Hutchinson v. State

438 A.2d 1335, 292 Md. 367, 1982 Md. LEXIS 190

• Court: Court of Appeals of Maryland
• Decided: January 6, 1982
• Docket: [No. 76, September Term, 1981.]
• Status: Published

Opinions

Murphy, C. J.,

delivered the opinion of the Court.

Eldridge, Cole and Davidson, JJ., dissent. Davidson, J., filed a dissenting opinion at page 371 infra, in which Eldridge and Cole, JJ., concur.

We granted certiorari in this case to consider whether the law of Maryland permits a trial judge to revoke an order of probation based solely upon evidence of a conviction of a subsequent crime which is then pending on appeal.

Appellant Hutchinson was convicted of second degree murder on August 13, 1976. Following imposition of sentence, he was placed on probation for a designated period upon condition, among others, that he obey all laws. Within the probationary period, Hutchinson was convicted of the crime of rape. He appealed. Thereafter, on June 21,1978, he was found guilty in the Criminal Court of Baltimore of violating his probation. Hutchinson appealed to the Court of Special Appeals, contending that a conviction, which is pending on appeal, cannot serve as a basis for probation revocation. Relying on an earlier decision, Hutchinson v. State, 44 Md. App. 182, 407 A.2d 359 (1979), the intermediate appellate court, in an unreported opinion, concluded that probation may be revoked solely on the basis of a subsequent conviction, notwithstanding the pendency of an appeal.

Before us, Hutchinson contends that a conviction, which is still pending on appeal, should not be deemed sufficiently final to permit a finding that the probationer has in fact acted in violation of the condition of probation that he obey all laws. To permit the State to proceed on the basis of a non-final conviction, according to Hutchinson, creates "a palpable, quantifiable risk that probation will be revoked for an invalid reason.” He urges that requiring the completion of the appellate process "confers the benefit of certainty” and "would impose absolutely no cost whatever” on the workings of the criminal justice system because the defendant would be in custody as a result of the subsequent conviction, with little chance to obtain release on appeal bond.

Probation is, of course, a matter of grace, not entitlement. Kaylor v. State, 285 Md. 66, 400 A.2d 419 (1979). We recently observed in Dean v. State, 291 Md. 198, 434 A.2d 552 (1981), that a probationer is entitled to retain his liberty as long as he abides by the conditions of his probation. We said in that case that before probation may be revoked, the State must prove, to the reasonable satisfaction of the trial judge, that the probationer has not complied with one or more lawful conditions of probation.

The great weight of authority in this country permits the revocation of probation based solely upon the probationer’s subsequent criminal conviction, even though that conviction is pending on appeal. The rationale for the majority view is clearly stated in Roberson v. Connecticut, 501 F.2d 305, 308 (2nd Cir. 1974):

"A criminal conviction after a trial at which the probationer was entitled to all the protections afforded a criminal defendant including formal rules of evidence, the right to assigned counsel if indigent, and the requirement that the state establish guilt beyond a reasonable doubt certainly affords a more than sufficient basis for revocation of probation, even if that conviction is still awaiting appellate review.”

