State v. Brookman State v. Carnes

Panel Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ. McDonald, J. *²⁹⁴ The past three decades have seen the growth, in Maryland and elsewhere, of treatment programs operated under the auspices of the judiciary. In those programs, sometimes identified by the generic phrase "problem-solving courts," judges, counsel, probation officers, and treatment professionals work together to address an underlying issue that brings an individual into the criminal justice system. Problem-solving courts *²⁹⁵ focus on therapy for the individual defendant, in the hope that both the individual and society will be better off in the long run.

Preeminent among such programs are those known as "drug courts." Drug court programs are conceived of as collaborative rather than adversarial. However, the coercive powers of the court under the criminal law are used as an important instrument to achieve the program's goals. This creates a tension: For a drug court's goals to be achieved, there must be swiftness and certainty of sanction for violation of its protocols. For the criminal justice system to work, there must be due process and respect for appellate rights.

These consolidated cases concern whether a circuit court's exercise of its coercive powers to incarcerate a drug court program participant in aid of the swiftness and certainty of program sanctions (1) is subject to appellate review and (2) can violate the participant's right to due process. Respondents Crystal Brookman and Marvin Carnes were defendants in separate criminal prosecutions in the Circuit Court for Montgomery County. The Circuit Court determined that each was eligible to participate in the court's drug court program as a special condition of probation after each pled guilty in their respective cases. Each did so and fared well in the program for many months.

In early 2016, Ms. Brookman was alleged to have had a negative urinalysis - based not on a positive finding of illicit drugs, but on a test result that suggested she may have attempted to dilute her urine. At approximately the same time, Mr. Carnes appeared late for a randomly-scheduled drug test. At subsequent hearings concerning their respective alleged ²⁸⁵ violations of the program conditions, each was represented by counsel. Ms. Brookman's counsel asked for a postponement to gather and present evidence contesting her test result; Mr. Carnes' counsel asked the court to consider mitigating evidence before imposing the program sanctions.

However, in both cases, the Circuit Court declined to exercise discretion and imposed immediate sanctions from the program's *²⁹⁶ sanctions menu. In both cases, those sanctions included overnight incarceration. Ms. Brookman and Mr. Carnes filed applications for leave to appeal, which were accepted by the Court of Special Appeals and consolidated for appellate review. The intermediate appellate court held that Ms. Brookman and Mr. Carnes had the right to seek appellate review of the incarceration sanction.

Upon that review, it held that the procedure followed in the Circuit Court did not comply with the requirements of due process. We agree with the holdings of the Court of Special Appeals. I Background A. Drug Court Programs 1. Problem-Solving Courts and Emerging Issues Although one would hope that most courts contribute to the solution of society's problems, the phrase "problem-solving court" is generally used to denote a special docket in a trial court that targets defendants whose presence in the criminal justice system appears to be traceable, at least in part, to an underlying issue such as substance abuse. 1 To address that underlying issue, participants in the program are subject to a highly structured probation that includes treatment and monitoring.

A typical drug court program is divided into several phases of diminishing intensity as the participant progresses in accordance with the program's goals. 2 To encourage a participant's compliance with treatment and monitoring, most *²⁹⁷ programs require frequent status review hearings involving a judge assigned to the program and other court personnel. As a further incentive for participants to comply with the program's conditions, violations of program requirements are generally punished with a series of graduated sanctions, some of which derive from the court's coercive powers. 3 As some courts and commentators have noted, the use of coercive powers, coupled with the informal, collaborative nature of the program, can raise issues as to whether a participant has received the procedural due process guaranteed to criminal defendants and probationers. 4 Moreover, because of the intensive monitoring of the ²⁸⁶ participant without counsel, or with counsel who is regarded as a member of a treatment team rather than an advocate, there can be ethical issues, such as the potential for ex parte communications between the judge and a defendant. 5 2. Problem-Solving Courts in Maryland Problem-solving court programs were first established in Maryland in the early 1990s. 6 According to the most recent *²⁹⁸ annual report of the Office of Problem Solving Courts, there are 53 such programs associated with circuit courts and the District Court, focused on various underlying issues that bring individuals within the jurisdiction of the judicial system - substance abuse, mental health issues, truancy, and veterans' issues. See https://www.courts.state.md.us/sites/default/files/import/opsc/pdfs/annualreports/fy2017opscannualreport.pdf (last visited June 4, 2018).

Nature of a Problem-Solving Court In 2009, this Court was presented with the issue of whether a "problem-solving court" had fundamental jurisdiction, such that it could sanction a criminal defendant who violated a program condition. The Court held that, because the "drug court" in question was essentially a division of the circuit court - a court of original general jurisdiction - it had the fundamental powers of the circuit court. Brown v. State , 409 Md. 1 , 971 A.2d 932 (2009). The Court held that the question whether the procedures of the drug court violated due process could be addressed through "well-developed mechanisms for correcting any violations" - i.e ., appellate review and extraordinary writs. 409 Md. at 8-9 & n. 1, 971 A.2d 932 .

Whether the particular drug court program actually violated due process and the code of judicial conduct because of ex parte communications that a judge might have under the program was apparently raised at oral argument of the case, 7 but not resolved by the decision. The following year, this Court adopted a rule that governs the operation of existing problem-solving courts and the creation of new programs and that addressed at least some of the issues raised, but not decided, in Brown . Maryland Rule 16-207 In 2010, this Court first adopted a rule governing "problem-solving court programs." That rule is currently codified as *²⁹⁹ Maryland Rule 16-207. 8 That rule describes ²⁸⁷ "problem-solving court program" as "a specialized court docket or program that addresses matters under a court's jurisdiction through a multi-disciplinary and integrated approach incorporating collaboration by the court with other governmental entities, community organizations, and parties." Maryland Rule 16-207(a)(1). In order to be accepted into such a program, a prospective participant - presumably a defendant in a criminal case in most instances - must execute a written agreement.

