Russell v. State

⁵²¹ BERGER, J. This case involves an appeal of two orders of the Circuit Court for Baltimore County modifying the conditions of appellant Oliver Allen Russell’s probation. On October 10, 2007, Russell was convicted of child abuse, sexual abuse of a minor, second degree rape, and two counts of third degree sex offense in case number K-06-005368. The court sentenced Russell to eighteen years’ imprisonment with all but eight years suspended, and five years’ probation. Russell appealed to this Court and, in an unreported opinion, we reversed Russell’s convictions and remanded the matter to the circuit court.

Russell v. State, No. 2649, Sept. Term 2007 (filed July 23, 2009). Russell was retried on April 27-30, 2010 before the Honorable Michael Finifter. On April 30, 2010, Russell was convicted of child abuse and sex abuse of a minor. The court sentenced Russell to ten years’ imprisonment, suspending all but time served.

The court further sentenced Russell to a five year period of probation. 1 On April 13, 2012, before the Honorable Sherrie R. Bailey, Russell entered an Alford plea to one count of third-degree sex offense in case number K-ll-003816 (“the Judge Bailey case”). On April 24, 2012, the court sentenced Russell to ten years’ imprisonment, suspending all but time served, and a three-year period of probation. 2 On February 21, 2013, Russell’s probation agent filed a request to modify the conditions of Russell’s probation in case number K-06-005368 (“the Judge Finifter case”), requesting that the court add COMET 3 supervision to Russell’s probation. On February 26, 2013, Russell’s probation agent filed a ⁵²² request to modify the conditions of Russell’s probation in the Judge Bailey case, requesting that the court add COMET supervision to Russell’s probation. Because the two requests to modify involved the same requested condition, the court scheduled a joint hearing before Judge Bailey and Judge Finifter on April 12, 2013.

After the hearing, the trial court granted the probation officers’ requests to modify both probations, adding the condition of COMET supervision to Russell’s probations. This timely appeal followed. 4 On appeal, Russell presents a single question for our review: Did the circuit court err in imposing as an additional condition of probation Collaborative Offender Management Enforcement Treatment (COMET) supervision, a program that permits the supervision team, inter alia, to require a probationer to submit to polygraphs, to impose a curfew and increased reporting requirements if the probationer declines to answer a question during a polygraph, to otherwise impose a curfew between 7 p.m. and 7 a.m., and to electronically monitor the probationer with a Global Positioning System (GPS) device? The State has moved to dismiss Russell’s appeal, asserting that the circuit court’s order modifying Russell’s probation is not an appealable final judgment. For the reasons stated herein, we shall deny the State’s motion to dismiss and affirm the judgments of the Circuit Court for Baltimore County.

FACTS AND PROCEEDINGS The COMET supervision program was created in response to legislation passed by the General Assembly in 2006 which ⁵²³ mandated the establishment of sexual offender management teams for the supervision of sexual offenders. Md.Code (2001, 2008 RepLVol., 2010 Suppl.), § 11-725 of the Criminal Procedure Article (“CP”). At the April 12, 2013 hearing, Division of Parole and Probation (“DPP”) Agent Steven DeGross, Jr. testified regarding what COMET supervision entails and further explained why the DPP sought to impose COMET supervision upon Russell. A COMET supervision team is made up of members from various agencies and offices including the DPP, the local police department, the local State’s Attorney’s office, and treatment providers.

A probationer on COMET supervision is required to comply with a sexual offender management program, which may include intensive reporting requirements, specialized sex offender treatment, electronic GPS monitoring, polygraph testing, computer monitoring, and being compelled to take medication. 5 COMET supervision also may include a 7:00 p.m. to 7:00 a.m. curfew. Agent DeGross testified that the curfew can be adjusted by the COMET supervision team “for work purposes, for church services, for doctor’s appointments and things of that nature.” The decision to impose a curfew is left to the discretion of the COMET supervision team. The court is not involved in the determination of whether a curfew is appropriate. A curfew may also be imposed as a sanction if a probationer declines to answer a question during a polygraph examination.