Other jurisdictions are in complete accord. See United States v. Gentile, 610 F.2d 541, 541-42 (8th Cir. 1979); United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973); United States v. Ambrose, 483 F.2d 742, 753-54 (6th Cir. 1973); United States v. Carrion, 457 F.2d 808, 809 (9th Cir. 1972) (per curiam); Buckelew v. State, 48 Ala. App. 418, 265 So. 2d 202, 203-05 (1972); cert. denied, 409 U.S. 1060, 93 S. Ct. 558, 34 L. Ed. 2d 512 (1972); Alexander v. State, 578 P.2d 591, 592-93 (Alaska 1978); State v. Barnett, 112 Ariz. 212, 540 P.2d 684, 686 (1975); Rutledge v. State, 263 Ark. 300, 564 S.W.2d 511, (1978); People v. Lathrom, 192 Cal. App. 2d 232, 233, 13 Cal. Rptr. 335 (1961); People v. Ketchum, 185 Cal. App. 2d 620, 621, 8 Cal. Rptr. 610 (1960); People v. Salazar, 39 Colo. App. 409, 568 P.2d 101, 103 (1977), cert. denied, 434 U.S. 1039, 98 S. Ct. 779, 54 L. Ed. 2d 789 (1978); State v. Roberson, 165 Conn. 73, 327 A.2d 556 (1973); Brand v. State, 123 Ga. App. 273, 180 S.E.2d 579, 580-81 (1971); State v. Palama, 62 Ha. 159, 612 P.2d 1168, 1171-72 (1980); Hoffa v. State, 267 Ind. 133, 368 N.E.2d 250, 252 (1977); State v. Rasler, 216 Kan. 292, 532 P.2d 1077, 1079-80 (1975); Rubera v. Commonwealth, 371 Mass. 177, 355 N.E.2d 800, 803-04 (1976); State v. Oppelt, 601 P.2d 394, 396 (Mont. 1979); Stone v. Shea, 113 N.H. 174, 304 A.2d 647 (1973); State v. Hill, 266 N.C. 107, 145 S.E.2d 349, 352 (1965); State v. Spicer, 3 Or. App. 80, 471 P.2d 865, 866 (1970); Annot., 76 A.L.R.3d 588 (1977) (Supp. 1981). Only three intermediate appellate courts have taken a contrary view. See Ledee v. State, 342 So.2d 100 (Fla. Dist. Ct. App. 1977); Stoner v. State, 566 P.2d 142 (Okla. Crim. 1977); Long v. State, 590 S.W.2d 138 (Tex. Crim. 1979). We note, however, that Ledee was recently disavowed by another panel of that same court which aligned itself with the majority view. See Stevens v. State, 397 So.2d 398 (1981).

We conclude, consistent with the vast majority of the cases, that a criminal conviction is sufficient, even though not final, to reasonably satisfy the trial court that the probationer has violated a condition of his probation that he obey all laws. We perceive no valid reason why a person convicted of a crime, who is placed on probation and who commits another crime while on probation, should be insulated from having his probation revoked during the frequently extended process of appellate review. Although a conviction which is not final does not constitute conclusive proof of guilt, we think the balance must be struck in favor of permitting the trial judge to revoke probation if satisfied that the ends of justice so require.

In so holding, we find no merit in the suggestion that the provisions of Maryland Code (1980 Repl. Vol.), § 10-905 (a) of the Courts and Judicial Proceedings Article require the exclusion from evidence of a non-final conviction at a probation revocation hearing. The precursors of that section, all the way back to ch. 109 of the Acts of 1864, have always been codified under the subtitle "Competency of Witnesses.” The last sentence of what is now § 10-905 (a) was added by ch. 259 of the Acts of 1969; it provided that evidence of conviction was not admissible if an appeal is pending. Manifestly, § 10-905 (a) is limited to the use of such non-final convictions for impeachment purposes.¹

Nor is there merit in Hutchinson’s argument that by analogy his position should prevail because in attorney disciplinary proceedings non-final convictions do not constitute conclusive proof of misconduct. Maryland Rule BV10 e 1 explicitly provides that for purposes of imposing sanctions for attorney misconduct, only a final judgment is conclusive proof of the attorney’s guilt. There is, however, no similar statute or rule in Maryland, which would inhibit the use of a non-final criminal conviction as a basis for revoking probation.²

Judgment affirmed, with costs.

1 . Section 10-905 (a) reads as follows:

"(a) In general. — Evidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime. Evidence of conviction is not admissible if an appeal is pending, or the time for an appeal has not expired, or the conviction has been reversed, and there has been no retrial or reconviction.”

2 . Rule BV16, which pertains to suspension of an attorney from the practice of law upon conviction of certain crimes, permits such suspension "regardless of the pendency of an appeal.”