Maryland Rule 16-207(e)(1). The written agreement is to set forth the requirements and protocols of the program, the range of sanctions that may be imposed against a participant, and any waiver of rights by the participant ( e.g., waiver of a right to counsel). 9 As a further condition of acceptance into the program, the trial court is to examine the prospective participant on the record concerning the agreement and make an explicit finding that he or she is acting knowingly and voluntarily. Maryland Rule 16-207(e)(2). A program may allow for the imposition of immediate sanctions.

Maryland Rule 16-207(f). However, if such a sanction would involve a loss of liberty or termination from the *³⁰⁰ program, the participant is entitled to notice, an opportunity to be heard, and the assistance of counsel before the court makes its decision. Id. 10 The rule also provides that a participant who is terminated from a program is to receive credit for time spent incarcerated while in the program against a sentence that is to be served as a result of termination from the program. Maryland Rule 16-207(g). 3.

Montgomery County Adult Drug Court Program The setting for the issues in this case is a problem-solving court program in the Circuit Court for Montgomery County known as the Montgomery County Adult Drug Court Program. It was first established in December 2004. According to the Policies and Procedures Manual for the program, it is a "collaborative effort ... to break the cycle of substance abuse" by providing the structure required for a participant to become alcohol and drug free. The program is limited to non-violent addicted offenders following conviction. 11 A defendant may be directed to the program as a condition of probation following a guilty plea or as a consequence of being charged with a violation of probation.

An eligible defendant must consent to participation in the program. Upon successful ²⁸⁸ completion of the program, the participant is released from probation. The program, which requires a minimum of 20 months to complete, is divided into four phases. Participants advance through those phases by satisfying certain requirements and *³⁰¹ accomplishing certain goals.

For example, to advance from Phase I to Phase II, the participant must, among other things, attend a minimum of three support group meetings each week and have at least 30 consecutive days of clean urinalysis. (Each phase of the program includes a requirement of submitting to random urinalysis.) The program manual lists the "key team members" of the program: the judge (referred to as the team leader), the program coordinator, the prosecutor, defense counsel, case managers, and treatment providers. The program manual describes the program as a "non-adversarial, collaborative approach to treatment." It also states that, when a participant violates the program's terms and conditions, the drug court program team will discuss the mandatory sanction to be imposed for non-compliance at a status review hearing, "emphasizing a team, rather than an adversarial process." Participants receive a Participant Handbook. In addition to providing contact information for team members of the drug court program and important information concerning treatment services, testing, and housing, it also details the "menu" of sanctions for violations of the program's rules.

The menu consists of nine-page matrix that lists a range of sanctions. Most sanctions are listed according to three axes: (1) the phase of the program (I through IV); (2) the type of violation ( e.g. , positive urinalysis, failure to appear for treatment, failure to appear for community service); and (3) the number of prior violations ( i.e. , first violation, second violation, or more). Some sanctions, referred to as "overall sanctions," do not depend on the phase of the program. The menu also lists some standard sanctions regardless of phase or the number of prior violations.

The sanctions range in severity from a verbal warning to "jail" and termination from the program. The menu is not precise on the length of incarceration and refers only to "jail" or "increased length of time in jail" for some violations. 12 *³⁰² Pertinent to this appeal, the sanction for a missed urinalysis, which is treated as a positive test result ( i.e ., indicating illicit drug use), is jail, more frequent testing for two weeks, demotion to a prior phase of the program, and additional sanctions if the participant has had a prior missed or positive urinalysis. Also pertinent to this case, a participant is sanctioned if a urinalysis reveals a low creatinine level, which could be evidence of an attempt to dilute the participant's urine for purposes of evading the test. 13 The sanction for the first low creatinine result is a written warning; any subsequent low creatinine result is are treated as a positive urinalysis. The handbook advises the participant that the sanctions could be "revised at any time" and that, if so, the participant will ²⁸⁹ receive an updated handbook.

It also advises that the drug court program team may consider alternative sanctions if the participant commits multiple violations within a short period of time. If a defendant wishes to participate in the program, the defendant must execute a written agreement, as required by Maryland Rule 16-207. The "Drug Court Agreement" used in the Circuit Court's program is not so much a contract - the only parties executing the agreement are the defendant and the defendant's attorney - as a series of acknowledgments and promises by the participant. Many of the acknowledgments summarize aspects of the program; some incorporate elements of Maryland Rule 16-207.

The written agreement recites a number of the elements of the program - for example, that the program will last at least 20 months, that the participant may be required to take *³⁰³ medications and attend at least three recovery meetings every week, that the participant is subject to random alcohol and drug testing, that a failure to report for testing will result in a sanction, and that any attempt to falsify a test, including urine dilution, may result in the participant's termination from the program. In executing the agreement, the participant promises, among other things, to be on time for group meetings, appointments, and court appearances; to refrain from the use or possession of alcohol and illegal drugs and to not associate with persons who use or possess controlled substances. With respect to the imposition of sanctions, the written agreement provides: I understand that Drug Court imposes graduated sanctions for lack of compliance with program requirements, including incarceration. I have the right to request and have a formal adversarial hearing before the imposition of a sanction of incarceration or before being terminated from Drug Court.

This appears to be the only reference in the program materials concerning a right to a "formal adversarial hearing." As noted earlier, the program manual indicates the sanctions are ordinarily considered at a status review hearing, which is described as "non-adversarial." Neither the "Drug Court Agreement" nor the other materials elaborate on the nature of the "formal adversarial hearing" that is to precede a sanction of incarceration or whether (and how) it would differ from a normal status review hearing under the program. B. Facts and Proceedings 1. State v. Brookman Charges and Guilty Plea in the District Court According to the record in this case, on May 26, 2012, Ms. Brookman was initially charged in the District Court of Maryland, sitting in Montgomery County, with four counts related to the theft of jewelry and pawning of stolen jewelry: one count of theft of property valued between $10,000 and $100,000, two counts of theft of property valued between $1,000 and $10,000, and one count of conspiracy to commit *³⁰⁴ theft of property valued between $1,000 and $10,000. She was arrested on those charges on June 7, 2012.

