Turner v. State

COLE, Judge. In this case, we are asked to determine whether a court may revoke a defendant’s probation on the ground that he failed to pay court costs. ⁶²⁰ We summarize the facts as follows. On January 5, 1983, appellant, Frank A. Turner, pleaded guilty to one count of robbery with a deadly weapon and was sentenced to five years supervised probation. As one of the conditions of Turner’s probation, he was required to pay court costs of $135.00 by May 4, 1983.

Between March 4, and August 16, 1983, Turner made payments totalling $75.00. Thereafter, he made no payments. He was charged with violating the terms of his probation and was tried in the Circuit Court for Baltimore City. The judge found Turner guilty, revoked his probation and reimposed the original sentence.

The Court of Special Appeals affirmed in Turner v. State, 61 Md.App. 1 , 484 A.2d 641 (1984). We granted Turner’s petition for writ of certiorari. Turner argues that Md.Code (1957, 1982 Repl.Vol.), Art. 38, § 4(c) clearly provides that no person shall suffer imprisonment for failing to pay court costs and that the trial judge erred in revoking his probation. He also contends that the trial judge’s conclusion that Turner had the ability to pay the court costs was unsupported by the record and that the Court of Special Appeals’ holding that the judge’s finding was not clearly erroneous in this respect was incorrect.

The State, on the other hand, argues that Art. 38, § 4 does not preclude the reimposition of a conditionally suspended sentence when a probationer fails to comply with that condition. Rather, the State asserts, the section prevents only the imposition of a term in addition to the original term for failure to pay costs. The State also argues that the record shows that Turner was financially able to pay the costs. I Article 38, § 1 authorizes the court upon finding a person guilty of a crime to sentence that person to the fine or penalty prescribed and further provides that the person “shall be liable for the costs of his prosecution; and in ⁶²¹ default of payment of the fine or penalty he may be committed to jail in accordance with § 4 of this article until thence discharged by due course of law.” Section 4(c) provides: Unless discharged by payment or service of imprisonment in default of a fine, a fine may be collected in the same manner as a judgment in a civil action.

Costs may be collected in the same manner as a judgment in a civil action, but shall not be deemed part of the penalty, and no person shall be imprisoned under this section in default of payment of costs. [Emphasis supplied.] The Court of Special Appeals analyzed these provisions, in responding to Turner’s claim that revoking his probation for failure to pay costs violated the last sentence of § 4(c) of Article 38. We quote generously from the well-reasoned analysis stated for the intermediate appellate court by Judge Adkins: Because we think there is a distinction between imposition of a suspended sentence of imprisonment upon violation of a condition of probation and imprisonment for non-payment of costs as a penalty for a crime, we reject [Turner’s] argument. We explain. Article 27, § 639(a) permits a court to “suspend sentence generally or for a definite time, and [to] make such orders and impose such terms as to costs, recognizance for appearance, or matters relating to the residence or conduct of the convicts as may be deemed proper____” It has contained similar language as to costs ever since its initial enactment as Article 27 § 304A, by Ch. 402, Laws of 1894.

See Kelly v. State, 151 Md. 87, 99 , 133 A. 899 (1926). Trial courts have invoked this authority and based suspension of sentence on the payment of costs, and have made payment of costs a condition of probation, see, e.g., Shade v. State, 18 Md.App. 407 , 306 A.2d 560 (1973) and Rites v. State, 15 Md.App. 346 , 290 A.2d 554 (1972). But we have found no reported Maryland appellate decision ⁶²² that squarely addresses the question whether revocation of probation for violation of this condition violates the provisions of Article 38. The portions of Article 38, §§ 1 and 4(c) (particularly the latter) that now concern us were first enacted by Ch. 147, Laws of 1970.

That Act embodied numerous statutory changes adopted (as its title instructs us) for the purpose, inter alia, of “eliminating imprisonment for the non-payment of costs of criminal prosecutions[,] ... eliminating such costs as part of any penalty, [and] amending the law generally with regard to the payment of fines and commitment for non-payment thereof.” As to fines, the Act (to some degree readoptirig prior law) set limits on the period of incarceration permitted for non-payment of a fine. More importantly, it required a court to inquire into a defendant's “financial and family situation and the reasons for nonpayment of the fine” before imprisoning him for non-payment. Articles 38, § 4(b). It was an apparent response to the decisions in Kelly v. Schoonfield, 285 F.Supp. 732 (D.Md.1968) and Morris v. Schoonfield, 301 F.Supp. 158 (D.Md.1969).

