Humphrey v. State

428 A.2d 440, 290 Md. 164, 1981 Md. LEXIS 207

• Court: Court of Appeals of Maryland
• Decided: April 22, 1981
• Docket: [No. 97, September Term, 1980.]
• Status: Published

Opinions

Davidson, J.,

delivered the opinion of the Court. Murphy, C. J., and Smith and Rodowsky, JJ., dissent. Rodowsky, J., filed a dissenting opinion at page 170 infra, in which Murphy, C. J., and Smith, J., concur.

This case concerns the circumstances under which probation may be revoked. More particularly, it involves the question whether under the facts of this case a probationer had acted in violation of one of the conditions of his probation.

On 30 July 1979, in the Criminal Court of Baltimore, the petitioner, Ronald Humphrey (probationer), was convicted of assault and breaking and entering. The docket entries show that the probationer was sentenced to two consecutive two-year terms, that the execution of sentence was suspended, and that the probationer was released on probation for a period of three years. On the same day, the trial court entered an "order for probation” that indicated that the probationer was released on probation subject to certain general conditions and to "special conditions as follows: Defendant to receive Drug treatment.” The probation order did not specify the kind of, extent of, or time within which treatment was to be received.

On 26 November 1979, a probation revocation hearing was held. The sole violation alleged was that the probationer had violated the special condition of the probation order that required him "to receive Drug treatment.”

At the probation revocation hearing, the State’s only witness was the probationer’s probation officer (officer). The officer testified that he was assigned as the probationer’s supervisor about seven days after the probationer was placed on probation. At all times the probationer wanted to be enrolled in a drug rehabilitation program. During the initial week of probation, the probationer voluntarily sought treatment. During the second week of probation, both the probationer and the officer repeatedly attempted to obtain a placement in various community-based treatment programs. Their efforts failed. One agency advised the officer that the probationer "didn’t fit their criteria” for admission. A referral service informed the officer that it could not locate a drug abuse program that would admit the probationer "due to the [probationer’s] extensive [prior] failure rate and 'propensity towards violence.’ ” That referral service advised the officer that while the probationer was in its office he acted in a disorderly manner and had to be removed by the police. Finally, the referral service told the probationer "not to return because he was unacceptable for treatment through their agency.”

The officer testified that three days after this incident the probationer arrived at the officer’s office in an intoxicated state. As a result, the officer arranged to have the probationer sent to Crownsville State Mental Hospital on 13 August 1979. On 19 September 1979, the probationer was transferred to the Baltimore City Jail where he remained until the 26 November 1979 revocation of probation hearing.

At the revocation hearing, the officer further testified that based on the results of an examination conducted at Crownsville State Mental Hospital, the Medical Department of Parole and Probation concluded that the probationer was not amenable to community supervision. Nonetheless, the officer asserted that he wa^ still of the opinion that the probationer could be treated for his drug addiction and his alcohol problem in a community-based program if one would accept him.

The probationer testified that he wanted "to stay off drugs” but that he was having a problem with alcohol and Demerol. He was willing to report to the officer "every day if necessary” if given another chance to stay out of jail. The probationer had repeatedly attempted to be admitted into a rehabilitation program. Indeed, it was his insistence on admission into such a program that caused the disturbance involving the police at the referral service office. He had refused to leave the referral service office "until they got [him] into a program and [he] sat in a chair” until the police arrived. When the police told him to leave, he left.

At the conclusion of the hearing, the trial court said:

"I think what happens is yon are a pretty decent guy, you know, if you are not getting involved with drugs. But if you get a few pills or something in you, you have this propensity toward violence. These programs can’t afford to have you come in in an angry aggressive manner and threaten people. None of them want you. So 1 don’t know what to do with you. I will say this to you. You don’t belong in jail. You need help but where can I get it for you.” (Emphasis added.)

Thereafter, the court revoked probation and reimposed the two consecutive two-year sentences.

The probationer appealed to the Court of Special Appeals which, in an unreported opinion, affirmed the judgment of the trial court. Humphrey v. State, No. 1530, September Term, 1979, filed 25 July 1980 (per curiam). The probationer then filed a petition for a writ of certiorari that we granted. We shall reverse the judgment of the Court of Special Appeals.

A probationer is entitled to retain his liberty as long as he substantially abides by the conditions of his probation. Probation may not be revoked unless the probationer has in fact acted in violation of one or more conditions of his probation. Gagnon v. Scarpelli, 411 U.S. 778, 784-85, 93 S. Ct. 1756, 1760-61 (1973); Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S. Ct. 2593, 2599 (1972); Swan v. State, 200 Md. 420, 425, 90 A.2d 690, 692-93 (1952). See Scott v. State, 238 Md. 265, 275-76, 208 A.2d 575, 580-81 (1965); Jett v. Superintendent of Md. State Reformatory for Males, 209 Md. 633, 640-41, 120 A.2d 580, 583-84 (1956); Rites v. State, 15 Md. App. 346, 347-56, 290 A.2d 554, 555-60 (1972); Wilson v. State, 6 Md. App. 397, 402-03, 251 A.2d 379, 382-83 (1969).

