Brendoff v. State ( 2019 )

Brendoff v. State, No. 578, Sept. Term, 2018, Opinion by Leahy, J.
Statutes > Principles of Statutory Interpretation
A court’s primary goal in interpreting statutes is always to discern the legislative purpose.
“Every analysis begins with asking whether the relevant statutory scheme evinces a plain
meaning. We read the statute as a whole to ensure that no word, clause, sentence or phrase
is rendered surplusage, superfluous, meaningless or nugatory If the statutory language is
clear and unambiguous, our analysis may end. However, when the language of the statute
is subject to more than one interpretation, it is ambiguous.” Conaway v. State, ___ Md.
___, ___, No. 69, Sept. Term, 2018, slip op. at 17 (filed July 11, 2019). We look to resolve
ambiguity by searching for legislative intent in other indicia, including the statute’s
legislative history and relation to other laws, as well as any relevant case law. Watts v.
State, 457 Md. 419, 430 (2018); Gardner v. State, 420 Md. 1, 9 (2011).
Criminal Procedure > Revocation of Probation
A court’s determination on the question of whether to revoke probation typically involves
two inquiries: “(1) a retrospective factual question whether the probationer has violated a
condition of probation; and (2) a discretionary determination by the sentencing authority
whether a violation of a condition warrants revocation of probation.” Hammonds v. State,
436 Md. 22, 31 (2013). Under the first inquiry, “the hearing judge must find the essential
facts comprising a violation of a condition by a preponderance of the evidence.” State v.
Dopkowski, 325 Md. 671, 677 (1992) (internal quotations omitted).
Correctional Services > Justice Reinvestment Act > Technical Violations of
Probation
The Justice Reinvestment Act of 2016, codified in relevant part as § 6-101(m) of the
Correctional Services Article of the Maryland Code, distinguishes between technical and
non-technical violations of probation. Section 6-101(m) defines a technical violation as
one that does not involve an arrest or summons issued by a commissioner on a statement
of charges filed by a law enforcement officer, a violation of a criminal prohibition other
than a minor traffic offense, a violation of a no-contact or stay-away order, or absconding.
Maryland Code (1999, 2017 Repl. Vol.), Correctional Services Article (“CS”), 6-101(m).
Criminal Procedure > Justice Reinvestment Act > Presumptive Incarceration Limits
for Technical Violations of Probation
The Justice Reinvestment Act of 2016, codified in relevant part as § 6-223 of the Criminal
Procedure Article of the Maryland Code, places presumptive limits on the period of
reincarceration courts may impose on probationers who commit technical violations of
probation. Maryland Code (2001, 2008 Repl. Vol., 2017 Supp.), Criminal Procedure
Article (“CP”), § 6-223. The presumptive incarceration limits may be rebutted, however,
if a court, after considering the nature of the probation violation, the circumstances of the
crime for which the defendant was convicted, and the defendant’s history, finds and states
on the record that adhering to the presumptive incarceration limits would “create a risk to
public safety, a victim, or a witness.” CP § 6-223(d)(3)(ii). “Upon making such a finding,
a court may impose a period of incarceration that exceeds those contained in the
presumptive limits or it may commit the probationer to [the Department] for treatment.”
CP § 6-223(d)(3)(iii).
Criminal Procedure > Justice Reinvestment Act > Non-Technical Violations
Non-technical violations of probation, such as “absconding,” still remain subject to the
court’s power to revoke probation and impose sentences that might originally have been
imposed, without adherence to the presumptive incarceration limits for technical
violations. Maryland Code (1999, 2017 Repl. Vol.), Correctional Services Article (“CS”),
6-101(m); CP § 6-223.
Correctional Services > Justice Reinvestment Act > Non-Technical Violations of
Probation > Absconding
The Justice Reinvestment Act of 2016, codified in relevant part as § 6-101(b) of the
Correctional Services Article of the Maryland Code, defines the term “absconding” as
“willfully evading supervision,” though it “does not include missing a single appointment
with a supervising authority.” Maryland Code (1999, 2017 Repl. Vol.), Correctional
Services Article (“CS”), 6-101(b)(1)-(2).
Correctional Services > Justice Reinvestment Act > Non-Technical Violations of
Probation > Commitment for Treatment > Absconding
When a prisoner is placed on supervised probation upon admission into a drug and alcohol
treatment facility pursuant to an order issued under Maryland Code (1982, 2015 Repl. Vol.,
2017 Supp.), Health General Article (“HG”), § 8-507, the Division of Parole and Probation,
which includes the assigned probation agent, is the probationer’s “supervising authority”
for purposes of ascertaining whether the probationer has absconded within the meaning of
Maryland Code (1999, 2017 Repl. Vol.), Correctional Services Article (“CS”), 6-101(b).
Correctional Services > Justice Reinvestment Act > Non-Technical Violations of
Probation > Commitment for Treatment > Absconding
When there is an allegation of a non-technical violation of probation by “absconding,” then
the first inquiry in the court’s determination, Hammonds v. State, 436 Md. 22, 31 (2013),
is an assessment of whether the probationer willfully evaded his or her supervising
authority.
Circuit Court for Anne Arundel County
Case No. 02K09002331, 02K09002332, 02K09002333
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 578
September Term, 2018
RICHARD BRENDOFF
v.
STATE OF MARYLAND
Fader, C.J.,
Leahy,
Friedman,
JJ.
Opinion by Leahy, J.
Filed: August 1, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-08-01 14:57-04:00
Suzanne C. Johnson, Clerk
Moving prisoners from prison beds to treatment beds was one of the galvanizing
objectives of Maryland’s Justice Reinvestment Act ( “JRA”).1 2016 Md. Laws, ch. 515.2
In keeping with this objective, the JRA established presumptive incarceration limits for
technical violations of probation. Maryland Code (2001, 2008 Repl. Vol., 2017 Supp.),3
Criminal Procedure Article (“CP”), § 6-223. However, non-technical violations of
probation, such as “absconding,” still remain subject to the court’s power to revoke
probation and impose sentences that might originally have been imposed, without
adherence to the presumptive incarceration limits for technical violations. Maryland Code
(1999, 2017 Repl. Vol.), Correctional Services Article (“CS”), 6-101(m); CP § 6-223.
Absconding is defined as “willfully evading supervision,” though it “does not include
missing a single appointment with a supervising authority.” CS § 6-101(b)(1)-(2).
Appellant, Richard Brendoff, entered guilty pleas on March 16, 2010, for theft,
second-degree burglary, and attempted second-degree burglary in three separate cases in
1
During a legislative oversight hearing in January of 2017, Maryland Public
Defender Paul B. DeWolfe depicted the underpinning of the Justice Reinvestment Act as:
“a shift in philosophy from the jail bed to the treatment bed.” Steve Lash, Justice
Reinvestment Faces Implementation Challenges, Lawmakers Told, THE DAILY
RECORD (Jan. 19, 2017), https://perma.cc/J2HJ-FM9N.
