Hinton v. State

Eric Demond Hinton v. State of Maryland, No. 637, September Term 2020. Opinion by
Woodward, J.
EVIDENCE – NOLO CONTENDERE PLEAS – ADMISSIBILITY OF EVIDENCE
FROM A NOLO CONTENDERE PLEA PROCEEDING AT A SUBSEQUENT
VIOLATION OF PROBATION HEARING
In 2012, Eric Demond Hinton, appellant, was convicted of various charges related to armed
robbery, assault, and burglary after a jury trial in the Circuit Court for Montgomery County.
The court sentenced appellant to a total of eighteen years of incarceration, with all but six
years suspended, and a period of five years of supervised probation. In 2014, the court
reconsidered its sentence and sentenced appellant to a total of seventeen years of
incarceration, with all but five years suspended, and the same five years of supervised
probation. Appellant was released from incarceration in 2015 and began his five years of
supervised probation.
In 2018, while still serving his five-year term of probation, appellant was arrested in Prince
George’s County for illegal possession of a firearm and related charges. In 2019, appellant
appeared before the Circuit Court for Prince George’s County and advised the court of a
plea agreement with the State in which he would plead nolo contendere to an amended
charge of illegal possession of a regulated firearm in exchange for a sentence of three years
of incarceration, with all time of incarceration suspended except for time served, and two
years of supervised probation. At the plea hearing, the State proffered the evidence that it
would have presented had the case gone to trial, and appellant’s counsel agreed that the
proffer would be the State’s case.
Thereafter, appellant was arrested on a bench warrant issued by the Circuit Court for
Montgomery County for violating the conditions of appellant’s probation that required him
to obey all laws and to receive permission before possessing a firearm. At the violation of
probation hearing, the State moved two exhibits into evidence—a certified copy of the
docket entries from the Prince George’s County case, and a transcript of the hearing in
which appellant entered a nolo contendere plea. The Circuit Court for Montgomery
County found appellant in violation of probation and sentenced him to six years of
incarceration, with credit of 492 days for time served. Appellant noted a timely appeal.
Held: Affirmed.
On appeal, the Appellate Court of Maryland first discussed the law governing violations of
probation. According to the Court, a violation of probation hearing involves two stages:
(1) a retrospective factual question of whether the probationer has violated a condition of
probation; and (2) a discretionary determination by the sentencing authority of whether a
violation of a condition warrants revocation of probation. The Court explained that in the
first stage, the State has both the burden of production, which is to come forward with
evidence to support a violation, and the burden of persuasion, and the burden of persuasion
is satisfied by a trial judge finding the essential facts comprising a violation of a condition
by a preponderance of the evidence. Thus, unlike in a criminal case, the probation court is
not bound by the constraints of the reasonable doubt standard of proof. The Court stated
further that, in probation revocation proceedings, the formal rules of evidence are not
applied. Finally, according to the Court, appellate review of the second stage, whether
revocation is warranted, is for abuse of discretion.
The Court next addressed a nolo contendere plea and its effect on a subsequent violation
of probation proceeding. The Court explained that a defendant does not admit guilt or
claim innocence by entering a nolo contendere plea, and as a result, no verdict of guilty
may be found, nor does the acceptance of the plea of nolo contendere result in a conviction.
The Court further stated that a plea of nolo contendere is not receivable in another
proceeding as evidence of guilt, and thus the plea itself, and any admission or other
statement made by a defendant in the course of a nolo contendere plea process, are not
admissible in a violation of probation hearing. Other evidence from the nolo contendere
plea proceeding, however, is admissible at the violation of probation hearing, including
“reasonably reliable” hearsay. Lastly, the Court stated that at a probation revocation
hearing, the improper admission into evidence of the nolo contendere plea or a statement
made by the defendant in the course of a nolo contendere plea process is not reversible
error if the trial court relies primarily on the evidence properly admitted at the probation
revocation hearing.
Turning to the issues on appeal, the Court determined that, although the trial court
erroneously admitted appellant’s nolo contendere plea as part of the docket entries from
the Prince George’s County case, that court’s express lack of reliance on such plea in the
violation of probation hearing precluded a holding that the admission of the plea was
reversible error. The Court also concluded that the admission at the violation of probation
hearing of appellant’s statement from the nolo contendere plea hearing was not reversible
error because the trial court did not indicate in its ruling that it relied in any way on
appellant’s acceptance of the prosecutor’s proffer of facts in the Prince George’s County
case. The Court ultimately held that the prosecutor’s proffer of facts in support of
appellant’s nolo contendere plea at the plea hearing was sufficient evidence to support the
probation court’s finding that appellant had violated the terms of his probation to obey all
laws and to obtain permission before possessing a firearm.
