record____ From the colloquy between the court, counsel and Howlett, we think it evident in this very simple case that Howlett understood that she was entitled to contest the charge, that she understood its nature and consequences, and that her admissions were knowing and voluntary. We conclude that due process, to the extent required in probation revocation hearings by Gagnon, was not offended in this case. ³⁰⁰ in order to justify revoking a probation for failure of the probationer to comply with the condition of probation, the state must show at least (1) that the violation occurred, and (2) that it occurred after the probation was imposed, i.e., during a period when the probationer was lawfully subject to the condition. ²⁹⁸ 295 Md. at 427-28 , 456 A.2d 375 .

Focusing upon the reference, in Howlett , to the probationer’s “responses” and noting that “[a]ppellant was at no time questioned to ascertain whether he was proceeding with the admission voluntarily”, appellant asserts that the record is insufficient to permit the court to determine that appellant knowingly and voluntarily admitted to violating probation. Thus, appellant argues that reversal is mandated. Howlett does not require the trial judge to elicit responses from a probationer to determine that the probationer’s admission is knowing and voluntary. Indeed, that is made clear by the Court’s holding that an admission to a probation violation is not the equivalent of a guilty plea, and ²⁹⁹ that, therefore, the procedures prescribed in Maryland Rule 4-242 are inapplicable. 295 Md. at 423-26 , 456 A.2d 375 ; Maryland Rule 4-346(c); Maus v. State, 311 Md. 85, 91 , 532 A.2d 1066 (1987).

Howlett requires only that, viewed in light of all of the relevant circumstances, “... the record discloses that the proceedings were fundamentally fair, that appellant was aware of the charges and proceeded voluntarily”. Nelson v. State, 66 Md.App. 304, 315 , 503 A.2d 1357 (1986). The record in this case meets that test. Appellant was present when his attorney informed the court that appellant was admitting the violations.

In that statement, counsel stated the purpose for which they appeared and the conditions which appellant allegedly violated. Moreover, counsel purported to repeat instructions from appellant, that appellant preferred to proceed immediately with disposition. Appellant did not contradict his attorney below and, now on appeal, he does not claim that he did not understand the charges, the consequences of having admitted violations or that he did not, in fact, violate probation. We perceive no error. 2, 3 Once appellant admitted violating probation, the State did not state on the record the facts it would have relied upon to prove the violations, as was done in Howlett , nor was it asked to do so by the court.

Based upon this “omission”, appellant makes two arguments which he maintains require reversal of the lower court’s judgment. Both proceed on the premise that the record of the revocation proceeding must contain a factual basis for the admission. Appellant first contends that the State failed to establish one of the two requisites for proof of probation violation: that the violation of a condition of probation occurred after probation was imposed and during the period when the probationer was lawfully subject to that condition. In support of this argument, appellant cites Cornish v. State, 65 Md.App. 213 , 500 A.2d 295 (1985), for its