2
As explained later in this opinion, the JRA enacted comprehensive reforms by
adding and amending numerous statutes, including, as pertinent to this appeal, provisions
of the Correctional Services and Criminal Procedure Articles of the Maryland Code.
3
We cite to the version of the statute in effect at the time of the violation of probation
hearing in this case, which occurred on November 20 and 22, 2017. The relevant
provisions of the JRA became effective on October 1, 2017, and section 6-223 was
subsequently amended again in 2018 without substantive change. See Maryland Code
(2001, 2018 Repl. Vol.), Criminal Procedure Article (“CP”), § 6-223.
the Circuit Court for Anne Arundel County. While serving his sentences, Brendoff asked
the court to commit him to a drug and alcohol treatment program pursuant to Maryland
Code (1982, 2015 Repl. Vol., 2017 Supp.), Health General Article (“HG”), § 8-507. On
August 23, 2016, the court granted Brendoff’s motion and committed him to the
Department of Health4 (“the Department”) for residential drug treatment at a facility to be
determined by the Department. The court placed Brendoff on supervised probation and,
as conditions of his probation, he was to complete drug treatment generally; the residential
treatment program specifically; plus, any after care.
Brendoff was admitted into the Jude House Residential Substance Abuse Treatment
Program (“Jude House”), which he left prior to being discharged. On December 20, 2016,
the State charged Brendoff with violating a condition of his probation. While the violation
of probation (“VOP”) hearing was pending, Brendoff contacted his probation agent and
entered New Life Addiction Counseling Service (“New Life”), a different out-patient
treatment center. Unfortunately, he incurred additional VOP charges on February 23,
2017, after missing six required treatment sessions. At the VOP hearing, the circuit court
found that Brendoff had committed non-technical violations of the conditions of his
probation based on the allegation that he absconded from the treatment facilities. The
court revoked Brendoff’s probation and ordered him to serve 10 years of his previously
4
During the 2017 session, the Maryland General Assembly changed the name of
the Department of Health and Mental Hygiene to the Department of Health. 2017 Md.
Laws, ch. 214.
2
suspended sentences. We granted Brendoff leave to appeal5 the circuit court’s
determination that he committed a non-technical violation of his probation by
“absconding.”6
We hold that when a prisoner is placed on supervised probation upon admission into
a drug and alcohol treatment facility pursuant to an order issued under HG § 8-507, the
Division of Parole and Probation (“DPP”), which includes the assigned probation agent, is
the probationer’s “supervising authority” for purposes of ascertaining whether the
probationer has absconded within the meaning of CS § 6-101(b). Consequently, the court
erred in this case by implicitly treating the treatment facilities as the supervising authorities
when the court found that Brendoff committed a non-technical violation of his probation
by walking away from Jude House and missing six required appointments at New Life.
5
See Maryland Rule 8-204 and Maryland Code (1973, 2013 Repl. Vol.), Courts and
Judicial Proceedings Article (“CJP”), § 12-302(g). Recently, in a consolidated opinion,
the Court of Appeals decided two cases that involved petitioners who had their probation
revoked for committing technical violations and who received sentences exceeding the
JRA’s presumptive sentencing limits for technical violations based on findings that they
were threats to public safety. Conaway v. State, ___ Md. ___, ___, No. 69, Sept. Term,
2018, slip op. at 3-4, 8-9 (filed July 11, 2019). The petitioners asserted that probationers
in their position are granted a right of direct appeal under CJP § 12-302(g) and the
appealability provisions of the JRA. Id. at 16. The Court held, however, that CJP § 12-
302(g) unambiguously requires a probationer to seek review of a revocation of probation
and sentence through an application for leave to appeal. Id. at 18, 22. The Court also held
that the appealability provisions of the JRA unambiguously require a probationer to seek
review of the findings of a technical violation and the resultant period of incarceration
exceeding the JRA’s presumptive incarceration limits by means of an application for leave
to appeal. Id. at 26.
6
On appeal, Brendoff presents one question for our review: “Did the circuit court
err in this case in determining that [Brendoff] absconded where he did not satisfy a
condition of his probation that he complete a residential drug treatment program but he
remained under the supervision of the Division of Parole and Probation?”
3
Accordingly, we remand this case to the circuit court to determine whether Brendoff
absconded in violation of his probation by “willfully evading [the] supervision” of his
probation agent. CS § 6-101(b)(1)-(2).
BACKGROUND
On October 23, 2009, a grand jury in the Circuit Court for Anne Arundel County
issued three separate indictments for Brendoff. The first indictment, which arose out of
offenses committed on or about October 11, 2009, charged him with second-degree
burglary, theft of $10,000 to under $100,000,7 malicious destruction of property, and
conspiracy to commit second-degree burglary. The second indictment, which arose out of
offenses committed on or about September 28, 2009, charged Brendoff with second-degree
burglary, theft of $500 or more, malicious destruction of property, and conspiracy to
commit second-degree burglary. The third and final indictment, which arose out of
offenses committed on or about September 29, 2009, charged him with attempted second-
degree burglary, malicious destruction of property, and conspiracy to commit second-
degree burglary.
Brendoff waived his right to a jury trial and pleaded guilty on March 16, 2010, to
theft over $1,000 to under $10,000 in the first case, second-degree burglary in the second
case, and attempted burglary in the second degree in the third case.8 At the sentencing
hearing on April 16, 2010, the circuit court imposed concurrent 15-year sentences with all
7
The State later amended this count to theft over $1,000 to under $10,000.
8
The State nolle prossed the remaining counts in all three cases.
4
but eight years suspended for the burglary offenses. The court also imposed a suspended
10-year sentence for the theft offense to run consecutive to the two burglary sentences. For
all three offenses, the court placed Brendoff on five years’ supervised probation upon
physical release from incarceration. The court’s order (“2010 Probation Order”) imposed
certain standard conditions of probation and, as relevant to this appeal, five special
conditions of probation:
● Submit to and pay for random urinalysis as directed by Supervising
Agent.
● Submit to, successfully complete, and pay required costs for [drug
evaluation, testing, and treatment.]
● Attend and successfully complete [drug treatment and education
program].
● Totally abstain from alcohol, illegal substances, and abusive use of a
prescription drug.
● Have no contact with victims or witnesses.
HG § 8-507 Commitment
While serving his burglary sentences, Brendoff requested that the court commit him
to the Department for drug and alcohol treatment pursuant to HG §§ 8-505 through 8-507.9
9
From 2012 to 2014, Brendoff wrote several letters to the court requesting
commitment to a drug and alcohol program, which the court treated as motions for an HG
§ 8-505 evaluation and an HG § 8-507 commitment. In denying Brendoff’s initial motions
in 2012 and 2013, the circuit court noted that it would reconsider the motions after April
1, 2014. According to one of Brendoff’s letters, the sentencing judge wanted Brendoff to
serve half of his sentence before considering him for § 8-505 evaluations and § 8-507
placement.