On August 14, 2012, Ms. Brookman pled guilty to one of the theft charges concerning property valued between $1,000 and $10,000; the remaining charges were stetted by the District Court. The District Court sentenced her to 12 months incarceration, a $2,000 fine, and restitution to the victim of the theft and the pawn shop. The court suspended the fine and ten months of the period of incarceration and placed her on probation for two years, with special conditions that she pay the restitution, ²⁹⁰ refrain from any contact with the victim of the theft (her boyfriend's mother), and submit to alcohol and drug evaluation, testing, and treatment. The two months of incarceration was to begin that day with a recommendation of work release.

That same day, however, Ms. Brookman appealed her conviction to the Circuit Court for Montgomery County for a de novo trial. Appeal to Circuit Court, Guilty Plea, and Sentencing On September 14, 2012, in the Circuit Court, she again pled guilty to one count of theft involving property valued between $1,000 and $10,000. On October 22, 2012, the Circuit Court conducted a sentencing hearing focused primarily on assessing the amount of restitution. Ms. Brookman admitted that she had been addicted to oxycodone for seven years, but claimed to have overcome her addiction during the previous summer.

The Circuit Court sentenced Ms. Brookman to 12 months incarceration, which it suspended in favor of two years' probation, and ordered that she pay restitution of $4,500 to the victim. As a special condition of probation, the court directed her to stay away from the victim, to abstain from alcohol and illicit drugs, and to successfully complete a drug and alcohol evaluation and testing program. The court did not refer her to the drug court program at that time. Probation Violation and Referral to Drug Court Program On December 13, 2013, Ms. Brookman returned to the Circuit Court and admitted that she had violated her probation by virtue of a second-degree assault conviction that year. *³⁰⁵ The Circuit Court sentenced her to one-year imprisonment, again suspended, and placed her on three years' probation with various conditions.

One of those conditions was that she successfully complete the Circuit Court's drug court program. Progress in Program; Low Creatinine Test Result Various status review hearings took place in the Circuit Court over the next two years in connection with Ms. Brookman's participation in the drug court program. Although a urinalysis in July 2014 yielded a low creatinine result, she had successfully advanced to Phase III of the program by early 2016. During the week of February 22, 2016, Ms. Brookman was notified that she had received a second low creatinine result from a urinalysis test.

As indicated above, under the policies and procedures governing the drug court program, a second low creatinine test is treated as evidence of an effort to defeat testing for illicit drugs and as a "positive" test result. Moreover, drug court policies also treat any attempt to falsify a test, including by dilution, as grounds for termination from the drug court program. The Circuit Court promptly scheduled a status hearing for February 26, 2016. Hearing Concerning Program Violation and Sanction Prior to the hearing, Ms. Brookman's counsel filed a request for discovery related to the test and for the analyst who conducted the test to appear at the hearing.

At the hearing, Ms. Brookman's counsel requested a postponement in order "to review this information," to obtain input from a chemist as to the reliability of the test, and to go over the results with Ms. Brookman. Counsel noted that Ms. Brookman's test result was close to an acceptable level for creatinine, that it thus might be within the margin of error for an acceptable test, and that there was no other reason to believe that Ms. Brookman was abusing drugs at that time. The prosecutor opposed the defense requests, observed that the laboratory that conducted the test ²⁹¹ was certified, noted that the issue was not arising in the context of an alleged violation of probation ( i.e ., that Ms. Brookman was not entitled to a probation violation hearing), *³⁰⁶ and urged the court to impose the immediate sanction contemplated by the drug court program for a positive test result. The Circuit Court did not explicitly rule on Ms. Brookman's request for a postponement to present evidence to contest the test result.

Rather, the court permitted Ms. Brookman to make a statement in which she stated she did not know what caused the test result and that she desired to stay in the program. The Circuit Court then summarized briefly the drug court program policies concerning positive urinalysis test results and low creatinine test results, and imposed immediate sanctions for a positive test result. In particular, it changed Ms. Brookman's "sober date," demoted her from Phase III to Phase II of the program (which would subject her to more frequent testing and increased monitoring in the near future), and directed her to be incarcerated overnight. On March 25, 2016, Ms. Brookman filed an application for leave to appeal. 2.

State v. Carnes Guilty Plea, Sentencing, and Referral to Drug Court Program On December 30, 2013, Mr. Carnes was charged in the Circuit Court for Montgomery County with 46 counts of theft, identity fraud, credit card fraud, conspiracy, and related offenses. 14 On April 15, 2014, he pled guilty to one count of felony theft scheme involving property valued between $1,000 and $10,000, and one count of credit card identity fraud. At the guilty plea hearing, the Circuit Court was informed that Mr. Carnes had been accepted into the drug court program. *³⁰⁷ On June 11, 2014, Mr. Carnes was sentenced to 10 years incarceration for the felony theft scheme and a concurrent 18 month sentence for identity fraud, with credit for time he had already spent in custody. The terms of incarceration were suspended in favor of three years supervised probation with the condition that Mr. Carnes complete the drug court program. Mr. Carnes did not seek leave to appeal at that time.

Missed Urinalysis Approximately a year and a half later, Mr. Carnes had advanced to Phase III of the program and was working as a truck driver. Before going to work on February 17, 2016, he called the program's urinalysis phone line at 7:30 a.m. to find out whether he was required to report for a random urinalysis test that day. The list of participants to be tested that day had apparently not yet been updated and at 8 a.m. Mr. Carnes went to work, without having resolved whether he had to report for testing that day.

During the day, his truck broke down and after taking four hours to return from Cumberland to Montgomery County, he arrived home at about 1 a.m. the next morning. He called the urinalysis line at 1:30 a.m. and learned that he had in fact been selected for a random urinalysis test the previous day. He immediately called one of the drug court program staff members and reported to a testing facility at 3:00 a.m. The test result was negative for ²⁹² forbidden substances.