Probationers under COMET supervision may be required to submit to polygraph tests during which a state police polygrapher asks the probationer about the crime for which he is on probation. The probationer is also asked about his activities while on probation. Agent DeGross testified that a probationer may be asked whether he has had contact with the victims or unlawful contact with any children. If a probationer admits to a crime, the polygrapher discontinues the polygraph test, ⁵²⁴ notifies the probation agent, and has the probationer repeat the admission to a probation agent.

If a probationer does not answer a question during a polygraph test about possible criminal activity, the DPP imposes consequences upon the probationer. Potential consequences include an increased supervision level and/or the imposition of a curfew. 6 Agent DeGross testified that the DPP does “not request a violation of probation hearing, or request a ... summons or warrant” when a probationer refuses to answer questions during a polygraph examination. The COMET team also has discretion to impose GPS electronic monitoring, which allows the team to monitor where the probationer goes “24 hours a day, seven days a week.” Agent DeGross explained that GPS supervision is imposed as a “temporary 90 day process” but that the COMET team, in its discretion, could put a probationer back on GPS monitoring for an additional 90-day period. The circuit court granted the request of the State and DPP to modify the terms of Russell’s probation to include COMET supervision in the Judge Finifter case (in an order dated April 25, 2013 and filed May 2, 2013) and in the Judge Bailey case (in an order dated May 23, 2013 and filed May 29, 2013).

This appeal followed. MOTION TO DISMISS The State asserts that the orders modifying Russell’s probations are not appealable final judgments under Md.Code (1974, 2013 RepLVol.), § 12-301 of the Courts and Judicial Proceedings Article (“CJP”). 7 The State asserts that the court’s orders modifying Russell’s probations are not appeal- ⁵²⁵ able, either by direct appeal or application for leave to appeal. We are unpersuaded. First, with respect to Russell’s application for leave to appeal in the Judge Bailey case, we note that this Court set the case in for briefing and argument but does not appear to have actually ruled on Russell’s application for leave to appeal.

To the extent that the application for leave to appeal has not yet been ruled on, we hereby grant Russell’s application for leave to appeal the order modifying his probation in the Judge Bailey case. We now turn to the State’s argument that an order modifying probation does not constitute an appealable final judgment. A “final judgment” is defined as “a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.” CJP § 12-101. The Court of Appeals has explained: “[A] final judgment” is one that “either determinéis] and conclude[s] the rights of the parties involved or den[ies] a party the means to ‘prosecut[e] or defendí ] his or her rights and interests in the subject matter of the proceeding.’ ” In re Billy W., 386 Md. 675, 688 , 874 A.2d 423, 431 (2005) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767, 773 (1989)) (some alterations in original).

Important is whether “any further order is to be issued or whether any further action is to be taken in the case.” Id. at 689, 874 A.2d at 431 . Douglas v. State, 423 Md. 156, 171 , 31 A.3d 250 (2011). Russell’s probation order was modified by the circuit court pursuant to Maryland Rule 4 — 346(b), which provides that ⁵²⁶ “[d]uring the period of probation, on motion of the defendant or of any person charged with supervising the defendant while on probation or on its own initiative, the court, after giving the defendant an opportunity to be heard, may modify, clarify, or terminate any condition of probation, change its duration, or impose additional conditions.” To date, no reported appellate decision has explicitly addressed whether an order modifying probation pursuant to this rule constitutes an appealable final judgment. Our analysis, however, leads us to conclude that the circuit court’s order modifying Russell’s probation satisfies all of the requirements for a final judgment.

The circuit court’s order was clearly intended by the circuit court judge to be a final resolution of the State’s motion to modify the conditions of Russell’s probation. There is no indication that the terms of Russell’s probation would be reconsidered at any future time. We do not believe that there was “any further order ... to be issued” or “any further action ... to be taken” with respect to Russell’s probation. See Douglas, supra, 423 Md. at 171 , 31 A.3d 250 .

Furthermore, we note that we considered the merits of an appeal of a judgment modifying a probation order in Argabright v. State, 76 Md.App. 706 , 548 A.2d 149 (1988). In Argabright , we held that the trial court did not err by adding an additional term to the conditions of the appellant’s probation. Id. at 708 , 548 A.2d 149 . 8 We did not dismiss the appeal in Argabright based on final judgment concerns. In the present case, we hold that a trial court’s order modifying terms of a probation is an ⁵²⁷ appealable final judgment.