On June 4, 2014, Brendoff filed, pro se, a form petition for civil commitment to the
Department pursuant to HG §§ 8-505 and 8-507. On June 30, 2014, the circuit court
ordered Brendoff for in-custody evaluation for drug and alcohol treatment pursuant to HG
5
On July 5, 2016, the Department issued an evaluation report recommending Brendoff for
§ 8-507 placement. The circuit court held a hearing on August 23, 2016, and issued an §
8-507 order committing Brendoff to the Department for “inpatient residential substance
abuse treatment at a facility to be determined by [the Department], beginning upon bed
availability and ending upon completion of or termination from treatment[.]” The order
provided, in relevant part:
That supervision of the Defendant shall be provided by:
The Division of Parole & Probation in that the sentence of the
Defendant shall be suspended and the Defendant shall be
placed on probation effective upon the acceptance and
transporting of the Defendant to the designated DHMH
Facility.
***
IT IS FURTHER ORDERED that in the event the Defendant leaves the
treatment facility without authorization or is terminated from the facility or
any after care program for any reason, the Division of Parole and Probation
and the State shall be notified as soon as reasonably possible.
(Emphasis added).
The balance of Brendoff’s sentences for the burglary offenses was suspended upon
admission to treatment. The “Probation/Supervision Order” (“2016 Probation Order”)
stated that Brendoff would be supervised by “Parole and Probation” and that the length of
his probationary period was five years. The 2016 Probation Order imposed general
conditions and the following special conditions on his probation:
● Submit to and pay for random urinalysis as directed by Supervising
Agent.
§ 8-505. Despite the Department’s evaluation that Brendoff was amenable to substance
abuse treatment, on August 7, 2014, the court held the request sub curia for reasons
unapparent from the record on appeal.
6
● Submit to, successfully complete, and pay required costs for [alcohol and
drug evaluation, testing, treatment, education], as directed by your
supervising agent.
● Totally abstain from alcohol, illegal substances, and abusive use of any
prescription drug.
● Successfully complete residential program and any after care.
The order also included a Consent to Treatment form, signed by Brendoff, which stated:
I further agree to enter and complete any residential or out-patient program
recommended and arranged by the Department of Health and Mental
Hygiene and to comply with the terms of any Probation Order in this case
and any after-care plan developed for me. I have been informed that if I fail
to comply with the conditions of my probation, I will face imposition of the
sentence which was suspended.
The Violations of Probation
Pursuant to the commitment order, Brendoff was admitted on November 10, 2016,
into Jude House for 120 days of treatment. On December 9, 2016, however, Brendoff left
Jude House prior to being discharged. Brendoff’s probation agent submitted a report the
next week informing the court of Brendoff’s departure from Jude House.
On or around December 16, 2016, Brendoff was admitted into New Life, an
intensive out-patient treatment center. The State nevertheless requested a warrant and filed
a statement of charges on December 20, 2016, alleging that Brendoff violated a condition
of the 2016 Probation Order by leaving Jude House prior to being discharged. Eight days
later, the court issued a summons to Brendoff for an initial appearance on January 30, 2017.
Brendoff complied, and at his initial appearance, the circuit court notified Brendoff that his
VOP hearing was scheduled for March 6, 2017.
While the VOP hearing was pending, Brendoff was arrested and charged with
7
multiple crimes, including attempted murder and armed robbery in connection with a drug
deal that went bad on February 20, 2017. Brendoff’s probation agent informed the court
on February 23, 2017, of these additional violations of the conditions of his probation.10
His probation agent further reported that on February 15, 2017, New Life sent her a “status
report” indicating that “Brendoff had missed six required sessions and that his attitude and
appearance were an indication of relapse potential.” Consequently, the State amended its
statement of charges to include additional allegations that Brendoff also violated the
conditions of his probation relating to, inter alia, drug treatment by leaving Jude House
prior to being discharged and for missing “six required sessions” at New Life.
Accordingly, on February 27, 2017, the circuit court issued a no-bond bench warrant for
Brendoff for the VOPs.11
Violation of Probation Hearing
On November 20 and 22, 2017, the circuit court held a hearing on the charged VOPs.
The State called three witnesses: Felicia Powers, Brendoff’s probation agent at the time of
trial; Cheyenne Potter, Brendoff’s co-defendant in the case for attempted murder alleged
to have occurred on February 20, 2017; and Detective Franklin Bilbrey, the lead detective
10
On the basis of this information, the State charged Brendoff with violating the
condition that he obey all laws, and the condition that he get permission from the court
before owning, possessing, using, or having under his control any dangerous weapon or
firearm.
11
On March 2, 2017, the probation agent reported that Brendoff violated yet another
condition of probation. The report stated that on February 24, 2017, Brendoff received a
citation in Anne Arundel County for theft less than $1,000. The statement of charges was
thereafter amended to include this allegation under the charged violation of the condition
that he obey all laws.
8
in that case. Ms. Potter and Det. Bilbrey testified about the February 20 case that formed
the basis for certain VOP charges that are not the subject of the instant appeal.
Most pertinent to this appeal is the testimony of Agent Powers. She testified that
she became Brendoff’s probation agent in June 2017. According to Agent Powers, there
were two agents on the case before her: Agent Thomas and Agent Sims. Agent Thomas
was Brendoff’s probation agent at the time he entered treatment at Jude House. Then,
when Brendoff later entered treatment at New Life, Agent Sims became his probation
agent.
Agent Powers inherited Agent Thomas’s case file on Brendoff. Agent Powers
confirmed that Agent Thomas reported the first VOP to the court, indicating that Brendoff
had left the Jude House on December 9, 2016. She testified that, based on that VOP report,
the circuit court issued a summons for Brendoff during the time he was meeting with Agent
Sims and attending treatment at New Life, which he had entered on December 19, 2016.
According to the discharge summary from New Life, which the defense moved into
evidence, Brendoff was discharged on February 22, 2017, due to attendance issues.12
Agent Powers testified further about her personal knowledge of Brendoff’s
treatment at Jude House and New Life. She related that after taking over as the supervisor
12
The New Life discharge summary indicated an admission date of December 16,
2016. Defense counsel also introduced, and the court received into evidence, a progress
report from the Jude House. The report, which covered Brendoff’s progress from
November 10 through November 30, 2016, stated that Brendoff was in the “action stage”
of treatment, was committed to changing, and was working on coping skills. The record
indicates, however, that neither party entered the discharge summary from Jude House into
evidence.