Later that day, he underwent full blood and urine tests, which were also negative. Hearing Concerning Program Violation and Sanction On February 26, 2016, the Circuit Court conducted a drug court status hearing concerning Mr. Carnes' failure to appear for the urinalysis test that had been randomly scheduled for February 17. At the outset, Mr. Carnes' counsel stated an intent to present evidence that Mr. Carnes did not actually miss a urinalysis after hearing "the State's evidence." The Circuit Court responded that there was "no evidentiary requirement for there to be any demonstration" by the State. What followed was essentially a proffer of the underlying facts *³⁰⁸ by defense counsel, which appeared to be accepted by the prosecutor and the court.

Based on that proffer, Mr. Carnes' counsel urged the court to regard the situation as a "late urinalysis" - for which the sanctions menu did not state any particular sanction - rather than a "missed urinalysis" and to refrain from imposing a sanction, in light of the fact that the tests on February 18 were all "clean." Counsel argued that strict application of the sanctions menu without regard to Mr. Carnes' individual circumstances would violate his right to due process. In response, the prosecutor stated that other participants who had appeared late at the testing center had been treated as having a missed urinalysis, that all participants were on notice of the sanctions menu, and that the situation could have been avoided if Mr. Carnes had called his case manager during the day before he returned to Montgomery County. In any event, the prosecutor argued, program sanctions should not be imposed on a "case-by-case" basis. The Circuit Court stated that a "bedrock and core component" of the drug court program was random urinalysis.

The court opined that it was incumbent on Mr. Carnes, after his unsuccessful effort at 7:30 a.m., to call again during the day to determine whether he had been randomly selected for testing that day. The court observed that there was no exception in the menu of sanctions for a "late urinalysis" and that Mr. Carnes was asking to be treated differently from other participants in the program. Accordingly, the court imposed the sanctions specified in the drug court program for a missed urinalysis which, as indicated above, is treated as a positive test result for illegal substance use. That sanction includes, among other things, overnight incarceration, delay of graduation date from the program, and change of sober date.

However, the court postponed the requirement of overnight incarceration so that Mr. Carnes could participate in his daughter's birthday celebration that night. On March 25, 2016, Mr. Carnes filed an application for leave to appeal. *³⁰⁹ 3. Court of Special Appeals Decision On June 6, 2016, the Court of Special Appeals granted leave to appeal for both Ms. Brookman and Mr. Carnes and consolidated the two appeals. In a published decision, the intermediate appellate court held that the hearings at which the Circuit Court imposed sanctions against Ms. Brookman and Mr. Carnes violated their rights to due process.

Accordingly, it vacated the Circuit Court's decisions and remanded both cases for further proceedings. 232 Md. App. 489 , 158 A.3d 1099 (2017). 4. Epilogue After the decision of the Court of Special Appeals, the participation of both Respondents in the drug court program was ²⁹³ terminated, although with different results. On May 17, 2017, the Circuit Court closed Mr. Carnes' probation satisfactorily and recognized him as a "successful graduate" of the drug court program. On May 25, 2017, the Circuit Court closed Ms. Brookman's probation unsatisfactorily and terminated her participation in the drug court program as "unsuccessful." We granted the State's petition for a writ of certiorari and the joint cross-petition of Ms. Brookman and Mr. Carnes. 15 *³¹⁰ II Discussion There are two questions before us, one procedural and one substantive: (1) Is there appellate jurisdiction?

(2) If so, did the process followed by the Circuit Court in imposing sanctions in these cases violate the due process guarantees of the Maryland and federal constitutions? A. Whether There is Appellate Jurisdiction The threshold question is whether there is appellate jurisdiction of this case. Both Ms. Brookman and Mr. Carnes filed applications for leave to appeal, which were granted by the Court of Special Appeals. Before us, they now take the position that at least some sanctions imposed by a circuit court pursuant to a drug court program - including those imposed in these two cases - constitute a final judgment from which a defendant has a right of appeal that does not depend on the exercise of discretion by the Court of Special Appeals.

The State has argued consistently that a participant in a drug court program has no right of appeal , even by application for leave to appeal, from the imposition of sanctions by the Circuit Court. It is often said that appellate jurisdiction is entirely statutory. E.g. , Seward v. State , 446 Md. 171 , 176, 130 A.3d 478 (2016). The General Assembly has provided that, in a criminal case, a defendant has a right of appeal from a "final judgment" entered by a circuit court.

Maryland Code, Courts & Judicial Proceedings Article ("CJ"), § 12-301. The defendant has such a right even though imposition or execution of sentence has been suspended. Id. A "final judgment" is defined in statute, somewhat circularly, as one "from which an appeal, application for leave to appeal, or petition for certiorari may be taken." CJ § 12-101(f).

As a result, the Legislature has generally left it to this Court to define the contours of a "final judgment." *³¹¹ Metro Maintenance Systems South, Inc. v. Milburn , 442 Md. 289 , 297, 112 A.3d 429 (2015). This Court has described a "final judgment" as: one that either determines and concludes the rights of the parties involved ²⁹⁴ or denies a party the means to prosecute or defend his or her rights and interests in the subject matter of the proceeding. Important is whether any further order is to be issued or whether any further action is to be taken in the case. Douglas v. State , 423 Md. 156 , 171, 31 A.3d 250 (2011) (citations, quotation marks, and related editing marks omitted).

The Court has sometimes reduced this formula to a shorthand phrase: a final judgment is one that "puts a party out of court." Metro Maintenance , 442 Md. at 299 , 112 A.3d 429 . For many years, this Court consistently held that an order revoking probation and reinstating a previously suspended sentence of incarceration was an appealable final judgment. See Kupfer v. State , 287 Md. 540 , 542-43, 414 A.2d 907 (1980) (collecting cases). In 1980, this Court extended that holding to an order modifying and extending the period of probation based on a finding that the defendant had violated the conditions of probation.

