Wilder v. State

WEANT, Judge. In appealing the revocation of his probation, Samuel Wilder reminds us of a savvy politician at a social event; just as the politico “works” the crowd to accomplish his objectives, the appellant is attempting to manipulate the judicial system to his own advantage. Accordingly, appellant will be hoisted by his own petard. In February 1982, Wilder pled guilty to one count of child abuse.

Thereafter, the Circuit Court for Baltimore City imposed a five-year sentence of incarceration which it suspended in favor of a five-year period of supervised probation. In addition to the standard conditions, the court’s order provided that Wilder obtain psychiatric counseling ¹⁰⁹ and attend a group therapy course on parenting given by the Department of Social Services. On 14 September 1983, the court (Hammerman, J.) found that Wilder had violated its order by failing to attend the group sessions. The court revoked appellant’s probation and reinstated the original five-year term.

Wilder appealed. Although the exact date is not clear from the record, at some point after the 14 September hearing, appellant was released on bond. In a per curiam opinion issued on 1 May 1984, this Court concluded that certain questions involving the reason for Wilder’s failure to attend the group therapy could not be resolved on the evidence adduced below. Samuel Wilder v. State of Maryland, No. 1175, September Term, 1983 (Md.App., 1 May 1984).

In remanding the case to permit the court to address these issues, we said: We agree with the trial court that a defendant cannot be allowed to dictate the terms of his probation; however, in this case we hold that there are unresolved issues which should be addressed by the trial court before a finding of revocation. Slip. op. at 7 (emphasis added). On 14 June 1984, Wilder was convicted of assault and battery. At his request, the court suspended the eighteen-month sentence it had originally imposed for that offense.

In a warrant issued on 14 July, the State alleged that, by virtue of that 14 June conviction, appellant had again violated the terms of the probation imposed in 1982. The conviction for violation of probation at issue in this appeal resulted from a 10 September 1984 hearing on the 14 July warrant. At that time, defense counsel informed the court that there were two matters outstanding, (1) the further proceedings to be held in accord with our remand of the first violation of probation, and (2) the allegation that Wilder had committed a second violation of that same probation based on his 1984 assault and battery conviction. Following a defense motion to dismiss the second probation violation charge, the following colloquy took place: ¹¹⁰ MR.

RAGLAND [defense counsel]: That’s correct, Your Honor; and we feel that Mr. Wilder cannot be violated on that because he was not on probation since he was revoked in September. THE COURT: Do I understand correctly, then, from what Mr. Ragland says, Mr. Flannery, that the [S]tate is proceeding today not on the violation that was found one year ago that was then remanded to this Court for further proceeding but the State is proceeding on a new violation of probation charge as a result of an alleged new offense committed by the Defendant in violation of Rule 4 since our last hearing? Is this correct, Mr. Flannery? MR.

FLANNERY [the prosecutor]: Yes, Your Honor, because this will make moot the questions the Court of Special Appeals wished to address. THE COURT: All right. Well, I’m going to overrule the objection of defense counsel and allow the State to proceed in the manner in which it wishes. It is my feeling that once an appeal was filed in this case, as it was done immediately, meaning a year ago, and the Court of Special Appeals remanded this case to this Court for further proceedings, that the probationary status of Mr. Wilder remained extant and it did not terminate and that he was still in the posture of being on probation, although perhaps in a state of limbo because of the appeal.

My action was not that of finally terminating and ending all probation. So, I will allow the State to proceed. Brenda Boone, appellant’s probation officer, told the court that she had been unaware that Wilder had been released on bond until the State’s Attorney’s office notified her on 3 April 1984. She also testified that she had no contact with Wilder following the 14 September 1983 hearing; he had never advised her of his status.

Based on its finding that Wilder had been on probation at the time he committed the assault and battery, the trial court found him to be in violation of the existing order for probation. It ¹¹¹ revoked the probation and reimposed the original five-year sentence. I. Wilder contends that he was not required to abide by the conditions of his probation, i.e., that he obey all laws during the pendency of his appeal from his first probation violation. He maintains that the court, when it revoked his probation on 14 September, terminated his probationary status.

Absent any order from this Court staying the circuit court’s order revoking probation, appellant contends that he was relieved of any obligation to abide by the conditions of that probation.