9
on the case, she never met with Brendoff in person but spoke with him over the phone
once, when he called her on October 25, 2017. During that phone conversation, she
explained, Brendoff told her that “he had walked away from his 8-507 program” at Jude
House because he took opiates following a back injury and relapsed.
The State averred in closing that the VOP charge rested on two issues: “the treatment
allegations and the failure to obey all laws[.]” With respect to the “treatment allegations,”
the State argued that Agent Powers “testified that [Brendoff] was released to Jude [House]
on an 8-507 and he absconded from treatment.” Brendoff’s counsel retorted that, although
Brendoff left Jude House, the events that took place after he left showed that he had not
absconded. Specifically, counsel argued that Brendoff was still reporting to his probation
agent after leaving Jude House, as evidenced by the fact that he entered treatment at New
Life “within a week of walking out of Jude House.” Counsel highlighted, additionally, that
Brendoff appeared for his arraignment following his exit from Jude House.
With regard to the allegations that Brendoff missed six treatments at New Life, his
counsel acknowledged that “from [New Life’s] discharge summary, . . . there certainly was
some evidence of relapse and Brendoff had stopped going to classes or was not going
consistently.” Counsel argued, however, that Brendoff “was not discharged from New Life
unsuccessfully until he was arrested and, obviously, could no longer [attend].”
Accordingly, defense counsel asserted that Brendoff did not abscond and, therefore, did
not violate his conditions of probation relating to drug treatment.
The case was continued until November 22, 2017, at which time the court issued its
findings and determined whether to reincarcerate Brendoff. The court began by stating
10
that, based on all of the evidence, it found that “this is not a technical violation because one
of [the] allegations is that Brendoff absconded so it is not a technical violation.” Regarding
the allegation that Brendoff absconded from drug treatment, the court found that he
violated the conditions of his probation relating to drug treatment because it was
“undisputed that [] Brendoff walked away from 8-507 treatment at the Jude House on
December 9, 2016 without being discharged” and that he also missed the six required
sessions at New Life.13
The court found that Brendoff was not doing well in either of his drug treatment
programs and that he was not amenable to treatment. The court revoked his probation and
ordered him to serve a total sentence of 10 years at the Department of Corrections: (1) three
of the 10 years that were suspended for the theft offense; and (2) seven of the eight years
that were suspended for the attempted robbery offense.14
Pursuant to Maryland Rule 8-204 and Maryland Code (1973, 2013 Repl. Vol.),
Courts and Judicial Proceedings Article (“CJP”), § 12-302(g), Brendoff filed an application
13
The circuit court did not find that Brendoff violated the other conditions of his
probation. With regard to the condition that Brendoff obey all laws, the court decided that
there was no violation because the State argued at the VOP hearing that Brendoff violated
certain laws that were not specifically alleged in the statement of charges, thereby raising
due process concerns. Next, the court could not find that there was a violation of the
condition that Brendoff receive permission from the court before owning, possessing,
using, or having under his control any dangerous weapon or firearm, because it “c[ould]
not say that it [wa]s more likely that [] Brendoff possessed a firearm or that the [victim
possessed] the firearm so [it] just c[ould not] find that the State met its burden on that.”
14
The court also ordered Brendoff to serve seven of the eight years that were
suspended for the robbery offense, which was to run concurrently with the sentence for
attempted robbery.
11
for leave to appeal in all three cases to this Court on December 21, 2017, which we granted
on May 31, 2018, and consolidated for appeal.
DISCUSSION
Before this Court, Brendoff contends that the circuit court erred in concluding that
his failure to complete drug treatment equated to “absconding” as defined by CS § 6-101(b)
and was, therefore, a non-technical violation of probation. His principal contention is that
any such violation of his conditions of probation did not amount to absconding because
there was no evidence that he “failed to report to his probation agent or failed to keep his
agent apprised of his whereabouts.”15 Brendoff posits that, under the definition of
“absconding” in CS § 6-101(b), “a violation of a condition of probation would involve
absconding if the probationer failed to report to his or her probation agent or failed to notify
the agent of a change of address.” According to Brendoff, his probation agent was
“continuously aware of his whereabouts.”
In response, the State argues that the evidence was sufficient for the circuit court to
conclude that Brendoff willfully evaded supervision. The State asserts that Brendoff made
two concessions before the circuit court: (1) that he “walked out” of Jude House and (2)
that he missed six sessions at New Life. The State argues that Brendoff was under the
15
Brendoff also argues briefly that the State failed to present any evidence that he
violated the conditions of his probation in the manners alleged in the statement of charges.
Specifically, he argues, the State failed to present any evidence showing that he missed
treatment sessions at New Life. According to Brendoff, Ms. Powers testified only about
his departure from Jude House and did not testify to any matters regarding Brendoff’s
treatment at New Life. Because our holding today rests on the circuit court’s interpretation
of the law, we need not address this argument.
12
supervision of the treatment facility staff while at Jude House and New Life. Additionally,
the State points out that there is no evidence that Brendoff told his probation agent that he
left or where he was going when he stopped treatment at both facilities.
Although we ordinarily review a circuit court’s determination that a defendant
violated his or her conditions of probation for an abuse of discretion, Hammonds v. State,
436 Md. 22, 37 (2013), “[t]he interpretation of a statute is a question of law that this Court
reviews de novo.” Brown v. State, 454 Md. 546, 550 (2017) (citation omitted). “These
two seemingly disparate standards of review are sometimes reconciled with the observation
that it is an abuse of discretion for a court to base a decision on an incorrect legal standard.”
Rodriguez v. Cooper, 458 Md. 425, 437 n.9 (2018).
I.
Statutory Interpretation
The parties advance differing interpretations of CS § 6-101(b), which defines
“absconding” as “willfully evading supervision” but “does not include missing a single
appointment with a supervising authority.” Brendoff contends that, as a probationer, he is
not “absconding” unless he willfully evades the supervision of his probation agent. To the
contrary, the State argues that for purposes of “absconding” under the statute, the
supervising authorities comprise not only Brendoff’s probation agent but also his 8-507
treatment facilities (Jude House and New Life). Therefore, the State reasons, the circuit
court found correctly that Brendoff “absconded” from the treatment facilities.
This case compels us to examine the meaning of “absconding” under CS § 6-101(b)
in tandem with the meaning of “supervision” and “supervising authority.” Our analysis is
13
guided by “the often-cited” principles of statutory construction:
Our primary goal is always to discern the legislative purpose, the ends
to be accomplished, or the evils to be remedied by a particular provision, be
it statutory, constitutional, or part of the [Maryland] Rules. There are a host
of principles in aid of divining legislative intent.