Id. ; see also Maus v. State , 311 Md. 85 , 532 A.2d 1066 (1987) (probation revocation as a result of defendant's admission of violation appealable as final judgment). In 1991, the Legislature limited appeals as of right from orders revoking probation. Chapter 240, Laws of Maryland 1991, codified at CJ § 12-302(g). 16 As a result, appellate review of a *³¹² probation revocation order may be sought only by filing an application for leave to appeal. Id.

Respondents concede that ordinarily sanctions imposed in connection with a drug court program are not final judgments as no court action is involved. However, they argue that the sanctions imposed in their cases fit the definition of final judgment because the imposition of immediate incarceration "left no doubt" that the court had finally resolved their alleged violations of the program's rules. In response, the State analogizes these cases to the situation in Fuller v. State , 397 Md. 372 , 918 A.2d 453 (2007). In Fuller , an inmate petitioned a circuit court for commitment to a substance abuse program as permitted by statute.

When the circuit court denied the petition, the inmate sought to appeal that decision. This Court held that the circuit court's decision was not appealable, either as a final judgment or under the collateral order doctrine, largely on the basis that such a petition could be repeatedly filed under the statute - thereby rendering a denial non-final - and that the Legislature had not provided for an appeal from a denial in that statute. The State attempts to draw an analogy of the statute in Fuller to Rule 16-207, which also contains no reference to an appeal. Of course, there is a critical ²⁹⁵ difference between a statute - which may confer or restrict a right of appeal - and a court rule which, although it can create an appellate process, cannot enlarge or reduce a court's appellate jurisdiction.

We find neither position persuasive. As the Court of Special Appeals indicated, the right to file an application or leave to appeal under CJ § 12-302(g) seems a "better fit" for these cases. 232 Md. App. at 501 -2 , 158 A.3d 1099 . In our view, the sanction of immediate incarceration equates to a partial revocation *³¹³ of probation. 17 Defendants such as Ms. Brookman and Mr. Carnes participate in the drug court program as a condition of probation following an adjudication of guilt - in their cases, as a result of a guilty plea. Apart from setting conditions of release, imposing sentence, or exercising its contempt power (which is not implicated in these cases), the Circuit Court has no free-floating power to incarcerate - or to require an individual to participate in a drug program.

The imposition of the sanction of incarceration is rooted in the court's authority to revoke probation and require a defendant to serve a suspended sentence of imprisonment. See DiMeglio v. State , 201 Md. App. 287 , 305, 29 A.3d 663 (2011) (equating sanction imposed under drug court program with sanction for violation of probation in the context of considering alleged double jeopardy issue). Rule 16-207 recognizes the relationship between a suspended sentence of imprisonment and a program sanction of incarceration by providing for credit against any period of imprisonment to be served by a participant who is terminated from a program. Maryland Rule 16-207(g).

Finally, we note that, when this Court upheld the fundamental jurisdiction of a circuit court implementing a drug court program in Brown , supra , it relied on the fact that the "drug court" was in essence a division of the circuit court and that any alleged violations of constitutional guarantees in that court could be resolved through the usual mechanisms of appellate review and prerogative writs. While the Brown court did not delve into the precise scope of appellate jurisdiction, its rejection of a constitutional challenge to a drug court program was premised on the availability of the "usual mechanisms" of appellate review. 18 *³¹⁴ Thus, we agree with the Court of Special Appeals that, to the extent that appellate review of a sanction under a drug court program is available, it must be pursued by application for leave to appeal pursuant to CJ § 12-302(g). We hold that such an application may be filed when a Circuit Court imposes a sanction of immediate incarceration pursuant to a drug court program that a defendant participates in as a condition of probation. 19 ²⁹⁶ B. Whether Hearings Conducted by the Circuit Court Complied with the Requirements of Due Process Respondents assert that the hearings at which they were sanctioned in the Circuit Court violated their due process rights in two ways: (1) the court concluded that they had committed a violation without permitting them to contest the fact of a violation and (2) the court imposed a pre-fixed sanction from the sanctions menu without considering their individual circumstances. As this Court recognized in Brown, supra , a drug court program like the Montgomery County Adult Drug Court is essentially a division of the circuit court.

Its coercive powers, such as its power to incarcerate, derive from powers a circuit court has under the criminal law. Those powers must be exercised in accordance with due process. The drug court program of the Circuit Court is rooted in that court's authority *³¹⁵ to set conditions of probation. Both Ms. Brookman and Mr. Carnes were adjudicated guilty of criminal charges as a result of guilty pleas.

In both cases the Circuit Court imposed a sentence that included a period of probation. A special condition of that probation - set only after the court had determined that they were eligible for the drug court program - was that they successfully complete the drug court program. 20 It was similar to other conditions of probation in requiring the defendant to participate in a program designed to alleviate a root cause of their criminal activity. It was different from other programs in that the drug court program operates under the auspices and authority of the Circuit Court in accordance with Maryland Rule 16-207. That difference means that the program has the advantage of employing judicial powers to accomplish its ends; it also means that those powers must be employed in accordance with the constraints set by rule, statute, and constitution.

Because a revocation of probation may result in a loss of liberty, due process requires that an individual on probation have an opportunity for a hearing having certain components before the probation is revoked. Gagnon v. Scarpelli , 411 U.S. 778 , 782, 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973) ; cf. Morrissey v. Brewer , 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) (parole revocation hearing must satisfy certain standards of due process). In particular, the minimum requirements for a hearing concerning revocation of probation must include at least the following elements: (1) written notice of the alleged violation; (2) disclosure of the evidence on which the alleged violation is based; (3) an opportunity to be heard and to present witnesses and documentary evidence; (4) an opportunity to confront and cross-examine adverse witnesses. *³¹⁶ Gagnon , 411 U.S. at 786 , 93 S.Ct. 1756 ; see also Maryland Rule 4-347(e) (incorporating due process requirements in rule governing hearings on revocation of probation). These protections are necessary because, as the Supreme Court explained: ²⁹⁷ "Both the probationer ... and the State have interests in the accurate finding of fact and the informed use of discretion - the probationer ... to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community." Gagnon , 411 U.S. at 785 , 93 S.Ct. 1756 .

