State v. Callahan

WATTS, J. We decide: (I) whether a probation agent’s instruction to comply with a condition of mandatory supervision creates a condition of probation that is outside the ambit of the standard condition of probation to obey the probation agent’s lawful instructions; and (II) whether such an instruction is inconsistent with the separation of powers doctrine. We hold that: (I) a probation agent’s instruction to comply with a condition of mandatory supervision does not create a condition of probation that is outside the ambit of the standard condition of probation to obey the probation agent’s lawful instructions; and (II) such an instruction is not inconsistent with the separation of powers doctrine. BACKGROUND The State, Petitioner/Cross-Respondent, charged Charles William Callahan (“Callahan”), Respondent/Cross-Petitioner, with first-degree rape and other crimes that arose out of the abduction of a three-year-old child. On August 7, 1995, Callahan pled guilty to kidnapping and third-degree sexual offense.

On September 11, 1995, the Circuit Court for Anne Arundel County (“the circuit court”) sentenced Callahan to twenty-five years’ imprisonment, with all but twenty years suspended, for kidnapping, and ten years’ imprisonment concurrent for third-degree sexual offense, followed by five years of probation. On that date, Callahan signed an order of probation, in which he ²²⁴ agreed to, among other conditions: “1. Report to [his] Probation Agent as directed and follow his/her lawful instructions[.]” 1 On or about March 4, 2009, Callahan was released from imprisonment early under mandatory supervision. 2 On March 4, 2009, Callahan signed a “Mandatory Supervision Release Certificate,” in which he agreed to, among other “special conditions”: “Comply as directed by [his] parole/probation agent with the Division of Parole and Probation’s sexual offender management program, which may include ... polygraph testing[.]” On or about July 1, 2011, Agent Marsha Briley-Mays (“Agent Briley-Mays”) of the State’s Division of Parole and Probation in its Department of Public Safety and Correctional Services became both Callahan’s probation agent and his mandatory supervision agent. On August 2, 2011, Agent Briley-Mays gave Callahan a letter that stated: “[Y]ou are scheduled for a polygraph examination on August 8, 2011 at 10 a[.]m.....Please adjust your schedule to ensure your presence ____Failure to report may result in a Violation of Probation[.]” (Emphasis omitted).

Callahan failed to report for the polygraph examination. 3 Agent Briley-Mays requested a warrant and prepared a “Statement of Charges” in which she stated that Callahan violated the condition of probation: “1. Report to your Probation Agent as directed and follow his/her lawful instructions.” ²²⁵ On October 24, 2011, the circuit court conducted a hearing at which Agent Briley-Mays testified. The circuit court determined that Callahan violated the order of probation by violating the condition of probation: “1. Report to your Probation Agent as directed and follow his/her lawful instructions.” On December 5, 2011, the circuit court ordered that Callahan serve the balance of his sentence.

Callahan applied for leave to appeal, and the Court of Special Appeals granted the application and reversed, holding that the circuit court erred in determining that Callahan violated the order of probation. See Callahan v. State, 215 Md.App. 146, 160 , 79 A.3d 967, 976 (2013). Specifically, the Court of Special Appeals concluded that Agent Briley-Mays’s instruction to report for a polygraph examination created “a new, more onerous condition [of probation] that was not fairly within the ambit of those laid down by the [sentencing] court.... To hold otherwise ... would clearly be contrary to the separation of powers doctrine[.]” Id. at 159-60 , 79 A.3d at 975-76 (citation and internal quotation marks omitted).

