Johnson v. State ( 2018 )


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  • Johnson v. State
    No. 223, September Term 2017
    Opinion by Nazarian, J.
    HEADNOTES
    CRIMINAL PROCEDURE ARTICLE SECTION 6-218
    A convicted defendant awaiting appeal on an appeal bond while committed to home
    detention is in “custody” within the meaning § 6-218 of the Criminal Procedure Article
    where the conditions of the defendant’s confinement impose substantial restriction on
    defendant’s freedom of association, activity, and movement such that unauthorized
    absence from place of confinement would be chargeable as criminal offense of escape
    pursuant to§ 9-405 of the Criminal Law Article.
    CRIMINAL LAW ARTICLE SECTION 9-405
    A defendant on home detention may be punished for the crime of escape based on an
    unauthorized departure from the place of confinement as defined in a home detention
    order or agreement.
    CRIMINAL PROCEDURE ARTICLE SECTION 6-218
    The nature and extent of confinement drives a defendant’s right to credit under CP § 6-
    218, not the stage of proceedings.
    Circuit Court for Baltimore City               REPORTED
    Case No. 114094009-013
    IN THE COURT OF SPECIAL APPEALS
    OF MARYLAND
    No. 223
    September Term, 2017
    _________________________
    MARTEZ JOHNSON
    v.
    STATE OF MARYLAND
    _________________________
    Nazarian,
    Arthur,
    Zarnoch, Robert A.
    (Senior Judge, Specially Assigned),
    JJ.
    _________________________
    Opinion by Nazarian, J.
    _________________________
    Filed: March 2, 2018
    After a jury trial in the Circuit Court for Baltimore City, Martaz Johnson1 (formerly
    a Maryland Transportation Authority Police officer) was convicted of two counts of
    second-degree assault and misconduct in office. The circuit court imposed sentence and
    Mr. Johnson was incarcerated. He appealed, then asked the trial court to release him on
    bond pending appeal, which was granted on condition that he submit to home detention
    monitoring from a private, court-approved company. He was released from prison and
    spent nearly sixteen months in home detention before he was released again.
    This appeal does not deal with the merits of his convictions, which have now been
    affirmed by the Court of Appeals. See Johnson v. State, No. 6, Sept. Term 2017 (Md. App.
    Feb. 21, 2018). This opinion deals instead with the question of whether Mr. Johnson should
    get credit against his sentences for the time he spent in home detention. The circuit court
    denied his motion for credit on the ground that his home detention didn’t qualify as “time
    spent in the custody of a correctional facility,” as § 6-218(b)(1) of the Criminal Procedure
    Article (“CP”) requires. We hold that it did qualify, and we reverse and remand with
    directions that the court enter an order giving Mr. Johnson credit for time spent in home
    detention.
    I. BACKGROUND
    Following his conviction for two counts of second-degree assault and misconduct
    in office, the circuit court sentenced Mr. Johnson to two concurrent terms of ten years in
    1
    The caption misspells Mr. Johnson’s first name as “Martez.”
    1
    prison for the former charge and a concurrent five years for the latter, with all but eighteen
    months suspended. He was incarcerated on August 11, 2015, and appealed his convictions.
    On November 16, 2015, Mr. Johnson filed a petition asking the court to release him
    on an appeal bond. The circuit court granted his request but added conditions, among them
    the requirement that he “obtain[] a court-approved private home detention monitoring
    company to monitor him.” The relevant ordering paragraphs spelled out the conditions
    more precisely:
    It is hereby ORDERED this 11th day of December, 2015 by the
    Circuit Court for Baltimore City that Martaz Johnson be placed
    on Home Detention as a condition of: Pre-Trial Release After
    bail in the amount of $25,000 or real property
    To be supervised by Advantage Sentencing Alternative
    Programs (ASAP Home Detention)
    ***
    Under the following conditions: Standard Conditions (Allowed
    to attend work, counseling, medical appointments,
    legal/probation/home detention, weekly religious service,
    school, and seek employment.
    On December 14, 2015, Mr. Johnson was released on an appeal bond of $25,000
    and placed in home detention, subject to the court’s conditions. Mr. Johnson signed a home
    detention agreement (the “Agreement”) with a company called Advantage Sentencing
    Alternative Programs Inc. (“ASAP”), in which he agreed to be “confined” to his home and
    subject to twenty-four hour monitoring through a transmitter device. He agreed as well to
    permit ASAP to install a “home monitoring unit” in his home and to permit members of