Generally, before probation may be revoked the State must prove that the probationer has not complied with one or more lawful conditions of probation. Even then, ordinarily probation may not be revoked if the probationer proves that his failure to comply was not willful but rather resulted from factors beyond his control and through no fault of his own. E.g., United States v. Boswell, 605 F.2d 171, 173-75 (5th Cir. 1979) (failure to make restitution); United States v. Taylor, 321 F.2d 339, 340-41 (4th Cir. 1963) (failure to pay fines); People v. Romero, 192 Colo. 106, 107-08, 559 P.2d 1101, 1101-02 (1976) (failure to make payment for attorney’s fees); People v. Silcott, 177 Colo. 451, 452-54, 494 P.2d 835, 836-37 (1972) (failure to make child support payments); Donneil v. State, 377 So. 2d 805, 805 (Fla. App. 1979) (failure to complete drug rehabilitation program); State v. Nakamura, 59 Haw. 378, 380-83, 581 P.2d 759, 761-63 (1978) (failure to be accepted in residential drug treatment program); State v. Oyler, 92 Idaho 43, 44-47, 436 P.2d 709, 710-13 (1968) (failure to "refrain from the use of alcoholic beverages”); State v. Moretti, 50 N.J. Super. 223, 228-29, 238-50, 141 A.2d 810, 813-14, 819-27 (1958) (failure to obtain gainful employment); People v. Bowman, 73 App. Div. 2d 921, 921, 423 N.Y.S.2d 242, 243 (1980) (failure to obtain psychiatric treatment); Butler v. State, 486 S.W. 2d 331, 332-34 (Tex. Crim. 1972) (failure to "work faithfully at suitable employment”). Of course, if the probationer fails to carry this burden, the question whether to revoke probation is a matter within the discretion of the trial court. E.g., United States v. Burkhalter, 588 F.2d 604, 605-07 (8th Cir. 1978) (failure to take vocational training). See Scott, 238 Md. at 272-73, 208 A.2d at 579; Edwardsen v. State, 220 Md. 82, 88-89, 151 A.2d 132, 135-36 (1959); Swan, 200 Md. at 425, 90 A.2d at 692. The trial court’s determination to revoke probation is reviewable by an appellate court "for the purpose of determining whether that discretion has been abused in any way, or whether an erroneous construction has been placed by the trial judge on the conditions of the [probation].” Swan, 200 Md. at 426, 90 A.2d at 692.

Here the sole violation alleged was that the probationer had violated the special condition of the probation order that required him "to receive Drug treatment.” That special condition required only that the probationer "receive Drug treatment.” It did not specify the kind of or the extent of drug treatment to be received. It did not require the probationer to be accepted in or to receive drug treatment from a community-based drug treatment program. It did not prescribe when drug treatment was to begin or terminate. The evidence adduced by the State establishes at most that within a two-week period the probationer had not received drug treatment from certain specific community-based drug treatment programs. The State’s evidence failed to show that the probationer was not receiving some kind of drug treatment other than participation in a community-based drug treatment program. In addition, it failed to show that the probationer would not obtain some kind of drug treatment within a reasonable period of time. Thus, the record does not support a finding that the probationer acted in violation of the special condition of his probation. See Rites, 15 Md. App. at 354, 290 A.2d at 560; Wilson, 6 Md. App. at 403, 251 A.2d at 383.

Moreover, the evidence establishes that the probationer was at liberty for only two weeks after placed on probation and that throughout that entire period he made repeated good faith efforts to obtain a placement from various community-based drug treatment programs. He was denied admission to these programs, not because he engaged in any misconduct after he was placed on probation, but rather because of his previous misconduct. Thus, the record shows that the probationer was deprived of the opportunity to participate in a community-based drug treatment program because of factors beyond his control. Because the probationer repeatedly tried to comply with the special condition, engaged in no act of misconduct affecting others during the probationary period, and was prevented from complying with the special condition because of factors beyond his control, the record does not support a finding that the probationer acted in violation of the special condition of his probation. E.g., Donneil, 377 So. 2d at 805; Rathburn v. State, 353 So. 2d 902, 902-03 (Fla. App. 1977); Nakamura, 59 Haw. at 380-83, 581 P.2d at 761-63; People v. Welch, 78 Ill. App. 3d 184, 184-87, 33 Ill. Dec. 761, 397 N.E.2d 94, 95-97 (1979); State v. Lassai, 366 So. 2d 1389, 1390-91 (La. 1978); Bowman, 73 App. Div. 2d at 921-22, 423 N.Y.S.2d at 243-44. See, e.g., People v. Turner, 27 App. Div. 2d 141, 143-45, 276 N.Y.S.2d 409, 410-13 (1967).

The State failed to adduce facts sufficient to show that the probationer did not substantially abide by the special condition of his probation. Accordingly, the trial court erred when it revoked probation.¹

Judgment of the Court of Special Appeals reversed.

Case remanded to that Court with directions to reverse the judgments of the Criminal Court of Baltimore.

Costs to be paid by the Mayor and City Council of Baltimore.

1 . We note that a trial court can assure the availability of drug treatment by postponing the imposition of sentence until such time as the requisite arrangements for drug treatment have been made.

1 . The transcript from the Criminal Court of Baltimore relates only to the revocation hearing of November 26, 1979 but no transcript of the sentencing has been provided.