Accordingly, we deny the State’s motion to dismiss. DISCUSSION Russell challenges the authority of the circuit court to impose COMET supervision as a condition of his probation. Although Russell did not object to the imposition of the challenged conditions before the trial court, allegedly unlawful conditions of probation may be challenged at any time as an illegal sentence under Rule 4-345(a). See Brown v. State, 80 Md.App. 187, 196 , 560 A.2d 605 (1989).

While considering the probationary terms imposed by the trial court, we keep in mind the wide latitude trial courts have in imposing conditions of probation. The authority of the circuit court to order that a defendant serve a probationary term is codified in Md.Code (2001, 2008 RepLVol.), §§ 6-221 and 6-222 of the Criminal Procedure Article (“CP”). We have explained: Sections 6-221 and 6-222 give a court entering a judgment of conviction broad powers to order probation. Section 6-221 states, simply, that, “[o]n entering a judgment of conviction, the court may suspend the imposition or execution of sentence and place the defendant on probation on the conditions that the court considers proper.” Further, section 6-222 authorizes a court to “impose a sentence for a specified time and provide that a lesser time be served in confinement^ ] suspend the remainder of the sentence; and [ ] order probation” for a period of time as elaborated upon in that statute.

The latter is known as a “split sentence.” Moats v. Scott, 358 Md. 593, 595 , 751 A.2d 462 (2000). If a court imposes a “split sentence,” i.e., a sentence for a specified period of time with part of the time being suspended, there must be a period of probation attached to the suspended part of the sentence. Cathcart v. State, 397 Md. 320, 327 , 916 A.2d 1008 (2007). Without a period of probation, the sentence effectively ⁵²⁸ would be for the unsuspended time only.

Id. at 329 , 916 A.2d 1008 . “Probation is by definition conditional,” that is, it is imposed subject to conditions with which the defendant must comply. Gibson v. State, 328 Md. 687, 689 , 616 A.2d 877 (1992). Lindsey v. State, 218 Md.App. 512, 530 , 98 A.3d 340 (2014). In the present case, Russell contends that the circuit court lacked the authority to impose and/or erred by imposing three specific conditions of his probation.

First, Russell asserts that the circuit court lacked the authority to delegate the power to impose a curfew to DPP and/or the COMET team. Second, Russell asserts that the circuit court erred by imposing a requirement that he submit to polygraph testing. 9 Third, Russell asserts that the circuit court lacked authority to require or permit GPS tracking as a condition of probation. We address each of Russell’s contentions in turn. No Maryland case has addressed the appropriateness of the imposition of COMET supervision generally or the imposition of a polygraph requirement specifically.

Accordingly, we turn our attention to persuasive authority from federal and state courts across the country as appropriate. I. Curfew Russell’s first contention is that the circuit court lacked the authority to delegate to the DPP or the COMET team the authority to impose a curfew. Russell acknowledges that the court had the authority to impose a curfew, see CP § 6-219(a) and (b) (authorizing home detention as a condition of probation), but asserts that the court cannot delegate this authority to the DPP or the COMET team. ⁵²⁹ A probation authority is permitted to provide “specific rules designed to govern the conduct of the probationer within the ambit” of a general condition imposed by the court. Costa v. State, 58 Md.App. 474, 478-82 , 473 A.2d 942 (1984).

The Court of Appeals has explained: [Frequently, the nature of the probationary penalty is such that the circumstances of a case, like the one we now consider, render it desirable, or perhaps necessary, that the condition of probation be expressed in somewhat general terms. Such a general expression is permissible, so long as it is contemplated that the court or its designee (usually the probation authority) will provide the probationer with reasonable, specific direction within the ambit of the initially expressed general condition, and such guidance is in fact given. Hudgins v. State, 292 Md. 342, 348 , 438 A.2d 928 (1982) (footnote omitted). In the present case, the court authorized the COMET team to impose a curfew between the hours of 7:00 p.m. and 7:00 a.m. with allowances made for work, church, doctor’s appointments, and “things of that nature.” The court deferred to DPP to determine when it was appropriate to impose the curfew.