Finally, the Court addressed “a common view among at least some practitioners that the
entry of a nolo contendere plea by a person on probation immunizes that person against a
later violation of probation, and as a result, no part of a nolo contendere plea proceeding
can be used against that person in a violation of probation hearing.” The Court explained
that “only the nolo contendere plea itself and any statement by the defendant made during
the nolo contendere plea process cannot be used against the defendant in a violation of
probation hearing, or in any civil or criminal proceeding for that matter.”
Circuit Court for Montgomery County
Case No. 119168C
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 637
September Term, 2020
______________________________________
ERIC DEMOND HINTON
v.
STATE OF MARYLAND
______________________________________
Berger,
Arthur,
Woodward, Patrick L.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Woodward, J.
______________________________________
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic. Filed: March 29, 2023
2023-03-29 15:02-04:00
*Tang, Rosalyn, and Albright, Anne K., JJ., did
not participate in the Court’s decision to
designate this opinion for publication pursuant to
Gregory Hilton, Clerk
Md. Rule 8-605.1.
*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Special Appeals of Maryland to the
Appellate Court of Maryland. The name change took effect on December 14, 2022.
On June 15, 2012, Eric Demond Hinton, appellant, was convicted after a jury trial
in the Circuit Court for Montgomery County of eleven charges related to armed robbery,
assault, and burglary. On September 13, 2012, the court sentenced appellant to a total of
eighteen years of incarceration, with all but six years suspended, and a period of five years
of supervised probation. On January 23, 2014, the court reconsidered its sentence and
sentenced appellant to a total of seventeen years of incarceration, with all but five years
suspended, and the same five years of supervised probation.
Appellant was released from incarceration on February 18, 2015, and began his
probation. On October 23, 2018, appellant was arrested in Prince George’s County for
illegal possession of a firearm and related charges. On November 1, 2019, appellant
entered a nolo contendere plea before the Circuit Court for Prince George’s County, and
was given a three-year suspended sentence, with credit for time served, and two years of
supervised probation. Thereafter, on February 27, 2020, the Circuit Court for Montgomery
County found appellant in violation of probation and sentenced him to six years of
incarceration, with credit of 492 days for time served.
In the instant appeal, appellant raises one question for our review, which we have
rephrased: Did the trial court err by finding appellant in violation of probation based on the
docket entries and transcript of a proceeding in another case where appellant entered a nolo
contendere plea to a criminal offense that appellant committed while on probation?1
1
Appellant’s question presented is as follows: “Did the trial court err by revoking
defendant’s probation based solely on evidence that the defendant entered a nolo
contendere plea in another case while on probation[?]”
As we shall explain, we affirm.
BACKGROUND
I.
A. Original Arrest and Conviction
This appeal arises from an armed robbery perpetrated by appellant and three other
individuals in Montgomery County on December 27, 2010. Appellant and his confederates
knocked on the front door of a residence and, when the door was answered, entered the
house with guns drawn. The robbers repeatedly asked the four occupants, “Where’s the
money?” They ultimately “corralled” the occupants into the basement and then searched
throughout the home for valuables and cash. During the robbery, one of the victims
managed to flee to a neighbor’s home and call the police. When the police arrived, they
found and arrested two of the perpetrators in and around the home, but two had fled the
scene, including appellant. After receiving information from an informant, the police
arrested appellant and the fourth perpetrator.
On September 29, 2011, appellant was charged with a total of twelve counts—three
counts of first degree assault, three counts of armed robbery, one count of conspiracy to
commit armed robbery, three counts of unlawful use of a handgun in the commission of a
violent crime or felony, one count of first degree burglary, and one count of conspiracy to
commit first degree burglary. On June 11, 2012, appellant appeared for a four-day jury
trial before the Circuit Court for Montgomery County. The jury convicted appellant on
eleven counts after the State dropped one count of armed robbery. On September 13, 2012,
the court sentenced appellant to a total of eighteen years of incarceration, with all but six
2
years suspended, and a period of five years of supervised probation. On January 23, 2014,
the court reconsidered its sentence and sentenced appellant to a total of seventeen years of
incarceration, with all but five years suspended, and the same five years of supervised
probation. 2 Appellant served his time and was released on probation on February 18, 2015.
B. Arrest and Plea During Probation
On October 23, 2018, which was during his five-year term of probation, appellant
was arrested in Prince George’s County for possession of a regulated firearm by a
convicted felon, illegal possession of ammunition, possession of a handgun in a vehicle,
and possession of marijuana in a quantity above ten grams. On November 1, 2019,
appellant appeared before the Circuit Court for Prince George’s County and advised the
court of a plea agreement with the State in which he would plead nolo contendere to an
amended charge of illegal possession of a regulated firearm under Maryland Code (2003,
2018 Repl. Vol.), Public Safety Article (“PS”), § 5-133(b) in exchange for a sentence of
three years of incarceration, with all time of incarceration suspended except for time
served, and two years of supervised probation. At the plea hearing, the State proffered the
evidence that it would have presented if the case had gone to trial. Appellant’s counsel
advised the court: “We agree that [the State’s factual proffer] would be the State’s case.”