    ASAP’s staff to enter his home at any time to install or inspect the equipment and to ensure
    his compliance with the rules, regulations, and conditions of the program; to submit to
    2
    random drug urinalysis and breath alcohol testing; and to refrain from using alcoholic
    beverages and controlled or uncontrolled substances unless prescribed by a physician. The
    Agreement also put Mr. Johnson on notice that violation of the listed conditions could be
    considered an escape for which he could be prosecuted:
    I understand that my participation in the [ASAP] Home
    Detention Monitoring Program is Court Ordered and any
    violation with [ASAP] will be reported to the Court. I
    additionally understand that a violation of the home detention
    order or agreement may be considered an escape and subject to
    prosecution and imprisonment.
    Shortly after this Court affirmed his convictions, Mr. Johnson filed a motion to
    amend the trial court’s appeal bond order. He asked the court to release him from home
    detention and credit him for the time he served in home detention. After a hearing, the
    circuit court denied the motion on the ground that a violation of the bond conditions
    exposed him only to forfeiture of the bond, not to criminal liability for escape:
    As stated earlier, this judge and this judge’s law clerk have
    done extensive research on this issue of -- on the issue of
    whether a defendant on appeal with an appeal bond with a
    condition of home detention could get credit for the time served
    on home detention. And it is the opinion of this Court that this
    is a case of first impression never having been decided by a
    Maryland court or by any other court in the nation.
    This Court is . . . very well aware of the decision in Dedo v.
    State, and one thing I’d like to point out about Dedo, Dedo was
    actually committed to the custody of the warden of the WCDC,
    and throughout the period of his home detention was still in
    that warden’s custody. The appeal bond effectively took this
    Defendant out of the custody of the Division of Corrections.
    He was in their custody for a period of time for which he
    certainly should get credit for.
    3
    Defendant relies on Dedo, also relies on the statute and statutes
    involving escape. Defendant also relies on Spriggs v. State and
    Kang v. State . . . In my view, these cases are inapposite. I
    recognize that the defendant in each of those cases was on a
    period of home detention. However, those cases do not involve
    a situation where the defendant is actually free from
    incarceration. Yes, there is language in Dedo and in Spriggs
    considering the home to be a place of incarceration or detention
    whereby the person, the defendant, in that situation could be
    charged with escape.
    It is my view that the consequence of failure to adhere to the
    conditions of the appeal bond would result only in the potential
    forfeiture of the security for the appeal bond, but would not and
    could not result in any legally effective charge of escape. This
    case is just different from those other cases functionally, and I
    use the word “functionally” somewhat advisably. The sentence
    was suspended in a sense, it’s out in limbo somewhere until the
    Court of Appeals acts on the writ of certiorari and either grants
    it or denies it. But even if it grants it, the Defendant’s still on
    appeal bond until the Court is—Court of Appeals renders a
    decision.
    The Defendant’s posture legally does just – does not fit within
    the logic or rationale of Dedo, Spriggs or Kang in my opinion.
    For the reasons cited, I deny the motion.
    Mr. Johnson filed a timely notice of appeal.
    II. DISCUSSION
    This appeal turns on whether Mr. Johnson’s time on home detention qualified as
    “time spent in the custody of a correctional facility.”2 He claims that it did, and therefore
    2
    Although neither party raised it, we have considered as well whether this issue is
    appealable in the first instance. This case differs from the others we cite throughout, in that
    it is a post-conviction, post-sentencing request for credit for time spent in custody.
    Where home detention takes place before sentencing, an appeal from the underlying
    judgment would bring the issue of credit for home detention before us. Here, however, the
    issue arose later, and after Mr. Johnson had appealed (timely) from his conviction and
    sentence.
    4
    that the trial court erred in denying him credit against his sentences for the time he served
    on home detention pending appeal.3 The State counters that he wasn’t in “custody” because
    he wouldn’t have been subject to prosecution for escape, and therefore wasn’t entitled to
