Humphrey v. State , 290 Md. 164 ( 1981 )

Rodowsky, J.,

dissenting:

I respectfully dissent.

From what is available before us,¹ it appears that appellant, Ronald Humphrey (Humphrey), age 34 at the time of the revocation hearing, had been on drugs since he was 16. On May 21, 1979 his mother had put him out of the house at about 8:00 a.m. About one-half hour later he returned, broke into the house and chased his sister with a 9-inch butcher knife. Upon his conviction on breaking and entering and on assault charges, sentences totalling four years were imposed. Execution of the sentences was suspended and the defendant was placed on supervised probation. It appears from the written probation order that one of the conditions of the suspension of execution of the sentence was: "Defendant to receive drug treatment.”

A handwritten letter dated November 31, 1979 from Humphrey, which has been treated as an order for appeal from the order of revocation, states that the conditions of the suspension of execution of sentence "were to get back on 1 an] out-patient methadone program and recieve [sic] treatment.” It therefore appears that there was further specification of the condition of probation articulated at the sentencing hearing sufficient for Humphrey to understand that the condition referred to a community based methadone program.

Based on the trial judge’s statements at the revocation hearing, he obviously considered that Humphrey was a person with a propensity toward violence if he "got a few pills or something” in him. The condition of probation can fairly be read to be an effort by the trial court to effect a program of rehabilitation which would be both constructive to Humphrey and at the same time protect the public. The condition of probation, that Humphrey "receive” drug treatment, clearly meant actual treatment under the circumstances presented here. Nothing short of that would satisfy the condition under which the trial judge was willing to suspend the execution of sentence. The condition was a proper one under the test of "whether the [trial] court is satisfied that its action will subserve the ends of justice and the best interests of both the public and the defendant.” Burns v. United States, 287 U.S. 216, 221, 53 S. Ct. 154, 156, 77 L. Ed. 266, 269 (1932).

In many ways, this case presents the variation on conditions of suspension of the execution of sentence which was recognized in, but was not presented by the facts of, Wilson v. State, 6 Md. App. 397, 251 A.2d 379 (1969). The condition which the appellant in that case was charged with violating was: "May go to Lexington, Ky. (U.S. Government 11 os pital)-School.” Wilson tried to get into the program at Lexington but was not successful. The trial judge had revoked probation because admission into the Lexington program was the only basis on which the trial judge had suspended sentence. That revocation was reversed as unjustified under the facts and under a proper construction of the condition of suspension as specified. However, Judge Orth, speaking for the Court of Special Appeals, said at 403 of 6 Md. App., 251 A.2d at 382-83:

In the instant case, if the condition of suspension of the sentence was that the appellant be accepted in the educational program at Lexington so that the mere non-acceptance would violate the condition no matter what the reason, it is not apparent from the order the appellant was charged with violating, nor indeed, is it clear from the remarks of the court at the penalty stage of the trial. It may well be that this is what the court intended but if so it did not conform the probation order it signed to that intention.

In the instant case, it is established without contradiction that Humphrey did not receive treatment at an out-patient methadone program. It is also uncontradicted in the record that Humphrey was not eligible for such a program because his past failures manifested that he was not amenable to community based treatment. I believe, as Wilson indicates, that the trial court has the power to make actual receipt of treatment the condition governing its willingness to allow a convicted person with known dangerous propensities to roam the streets. This is what the trial court did in this case and the nonfulfillment of the condition is not really disputed.

More fundamentally, however, I believe the majority has inappropriately applied a fault standard to this case to determine "violation” of this condition. "Probation revocation, like parole revocation, is not a stage of a criminal prosecution ...,” although, because it results in a loss of liberty, certain procedural due process requirements must be met. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759-60, 36 L. Ed. 2d 656, 661-62 (1973). The emphasis of the majority is on whether Humphrey substantially abided by, or acted in violation of, the condition in the period after imposition of the condition. There is merit to recognizing as a defense to probation revocation that the performance of a condition was beyond the control of the probationer, e.g., the inability of an indigent probationer to make a specified restitution. My point is simply that' the concept is not always dispositive.