As Respondents concede, due process does not require that such a hearing be conducted under the formal rules of evidence. Rule 16-207 recognizes the need to provide such due process protections when a sanction imposed as part of a drug court program threatens a loss of liberty. The rule provides, in pertinent part: ...if the participant is considered for the imposition of a sanction involving the loss of liberty or termination from the program, the participant shall be afforded notice, an opportunity to be heard, and the right to be represented by an attorney before the court makes its decision. Maryland Rule 16-207(f). 21 The rule goes on to provide that, in the case of a criminal defendant who appears without counsel at such a hearing, the court is to follow the procedures set forth in Maryland Rule 4-215 for appointing, or finding a waiver of, counsel.

This provision is thus clearly applicable when a court considers the imposition of a sanction of incarceration in a drug court program. As noted earlier, the "Drug Court Agreement" used in the Circuit Court's program implicitly promises a participant the *³¹⁷ right to a "formal adversarial hearing" before the imposition of a sanction of incarceration or termination from the program. The "formal adversarial hearing" is not described elsewhere in the program materials and it is not clear how such a hearing differs from a typical status review hearing under the program. Presumably it encompasses at least the advance notice, the opportunity to be heard, and the assistance of counsel required by Maryland Rule 16-407(f).

Our review of the transcripts of the sanction hearings in these cases reveals that they were adversarial in some sense. Although the prosecutors and defense counsel may have been considered members of the same drug court "team," they certainly expressed opposing views concerning the process to be followed at the hearings and the sanctions to be imposed. In addition, in both cases there was notice of the alleged violation, representation by counsel, and an opportunity for the participant or counsel to present his or her position to the Circuit Court concerning the alleged violation and proposed sanction. In our view, however, the hearings fell short of the requirements of due process.

An "opportunity to be heard" is meaningless if the result is pre-ordained regardless of what the decision maker hears. As the Supreme Court explained, due process advances the interests in accurate factfinding and "the informed use of [judicial] discretion." In these cases, the Circuit Court, undoubtedly motivated by a desire to uphold the protocols of the program, in one case did not consider a request to contest the accuracy of the fact of a violation and, in the other, disclaimed "the informed use of [judicial] discretion" in determining the sanction. In Ms. Brookman's case, the Circuit Court essentially assumed that the ²⁹⁸ factual predicate of a program violation was met and allowed no opportunity for Ms. Brookman's counsel to review the urinalysis test result with an expert and possibly present evidence negating the finding of a program violation before it imposed a sanction of incarceration. It might well be that the court, after giving Ms. Brookman's counsel such an *³¹⁸ opportunity and considering whatever evidence or argument Ms. Brookman ultimately provided, would still have concluded that the test result was sufficiently indicative of an effort to evade the urinalysis test.

But counsel was entitled to an opportunity to change the judicial mind and persuade it that scientific evidence would bear on the court's decision. This is not to say that someone in Ms. Brookman's position would always be entitled to a postponement or to present any evidence that participant desired. But, in Ms. Brookman's case, the court never addressed her request at all, but proceeded directly to imposing sanctions. Mr. Carnes' case is less problematic in that respect, as the process by which the factual predicate was established was as favorable to him as he could expect. 22 While the Circuit Court did not require the State to formally present evidence that Mr. Carnes had failed to appear for a random urinalysis on February 17, his absence from the testing facility on that date was uncontested and could likely have been proven through documentary evidence from the testing facility.

The court permitted Mr. Carnes' counsel to proffer his mitigating evidence without subjecting Mr. Carnes to cross-examination. He could hardly have hoped for more favorable presentation of the factual predicate at a full-blown mini-trial. The problem in Mr. Carnes' case was that the Circuit Court appeared to believe that the program had relieved the court of its discretion to take into account those mitigating circumstances and to refrain from incarcerating Mr. Carnes. A judge who presides over a drug court program may be a "team member," but the judge does not relinquish the discretion conferred on judges by statute and rule to the program's sanctions menu.

This is not to say that the court should have *³¹⁹ imposed a different sanction or no sanction - just that it failed to recognize that it had those options. C. Whether the Therapeutic Benefits of a Drug Court Program Justify a Limit on Due Process Protections and Appellate Rights The Dissenting Opinion discounts the requirements of due process and appellate rights in light of the potential therapeutic aspects of the drug court program. 23 The ²⁹⁹ Dissenting Opinion does not indicate what, if any, limits it would place on the authority of a trial court to use incarceration as an intermediate sanction in a drug court program without the possibility of *³²⁰ appellate review. Although the Petitioners in these cases suffered only overnight incarceration, the sanctions menu provides for longer periods of incarceration ("Thursday-Sunday" and "increased length of time in jail"). The Dissenting Opinion suggests no standard for any limits on the use of jail as an intermediate sanction - three days? one week?

What if the judge presiding over the drug court program decides that it is in the participant's therapeutic interest to be jailed for a month to avoid bad influences on the street? The Dissenting Opinion would not preclude such a sanction. And if the court neglects to hold the hearing required by Rule 16-207 or otherwise violates the due process rights of the participant in the course of ordering incarceration, that error would escape review because, under the Dissenting Opinion's approach, the imposition of such a sanction is not appealable, unless the court later revoked probation. 24 A recent federal appellate court decision demonstrates that these concerns are not theoretical. See Hoffman v. Knoebel , 894 F.3d 836 (7th Cir. 2018).

That case concerned a drug court program administered by an Indiana state trial court. As recounted in that decision, the basic parameters of the drug court program were similar to those of the Montgomery County Adult Drug Court. 894 F.3d at 837 . The program allowed for the "drug court" to impose various types of intermediate sanctions to encourage compliance with the program requirements. Id.