    credit. We review the trial court’s decision de novo. See Gilmer v. State, 
    389 Md. 656
    , 662–
    63 (2005) (“The construction of [§ 6-218] of the Criminal Procedure Article implicate[s] a
    de novo review.”).
    A.     Mr. Johnson Was Entitled To Credit For His Time Served In Home
    Detention.
    Mr. Johnson’s argument relies on a synthesis of two statutes: CP § 6-2184 which
    defines his right to sentence credits, and § 9-405 of the Criminal Law Article (“CR”), which
    defines the offense of escape.5 First, CP § 6-218 (b)(1) entitles convicted defendants to
    credit for time spent in the custody of a correctional facility on the charge at issue:
    Despite the title of Mr. Johnson’s motion, he effectively requested credit against his
    sentence for time spent in home detention. As such, we have treated the circuit court’s
    order denying his motion as a refusal to grant credit for time spent in custody pursuant to
    CP § 6-218, an order that is appealable. See e.g., Spriggs v. State, 
    152 Md. App. 62
    (2003)
    (reviewing an appeal of a trial court’s decision to decline defendant’s request for credit
    against time spent in home detention).
    This matters now not simply as a jurisdictional question, but also because the Court
    of Appeals has affirmed Mr. Johnson’s convictions, thus bringing front and center the
    question of whether, and to what extent, he may already have served his sentence.
    3
    In his brief, Mr. Johnson phrased the Question Presented as follows: “Did the court err in
    concluding that Mr. Johnson was not entitled to credit for time spent in home detention
    while on appeal bond?”
    4
    Section 6-218 of the Criminal Procedure Article was enacted, effective October 1, 2001,
    to replace, without substantive change, former Md. Code Art. 27, § 638C (1957, 1996 Repl.
    Vol.).
    5
    Section 9-405 of the Criminal Law Article was enacted, effective October 1, 2010, to
    replace, without substantive change, former Md. Code Art. 27, § 137A.
    5
    A defendant who is convicted and sentenced shall receive
    credit against and a reduction of the term of a definite or life
    sentence, or the minimum and maximum terms of an
    indeterminate sentence, for all time spent in the custody of
    a correctional facility, hospital, facility for persons with
    mental disorders, or other unit because of:
    (i) the charge for which the sentence is imposed; or
    (ii) the conduct on which the charge is based.
    Md. Code Ann., Crim. Proc. (2002, 2012 Repl. Vol.), § 6-218(b)(1) (emphasis added).
    Section 6-218 was enacted “to ensure that a defendant receive as much credit as
    possible for time spent in custody as is consistent with constitutional and practical
    considerations.” Fleeger v. State, 
    301 Md. 155
    , 165 (1984). The key feature of custody,
    though, is the defendant’s exposure to criminal prosecution for escape if he were to leave
    the site of his detention. In Maus v. State, 
    311 Md. 85
    (1987), the Court of Appeals
    considered the meaning of the phrase “in the custody of any state, county or city jail,
    correctional institutions, hospital, mental hospital or other agency” 6 in the context of a
    defendant who spent time, as a condition of probation, in a residential drug treatment
    program. The Court held that the defendant was not “in custody” for purposes of the statute
    because the program merely provided supervision, and that credit should be awarded for
    time in drug treatment facilities when the defendant “is civilly committed to the treatment
    facility and when, in cases of unauthorized departure, he or she is guilty of the crime of
    escape.” 
    Maus, 311 Md. at 103
    (emphasis added). And in that case, the trial court could
    6
    This language has since been amended and recodified as § 6-218 of the Criminal
    Procedure Article.
    6
    not have committed the defendant to the facility nor imposed imprisonment as a condition
    of the defendant’s probation. 
    Id. Similarly, in
    Balderston v. State, 
    93 Md. App. 364
    (1992), we rejected a claim that
    voluntary home detention, requested by the defendant as a condition of probation, qualified
    as “custody” under § 6-218 because that defendant’s conditions allowed him freedoms
    inconsistent with the term:
    [V]oluntary home detention, a situation in which a defendant
    can leave his home to go to work, and has freedom of
    movement and association within his home, cannot be
    considered “custodial,” or the equivalent of custody. On the
    contrary, the reason appellant requested that he be permitted to
    participate in home confinement is because it is not the
    equivalent of custody, i.e., he could tend to his responsibilities
    and maintain his job.
    