Accordingly, pursuant to the court’s order, DPP would provide Russell with clear and specific rules indicating the circumstances under which the court-authorized curfew would be imposed. Russell’s reliance upon Richards v. State, 65 Md.App. 141 , 499 A.2d 965 (1985), is misplaced. In Richards, supra, we held that the trial court did not have the authority to delegate the determination of the amount of restitution to the probationary authority. We held that it was a violation of the defendant’s due process rights for the probationary authority to determine the amount of restitution without a hearing because the delegation “effectively denied appellant the right to be heard.” Id. at 149 , 499 A.2d 965 .

Unlike the defendant in Richards, supra, Russell had a hearing before the trial court issued an order permitting the DPP to impose a specific ⁵³⁰ curfew. Accordingly, we hold that the discretionary curfew imposed by the court and administered by the DPP does not constitute an illegal condition of probation.

II

Polygraph Testing Russell’s second contention is that the polygraph component of the COMET program is illegal. He offers four separate arguments as to why the polygraph requirement is illegal, arguing that (1) the polygraph requirement lacks a rational basis; (2) the requirement to take polygraphs is vague in that it does not make clear that a probationer is not required to incriminate himself; (3) the COMET program’s sanctions for declining to answer questions during polygraph examinations violate the Fifth Amendment; and (4) the legislative scheme applicable to sex offenders does not permit the polygraph component of the COMET program. We address each of Russell’s arguments in turn. A. Rational Basis Russell contends that under Brown v. State, 80 Md.App. 187 , 560 A.2d 605 (1989), the polygraph requirement of his probation lacks a rational basis.

It is well established that “[w]hatever latitude the statutes repose in the trial judge [to determine appropriate probationary conditions], it remains, of course, fundamental that conditions of probation must be reasonable and have a rational basis.” Watson v. State, 17 Md.App. 263, 274 , 301 A.2d 26 (1973). Russell’s reliance upon Brown is misplaced. In Brown, supra, the trial court imposed a condition of probation that a probationer “pass a polygraph test in which she [provide] a full account of [her] offenses” and then repeat the statement in court. 80 Md.App. at 196-97 , 560 A.2d 605 . The purpose of the condition was for the probationer to identify the gunman. 10 On appeal, we held that the condition ⁵³¹ lacked a rational basis because the polygraph could not reliably determine whether the probationer was telling the truth with respect to the identity of the gunman.

Id. at 199-200 , 560 A.2d 605 . We explained that although the probationer was “required to undergo polygraph examinations until such time as she passes,” “[t]here [was] no assurance that the ‘passing’ version [would be] the truth.” Id. at 199 , 560 A.2d 605 . We emphasized that Maryland courts have “repeatedly denounced the usefulness of polygraph examinations in eliciting accurate information.” Id. at 199-200 , 560 A.2d 605 . Critically, in Brown, supra, our determination that the polygraph requirement lacked a rational basis was based upon the fact that “[o]ne of the purposes of this condition [was] to have appellant identify the gunman.” Id. at 196 , 560 A.2d 605 . 11 In the present case, there are various purposes for requiring Russell to submit to polygraph examinations beyond merely ascertaining whether Russell is being truthful during any particular polygraph examination or in response to any particular question.

The Maryland Department of Public Safety and Correctional Services has explained that, as a component of COMET supervision, polygraph examinations “increase the accountability of sexual offenders for past behaviors, ensure compliance with current supervision, and serve as a deterrent.” “Intensive Parole and Probation Workshop On Managing Sexual Offenders” Department of Public Safety and Correctional Services, http://www.dpscs.state.md.us/publicinfo/ features/DPP_Workshop_Mng_Sex_Offenders.shtml (accessed: February 20, 2015) [http://perma.cc/SXK7-JTW3]. 12 ⁵³² Furthermore, state and federal courts have recognized that polygraph examinations further the goals of probation and/or supervised release in various ways. The United States Court of Appeals for the 10th Circuit has commented that “[p]olygraph testing could ... encourage [a probationer] to be truthful with his probation officer, and it could alert the [probation office] to potential problems which would prompt further supervisory inquiry.” United States v. Begay, 631 F.3d 1168, 1175 (10th Cir.2011). Other federal courts of appeals have reached similar conclusions. See United States v. Johnson, 446 F.3d 272, 277 (2d Cir.2006) (“[T]he incremental tendency of polygraph testing to promote ... candor furthers the objectives of sentencing by allowing for more careful scrutiny of offenders on supervised release.