2
On reconsideration of the sentence, the trial court changed appellant’s one year sentence
for the first degree assault conviction as to one victim to run concurrently with the five
year sentence for the handgun conviction as to the same victim, and vacated the one year
sentence for conspiracy to commit first degree burglary as that sentence should have been
merged with the conspiracy to commit armed robbery.
3
II.
A. First Violation of Probation Hearing – November 26, 2019
On November 13, 2018, at the request of the Division of Parole and Probation, the
Circuit Court for Montgomery County ordered that a bench warrant be issued against
appellant for violating the conditions of his probation that required him to obey all laws
and to receive permission before possessing a firearm. Appellant was arrested on the
warrant on November 1, 2019.
On November 26, 2019, the circuit court held the first hearing on the violation of
probation charges against appellant. Defense counsel, who had been retained the day
before the hearing, told the court:
I’m not sure if we need a hearing, but [appellant]’s not going to admit the
violation. The underlying conviction [in Prince George’s County] that
you’re referring to was as the result of a nolo contendere plea and self-
abdicate [sic], I don’t know if the [c]ourt is familiar with the law, but it can’t
be used to violate him as an admission in this proceeding.
The prosecutor responded that defense counsel’s statement was not her understanding of
the case law, that defense counsel had just entered his appearance in the case, and that the
argument regarding the nolo contendere plea was being raised for the first time. Defense
counsel argued further that under Rule 4-242 and Agnew v. State, 51 Md. App. 614 (1982),
the court could not use appellant’s nolo contendere plea as evidence of “an admission”
against him in a later proceeding. The court attempted to clarify the issue and asked: “But
can it be used in a matter such as this . . . as a finding that would violate him?” Defense
counsel responded that the “admission can’t be used in a subsequent civil or criminal
proceeding against [appellant] as an admission. . . . [I]t’s sort of, sort of accepted that a
4
nolo plea is not going to allow a violation on a violation of probation.” (Emphasis added.)
Defense counsel did acknowledge that “there is a way in which to violate [appellant] as a
result of any conduct that didn’t result in the conviction. And that would be to have a
hearing where you have the actual testimony of the people . . . that were involved.”
The trial court reset the hearing on the violation of probation to a later date in order
to allow the State the opportunity to address appellant’s legal argument. The prosecutor
then advised the court that the basis of the violation of probation was a new handgun
offense and that the underlying offense was an armed home invasion for which appellant
was facing twelve years of back-up time. The court responded: “It is not a technical
violation. It’s a significant violation to obtain a new charge that involves another
handgun.”
B. Second Violation of Probation Hearing – January 22, 2020
Prior to the second violation of probation hearing, the State filed a Memorandum of
Law in which it argued that the violation of probation was not based on the nolo contendere
plea, but on the facts the Prince George’s County prosecutor proffered “that satisfied the
elements of [the crime of illegal possession of a regulated firearm].” The State asserted
that the proffered facts demonstrated “criminal conduct” and that such conduct violated the
terms of appellant’s probation requiring him to obey all laws and to obtain permission
before possessing a dangerous weapon or firearm. Citing Horsey v. State, 56 Md. App.
667, 674 (1983), the State contended that the facts supported the violation, even if the plea
itself could not. Defense counsel did not submit any memorandum.
At the hearing, which was held on January 22, 2020, the prosecutor initially
5
submitted on her written memorandum of law. Defense counsel, on the other hand, argued
appellant’s position. Defense counsel again contended that the issue presented was
“whether the nolo plea can be . . . relied upon as [an] admission of guilt in a collateral case.
This case, the violation of probation being the collateral case.” According to defense
counsel, Rule 4-242(e) and Agnew forbid the use of a nolo plea as evidence of guilt in a
collateral proceeding. Defense counsel claimed that the State was “simply introducing the
fact of a nolo plea, trying to say that that’s an admission of conduct, or that’s an admission
of guilt.” Defense counsel concluded that “the State [could] not violate [appellant] based
solely on a nolo plea,” and that the court should “not accept simply a nolo plea as a basis
for violation at a hearing in this matter.”
The prosecutor responded first that the standard of proof that applies to violations
of probation is different from the standard of proof that applies to criminal convictions:
“[A]s far as burden of proof, Your Honor, the facts presented to, or coming to the
knowledge of the judge as to the breach of the conditions of probation, need not establish
guilt beyond a reasonable doubt, as on criminal offenses.” Instead, according to the
prosecutor, “[a]ll that is required is that the facts before him be such that the judge
reasonably could be satisfied that the conduct of the probationer has not been what he
agreed it would be if he were given liberty.” (Emphasis added.) The prosecutor argued
further that the violation of probation was based on the factual proffer by the State that
“would have been presented at trial that meets the elements of the crime.” The prosecutor
summarized the State’s position as follows:
6
Where [appellant] agreed that yes, in fact, the State [in Prince George’s
County did] have evidence from which a fact finder could find [him] guilty.