Every analysis begins with asking whether the relevant statutory
scheme evinces a plain meaning. We read the statute as a whole to ensure
that no word, clause, sentence or phrase is rendered surplusage, superfluous,
meaningless or nugatory. If the statutory language is clear and unambiguous,
our analysis may end. However, when the language of the statute is subject
to more than one interpretation, it is ambiguous. . . . In parsing whether plain
meaning or ambiguity is the case, we view the relevant statutory scheme as
a whole, rather than seizing a single provision.
Conaway v. State, ___ Md. ___, ___, No. 69, Sept. Term, 2018, slip op. at 17 (filed July
11, 2019) (alterations and internal citations omitted). We seek to harmonize statutes on the
same subject and read them so as “to avoid rendering either statute or any portion,
meaningless, surplusage, superfluous or nugatory.” Mayor & Town Council of Oakland v.
Mayor & Town Council of Mountain Lake Park, 392 Md. 301, 316-17 (2006) (internal
citations and quotations omitted). “Even if the plain meaning is clear and unambiguous,
we often look to legislative intent and purpose to determine if they ratify our analysis and
interpretation of a statute.” Hammonds, 436 Md. at 44.
A. Plain Language of the Statute
We begin our analysis by examining the statute’s plain language. Section 6-101(b)
defines the term “absconding:”
(b) Absconding. — (1) “Absconding” means willfully evading supervision.
(2) “Absconding” does not include missing a single appointment with
a supervising authority.
Subsection (m) of the same provision clarifies that “absconding” is not a “technical
14
violation” of probation, parole, or mandatory supervision:
(m) Technical violation.—“Technical violation” means a violation of a
condition of probation, parole, or mandatory supervision that does not
involve:
(1) an arrest or a summons issued by a commissioner on a statement
of charges filed by a law enforcement officer;
(2) a violation of a criminal prohibition other than a minor traffic
offense;
(3) a violation of a no-contact or stay-away order; or
(4) absconding.
CS § 6-101(m) (emphasis added).
The significance of CS §§ 6-101(b) and (m) is manifest under the statute governing
probation revocations, CP § 6-223. Section 6-223 “limit[s] [] the duration of incarceration
that may be imposed for a ‘technical’ violation of probation[,]” parole, or mandatory
supervision. Conaway, slip op. at 14. The statute provides, in relevant part:
(d) Options after hearing. — If, at the hearing, a circuit court or the District
Court finds that the probationer or defendant has violated a condition of
probation, the court may:
(1) revoke the probation granted or the suspension of sentence; and
(2)(i) subject to subsection (3) of this section, for a technical violation,
impose a period of incarceration of:
1. not more than 15 days for a first technical violation;
2. not more than 30 days for a second technical violation; and
3. not more than 45 days for a third technical violation; and
(ii) for a fourth or subsequent technical violation or a violation that is
not a technical violation, impose any sentence that might have
originally been imposed for the crime of which the probationer or
defendant was convicted or pleaded nolo contendere.
CP § 6-223(d).16 Subsection (d)(3) creates “a rebuttable presumption that the limits on the
16
As mentioned supra, note 3, CP § 6-223 was amended in 2018, without
substantive change. The amendment re-designated former subsections (d)(3)(i) through
(d)(3)(iv) as subsections (e)(1) through (e)(4).
15
period of incarceration that may be imposed for a technical violation established in
paragraph (2) of this subsection are applicable” to probationers who commit technical
violations of their probation. CP § 6-223(d)(3)(i)-(ii). The presumptive incarceration
limits may be rebutted, however, if a court, after considering the nature of the probation
violation, the circumstances of the crime for which the defendant was convicted, and the
defendant’s history, finds and states on the record that adhering to the presumptive
incarceration limits would “create a risk to public safety, a victim, or a witness.” CP § 6-
223(d)(3)(ii). “Upon making such a finding, a court may impose a period of incarceration
that exceeds those contained in the presumptive limits or it may commit the probationer to
[the Department] for treatment.” Conaway, slip op. at 15; CP § 6-223(d)(3)(iii).
Although these statutory provisions clarify the implications of “absconding” in
terms of the consequences for a violation of probation, the plain language of CS § 6-101(b)
does not identify the supervising authority or define what is meant by the term
“supervision.” Recognizing this ambiguity, we look to resolve it by
searching for legislative intent in other indicia, including the history of the
legislation or other relevant sources intrinsic and extrinsic to the legislative
process. In resolving ambiguities, a court considers the structure of the
statute, how it relates to other laws, its general purpose and relative
rationality and legal effect of various competing constructions.
In every case, the statute must be given a reasonable interpretation,
not one that is absurd, illogical or incompatible with common sense.
Gardner v. State, 420 Md. 1, 9 (2011). We turn now to discerning the General Assembly’s
intent in enacting CS § 6-101 by examining the statute’s legislative history and relation to
other laws, as well as any relevant case law. Id. at 9; Watts v. State, 457 Md. 419, 430
(2018).
16
B. Legislative Scheme and Relation to Other Laws
1. HG § 8-507
Brendoff was placed on supervised probation pursuant to a commitment order under
HG § 8-507. That statute provides the strongest insight to what “supervision” means in
these circumstances. Section 8-507 governs the commitment of defendants to the
Department for treatment “as a condition of release, after conviction, or at any other time
the defendant voluntarily agrees to participate in treatment[.]” HG § 8-507(a). A defendant
released on probation and committed to § 8-507 treatment based upon a finding of an
alcohol or drug dependency must be placed under the supervision of the DPP. Specifically,
§ 8-507(f) provides:
(f) Supervision of defendant. — For a defendant committed for treatment
under this section, a court shall order supervision of the defendant:
(1) By an appropriate pretrial release agency, if the defendant is released
pending trial;
(2) By the Division of Parole and Probation under appropriate
conditions in accordance with §§ 6-219 through 6-225 of the Criminal
Procedure Article and Maryland Rule 4-345, if the defendant is released on
probation; or
(3) By the Department, if the defendant remains in the custody of a local
correctional facility.
(Emphasis added). Section 8-507(f) existed prior to the JRA’s enactment, and “we
presume that the General Assembly acted with full knowledge of prior legislation and
intended statutes affecting the same subject matter to blend into a consistent and
harmonious body of law.” Mayor & Town Council of Oakland, 392 Md. at 316-17 (internal
quotations omitted). Tellingly, the JRA amended portions of HG § 8-507, but retained the
17
language in § 8-507(f) that tasked the DPP with supervision of defendants released on
probation.17 Reading CS § 6-101(b) and HG § 8-507(f) harmoniously, we conclude that
when a probationer is committed to a treatment facility pursuant to an HG § 8-507 order,
it is the DPP—not the treatment facility—that serves as the “supervising authority”
responsible for the probationer’s “supervision.”