The State petitioned for a writ of certiorari, raising one issue: Whether the Court of Special Appeals was correct in concluding “that the circuit court violated the doctrine of the separation of powers” in determining that Callahan violated the order of probation. Callahan conditionally cross-petitioned for a writ of certiorari, raising one issue: Whether the Court of Special Appeals was correct in concluding that the circuit court erred in determining that Callahan violated the order of probation because Agent Briley-Mays’s instruction created “a new, more onerous condition [of probation] that was not fairly within the ambit of those laid down by the [sentencing] court[.]” This Court granted the petition and the conditional cross-petition. See State v. Callahan, 437 Md. 422 , 86 A.3d 1274 (2014). 4 ²²⁶ DISCUSSION I. Callahan contends that the circuit court erred in determining that he violated the order of probation because Agent Briley-Mays’s instruction to comply with a condition of mandatory supervision created a new, more onerous condition of probation that was outside the ambit of the condition of probation to obey Agent Briley-Mays’s lawful instructions. 5 Specifically, Callahan argues that Agent Briley-Mays lacked the authority to instruct Callahan to comply with a condition of mandatory supervision, as the condition of probation to obey Agent Briley-Mays’s lawful instructions related only to implementing the other conditions of probation. The State responds that Agent Briley-Mays’s instruction did not create a new, more onerous condition of probation that was outside the ambit of the condition of probation to obey Agent BrileyMays’s lawful instructions because Callahan agreed, and was legally required, to comply with conditions of mandatory supervision and obey Agent Briley-Mays’s lawful instructions.

Generally, an appellate court reviews for clear error a trial court’s determination that a probationer violated an order of probation. See Hammonds v. State, 436 Md. 22, 32 , 80 A.3d 698, 704 (2013). That said, where (as here) the facts are undisputed—and thus, whether the probationer violated the order of probation is a purely legal issue—the appellate court reviews without deference the trial court’s determination ²²⁷ that the probationer violated the order of probation. See generally Fuster v. State, 437 Md. 653, 671 , 89 A.3d 1114, 1124 (2014) (“We review de novo the trial court’s relation of facts to the applicable law.” (Brackets, citation, ellipsis, and internal quotation marks omitted)).

In Hudgins v. State, 292 Md. 342, 348 , 438 A.2d 928, 931 (1982), this Court stated: [Frequently, the nature of the probationary penalty is such that the circumstances of a case ... 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. (Footnote omitted); see also Edwards v. State, 67 Md.App. 276, 281 , 507 A.2d 212, 215 (1986) (A probation authority cannot “impose new, more onerous conditions of its own that are not fairly within the ambit of those laid down by the [sentencing] court.”); Watson v. State, 17 Md.App. 263, 274 , 301 A.2d 26, 31-32 , cert. denied, 268 Md. 754 (1973) (“[Conditions [of probation] must be clear, definite and capable of being properly comprehended and understood not only by the [probationer,] but [also] by” the probation authority. (Citation omitted)).

For example, the Court of Special Appeals has held that trial courts erred in determining that probationers violated orders of probation: where an order of probation required a probationer to pay fines and costs by a particular deadline, and a probation authority instructed the probationer to pay in full before the deadline, see Edwards, 67 Md.App. at 281-82 , 507 A.2d at 215-16 ; where an order of probation required a probationer to obey his probation agent’s lawful instructions, and his probation agent instructed him to enter drug treatment, see Costa v. State, 58 Md.App. 474, 484, 483 , 473 A.2d 942, 947 (1984); and where an order of probation required a ²²⁸ probationer to “conform to all rules of conduct imposed by [her] probation agent[,]” and her probation agent instructed her to enter drug treatment, see Phelps v. State, 17 Md.App. 341, 344, 343 , 303 A.2d 430, 432, 431 (1973). By contrast, in Hudgins, 292 Md. at 349, 347 , 438 A.2d at 930-31 , this Court rejected a probationer’s argument that a condition of probation “to ‘cooperate with the Maryland State Police in tracking down criminals’ was too vague to be enforceable[.]” Instead of concluding that the condition of probation was per se unenforceable, this Court remanded to the trial court with directions to find “what reasonable, specific instructions, if any, were given [to] the probationer by the police and his cooperation or failure to do so[.]” Id. at 349 , 438 A.2d at 931 . 6 Upon review of the applicable authorities and careful consideration of the issue, we conclude that a probation agent’s instruction to comply with a condition of mandatory supervision does not create a new, more onerous condition of probation that is outside the ambit of a condition of probation to obey the probation agent’s lawful instructions. Such an instruction is clearly lawful, as the probation agent simply instructs the probationer to do what the probationer has already agreed, and is legally required, to do. In other words, a probation agent’s instruction to comply with a condition of mandatory supervision does not require a probationer to do anything more than what the probationer is already obligated to do.