The judgment in Morris was vacated for reconsideration in light of Ch. 147 and Williams v. Illinois, 399 U.S. 235 , 90 S.Ct. 2018 , 26 L.Ed.2d 586 (1970); Morris v. Schoonfield, 399 U.S. 508 , 90 S.Ct. 2232 , 26 L.Ed.2d 773 (1970); Arthur v. Schoonfield, 315 F.Supp. 548, 551 (D.Md.1970). Kelly and Morris both dealt with the constitutionality of pre-1970 provisions of Article 38 with respect to imprisonment for non-payment of fines and costs. Morris squarely held that where indigents are involved, “the State cannot constitutionally include costs in the time to be served under Art. 38, section 4.” 301 F.Supp. at 161 . In Arthur , the United States District Court addressed the new Article 38 provisions adopted by Ch. 147.

It concluded that the new statute places certain clear limitations on sentencing courts in Maryland, in order to avoid serious constitutional problems and to meet present-day stan ⁶²³ dards. One such limitation prevents imprisonment for non-payment of costs, [footnote omitted]. 315 F.Supp. at 552 . What the Arthur court condemned, as violative both of new Art. 38, § 4 and of constitutional protections, was a practice of the former Municipal Court of Baltimore City. Under that practice, defendants sentenced to imprisonment were not assessed with court costs.

Defendants sentenced only to fines were. The sentences were suspended upon condition of immediate payment of fines and costs, but those defendants who were unable to make contemporaneous payment were then committed for failure to pay, without any inquiry as to financial ability. So far as court costs are concerned, the 1970 provisions of § 4(c) eliminated that problem. Costs are no longer a part of the penalty and no one may be sentenced to prison for failure to pay them.

But the language of § 4(c) does not necessarily manifest a legislative intention to prohibit revocation of probation when costs are made a condition of probation and are not paid. In construing the statute in that context, we must seek out the true legislative intent, reading the law “without forced or subtle interpretations designed to extend or limit the scope of its operation.” Sites v. State, 300 Md. 702, 710 , 481 A.2d 192 (1984). Given the circumstances under which present §§ 1 and 4(c) were enacted, as well as the plain language of the new provisions, it is clear that they contain no limitation on requiring payment of court costs as a condition of probation. The statutory wording contains no explicit proscription to that effect.

To imply such a proscription, moreover, would be inconsistent with the rule that statutes in pari materia are to be construed harmoniously if that is possible, giving effect to the provisions of each. Board of Education of Howard County v. Howard County, Maryland, 45 Md.App. 358, 370 , 413 A.2d 568 (1980). Article 27, § 639, as we have seen, expressly permits payment of costs as a condition of probation. ⁶²⁴ When the Article 38 provisions were modified in 1970, a number of other laws were also amended, but not Article 27, § 639. Both the Article 38 sections and § 639 were amended in the same Act in 1972—Ch. 181 of the Laws of that year—but the “costs” provision of § 639 was untouched.

Furthermore, that provision has been reenacted without change on numerous occasions, most recently by Ch. 98, Laws of 1982. All of this, it seems to us, manifests a legislative intention that the use of payment of costs as a condition of probation is not inconsistent with the Article 38 prohibition against imprisonment for nonpayment of costs that are not part of the penalty for a crime. See Applestein v. Osborne, 156 Md. 40 , 143 A. 666 (1928) and Prince George’s County v. Laurel, 51 Md. 457 (1879). It is one thing for the legislature to say that costs are not part of the criminal penalty and that one may not be imprisoned because of their non-payment.

It is quite another to say that when payment of costs are made a condition of probation, probation may not be revoked and the original punishment reimposed. Probation is an act of grace. Kaylor v. State, 285 Md. 66, 75 , 400 A.2d 419 (1979). It permits a court, in its discretion, to suspend what would be the normal penalty for violation of the criminal law in favor of conditions which, if performed, tend to promote the rehabilitation of the criminal as well as the welfare of society.

Scott v. State, 238 Md. 265, 275 , 208 A.2d 575 (1965). In other words, in an appropriate case, the criminal defendant is given a second chance—an opportunity to show that by performing the conditions of probation he can function as a law-abiding and useful member of society. If he faithfully performs those conditions, he is spared the more drastic punishment that generally follows a violation of the criminal law. If, however, the defendant fails to perform the conditions of probation he may forfeit the benefits of probation.

In such a case, when the original sentence or some ⁶²⁵ portion of it is reimposed, the “original sentence is the only true punishment; the probation revocation is merely the withdrawal of favorable treatment previously afforded the