Indiana law provided specific due process protections if incarceration were contemplated as an *³²¹ intermediate sanction - protections that were spelled out in greater detail than in our Rule 16-207. 25 Id. at 832. ³⁰⁰ Beginning in 2012, however, the program, in the words of the Seventh Circuit, "went seriously awry." Id. at 840. Participants were jailed as an intermediate sanction for as long as 220 days, and sanctions were imposed without the due process protections specified by state law. When the abuses came to light and a number of the participants filed a federal civil rights class action, the Indiana Supreme Court shut down the drug court program. Id. at 839.

Had an appeal process been in place to review alleged violations of the due process rights of participants as they occurred, it seems unlikely that the drug court program would have proceeded that far off the rails. The plaintiffs in Hoffman had been jailed for lengthy periods for a variety of violations of the drug court program - failed or diluted drug tests, missed status hearings, and instances of drug or alcohol use - without the benefit of due process. Id. at 840 . The federal district court characterized it as a "wholly indefensible system." Id.

The Seventh Circuit concluded that "[w]e have no doubt that the plaintiffs' constitutional rights were violated during their time as participants in the [drug court program]." Id. at 845 . However, it held that the particular defendants in the case - a case manager, a probation officer, a court bailiff, and the sheriff's department - had no supervisory authority over the judge in charge of the drug court program and, in part for that reason, were not responsible for the plaintiffs' constitutional injuries. Id. at 843 . We may be heartened that, so far as we know, nothing like the Indiana experience recounted in Hoffman has happened in problem-solving courts in Maryland.

But the lesson from the Indiana experience is that the promise of due process protections in a rule or statute may be of little comfort without the availability of an appellate process to review whether that *³²² promise is kept. As this Court noted in Brown , Maryland law provides such a process. 26 III Conclusion For the reasons set forth above, we hold: (1) When a Circuit Court administering a drug court program under Maryland Rule 16-207 imposes an immediate sanction of incarceration for a program violation by a participant, the participant may seek appellate review of that decision by filing an application for leave to appeal. (2) When a Circuit Court administering a drug court program under Maryland Rule 16-207 considers the imposition of a sanction involving the loss of liberty or termination from the program, it must provide certain minimum due process protections as set forth in Rule 16-207(f), including notice, an opportunity to be heard, and the right to representation by counsel. The constitutional guarantee of procedural due process also requires that a ³⁰¹ defendant have the opportunity to confront and contest adverse evidence and the opportunity to have the court consider factors that mitigate against a sanction of incarceration in the particular case.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY MONTGOMERY COUNTY . Hotten and Getty, JJ. concur. Greene, Adkins, and Watts, JJ., dissent.

Concurring Opinion by Getty, J., which Hotten, J. joins. *³²³ Respectfully, I concur with the judgment of the Majority, but write separately to set forth my view of the required procedural due process in drug court proceedings. The majority opinion concludes that the proceedings in these two cases fell short of the required due process protections, comparing drug court to a revocation of parole or probation. In contrast, the dissent opines that the proceedings below complied with due process because the drug court participants were afforded the limited protections outlined in Maryland Rule 16-207(f). However, in my view, this Court should rely on the significant and long-standing jurisprudence that due process protections are based on the specific circumstances of the proceeding.

In Morrissey v. Brewer , the Supreme Court analyzed whether due process protections apply in parole revocations. 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972). Pertinent to the issue before this Court, the Supreme Court stated that the "question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment." Id. at 481 , 92 S.Ct. 2593 . The Supreme Court further explained that "[o]nce it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands ." Id.

(Emphasis added). Pursuant to that principle, the Supreme Court considered the interests of the State in revocation of parole, the stages of the parole revocation, and the nature of revocation of parole proceedings. Ultimately, the Supreme Court held that the minimum requirements for due process in the context of revocation of probation include: (1) written notice of the claimed violations of parole; (2) disclosure to the parolee of evidence against him; (3) opportunity to be heard in person and present witnesses and evidence; (4) a *³²⁴ neutral and detached hearing body; and (5) a written statement of evidence and reasoning by the factfinders. Id. at 488-489 , 92 S.Ct. 2593 .

I agree with the majority that certain drug court sanctions, including incarceration and termination from the program, deprives drug court participants of liberty and property interests protected by the Fourteenth Amendment. However, I disagree that this Court should require the same due process protections for Maryland drug court as the Supreme Court found applicable to revocation of parole or probation. Maryland has similarly held that "[n]o particular procedure is required in all cases. 'On the contrary, due process is flexible and calls only for such procedural protections as the particular situation demands. Procedures adequate under one set of facts may not be sufficient in a different situation .' " Miserandino v. Resort Properties, Inc. , 345 Md. 43 , 52, 691 A.2d 208 (1997) (emphasis added) (quoting Department of Transportation v. Armacost, 299 Md. 392 , 416, 474 A.2d 191 (1984) ).

This ³⁰² Court has further indicated that the "minimum requirements of procedural due process are 'notice and opportunity for hearing appropriate to the nature of the case.' " State v. Cates , 417 Md. 678 , 698, 12 A.3d 116 (2011) (quoting Canaj, Inc. v. Baker & Div. Phase III, 391 Md. 374 , 424, 893 A.2d 1067 (2006) ). Just as this Court has determined notice and an opportunity to be heard constitute the minimum due process protections in a majority of circumstances, the Rules Committee similarly concluded that the minimum due process protections for drug court sanctions involving loss of liberty or termination include "notice, an opportunity to be heard, and the right to be represented by an attorney before the court makes its decision." Md. Rule 16-207(f). However, this does not necessarily end the due process analysis.

Instead, a drug court judge should also consider the unique characteristics of these problem-solving courts as well as the specific circumstances of the individual proceeding to determine whether additional due process protections should be afforded to the participant. *³²⁵ First and foremost, a drug court judge cannot ignore that participation in drug court is voluntary. Specifically, Maryland Rule 16-207(e) requires a defendant to sign a written agreement under which he or she commits to the drug court program requirements, protocols, possible sanctions, and any waived rights. A defendant is also able to obtain advice of counsel before entering into the drug court agreement. See Md. Rule 16-207(e)(1).