And on the basis of that, Your Honor, it’s not on the basis of
[appellant’s] nolo plea, because that’s not an admission of guilt, it’s not
on the basis of the resulting disposition because that’s not a conviction,
it’s on the basis of that proffer of facts that was accepted by the Court
and was proffered by the State and agreed to, at least in part, by the
[appellant], that the [c]ourt can be convinced that the conduct of the
probationer was not what he agreed it would be if he were given liberty.
(Emphasis added.)
The trial court began its ruling by citing to Meyer v. State, 445 Md. 648 (2015) for
the proposition that a nolo contendere plea is “an implied confession of guilt.” “But more
instructive, and more controlling to [the court], is Horsey.” According to the court, Horsey
said that the condition of probation to “obey all laws” “is the equivalent of engaging in
good behavior,” and
the quantum of proof necessary to show a failure of good behavior is that
proof of the conviction for a crime is not required. And any evidence
sufficient to reasonably satisfy the trial court that the actor has committed a
crime is adequate to sustain an order revoking a suspension for failure of
good behavior.
Because appellant had “entered a nolo contendere plea to the crime of possession of a
firearm, by a convicted felon, in the Prince George’s County case,” the court found that
appellant “engaged in criminal conduct . . . which is the underlying offense that is presented
as a violation of this probation.” Further, the court stated that “it ma[de] no difference that
[appellant] entered a nolo plea . . . to the underlying charge[,]” because “[t]he facts
support[ed] that he engaged in behavior that . . . violated the law” and, accordingly,
appellant violated the terms of his probation requiring him to obey all laws and to obtain
permission to possess a firearm.
7
After the trial court made its ruling, defense counsel stated that he wanted to have
an evidentiary hearing to make sure they were doing “everything right in terms of an
appellate record.” He explained: “I think the [c]ourt has found [appellant] in violation. We
really haven’t had an evidentiary hearing with regard to that[,]” and “I don’t know what
precisely the State is presenting in terms of . . . that evidence[.]” The court agreed that
appellant was entitled to an evidentiary hearing and scheduled it for February 27, 2020.
C. Third Violation of Probation Hearing – February 27, 2020
On February 27, 2020, the parties reconvened for the evidentiary hearing at the third
violation of probation hearing. At the beginning of the hearing, the prosecutor moved two
exhibits into evidence. Defense counsel did not object to the authenticity of the exhibits,
but did “object to their admissibility for the admissibility of a nolo as an admission by a
party opponent.” The trial court then admitted State’s Exhibits 1 and 2.
State’s Exhibit 1 was a certified copy of the docket entries in the Prince George’s
County case and State’s Exhibit 2 was “a certified transcription of the proceedings of the
nolo plea” dated November 1, 2019. The prosecutor then directed the court to State’s
Exhibit 2 and noted that in the transcript appellant told the Prince George’s County circuit
court that he understood the nature of his nolo contendere plea and that the court informed
him of the potential “ramifications” of his plea, including a negative impact on parole or
probation in any other case where “[t]hat judge, as a result of this case, could potentially
sentence you to additional jail time, extend your probation, do any number of things.” The
prosecutor then turned to the factual proffer offered by the State in the Prince George’s
County case, and read that proffer into the record, reproduced here from the transcript itself:
8
The facts in support of the plea are as follows: On October 22nd of 2018,
approximately 7:00 p.m., the arresting officer, who at the time was employed
with the Cheverly Police Department, was on patrol in the area of the
Cheverly Station Apartments located on Landover Road in Prince George’s
County, Maryland. He was flagged down at that time by a security guard
who works at the property. That security guard indicated that there were
several people in the van possibly smoking marijuana . . . .
The arresting officer came to the location where the van was stopped and he
did detect a strong odor of marijuana coming from the vehicle. He asked
each of the occupants to exit the vehicle and identify themselves.
The driver was identified as [appellant] . . . . One of the occupants did admit
that they had recently smoked marijuana. There was a small amount still in
the car.
The officer ended up searching the vehicle and he found a backpack
behind the driver’s seat, asked the men who the backpack belonged to.
The defendant answered that it was his. A search of the backpack
revealed an extended magazine clip with ammunition loaded in it and
also a []9 millimeter handgun. Also in the backpack were several
prescription bottles with the defendant’s name and information on them.
A subsequent records check revealed that the defendant is not permitted to
possess a firearm due to a prior conviction in 2011 [sic] in the Circuit Court
for Montgomery County.
(Emphasis added.)
