Savoy v. State

BELL, Judge. Herbert Louis Savoy, Jr., the appellant, was sentenced by the Circuit Court for Charles County, pursuant to a plea agreement, to five years imprisonment, all but 9 months of which were suspended in favor of 5 years probation. He was subsequently found to have violated probation, which was then revoked and the previously suspended portion of the sentence reimposed. Contending that one of the violations found, ie., his failure successfully to serve the unsuspended portion of his sentence on work release, was an illegal probation condition, the appellant noted an appeal to the Court of Special Appeals.

Prior to that court’s consideration of that issue, we granted a writ of certiorari on our own motion, 333 Md. 173 , 634 A.2d 47 . The posture in which the case reaches us prevents, however, our being able to address the issue for the resolution of which we granted certiorari. I. Charged with rape in the second degree and assault and battery, the appellant entered into a plea agreement with the .State. The terms of that agreement were communicated to the court by the appellant’s counsel: ³⁵⁷ Pursuant to negotiations Mr. Savoy will be entering an AlforcP 1 Plea of guilty to Count No. 2 of battery.

It is my understanding that the agreement will be, from our indication, a cap of active jail time will be set at 9 months. Any jail time that Mr. Savoy will be ordered to serve would be served in a work release capacity and, of course, at sentencing the second degree rape charge will be dropped, that is my understanding, will be nolle prossed is my understanding of the agreement. The prosecutor confirmed that understanding: That is my understanding as well. The State had agreed to ask the court to bind itself to no more than 9 months of active incarceration and work release capacity.

I did indicate as well the State would ask for probation that would include no contact provision with the victim, Teia Savoy in the matter[ 2 ] What the trial court and the appellant understood the terms of the agreement to be is also manifest from the record. In the course of examining the appellant to qualify his tendered guilty plea, the court stated its understanding of the agreement: The State’s Attorney agrees if you [plead guilty to battery] she will dismiss the battery [sic] charge. The lawyer told me a little bit about the nature of the charge and about you, asked me whether I would agree under the circumstances to ³⁵⁸ not require you to serve more than 9 months at this juncture in the work release posture and I said yes, assuming the record is consistent with what Mrs. Donohue told me she thinks it is. In response to the court’s question whether that was his “understanding of the agreement involving the lawyers and me?”, the appellant answered, “Yes, sir.” The court accepted the appellant’s guilty plea, but deferred sentencing pending receipt of a presentence investigation report to verify whether the appellant’s record was as represented.

It ultimately sentenced the appellant as follows: The sentence is you are committed to the Division of Correction for 5 years to date from today. I am going to suspend all but 9 months of that and give you nine months in the county jail in a work release posture. The remaining 4 years and 3 months is suspended for a period of 5 years dating from the point of your release from serving 9 months and during that 5 year period you will be on probation under supervision of Division of Parole and Probation. Thereafter, when detailing the conditions of probation, the court stated, “Probation order will become effective when you are released from county jail.

If you don’t successfully complete the work release arrangement in that 9 month period the probation order won’t become effective for another 5 years.” It also wrote, in longhand, a statement to like effect 3 on the order of probation, which the appellant signed. Neither the appellant nor his counsel objected to that condition and neither of the parties advised the court that it did not comply with the plea agreement. Notwithstanding the court’s oral order and written notation on the probation order, both the Commitment Record, dated January .23, 1992, and the Sheriffs Temporary Authorization, dated January 21, 1992, each signed by the courtroom clerk, indicated that “the total time to be served” was 9 months, commencing on January 21, 1992. ³⁵⁹ Moreover, the probation order itself stated, in the section of paragraph 1 relating to “split sentence,” that “Probation commence[s] upon release of the defendant from incarceration, either by means of mandatory release or parole, whichever occurs first.” The appellant’s work release status terminated when, while a resident at the work release center, he tested positive for alcohol. Thereafter, the appellant remained incarcerated, without benefit of work release, until August 3, 1992, when he was released. 4 Subsequently, the appellant was charged with violation of probation, it being alleged that he violated three of the conditions of his probation, namely: Condition No. 1: Report to assigned agent as directed and follow his lawful instructions: By failing to report to his agent on August 12, 1992 and September 14, 1992.

By failing to provide employment verification as directed by his agent. By failing to submit to PBT testing on September 14, 1992 as directed by his agent. Condition No. 12: Possess no alcohol, By possessing alcohol on or about February 7, 1992. Condition No. 12: To have successfully completed nine months work program prior to inception of probation in Charles County Detention Center: By failing to successfully complete nine months work program.

At the violation hearing, the appellant admitted that he: failed to report to his agent on the two occasions alleged, possessed alcohol on the date alleged, and failed to complete work release. The court, after inquiry, accepted the admis ³⁶⁰ sions, 5 ultimately revoking probation and requiring the appellant to serve the previously suspended portion of his sentence. 6 The appellant filed a motion for leave to appeal with the Court of Special Appeals. 7 That court granted the application and ordered briefing of the issue it perceived to be presented, namely Was the order issued by the judge in this case requiring applicant to successfully complete a work release program as a condition of probation legal, and if so was the order directing applicant to serve the four year three months sentence which had initially been conditionally suspended legal, or on the other hand, if the work release Condition was not legal what disposition should be ordered in this case? As indicated, we granted a writ of certiorari on our own motion prior to that court’s consideration of the matter.

II

Acting pursuant to Maryland Rules 8-602(a)(3) 8 and ³⁶¹ 8-603(c) 9 the State moved to dismiss the appellant’s appeal on the ground that it is untimely. That is so, it reasons, “[b]e-cause Savoy challenges the circuit court’s finding of a probation violation only insofar as he disputes the legality of a ‘precondition’ to probation that the court unambiguously imposed at the original sentencing,” State’s brief at 2, and Valentine v. State, 305 Md. 108, 118-19 , 501 A.2d 847, 852 (1985) prohibits the deferral of “an appellate challenge to conditions of probation or any other aspect of his sentence as originally imposed by asserting such a challenge on appeal from, for example, a violation of probation hearing or a hearing on a motion to correct an illegal sentence.” State’s brief at 3. The State asserts that Valentine overruled the holding of Matthews v. State, 304 Md. 281, 286-88 , 498 A.2d 655, 657 (1985), that the illegality of a condition of probation is reviewable on appeal from an order of violation of probation, and, to the extent that it permits a defendant to appeal a trial court’s refusal to correct an illegal sentence at anytime, Coles v. State, 290 Md. 296, 303 , 429 A.2d 1029, 1032 (1981). In response, the appellant urges that we deny the State’s motion to dismiss.

He argues that the application for leave to appeal was timely. It was when the court revoked probation and reimposed the remainder of the suspended prison sentence that the court acted illegally, thus giving rise to the appellant’s right to seek leave to appeal. He also notes the inappositeness of the cases on which the State relies, i.e., McElroy v. State, 329 Md. 136, 145-49 , 617 A.2d 1068 , (1993); Valentine, 305 Md. at 118-19 , 501 A.2d at 852 ; Michael v. State, 85 Md.App. 735, 737-38 , 584 A.2d 1317, 1318 (1991). The appellant then challenges the State’s right to move to dismiss at this juncture, pointing out that the State did not ³⁶² challenge the timeliness of his application for leave to appeal insofar as it contests the court’s probation violation finding.

See Maryland Rule 8-204(d). Moreover, he questions whether the State’s motion to dismiss, which was not filed until after this Court had granted certiorari, was itself timely. The State gets the better of the argument. We shall explain.

Matthews is a case factually very similar to the case sub judice.