Furthermore, a drug court is also required to examine the prospective participant on the record in order to confirm that the defendant understands the agreement and is knowingly and voluntarily entering into the drug court participation agreement. Md. Rule 16-207(e)(2). A drug court participant is also free to voluntarily leave the drug court treatment program, resulting in an automatic violation of probation. Therefore, it is ultimately the defendant's choice whether or not to participate in a Maryland drug court treatment program and to accept all of the possible sanctions of that program.

The voluntary nature of drug court should most certainly be a factor in the procedural due process analysis. When a defendant chooses to sign the drug court written agreement, the participant must specifically acknowledge and agree to two pertinent characteristics of drug court: (1) the program is a non-adversarial and collaborative treatment approach; and (2) the program permits immediate sanctions for lack of compliance with the program. These features will also be an important factor in the drug court judge's due process protections analysis. These problem-solving courts employ a "team" approach in which the judge, prosecuting attorney, defense counsel, drug court case manager, probation officer, and counselors work together as a team rather than in their traditional roles of the adversary system.

See Andrew Fulkerson, How Much Process is Due in the Drug Court?, 48 CRIM. LAW BULLETIN 655, 658 (2012). This collaborative nature often involves meetings between drug court judges, the prosecuting attorney, defense counsel, and other team members prior to status review hearings in order to determine what sanction will be appropriate *³²⁶ for certain participants and certain violations. Both of the drug court participants in the cases before this Court participated in the Montgomery County Drug Court.

The drug court handbook for the Circuit Court for Montgomery County, which both Ms. Brookman and Mr. Carnes agreed to review under the terms of their participation agreement, outlines that the "Drug Court Team will discuss the mandatory sanction to be imposed ³⁰³ for non-compliance, emphasizing a team, rather than an adversarial process." On the one hand, a drug court judge may very well find that this collaborative approach weighs in favor of less procedural due process protections because the drug court participant knew and accepted this characteristic of the program. On the other hand, when a drug court judge learns of evidence that the team did not know or discuss prior to the status review hearing, the judge may conclude that more procedural due process protections are appropriate. The Circuit Court for Montgomery County drug court handbook also specifically emphasizes the need for sanctions to be imposed in a rapid and swift fashion in order to provide an incentive for drug court participants to modify negative behaviors. Indeed, as the dissent properly highlights, these problem-solving courts are successful in large part due to the potential for immediate consequences as a result of noncompliance.

See Md. Rule 16-207(f). The need for an immediate sanction to preserve the effectiveness of the drug court as well as the fact that the participant knew and agreed to swift sanctions will likely weigh against additional procedural due process protections. In addition to the overall characteristics of these problem-solving courts, a drug court judge should also consider the specific circumstances of the proceeding to determine if more procedural due process than the minimum under Maryland Rule 16-207(f) is required. For example, if the drug court team becomes aware that a certain participant violated the program for the first time and the prosecuting attorney requests a sanction of three nights of incarceration or termination from *³²⁷ the program, a drug court judge may very well find it necessary to afford the drug court participant: notice; an opportunity to postpone the hearing; an opportunity to create a strategy of defense with counsel; an opportunity to obtain more evidence; an opportunity to present documents as evidence; and, an opportunity to call witnesses.

In the alternative, if the proposed drug court sanction is simply overnight incarceration for a third-time violator, a drug court judge may find it prudent simply to provide the participant with notice, an opportunity to explain himself or herself, as well as an opportunity to be represented by counsel during the short hearing. Just as in all procedural due process analyses, the drug court should be given the chance to consider the specific circumstances of the case and determine the appropriate due process protections. Ultimately, I agree with the majority that the proceedings in the two cases below fell short of the minimum due process protections outlined in Maryland Rule 16-207(f). However, I emphasize that the required procedural due process for drug courts should not be viewed under the lens of a different type of proceeding.

It would be illogical to require drug court judges and drug court teams on the front line of the battle against the opioid crisis in this State to meet the same procedural due process requirements for revocation of parole, which results from a violation of mandatory parole conditions. Instead, the voluntary, collaborative, and swift nature of the drug court treatment program will be an inherent consideration for a drug court judge faced with the question of what procedural due process is required. Drug court judges should also be granted deference to determine what if any additional due process protections beyond the minimum afforded under Maryland Rule 16-207(f) are appropriate given the circumstances of the specific proceeding, including the alleged violation, the ³⁰⁴ proposed sanction, and the drug court participant's history in the program. The majority is also correct in holding that drug court participants have the right to file an application for leave to *³²⁸ appeal after a drug court judge imposes a sanction of immediate incarceration.

A drug court judge's analysis of the required procedural due process prior to the imposition of certain sanctions would be rendered unreviewable if there was no right to file an application for leave to appeal. Indeed, the Court of Special Appeals can deny a drug court participant's appeal application if that court believes the drug court judge properly applied the minimum procedural due process requirements under Maryland Rule 16-207(f) and correctly determined whether additional due process protections were necessary. Judge Hotten has authorized me to state that she joins this concurring opinion. Dissenting Opinion by Greene, J., which Adkins and Watts, JJ., join.

Respectfully, I dissent. Although this case presents to the Court the issue of due process, the question at the heart of this case is how much process is due to participants in diversionary proceedings related to substance abuse rehabilitation. Crystal Brookman and Marvin Randy Carnes (collectively "Respondents") pleaded guilty to criminal charges brought against them in the Circuit Court for Montgomery County. As a part of their probation, Respondents qualified for the Montgomery County Adult Drug Court program ("Drug Court"), and Respondents agreed to successfully complete that program as a condition of their probation.

In 2016, Respondents failed to comply with the requirements of Drug Court, and, following hearings on the alleged infractions, the judges who presided over their respective