2. Title 6 of the Correctional Services Article
Other provisions of Title 6 of the Correctional Services Article reinforce our
interpretation of CS § 6-101(b). Cf. Conaway, slip op. at 24-25 (finding support for the
interpretation that the appealability provisions of the JRA are unambiguous by looking at
other provisions within the same title). For instance, Section 6-115, which governs the
payment of “supervision fees” by “supervisees,” defines a “supervisee” as “a person that
the court places under the supervision of the Division [of Probation and Parole].” CS § 6-
115(a)(3) (emphasis added). Section 6-121, which provides graduated sanctions for
technical violations of conditions of supervision, states that “[t]his section shall apply to
all individuals under the supervision of the Division [of Probation and Parole].” CS § 6-
121(a) (emphasis added). Significantly, Section 6-111 imposes upon the DPP a statutory
duty to “supervise an individual based on the probation order[.]” CS § 6-111(3) (emphasis
17
With passage of the JRA, the General Assembly amended HG § 8-507(e) to
require the Department to provide “immediate treatment of a defendant,” unless exigent
circumstances justify delaying treatment for longer than 30 days. 2016 Md. Laws, ch. 515,
§2. The amendment also authorized a court to compel the Department to appear in court
to provide an explanation for the lack of placement when a defendant, who has been
committed, “is not placed in treatment within 21 days of the order.” 2016 Md. Laws, ch.
515, §2.
18
added). These sections consistently employ the term “supervision” in reference to the
DPP, supporting our conclusion that “supervision” in CS § 6-101(b) refers to the obligation
of the DPP.
C. Legislative History
1. The Justice Reinvestment Act
Now we consider the legislative history of the JRA and CS § 6-101 to determine if
it ratifies our analysis and interpretation of CS § 6-101(b). In the early 1990s, crime rates
were skyrocketing across the United States and the nation’s criminal justice landscape
began to reflect a “tough on crime” policy approach. Maryland took part in this national
trend and, as a result, the state’s incarcerated population and spending on sentencing and
corrections soared at great cost.18 As the Court of Appeals recently explained, “[t]he
primary goal of the JRA was to reduce selectively Maryland’s prison population and use
the resultant monetary savings to provide treatment to offenders before, during, and after
incarceration.” Conaway, slip op. at 14 (applying the principles of statutory interpretation
to CP § 6-223(e)(4), JRA’s appealability provision, as currently codified); see also S.B.
1005, 2016 Leg. Reg. Sess. (Md. 2016), Revised Fiscal and Policy Note, at 20-21,
https://perma.cc/3NYZ-4MVJ. In 2015, the General Assembly established the Justice
Reinvestment Coordinating Council (“JRCC”) in the Governor’s Office of Crime Control
and Prevention in order to, among other things, “develop a statewide policy framework of
18
Bridget Lowrie, Esq., Stop Asking Which Came First, The Jail or the Criminal-
Start Reinvesting in Justice in Maryland, 47 U. Bal. F. 99, 103-107 (2017); see also
Maryland Justice Reinvestment Act: One Year Later, JUSTICE POLICY INSTITUTE
(Oct. 31, 2018), https://perma.cc/LBE3-RD67.
19
sentencing and corrections policies to further reduce the State’s incarcerated population,
reduce spending on corrections, and reinvest in strategies to increase public safety and
reduce recidivism[.]” Id. at 20.
After reviewing data and research on effective corrections and sentencing policies,
the JRCC ultimately developed 19 policy recommendations for legislative consideration.
These recommendations were “intended to focus prison resources on serious and violent
offenders, strengthen community supervision efforts, improve and enhance release and
reentry practices, support local corrections systems, and ensure oversight and
accountability.” Justice Reinvestment Coordinating Council, Final Report, S.B. 602, 2015
Leg., Reg. Sess. at 1, 21 (Md. 2015) [hereinafter JRCC Final Report]. The General
Assembly largely adopted the JRCC’s recommendations, enacting the JRA by passing
Senate Bill 1005 (“S.B. 1005”), which Governor Larry Hogan signed into law on May 19,
2016.
The JRA went into effect on October 1, 2017.19 As enacted, the defining features
19
We recognize that it was not until after Brendoff committed the offenses
underlying his charges for violating probation that the amended versions of CS § 6-101
and CP § 6-223 went into effect on October 1, 2017. The Court of Appeals in Waker v.
State, 431 Md. 1 (2013) instructed that when a new law enacted after the underlying offense
but before the trial and sentencing is more favorable to the defendant, the trial court applies
the new law in effect at the time of trial and sentencing. Id. at 10-12. The Court explained
that under these circumstances, neither the general savings clause nor the ex post facto
prohibition contained in Article 17 of the Maryland Declaration of Rights are applicable.
Id. at 12 & 12 n.3.
As amended under the JRA, CS § 6-101 and CP § 6-223 are more favorable to
Brendoff because they provide sentencing limits for technical violations of probation in
furtherance of the JRA’s aim of reducing the state’s prison population. S.B. 1005, 2016
Leg., Reg. Sess. (Md. 2016), Revised Fiscal and Policy Note, at 20-21,
https://perma.cc/3NYZ-4MVJ. The VOP hearing in the underlying case occurred after the
20
of the JRA can be summarized as follows:
First, the JRA reduced the maximum penalties for convictions on drug
distribution charges. Second, it repealed mandatory minimum sentences for
nonviolent drug crimes. Finally, . . . it limited presumptively the duration of
incarceration that may be imposed for a ‘technical’ violation of probation.
Conaway, slip op. at 14.
2. CS § 6-101
In 1999, the General Assembly passed House Bill 11 (“H.B. 11”). The bill’s
purpose was, among other things, to “add[] a new article to the Annotated Code of
Maryland, to be designated and known as the ‘Correctional Services Article,’ to revise,
restate, and recodify the laws of the State and local correctional systems, including laws
that relate to . . . the Division of Parole and Probation[.]” 1999 Md. Laws ch. 54. Section
6-101, as it was enacted under H.B.11, did not include the term “absconding.” That term
was first introduced in the statute in 2016 with passage of the JRA. 2016 Md. Laws ch.
515. As discussed, the JRA adopted the policy recommendations contained in the JRCC’s
Final Report, which rested ultimately on three major findings. First, the JRCC reported
that, although the number of prison admissions in Maryland had generally declined over
the past decade, “[a]lmost 60 percent of all prison admissions represent failures of
probation, parole, or mandatory release supervision, often for technical violations rather
than a new criminal conviction.” JRCC Final Report at 19. The JRCC identified “missing
a treatment appointment or failing a drug test” as examples of technical violations. Id.
JRA went into effect. Accordingly, the trial court was correct to apply the new probation
revocation sentencing law—the relevant provisions of the Justice Reinvestment Act.
