Wheeler v. State

MURPHY, C.J. This appeal from the Circuit Court for Baltimore City presents the issue of whether that court erred or abused its discretion when it ordered that Lovell A. Wheeler, appellant, be held without bail pending trial on charges of (1) “reckless endangerment,” (2) unauthorized possession of “smokeless reloading powder,” and (3) failure to comply with the requirement that the powder be stored in its original containers. Appellant argues that his pretrial detention violated his federal and state constitutional rights to a “reasonable” pretrial bail because: I. DUE PROCESS LIMITS PRETRIAL DETENTION BASED ON DANGEROUSNESS TO DEFENDANTS CHARGED WITH A SPECIFIC CATEGORY OF EXTREMELY SERIOUS OFFENSES AND ALLOWS SUCH DETENTION ONLY WHEN THE STATE HAS PROVEN DANGEROUSNESS BY CLEAR AND CONVINCING EVIDENCE.

II

RECKLESS ENDANGERMENT AND VIOLATIONS OF THE REGULATORY STATUTES REGARDING THE POSSESSION AND STORAGE OF SMOKELESS RELOADING POWDER ARE NOT WITHIN A SPECIFIC CATEGORY OF SERIOUS OFFENSES FOR WHICH DUE PROCESS WOULD PERMIT PRETRIAL DETENTION BASED ON DANGEROUSNESS.

III

THE CIRCUIT COURT JUDGE ERRED BY FAILING TO EVALUATE THE STATE’S EVIDENCE UNDER THE STANDARD OF CLEAR AND CONVINCING EVIDENCE AND INSTEAD ASSUMING THAT THE STATE’S ALLEGATIONS WERE TRUE AND THAT MR. WHEELER WAS GUILTY. For the reasons that follow, we shall affirm the ruling of the circuit court. Background On July 1, 2003, subsequent to the execution of a search warrant that resulted in the seizure of explosives from appel ⁵⁷¹ lant’s “inside group” rowhouse in Baltimore City, appellant was arrested and charged — by means of a District Court Statement of Charges — with (1) reckless endangerment, proscribed by Md.Code Ann., Crim. § 3-204 (2003), (2) possessing more than five pounds of smokeless reloading powder without having a license to do so, proscribed by the explosives regulation statute, and (3) failure to store the powder in conformity with the requirements of the explosives regulation statute. 1 On July 2, 2003, appellant appeared before a District Court commissioner, who set bail in the amount of two million dollars.

On July 3, 2003, a judge of the District Court of Maryland for Baltimore City conducted a bail review hearing and affirmed the decision of the commissioner. On July 21, 2003, in the Circuit Court for Baltimore City, appellant filed a Petition for Writ of Habeas Corpus. On July 29, 2003, in the Circuit Court for Baltimore City, the State filed four Criminal Informations charging appellant with violations of the explosives regulation statute, and with three counts of reckless endangerment. 2 On August 12, 2003, the circuit court conducted a hearing on appellant’s habeas corpus petition, concluded that appellant was entitled to a de novo bail review hearing, and proceeded to determine the issue of whether appellant was entitled to pretrial release. The record shows that the prosecutor proffered the following facts: [Officers had recovered] a total of a little over 62 pounds of [smokeless] gunpowder [in appellant’s home].

There were 16,000 rounds of live ammunition. There were 68,000 primer caps which is the explosive device that ignites that gunpowder in a bullet casing. There were approximately 22 operable rifles and handguns and ... numerous ⁵⁷² unassembled weapon components such as barrels, handles, stocks, receivers and scopes that one particular box had 81 rifle barrels. * * * Numerous quantities of this gunpowder ... were improperly stored in such containers such as antifreeze bottles. * * * [A]n Army Corps of Engineers expert [ ] concluded that if approximately half of the gunpowder had detonated, “[a]ssuming that the next rowhouse is twenty feet away, the next rowhouse would be destroyed and its occupants injured or killed from the structural collapse.” Appellant presented the following information to the circuit court. He was sixty-one years old when he was arrested.

He had worked full-time for the same employer for eleven years. He and his wife had lived in their present home for the last eight-and-a-half years. He had never been arrested for or cpnvicted of a violent crime. Upon this information, the circuit court found that “no condition of bail [would] reasonably assure that the defendant [would] not pose a danger to the community,” and therefore ordered that appellant be held without bail pending trial.

On October 29, 2003, appellant entered a guilty plea to one count each of reckless endangerment (Crim. § 3-204), possession of explosives for use in firearms in excess of five pounds ■without a license (art. 38A, § 27B(b)), and improper storage of explosives (art. 38A, § 27B(a)). He received an aggregate sentence of five years in prison, with “all but time served” suspended upon condition that he successfully complete three years of supervised probation. He was released from custody the same day. Motion to Dismiss The State has moved to dismiss this appeal because, (1) in light of appellant’s release from confinement, the issues presented are moot, and/or (2) in light of appellant’s pleas of ⁵⁷³ guilty, the appeal is not properly before this Court.

That motion is hereby denied. A question is moot if, at the time it is before the court, there is no longer any existing controversy between the parties, so that there is no longer any effective remedy which the court can provide. Attorney General v. A.A. Co. School Bus, 286 Md. 324 , 327, 407 A.2d 749 (1979); State v. Ficker, 266 Md. 500, 506-07 , 295 A.2d 231 (1972). Appellate courts generally do not decide academic or moot questions.