At the first level of a probation revocation hearing, on the issue of whether nonfulfillment of a condition is a "violation,” there has unfortunately been little attention directed by the courts to when lack of fault on the probationer’s part might not be defensive. Some attention has been directed to the problem where insanity is presented as a defense. In United States v. Mercado, 469 F.2d 1148 (2d Cir. 1972) the district court and both parties had assumed that, if established, the probationer’s lack of criminal responsibility, on insanity grounds, for his acts in violation of the terms of his probation would have been a defense to revocation. Judge Lumbard, speaking for a panel composed of himself, Judge Friendly and Judge Feinberg, stated that they could "find no authority for this proposition, and [they did] not believe that the question | was] so free from doubt that it should be determined without benefit of brief or argument.” Id. at 1152. The Supreme Court of Alaska, in Trumbly v. State, 515 P.2d 707, 708-09 (1973) has held as follows:

On the other hand, we think the short answer to Trumbly’s contention is that the defense of insanity is irrelevant to the issues which are to be determined in a probation revocation hearing. At such a hearing, the inquiry is focused on whether the probationer engaged in conduct violative of the conditions under which he was permitted to escape incarceration. We are not persuaded that a probationer should be able to prevail upon an assertion that his probation should not be revoked because mental illness renders him unable to conform his conduct to the terms of his probation. Conformity to reasonable and lawful terms of probation is a prerequisite to the continuation of probationary status.

See also United States v. Manfredonia, 341 F. Supp. 790, 794 (S.D.N.Y.), aff'd, 459 F.2d 1392 (2d Cir.), cert. denied, 409 U.S. 851, 93 S. Ct. 61, 34 L. Ed. 2d 93 (1972).

The author of a Note, Judicial Discretion and the Problem of the Mentally Ill Probation Violator, 5 U.C.L.A.-Alaska L. Rev. 284 (1976), which was prompted by the Trumbly decision, suggests that there are at least two types of situations involving unintentional violations of probationary conditions to which an analysis based on the lack of fault, or inability to control, of the probationer seems inapplicable. "The first type of case occurs when the primary goal of probation is something other than the rehabilitation of the probationer, so that whether he makes an honest effort or not is less important than whether he is able to meet the conditions imposed.” Id. at 296.² The second type of case in which it is suggested that the good faith of the probationer may not be controlling "arises where the violation results from a factor beyond his control but not external to him. Unlike the usual case, in which the unintentional violation is caused by some outside condition which is both unrelated to the violator’s potential for rehabilitation and easily alleviated, the violation here does bear on the suitability of the violator for continued probation.” Id. at 296-97.

I would recognize the foregoing reasoning in the instant case. Once it was established that the condition that Humphrey actually receive drug treatment in a community based program could not be fulfilled, there was a "violation” which could support revocation. The trial court then had to determine whether Humphrey was suitable for continued release without that control imposed upon him. The trial court in essence concluded that he was not and reluctantly ordered that the sentence originally imposed be served. In so doing he acted, in my opinion, within his power and discretion.

Chief Judge Murphy and Judge Smith have authorized me to state that they concur in the views expressed in this dissenting opinion.

2 . Illustrative of this class of case is Genet v. United States, 375 F.2d 960 (10th Cir. 1967) where the condition of probation was that the defendant support his 5 children in accordance with a support order in a divorce case in state court. The defendant was financially unable to make the payments. It was held that there was no abuse of discretion because "under some circumstances the good faith of the probationer need not be controlling and the factual failure of non-compliance may be the prime consideration in exercising judicial discretion.” Id. at 962. The trial court was firmly of the opinion that defendant deserved imprisonment and the conditional probation was granted, not as an instrument of rehabilitation nor as an element of punishment, but as a continuing assurance to the welfare of the children. When that reason for probation was dissipated, even though not through the defendant’s affirmative fault, the Tenth Circuit was unable to say that discretion was abused.