    Id. at 370.
    We noted there that the Court of Appeals had construed the term “custody” in
    Maus to mean “incarcerative custody, not mere supervision. That is, the custody had to be
    involuntary and pursuant to a court commitment to a public institution.” 
    Id. at 368
    (quoting
    
    Maus, 311 Md. at 101
    ). We limited our holding to the particular facts of the case, relying
    heavily on the fact that the defendant—not the court—had requested placement in a home
    confinement program. 
    Id. at 370.
    This case is distinguishable from Maus and Balderston. Although Mr. Johnson
    requested release pending appeal, the court ordered him into home detention, not a
    residential drug treatment center as in Maus. Unlike the defendants in Maus and
    Balderston, his home detention was involuntary, and he was not on probation—he had been
    convicted.
    7
    Instead, this case fits more closely with Dedo v. State, 
    343 Md. 2
    (1996). There, the
    Court of Appeals held that a defendant was entitled to credit for time spent prior to trial in
    a home detention program. The Court found the set of restraints on this defendant
    “sufficiently incarcerative” to qualify as custody, and distinguished the case from Maus
    and Balderston, because the defendant could be punished for escape if he left:
    Where a defendant is punishable for the crime of escape for an
    unauthorized departure from the place of confinement, the
    custody requirement of [§ 6-218 of the Criminal Procedure
    Article, formerly § 638C of Article 27] is met.” A defendant is
    not in ‘custody’ for purposes of [§ 6-218 of the Criminal
    Procedure Article, formerly § 638C of Article 27] if the
    conditions of the defendant’s confinement do not impose
    substantial restrictions on the defendant’s freedom of
    association, activity and movement such that unauthorized
    absence from the place of confinement would be chargeable as
    the criminal offense of escape....
    