Polygraphs have also been found to assist another sentencing objective, namely to ensure compliance with probationary terms. The lie detector may deter lying notwithstanding its arguable or occasional unreliability because of the subject’s fear that it might work, or be credited by others whether it works or not.” (quoting United States v. Zinn, 321 F.3d 1084, 1090 (11th Cir.2003))); United States v. Lee, 315 F.3d 206, 213 (3d Cir.2003) (“[T]he polygraph condition may provide an added incentive for [a probationer] to furnish truthful testimony to the probation officer. Such purpose would assist the officer in his or her supervision and monitoring of the appellant.”). State courts have similarly reasoned that, as a condition of probation, polygraph examinations support probationary goals despite their potential unreliability.

Florida’s intermediate appellate court held that a condition of probation requiring a probationer to submit to polygraph examinations “is valid because it provides a psychological deterrent, and will assist the work of the probation officer in assuring the probationer does not re-offend.” Cassamassima v. State, 657 So.2d 906, 910 (Fla.Dist.Ct.App.1995). The Pennsylvania Superior Court ⁵³³ commented that “the therapeutic polygraph is an essential tool for a therapist whose job it is to reveal an offender’s deception and encourage him or her to confront his or her urges and deviant behavior. The test results further the primary goal of counseling as part of a sexual offender’s sentence, which is to rehabilitate the offender and prevent recidivism, with reasonably small incremental deprivations of the offender’s liberty.” Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa.Super.2007). Other state courts have reached the same or similar conclusions.

See People v. Miller, 208 Cal.App.3d 1311, 1314 , 256 Cal.Rptr. 587 (Ct.App.1989) (“The polygraph condition helps to monitor compliance and is therefore reasonably related to the defendant’s criminal offense. Because this condition is aimed at deterring and discovering criminal conduct most likely to occur during unsupervised contact with young females, the condition is reasonably related to future criminality.”); State v. Age, 38 Or.App. 501 , 590 P.2d 759, 763 (1979) (“[The polygraph requirement’s] main function appears to be the added psychological factor that if the probationer fails to tell the truth, he will be detected. Such purpose would be in furtherance of a successful probation.”). We agree with the courts cited above that polygraph examinations serve various purposes despite their questionable reliability.

Indeed, polygraphs can increase the accountability of sexual offenders for past behaviors, ensure compliance with current supervision, and serve as a deterrent is in line with the decisions reached by courts across the country. Unlike the polygraph condition in Brown, supra, the purpose of which was to obtain a specific piece of accurate information, 80 Md.App. at 196 , 560 A.2d 605 , the polygraph component of Russell’s probation serves multiple purposes, including promoting candor between Russell and his probation agent, reducing recidivism by serving as a deterrent, and rehabilitation. Agent DeGross’s testimony further supports the conclusion that a rationale for imposing polygraphs exists beyond merely ascertaining particular facts. Agent DeGross explained that the way in which a probationer responds to the initial polygraph enables “the treatment provider [to know] how to ⁵³⁴ proceed in ... treatment groups as well as individual therapy.” Accordingly, we hold that the polygraph component of the COMET program has a rational basis.

B. Vagueness Russell’s next contention is that the polygraph requirement is “impermissibly vague” because it does not make clear that the probationer is not required to incriminate himself. Russell asserts that the trial court’s order, which added COMET supervision but did not specifically explain that Russell could not be compelled to incriminate himself, is not “clear, definite, and capable of being properly comprehended and understood.” See Watson, supra, 17 Md.App. at 274 , 301 A.2d 26 . Judge Finifter’s memorandum opinion and order modifying Russell’s probation explicitly provided that Russell’s probation order was amended “to include COMET supervision.” The memorandum explained that COMET supervision “is an acronym for Collaborative Offender Management Enforcement Treatment.” The court explained that conditions of COMET supervision include “intensive reporting requirements, electronic monitoring (GPS), verifying whether a defendant is taking his or her medication, polygraph examinations, computer monitoring, and specialized sex offender treatment.” The COMET supervision condition of Russell’s probation is readily distinguishable from the probationary conditions