After reading the factual proffer, the prosecutor concluded that “it’s on these two
documents, Your Honor, State’s Exhibits 1 and 2, that the State relies to prove [appellant’s]
violation of conditions four and six [of his probation].” The court turned to defense
counsel, who stated: “No evidence, Your Honor. . . . I would just adopt my arguments from
the previous hearing.”
The trial court then ruled:
I do find, based on this proffer of evidence from the State, including the
admission of State’s 1 and 2, and the other information the Court has before
9
it that [appellant] was on probation to this court on November the 1st of 2019
when he entered a plea of nolo contendere in the Circuit Court for Prince
George’s County, Maryland to the charge of possession of a firearm by a
prohibited person. The Court finds that that as I previously ruled, that
that nolo contendere plea does subject [appellant] to a violation of
probation. And for reasons that this Court has previously stated on the
record, I find that despite the fact it was a nolo contendere plea, it is a plea
that would subject him to violating probation here in this county. And so,
accordingly, based on the State’s evidence this morning and proffers
from the State this morning, I find [appellant] in violation of his
probation, condition number four, obeying all laws, and condition number
six, failure to obtain permission for possession of a firearm and ammunition.
(Emphasis added.) The court sentenced appellant to six years of incarceration, with credit
for 492 days of time served but no time suspended.
Appellant filed this timely appeal. Additional facts shall be provided as necessary
to our resolution of the question presented.
DISCUSSION
I.
A. Violation of Probation Proceedings
Probation is a personal privilege granted to the probationer as an act of clemency:
Probation is a matter of grace, which aside from being an act of clemency
extended to one who has committed a crime, is in substance and effect a
bargain made by the people, through legislation and the courts, with the
malefactor that he may be free as long as he conducts himself in a manner
consonant with established communal standards and the safety of society.
Scott v. State, 238 Md. 265, 275 (1965).
In Scott, the police investigated the allegations that, while on probation for a robbery
conviction, the appellant assaulted an elderly woman with the intent to rape and committed
common law assault on her. Id. at 268-69. A police officer approached the appellant’s
10
mother with a hat recovered from the scene of the attempted rape to ask whether it belonged
to the appellant. Id. at 269. The appellant’s mother confirmed that the hat belonged to the
appellant. Id. She later recanted her statement and refused to testify at the appellant’s
assault trial. Id. At trial, the State attempted to admit the identification of the hat by
proffering the testimony of the police officer who had obtained the identification. Id. The
trial court ruled that the officer’s testimony was inadmissible as hearsay, and the jury
ultimately returned a verdict of not guilty on all charges. Id.The violation of probation judge, who also presided over the assault trial, was
convinced by the State’s proffered facts regarding the identification of the hat that the
appellant had committed the assaults, and as a result, decided to revoke the appellant’s
probation. Id. The appellant appealed the revocation of his probation, arguing that the
revocation was illegally grounded on hearsay evidence that had been excluded at trial and
on conduct of which he had been acquitted. Id. at 271. The Supreme Court of Maryland3
stated that violation of probation hearings are “informal in character and not subject to the
limitations and restrictions upon a trial on a charge of crime, which requires proof beyond
a reasonable doubt in order to convict . . . .” Id. at 271-72. The Court explained that
probation may be revoked “if the court is reasonably persuaded, by knowledge of facts,
3
At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Appeals of Maryland to the Supreme Court
of Maryland. The name change took effect on December 14, 2022. See also, Md. Rule 1-
101.1(a) (“From and after December 14, 2022, any reference in these Rules or, in any
proceedings before any court of the Maryland Judiciary, any reference in any statute,
ordinance, or regulation applicable in Maryland to the Court of Appeals of Maryland shall
be deemed to refer to the Supreme Court of Maryland . . . .”).
11
even if obtained more informally than the rules of evidence would permit it to be obtained
in a trial, that it should be.” Id. at 275 (emphasis added). The Court observed further:
The facts presented to or coming to the knowledge of the judge, as to the
breach of the conditions of probation, need not establish guilt beyond a
reasonable doubt as in criminal offenses; all that is required is that the facts
before him be such that the judge reasonably could be satisfied that the
conduct of the probationer has not been that he agreed it would be if he were
given liberty.
Id. at 276.
As a result, the Court concluded:
[The] acquittal of a probationer of a charge of criminal conduct which was a
violation of probation does not preclude revocation of probation, if the judge
passing on the question is with reason satisfied that the probationer actually
did that charged in the indictment on which he was acquitted.