    Dedo, 343 Md. at 11
    (emphasis added). The Court also cited two advisory opinions by the
    Attorney General of Maryland. 
    Id. at 13–14.
    In 1991, shortly after the Maus decision, the
    Attorney General observed that a person on home detention is incarcerated in a local
    detention center in the sense that the prisoner’s home can be said to be an extension of the
    local detention center, thus making the home a “public institution” for that purpose.
    Corrections: Reimbursement for Inmates in Home Detention Programs, 76 Md. Op. Att’y
    Gen. 110, 113 (1991).7 Three years later, after Balderston, the Attorney General opined
    that “[a]n inmate on post-conviction home detention is in the custody of the Division of
    7
    The opinion also stated that “a person in home detention is ‘incarcerated.’ The
    surroundings may be far more congenial than a jail cell, but the significant element of
    physical restraint remains.” 
    Id. 8 Corrections
    pursuant to a court order, and, upon violation of a condition of home detention,
    may be remanded to prison.” Corrections: Entitlement to Sentence Credit for Time Served
    on Pre-Trial Home Detention, 79 Md. Op. Att’y Gen. 76, 81 (1994).
    The specific terms of Mr. Dedo’s home detention differed from those in Maus and
    Balderston as well, and in ways that rendered his home confinement more like custodial
    incarceration. The Court placed particular emphasis on the facts that: (1) the home
    detention contract characterized Mr. Dedo’s confinement as incarceration; (2) Mr. Dedo
    could have been charged with escape under § 6-218 for any unexcused or unexplained
    absence from his home during curfew hours; (3) he was subject to the control of the warden
    and home detention staff; (4) any violation of the home detention would have resulted in
    immediate imprisonment; (5) his movements and activities were monitored electronically;
    (6) he was required to permit home detention staff to enter his home at any time to
    inspect/install the monitoring equipment; and (7) he was restricted from possessing or
    consuming alcoholic beverages, and was subject to random urinalysis and breath alcohol
    testing. 
    Dedo, 343 Md. at 12
    –13.
    Mr. Johnson argues that his confinement imposed “substantial restrictions on [his]
    freedom of association, activity and movement.” And it did. Under the terms of the
    Agreement, Mr. Johnson, like Mr. Dedo, was confined to his home subject to the curfew
    schedule set by ASAP. He could be reported to the trial court for any violation of the
    Agreement and, more significantly, could be charged with escape under CR § 9-405. His
    movements were monitored electronically twenty-four hours a day via an ankle transmitter
    device, in addition to a home monitoring unit installed in his home, and he was required to
    9
    permit ASAP staff to enter his home to install or inspect the equipment. He was not
    permitted to use alcoholic beverages and controlled or uncontrolled substances, unless
    prescribed by a physician, and was subject to random drug urinalysis and breath alcohol
    testing.
    At the motions hearing and in its brief, the State argued, and the trial court agreed,
    that Mr. Johnson would not be subject to prosecution of escape if he violated the conditions
    of his home detention:
    THE STATE: [I]f Mr. Johnson were to or would he have run
    away from his house, he would not have been arrested and
    prosecuted for escape. The home monitoring people would
    have called Your Honor, would told you he aflighted from his
    house, you would have issued, essentially, a contempt of court
    because he violated --
    THE COURT: No, I would have
    THE STATE: -- your conditions.
    THE COURT: -- issued an arrest warrant. I’ve been there
    before.
    THE STATE: Or an arrest warrant. But that arrest warrant
    would not be prosecutable for escape.
    THE COURT: Yeah.
    But this is where CR § 9-405 comes in: according to the terms of the Agreement
    and the statutory definition of escape, Mr. Johnson could be prosecuted for escape if he
    violated the terms of the Agreement. A person is guilty of escape in the second degree if
    he or she “knowingly depart[s] from custody” without authorization. CR § 9-405(a)(1).
    Section 9-405(a)(3)(ii) prohibits a person from escaping from “a place identified in a home
    10
    detention order or agreement.” Indeed, § 9-405(b)(1)(iii) specifically “applies to a person
    who is committed to home detention by the court.” And § 9-405(b)(2) extends liability to
    violations of conditions in home detention agreements as well:
    A person may not knowingly:
    (i) violate any restriction on movement imposed under the
    terms of a . . . home detention order or agreement;
    (ii) fail to return to a place of confinement under the terms
    of . . . home detention order or agreement.
    CR § 9-405(b)(2).
    This case may be the first to address home detention as “custody” for a convicted
    defendant awaiting appeal, but the notion that home detention can be custody is nothing
    new. We held in Toney v. State, for example, that a defendant was entitled to credit against
    time served in home detention because he was (i) “confined to his home with electronic
    monitoring,” (ii) “unable to leave his home at any time without obtaining permission of an
    official obligated to report to the court,” and (iii) could have been prosecuted for escape if
    he were to violate his home detention. 
    140 Md. App. 690
    , 695 (2001). Similarly, in Spriggs
    v. State, citing the same statutory language, we held that a defendant detained at home is
    “in custody” for the purpose of § 6-218 and is entitled to credit for time served in custody
    because he can be prosecuted with escape:
    A court may order home detention, monitored by a licensed
    private home detention monitoring agency, as a condition of
    pre-trial release. A place identified in such an order is a place
    of confinement, and a defendant who violates a restriction on
    movement or fails to return under a home detention order or
    agreement may be found guilty of [second] degree escape.
    11
    