Because complying with a condition of mandatory supervision benefits the probationer by maintaining his or her early release from imprisonment on conditions with which the probationer has agreed to comply, a probation agent’s instruction to comply with a condition of mandatory supervision is far from onerous. ²²⁹ A condition of probation requiring a probationer to obey a probation agent’s lawful instructions is “clear, definite and capable of being properly comprehended and understood not only by the [probationer,] but [also] by” the probation agent. Watson, 17 Md.App. at 274 , 301 A.2d at 31-32 . In imposing a suspended sentence and probation, a sentencing court obviously contemplates that, if/when the probationer is released from imprisonment early under mandatory supervision, the probationer will comply with the conditions of mandatory supervision while in the community. Probation and mandatory supervision share many characteristics.

As is the case here, probation and mandatory supervision often both arise from the commission of the same crime; are both generally conditioned on the probationer’s proper behavior in the community; and often share several identical conditions, 7 thus allowing one act or omission to be both a violation of a condition of probation and a violation of a condition of mandatory supervision. Thus, it is not a stretch of reasoning at all to conclude that a sentencing court contemplates that a probationer would obey a probation agent’s lawful instruction to comply with a condition of mandatory supervision. Callahan takes the position that a probationer may disobey a probation agent’s instruction to comply with a condition of mandatory supervision because the condition of probation to obey a probation agent’s lawful instructions allegedly relates only to implementing the other conditions of probation. This Court’s precedent, however, contradicts Callahan’s contention—which is essentially that a probation agent’s instruction is outside the ambit of a condition of probation unless the condition of probation spells out in exact ²³⁰ terms the probation agent’s ability to give the instruction or the instruction is related to a specific condition of probation.

This Court has never required such an extreme level of specificity in an order of probation; to the contrary, this Court has recognized that, “frequently, the nature of the probationary penalty is such that the circumstances of a case ... render it desirable, or perhaps necessary, that the condition of probation be expressed in somewhat general terms.” Hudgins, 292 Md. at 348 , 438 A.2d at 931 . Accordingly, in Hudgins, id. at 349, 347, 438 A.2d at 931, 930 , this Court rejected a probationer’s argument that a condition of probation “to ‘cooperate with the Maryland State Police in tracking down criminals’ was [per se ] too vague to be enforceable!]]” In doing so, this Court determined that an order of probation need not spell out in exact terms a probation agent’s ability to give an instruction; instead, an order of probation may allow a probation agent a degree of latitude in enforcing a general condition of probation. See id. at 348 , 438 A.2d at 931 (“[A] general [condition of probation] 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.” (Footnote omitted)). We are unpersuaded by Callahan’s reliance on Edwards, 67 Md.App. 276 , 507 A.2d 212 , Costa, 58 Md.App. 474 , 473 A.2d 942 , and Phelps, 17 Md.App. 341 , 303 A.2d 430 , for the contention that a probation agent’s instruction to comply with a condition of mandatory supervision creates a new, more onerous condition of probation that is outside the ambit of a condition of probation to obey the probation agent’s lawful instructions.

In Edwards, Costa, and Phelps , probation agents unilaterally invented conditions of probation with which the probationers had not agreed, and with which they had not been legally required to comply in exchange for their early releases from imprisonment; in none of these three cases had a probationer been released from imprisonment early on parole or under mandatory supervision. By contrast, where a ²³¹ probationer is released from imprisonment early under mandatory supervision, the probationer agrees, and is legally required to comply, with conditions of mandatory supervision in exchange for his or her early release from imprisonment. Under such a circumstance, a probation agent does not unilaterally invent a condition of probation by instructing the probationer