21
Next, the JRCC found that “increased length of stay in prison ha[d] been a consistent driver
of the prison population,” with “[p]robation technical violators serv[ing] an average of 31
months longer than many offenders sentenced directly to prison.” Id. at 1, 8-9, 12. Finally,
the JRCC found that Maryland’s supervision resources and practices did not focus on
serious and violent offenders and that the DPP did not have a standardized framework for
responding to technical violations of conditions of probation, parole or mandatory
supervised release. Id. at 1, 10-11, 19.
Accordingly, for policies regarding probation and parole, the JRCC recommended
that the General Assembly establish a definition for the term “technical violation” as “any
violation that does not include an arrest, a conviction, a violation of a no contact order, or
failure to participate in a required domestic abuse intervention program.” Id. at 19. For
such technical violations, the JRCC recommended that the DPP respond using a graduated
system of non-custodial sanctions before pursuing the formal revocation process. Id.
Additionally, the JRCC recommended establishing graduated incarceration periods for
“offenders revoked for technical violations up to 15, up to 30, and up to 45 days of the first,
second, and third revocation, respectively. The judge or Parole Commission will be able
to impose up to the remainder of the full sentence for any subsequent revocations.” Id. at
19.
These recommendations were largely enacted in S.B. 1005, while its counter-part,
House Bill 1312, died in committee. In the final version of S.B. 1005, the General
22
Assembly defined the term “technical violation,” which was codified under CS § 6-101,20
and enacted graduated sanctions and incarceration schemes for technical violations of
conditions of probation, which were codified under CP §§ 6-121 and 6-223, respectively.
Accordingly, there is a “rebuttable presumption” that no more than 15 days of incarceration
should be imposed for the first technical violation of probation.
We glean from this legislative history, together with the foregoing analysis of the
statutory scheme, that the General Assembly intended this newly created progressive
discipline scheme for technical violations to apply in circumstances such as the failure of
a probationer to complete drug treatment, especially when the probationer makes his or her
whereabouts known to the probation agent and renders responsive to that agent. To read
the statute otherwise would run counter to the JRA’s goal of reducing the State’s prison
20
Notably, as introduced, S.B. 1005’s definition for “technical violation” largely
mirrored the JRCC’s proposed definition, except that in committee, the definition for a
“technical violation” was amended to add the term “absconding.” S. Judicial Proceedings
Comm., Comm. Report on S.B. 1005, 436th Sess. (Md. 2016). The committee also
amended the bill to include the provisions that defined “absconding” as “displaying
affirmative behavior with the intent to evade supervision” but not “miss[ing] a single
appointment with a supervising authority.” Id. As amended, the bill passed the Senate
and was sent to the House. S. Judicial Proceedings Comm., Comm. Voting Record on S.B.
1005, 436th Sess. (Md. 2016).
In the House Judiciary Committee, the bill received a favorable report with
amendments to, among other things, the definition of the term “absconding.” The House
Committee’s proposed language defined absconding as “willfully evading supervision” but
not “missing a single appointment with a supervising authority.” H. Judiciary Comm.,
Comm. Report on S.B. 1005, 436th Sess. (Md. 2016). As amended, the bill passed the
House. A Conference Committee was appointed following the Senate’s refusal to concur
with the House Committee’s amendments. The Conference Committee’s recommended
form of S.B. 1005, which the General Assembly adopted, included the House Committee’s
definition for “absconding.” Conference Committee, Conference Comm. Report on S.B.
1005, 436th Sess. (Md. 2016).
23
population of those probation violators who had been reincarcerated for “missing a
treatment appointment or failing a drug test.” See JRCC Final Report at 19. Albeit, the
General Assembly was also careful to specify that applicability of the limits on the period
of incarceration for a technical violation is a “rebuttable presumption.” Should a court
find, after consideration of certain factors, that a probationer’s departure from a drug
treatment facility poses a danger to public safety, a victim, or a witness, then pursuant to
CP § 6-223(d)(3), the court may depart from the presumptive incarceration limits. 2016
Md. Laws ch. 515. Repeat violations are addressed through the graduated incarceration
periods contained in CP § 6-223(d)(2), which also permit the court to impose any sentence
that might originally have been imposed following a fourth technical violation.
D. Case Law
This Court’s decision in Dixon v. State is also instructive in our analysis of CS § 6-
101(b). There, the issue on appeal was whether the DPP had a common-law tort duty to
protect Dixon from harm by a state prisoner released on mandatory supervision. 205 Md.
App. 505, 507-08 (2012). Although the issue in Dixon is distinct from the statutory
interpretation issue in the instant matter, our decision in Dixon necessarily required a
general understanding of the supervisory functions of the Maryland Department of Public
Safety and the Department of Correctional Services involved in that case. Id. at 508.
Accordingly, we explained that the Division of Corrections (“DOC”), the Maryland Parole
Commission (“MPC”), and the DPP each play a role “in the confinement, conditional
release, and supervision of convicted criminals.” Id. at 507-08. (Emphasis added). We
elaborated that while confinement and conditional release were responsibilities of the DOC
24
and MPC, respectively, “DPP is responsible for supervising the post-incarceration conduct
of parolees[,] [] individuals released on mandatory supervision[,]” and probationers.21 Id.
at 508, 518-20. See also Costa v. State, 58 Md. App. 474, 481-82 (1984) (“In Maryland,
if a sentencing judge elects to impose general conditions upon a probationer, the probation
authority, in furtherance of its supervisory role to assure compliance, may provide specific
rules designed to govern the conduct of the probationer within the ambit of the condition.”)
(emphasis added)).22
21
The DPP is responsible for supervising parolees and individuals released pursuant
to CS § 6-104, and for supervising probationers pursuant to CS § 6-111. Dixon, 205 Md.
App. at 508, 518-19.
22
In 2006, the United States Department of Justice’s Bureau of Justice Assistance,
in partnership with the Pew Charitable Trusts and other organizations, launched the Justice
Reinvestment Initiative (“JRI”). BUREAU OF JUSTICE ASSISTANCE, JUSTICE
REINVESTMENT INITIATIVE (last visited July 18, 2019), https://perma.cc/45MJ-
6PAV [hereinafter BUREAU OF JUSTICE ASSISTANCE]; THE PEW CHARITABLE
TRUSTS, 35 STATES REFORM CRIMINAL JUSTICE POLICIES THROUGH
JUSTICE REINVESTMENT (July 2018), https://perma.cc/4W52-B2DV. “Through a
consortium of technical and policy experts, JRI provides policymakers with resources and
tools to increase public safety, hold offenders accountable, and control corrections and
costs, resulting in a more effective justice system.” BUREAU OF JUSTICE
ASSISTANCE. Many states, including Maryland, have implemented Justice
Reinvestment legislation with the guidance of the JRI. JRCC Final Report at 4.