Id.Under Rule 4-347(a), the State, the Division of Parole and Probation, or the circuit
court itself may initiate proceedings for revocation of probation “by an order directing the
issuance of a summons or warrant.” If the Division of Parole and Probation or the State
initiates proceedings, a verified petition must be filed. Rule 4-347(a). If the court is
seeking to initiate proceedings, it may issue an order. Id. “The petition, or order if issued
on the court’s initiative, shall state each condition of probation that the defendant is charged
with having violated and the nature of the violation.” Id.A violation of probation hearing “involves two stages: ‘(1) a retrospective factual
question whether the probationer has violated a condition of probation; and (2) a
discretionary determination by the sentencing authority whether violation of a condition
warrants revocation of probation.’” Johnson v. State, 247 Md. App. 170, 182-83 (2020)
12
(quoting Hammonds v. State, 436 Md. 22, 31 (2013)); see Wink v. State, 317 Md. 330, 332
(1989).
Regarding the first stage, the State has both the burden of production, which is to
come forward with evidence to support a violation, and the burden of persuasion. Wink,
317 Md. at 332. In Scott, the Supreme Court of Maryland stated that the burden of
persuasion at the first stage is satisfied by “reasonable satisfaction.” 238 Md. at 276. In
Wink, the Court clarified the meaning of “reasonable satisfaction” to be “that the trial judge
must find the essential facts comprising a violation of condition by a preponderance of the
evidence.” 317 Md. at 341. Thus, unlike in a criminal case, the probation court is not
bound by the constraints of the reasonable doubt standard of proof. Gibson v. State, 328
Md. 687, 696 (1992). For this reason, an acquittal in a criminal case does not preclude the
State from relitigating an issue when the subject criminal conduct is presented in a
subsequent action governed by a lower standard of proof. United States v. One Assortment
of 89 Firearms, 465 U.S. 354, 361-62 (1984). Further, in probation revocation
proceedings, the formal rules of evidence are not applied. State v. Fuller, 308 Md. 547,
553 (1987). Maryland Rule 4-347(e)(2) permits the trial court to “conduct the revocation
hearing in an informal manner and, in the interest of justice, may decline to require strict
application of the rules [of evidence] in Title 5, except those relating to the competency of
witnesses.” “Thus, the rules of evidence, including the rules against the admission of
hearsay, are relaxed at probation revocation hearings.” Bailey v. State, 327 Md. 689, 698
(1992). Appellate review of the first stage is for clear error. State v. Dopkowski, 325 Md.
671, 677 (1992).
13
Appellate review of the second stage, whether revocation is warranted, is for abuse
of discretion. Id. at 678; see Wink, 317 Md. at 339 (“Appellate review to determine whether
there was reasonable satisfaction would simply analyze whether discretion was abused for
want of any reasonable basis for the revocation.”). “Abuse of discretion will be found only
if the trial court has erroneously construed the conditions of probation, has made factual
findings that are clearly erroneous, or has acted arbitrarily or capriciously in revoking
probation.” Dopkowski, 325 Md. at 678; see Bailey, 327 Md. at 696.
Traditionally, “if a trial judge found that a probationer or defendant had violated any
condition of probation, the judge was authorized to ‘impose any sentence that might have
originally been imposed for the crime of which the probationer or defendant was convicted
or pleaded nolo contendere.’” Johnson, 247 Md. App. at 184 (quoting Md. Code (2001,
2018 Repl. Vol.), § 6-223(d)(2) of the Criminal Procedure Article (“CP”)). In 2016,
however, the General Assembly enacted the Justice Reinvestment Act, which, among many
comprehensive reforms, amended § 6-223 of the Criminal Procedure Article—the statute
governing probation revocations. 2016 Md. Laws, ch. 515. “The amendments placed
presumptive limits on the duration of incarceration that may be imposed for a ‘technical’
violation of probation.” Johnson, 247 Md. App. at 184. A “technical violation” is defined
as:
[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
14
offense;
(3) a violation of a no-contact or stay-away order; or
(4) absconding.
CP § 1-101(q) (incorporating by reference the definition of a technical violation from Md.
Code, § 6-101(m) of the Correctional Services Article). If the trial judge finds that the
probationer has committed a technical violation of a condition of probation, the judge may
“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[.]” CP § 6-223(d)(2)(i).4 For a fourth or subsequent
technical violation, or a violation that is not a technical violation, a trial judge may impose
any sentence that might have been imposed for the crime of which the probationer or
defendant was convicted or pleaded nolo contendere. CP § 6-223(d)(2)(ii).
4
CP § 6-223(e)(1) creates “a rebuttable presumption that the limits on the period of
incarceration that may be imposed for a technical violation under subsection (d)(2) of this
section are applicable.” However, under subsection (e)(2):
The presumption may be rebutted if the court finds and states on the record,
after consideration of the following factors, that adhering to the limits on the
period of incarceration established under subsection (d)(2) of this section
would create a risk to public safety, a victim, or a witness:
(i) the nature of the probation violation;
(ii) the facts and circumstances of the crime for which the probationer
or defendant was convicted; and
(iii) the probationer's or defendant's history.
CP § 6-223(e)(2).