    152 Md. App. 62
    , 69 (2003). And “[a]lthough the Court of Appeals found that particular
    form of commitment [in Dedo] incarcerative, it did not rule out that other forms of
    supervision might also be incarcerative.” 
    Toney, 140 Md. App. at 693
    –94.
    For those reasons, we disagree with the State that the “consequence of violation of
    the conditions of the appeal bond would have been forfeiture, not prosecution for escape.”
    Mr. Johnson’s agreement with ASAP states that any violation of the home detention order
    or the terms of the agreement “may be considered an escape and subject to prosecution” in
    addition to being reported to the court. And even if it didn’t include that language, Toney
    disengaged the possibility of liability for escape from the terms of the home detention
    
    agreement. 140 Md. App. at 695
    . And in Spriggs, we didn’t consider the agreement at all.
    What matters is whether a defendant can be prosecuted for escape, and Mr. Johnson could
    have been.
    The State also contends that we can’t rely on the terms of the ASAP Agreement
    because it was not “submitted to the lower court,” as required by Md. Rule 8-414(a).8 It’s
    not obvious from the circuit court record that this is true, but assuming that it wasn’t and
    that we couldn’t consider it in our decision, the outcome is the same. The State did not
    dispute the terms of the agreement at the motions hearing. Mr. Johnson’s counsel proffered
    that his client’s activities were monitored electronically, that he was confined to his home
    unless he had permission, that he was granted permission from the court only to attend
    8
    Mr. Johnson filed an unopposed Motion to Supplement the Record with the home
    detention agreement to this Court on July 25, 2017. We granted that motion on August 9,
    2017, so the ASAP Agreement is part of the record on appeal.
    12
    work and church services and meet with his attorney, and that all of these activities required
    additional permission from ASAP. The State did not object to that proffer, and the court
    accepted it. Mr. Johnson was confined to his home with twenty-four hour electronic
    monitoring. He, as in Dedo, was allowed to leave his home only for the activities approved
    in the court order. And unlike the defendants in Maus and Balderston, Mr. Johnson did not
    request to be placed in home detention—the court, in exercise of its discretion, ordered him
    to home detention with ASAP as a condition of his appeal bond.
    The State draws the same distinction between pre-trial release and post-trial release
    as the trial court, arguing that because Mr. Johnson was released on appeal bond, his case
    is factually different from Dedo, Spriggs, Toney, and Kang v. State, 
    163 Md. App. 22
    (2005), in which we held that a defendant released to home detention on bond before trial
    and required to wear an ankle bracelet and “24/7 curfew” except for work, court, and
    meeting with his attorney was entitled to credit for his time served on home detention. But
    the difference is purely a matter of posture, not confinement. It’s the nature and extent of
    confinement that drives a defendant’s right to credit under CP § 6-218, not the stage of the
    proceedings, and the conditions of Mr. Johnson’s confinement qualified as “custody” for
    these purposes.
    JUDGMENT OF THE CIRCUIT COURT
    FOR BALTIMORE CITY REVERSED,
    CASE REMANDED FOR FURTHER
    PROCEEDINGS CONSISTENT WITH
    THIS OPINION. MAYOR AND CITY
    COUNCIL OF BALTIMORE TO PAY
    COSTS.
    13
    

Document Info

Docket Number: 0223-17

Judges: Nazarian

Filed Date: 3/2/2018

Precedential Status: Precedential

Modified Date: 10/19/2024