Significantly, in its Final Report, the JRCC noted the success of Justice Reinvestment
reforms in other jurisdictions, and considered their varying approaches to research and
policy in implementing their own Justice Reinvestment laws.
Not surprisingly, Brendoff brings to our attention a 2018 North Carolina Court of
Appeals’ decision interpreting the definition of “absconding” under North Carolina’s
Justice Reinvestment Act of 2011. State v. Melton, 811 S.E.2d 678, 680 (N.C. Ct. App.
2018). There, the trial court found that Melton violated her probation by absconding within
the meaning of North Carolina’s JRA, revoked her probation, and executed her previously
suspended sentences. Id. at 680. The statute at issue in Melton permits a trial court to
revoke probation when, among other things, a defendant “absconds by willfully avoiding
supervision or by willfully making her whereabouts unknown to the supervising probation
officer[.]” Id. at 680-81 (emphasis added). As in the instant case, it was not until the
25
For all of these reasons, we hold that when a prisoner is placed on supervised
probation upon admission into a drug and alcohol treatment facility pursuant to an order
issued under HG § 8-507, the DPP, which includes the assigned probation agent, is the
probationer’s “supervising authority” for purposes of ascertaining whether the probationer
has absconded within the meaning of CS § 6-101(b).
II.
Revocation of Probation
Having concluded that the DPP is the supervising authority referred to by the terms
enactment of North Carolina’s JRA that the term “abscond” was statutorily defined. Id.
“This change was in line with the JRA’s purpose to be ‘part of a national criminal justice
reform effort’ which, among other changes, ‘made it more difficult to revoke offenders’
probation and send them to prison.” Id. (citation omitted). Accordingly, the Court
interpreted the statute’s definition of “abscond,” and held that “a defendant absconds when
he willfully makes his whereabouts unknown to his probation officer, and the probation
officer is unable to contact the defendant.” Id. at 681. (citation omitted).
As the State properly observes, however, Melton has limited application here
because North Carolina’s definition of absconding identifies the supervising authority as
the probation officer. Nevertheless, Melton and other out-of-state cases interpreting the
term “absconding” under their own Justice Reinvestment laws are helpful in understanding
Maryland’s JRA, which grew out of the same nationwide initiative. See e.g., Legendre v.
State, 242 So. 3d 1028, 1030 (Ala. Crim. App. 2017) (interpreting a statute permitting
courts to revoke probation and execute a sentence exceeding the statutorily capped period
of incarceration when a violator “absconds” as requiring proof that the violator sought to
evade the legal process, “not simply that [he] failed to attend one meeting with a probation
officer or could not be located for a brief period of time” (emphasis added) (citation
omitted); State v. Dooley, 423 P.3d 469, 479-80 (Kan. 2018) (interpreting a statute allowing
courts to bypass the graduated sanctions scheme when a probation violator “absconds from
supervision” as requiring the State to show that probationer intentionally avoided probation
supervision, “for example, by intentionally avoiding detection by one’s probation officer”
(emphasis added)); Hobson v. State, 230 So. 3d 1096, 1099 (Miss. 2017) (explaining that
the statute authorizing courts to revoke probation and “impose any or all of the remainder
of the suspended sentence” when a probation violator “abscond[s] from supervision,”
defines “absconding” as “the failure of a probationer to report to his supervising officer
for six (6) or more consecutive months” (emphasis added) (citation omitted)).
26
“supervision” and “supervising authority” contained in CS § 6-101(b), we shall next
address whether the circuit court erred in finding that Brendoff violated the conditions of
his 2016 Probation Order by “absconding.”
The Court of Appeals has established that “a revocation of probation hearing is a
civil proceeding, in which the probationer is not cloaked with the full panoply of
constitutional rights and procedural safeguards enjoyed by a defendant in a criminal cause.”
Hammonds, 436 Md. at 36 (internal quotations omitted). A court’s determination on the
question of whether to revoke probation typically involves two inquiries: “(1) a
retrospective factual question whether the probationer has violated a condition of
probation; and (2) a discretionary determination by the sentencing authority whether a
violation of a condition warrants revocation of probation.” Id. at 31 (internal quotations
omitted). Under the first inquiry, “the hearing judge must find the essential facts
comprising a violation of a condition by a preponderance of the evidence.” State v.
Dopkowski, 325 Md. 671, 677 (1992) (internal quotations omitted). We review the court’s
determination on this first inquiry for clear error. Id.; see also Wink v. State, 317 Md. 330,
341 n.1 (1989) (noting that, if the appellate court agrees with the defendant that certain
inferences were improperly drawn from the facts, “the clearly erroneous rule would offer
a satisfactory explanation of the reversal”). “With respect to the second [inquiry], that of
whether the court’s discretion should be exercised to revoke probation, appellate review is
for an abuse of discretion.” Dopkowski, 325 Md. at 677 (internal quotations omitted).
As discussed above, the JRA enacted new laws that distinguish between technical
and non-technical violations of probation and establish a progressive disciplinary scheme
27
that presumptively limits periods of incarceration for “technical violations.” CP § 6-
223(d)(2)(i). “Absconding” is a non-technical violation of probation that involves
“willfully evading supervision,” though it “does not include missing a single appointment
with a supervising authority.” CS § 6-101(b), (m). Accordingly, when there is an
allegation of a non-technical violation of probation by “absconding,” then the first inquiry
in the court’s determination (a factual determination as to whether a probationer has
violated a condition of probation), is an assessment of whether the probationer willfully
evaded his or her supervising authority. This is an “essential fact[] comprising a violation
of a condition” of probation that the hearing judge must find by a preponderance of the
evidence. Dopkowski, 325 Md. at 677 (emphasis added).
The circuit court erred in the underlying case by implicitly treating the drug
treatment facilities as the supervising authorities when the court found that Brendoff
committed a non-technical violation of his probation by walking away from Jude House
and missing six required appointments at New Life. As we have established, Brendoff was
under the supervision of the DPP, which included his probation agent, not the residential
treatment facilities to which he was committed under the HG § 8-507 order. Because the
court failed to recognize that the DPP was the supervising authority for purposes of
determining whether he absconded under CS § 6-101(b), the court’s factual determination
that Brendoff committed a violation of his probation was in error. This was an incorrect
application of the statute, and contrary to the purpose of the JRA, which applies
presumptive incarceration limits to failures to complete drug treatment on first and second
violations. To conclude that Brendoff absconded, the court must find, on the record, that
28
Brendoff willfully evaded the supervision of the DPP, not merely that he left the treatment
facility.
Accordingly, we vacate the court’s revocation of probation and remand the case to
the circuit court to determine whether Brendoff absconded in violation of his probation by
“willfully evading [the] supervision” of the DPP and his probation agent.
JUDGMENTS OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
VACATED; CASE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. ANNE ARUNDEL
COUNTY TO PAY COSTS.
29