15
B. Nolo Contendere Pleas
1. Case Law
Upon being charged with a crime, the criminal defendant may plead not guilty and
go to trial or guilty “and relieve the State of having to bear its burden of proof.” Bishop v.
State, 417 Md. 1, 16 (2010); see Md. Rule 4-242(a) (not guilty plea); Md. Rule 4-242(c)
(guilty plea). The defendant may also plead nolo contendere, as appellant did here, or take
an Alford plea.5 Bishop, 417 Md. at 16. Nolo contendere translates directly to “I do not
wish to contend.” Id. at 18. A nolo contendere plea is a “‘plea by which the defendant
does not contest or admit guilt.’” Id. (quoting BLACK’S LAW DICTIONARY 1147, 1269 (9th
ed. 2009)). CP § 1-101(l) defines a plea of nolo contendere as “a plea stating that the
defendant will not contest the charge but does not admit guilt or claim innocence.” In
McCall v. State, this Court explained:
A plea of nolo is not an admission of conduct as by so pleading an
accused merely asserts that he does not desire to contest the charge. No
verdict of guilty may be found on the entry of a plea of nolo, Rule [4-242(e)],
and thus it is not a conviction. On the other hand, a plea of guilty is an
admission of conduct, and, it results in a conviction.
9 Md. App. 191, 193 (1970) (footnote omitted).
Before accepting a nolo contendere plea, the trial court must determine that the
defendant entering the nolo contendere plea does so knowingly and voluntarily. Md. Rule
4-242(e). The court must also advise the defendant of the collateral consequences of the
plea. Id. Following acceptance of the plea, the court “shall proceed to disposition as on a
5
A defendant may enter a plea of nolo contendere only with the trial court’s consent. Md.
Rule 4-242(e).
16
plea of guilty, but without finding a verdict of guilty.” Id.By entering a nolo contendere plea, the defendant waives most of his appellate rights:
“As in the case of the plea of guilty, . . . a plea of nolo contendere waives all
defenses other than that the indictment charges no offense, and the right to trial
and incidental rights. The plea also waives all formal or nonjurisdictional
defects or irregularities in the indictment or information in prior proceedings
. . . . Except under extraordinary circumstances, the plea of nolo contendere
leaves open for review only the sufficiency of the indictment.”
Bishop, 417 Md. at 19 (quoting Cohen v. State, 235 Md. 62, 68 (1964)). Thus appellate
review of a nolo contendere plea is typically limited to whether the trial court adhered
properly to Rule 4-242(e).
Although a nolo contendere plea shares some similarities to a guilty plea,6 it has
different consequences to the defendant. Id. at 16. Unlike a guilty plea, a nolo contendere
plea only establishes the fact of guilt in the case to which it applies and is not receivable in
another proceeding as evidence of guilt. Agnew, 51 Md. App. at 652. Consequently, a
defendant who pleads nolo contendere is not estopped “‘to plead and prove his innocence
in a civil action.’” Id. (quoting Hudson v. United States, 272 U.S. 451, 455 (1926)).
2. Agnew v. State
The impact of nolo contendere pleas on other proceedings has not been addressed
in depth in our case law. The case of Agnew v. State is perhaps the most significant case
discussing the effects of a nolo contendere plea to date, even though the issue was not
6
“The plea of nolo, just as the plea of guilty, has the effect of submitting the accused to
punishment by the court; following the entry of either plea the court shall proceed to
determine and impose sentence.” McCall, 9 Md. App. at 193-94; see Md. Rule 4-242(e).
17
central to the opinion.
In Agnew, Spiro T. Agnew, former Vice President of the United States, Governor
of Maryland, and Baltimore County Executive, was sued by three Maryland taxpayers in
1976 to recover certain payments made to him in connection with the award of engineering
contracts by the State Roads Commission during his terms of office. Id. at 616.7 In October
of 1973, three years before the civil case was filed, Agnew entered a nolo contendere plea
in the United States District Court for the District of Maryland on charges of felony tax
evasion. Id. at 619. The civil case went through complicated litigation before the Circuit
Court for Anne Arundel County that resulted in a monetary judgment in favor of the State
of Maryland, as intervenor, and against Agnew. Id. On appeal to this Court, Agnew sought
resolution of nine issues in the civil case, including several evidentiary issues surrounding
Agnew’s nolo contendere plea in federal court. Id. at 617.
In order to understand the legal issues presented by Agnew before this Court in the
civil case, we first must address his plea before the federal court. On October 10, 1973,
the federal court accepted Agnew’s plea of nolo contendere on federal tax evasion charges
under 26 U.S.C. § 7201. Id. at 619. During the plea hearing, the United States Attorney
General entered into evidence “an exposition of the evidence,” which had been
accumulated during the government’s investigation of Agnew, to establish “a pattern of
substantial cash payments” to Agnew during his time as Governor of Maryland. Id. at 620.