There are, however, “ ‘rare instances,’ ” in which “ ‘the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest [and requires] a departure from the general rule and practice of not deciding academic questions.’ ” Mercy Hosp. v. Jackson, 306 Md. 556, 562-63 , 510 A.2d 562 (1986) (quoting Lloyd v. Board of Supervisors of Elections of Baltimore County, 206 Md. 36, 43 , 111 A.2d 379 (1954)). A case should not be dismissed as moot if the case “presents ‘unresolved issues in matters of important public concern that, if decided, will establish a rule for future conduct,’ or the issue presented is ‘capable of repetition, yet evading review.’ ” Committee for Responsible Dev. on 25th St. v. Mayor & City Council, 137 Md.App. 60, 69 , 767 A.2d 906 (2001) (quoting Stevenson v. Lanham, 127 Md.App. 597, 612 , 736 A.2d 363 (1999)). The burden of persuasion necessary to establish that no condition of pretrial release will reasonably assure (1) “the appearance of the defendant as required” and/or (2) “the safety of the alleged victim” is a “matter[ ] of public concern” and “will establish a rule for future conduct.” Stevenson v. Lanham, 127 Md.App. 597, 612 , 736 A.2d 363 (1999). The State also argues that this appeal is not properly before the Court because appellant has entered pleas of guilty to the charges.

Ordinarily, the defendant who enters a guilty plea waives all procedural objections, constitutional or otherwise. English v. State, 16 Md.App. 439 , 298 A.2d 464 (1973). If, however, it is alleged that a procedural defect in ⁵⁷⁴ the record of a case affected the voluntariness of the plea, we make an independent constitutional appraisal. Id.

I. & II. The Supreme Court has “upheld preventative detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections.” Zadvydas v. Davis, 533 U.S. 678, 690-91 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001) (emphasis added) (citations omitted). Appellant argues that the State’s right to obtain a “hold without bail pending trial” order must be limited to a specific category of statutorily enumerated serious offenses, none of which was applicable in this case. We are persuaded, however, that it is of no consequence that the crimes with which appellant was charged are not among those enumerated in § 5-202 of the Criminal Procedure article, which creates a rebuttable presumption that defendants charged with certain serious offenses pose a “flight risk” and/or a danger to the community. 3 Moreover, because appellant was found to be too dangerous to be released, it is of no consequence that — as the circuit court expressly acknowledged — there was no indication that appellant would be unlikely to appear for trial.

We therefore hold that “preventive detention” may be ordered pursuant to Md. Rule 4-216, provided that the judicial officer 4 is persuaded by clear and convincing evidence that no condition or combination of conditions of pretrial release can reasonably protect against the danger that the defendant presents to an identifiable potential victim and/or to the community. ⁵⁷⁵ An individual’s “interest in liberty” is of a “fundamental nature,” United States v. Salerno, 481 U.S. 739, 746 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987), and at liberty’s core is the right to be free from arbitrary confinement by bodily restraint. Foucha v. Louisiana, 504 U.S. 71, 80 , 112 S.Ct. 1780 , 118 L.Ed.2d 437 (1992). While it is clear that the “preventive detention” of certain criminal defendants does not offend due process, the United States Supreme Court has not yet established a standard to be applied whenever the prosecution seeks to have a defendant held without bail. See United States v. Deters, 143 F.3d 577, 583 (10th Cir.1998) (citing Salerno, supra).

In Salerno , the Supreme Court held that the 1984 Bail Reform Act (“the Act”), 5 authorizing pretrial detention on the basis of future dangerousness, did not constitute impermissible punishment before trial. Salerno, 481 U.S. at 747-48 , 107 S.Ct. 2095 . In State v. Blackmer, 160 Vt. 451 , 631 A.2d 1134 (1993), the Supreme Court of Vermont noted that preventive detention is subject to three due process requirements: “(1) bail cannot be denied in order to inflict pretrial punishment; (2) pretrial detention cannot be excessive in relation to the regulatory goal; and (3) the interests served by the detention must be legitimate and compelling.” 631 A.2d at 1140 (citing Salerno, 481 U.S. at 749 , 107 S.Ct. 2095 ). Pretrial detention “is regulatory rather than penal in nature,” and thus is often found to comport with due process because the detention “is merely incidental to some other legitimate governmental purpose.” Salerno, 481 U.S. at 748 , 107 S.Ct. 2095 .

The Salerno Court emphasized that the Act provided the defendant with a hearing in which “the Government must convince a neutral decision maker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any [identifiable] person.” Id. at 750 , 107 S.Ct. 2095 (citing 18 U.S.C. ⁵⁷⁶ § 3142 (f)). 6 The class of persons the Act affected was narrow, and the time in pretrial detention only as long as reasonably necessary. 7 In addition, the goal of protecting the community from danger was deemed “legitimate and compelling.” Salerno, supra, at 749, 752 , 107 S.Ct. 2095 . Maryland Rule 4-216, in pertinent part, provides: (b) Defendants Eligible for Release by Commissioner or Judge. In accordance with this Rule and Code, Criminal Procedure Article, §§ 5-101 and 5-201 and except as otherwise provided in section (c) of this Rule or by Code, Criminal Procedure Article, §§ 5-201 and 5-202, a defendant is entitled to be released before verdict on personal recognizance or on bail, in either case with or without conditions imposed, unless the judicial officer determines that no condition of release will reasonably ensure (1) the appearance of the defendant as required and (2) the safety of the alleged