7
Agnew was accused of having obtained “political contributions” in exchange for certain
engineering and architectural firms being awarded contracts involving road and bridge
construction by the State Roads Commission. Agnew, 51 Md. App. at 618.
18
Four sworn statements also were admitted into evidence at the plea hearing. Id. at 620 n.5.
The sworn statements were made by four individuals who participated with Agnew in the
bribery and kickback scheme. Id. at 618. Finally, before he was sentenced, Agnew made
an oral statement on the record in which he admitted (1) receipt of payments that had not
been expended for political purposes, and (2) the award of contracts by state agencies “to
those who made such payments.” Id. at 621. Agnew, however, denied the “assertions of
illegal acts” by him and that the payments in any way influenced his official actions. Id.
After accepting the nolo contendere plea, the federal court sentenced Agnew to three years’
incarceration, all suspended, and placed him on probation. Id.
One of the issues before this Court in Agnew, which is relevant to the instant appeal,
was “[w]hether . . . Agnew’s plea of nolo contendere to federal tax evasion was properly
admitted against him.” Id. at 616. On this issue, the trial court admitted into evidence the
four sworn statements, a transcript of the nolo contendere plea proceeding in federal court,
which contained Agnew’s admissions, the criminal information against Agnew, Agnew’s
nolo contendere plea, his sentence, and the 40-page “exposition of the evidence” prepared
by the government. Id. at 629, 652. The court admitted the sworn statements as exceptions
to the exclusionary rule against hearsay for declarations or statements against penal
interest. Id. at 629. The trial court also ruled that the nolo contendere plea and transcript
of the proceedings were admissible as admissions by a party opponent. Id. at 652.8
8
The Agnew opinion does not indicate the basis upon which the trial court admitted into
evidence the criminal information, Agnew’s sentence, or the 40-page “exposition of the
(continued . . .)
19
Initially, this Court determined that the four sworn statements “were actually against
the declarant’s penal interest when made” and thus were properly admitted into evidence.9
Id. at 630. We also ruled that the four sworn statements “were admissible as declarations
against pecuniary interest.” Id. at 643.
This Court then turned to the law governing the use of a nolo contendere plea in a
subsequent proceeding and declared such law to be “scant.” Id. at 651. Without a
Maryland Rule of Evidence governing nolo contendere pleas,10 we looked to the Federal
Rules of Evidence and observed that “pleas of nolo contendere and accompanying
statements are ‘not admissible in any civil or criminal proceeding against the person who
made the plea . . . .’” Id. at 652 (quoting Fed. R. Evid. 410). We also considered the
“common-law approach to the question of the effect of the [nolo contendere] plea” and
determined that such plea is “‘not receivable in another proceeding as evidence of guilt.’”
Id. (quoting Mickler v. Fahs, 243 F.2d 515, 517 (5th Cir. 1957)). “The rationale for the
[common law] rule is that the plea establishes the fact of guilt only in the case to which it
applies” and the plea itself “has no effect beyond the case in which it is entered.” Id.Therefore, this Court held: “[W]e subscribe to the majority view that a statement made at
evidence.” Apparently, no issue was raised on appeal regarding the admissibility of those
documents. See 51 Md. App. at 652.
9
The admissibility of one of the sworn statements, that of Jerome Wolff, was challenged
for the additional reason that Wolff was available and did testify at trial. Agnew, 51 Md.
App. at 645. This Court held that such ground had never been asserted before the trial
court and thus had not been preserved for appellate review. Id.
10
The Court of Appeals of Maryland, now the Supreme Court of Maryland, did not adopt
a rule of evidence governing nolo contendere pleas until 1993.
20
the time of entering a nolo plea and the plea itself are not admissible against a party in a
subsequent civil proceeding.” Id. at 653. Accordingly, the trial court’s admission into
evidence of Agnew’s nolo contendere plea and the transcript of the plea proceeding, which
contained Agnew’s admissions, was error. See id.
Nevertheless, this Court held that the admission of the nolo contendere plea and
transcript of the plea proceeding was not reversible error. Id. We explained: “However,
because the trial judge relied primarily on the testimony and the sworn declarations against
interest properly admitted, which ‘form the basis of the whole action,’ admission of the
nolo plea and the transcript was not reversible error.” Id.
3. Maryland Rule 5-410
In 1993, over ten years after Agnew was decided, the Supreme Court of Maryland
adopted Rule 5-410, stating that the rule was derived from Fed. R. Evid. 410 (Md. Rules,
Vol. 1, 1994 Repl. Vol.). Rule 5-410(a) reads:
(a) Generally. Except as otherwise provided in this Rule, evidence of the
following is not admissible against the defendant who made the plea
or was a participant in the plea discussions:
(1) a plea of guilty which was not accepted or which was later
withdrawn or vacated;
(2) a plea of nolo contendere, except as otherwise provided
in these rules;
(3) any statement made in the course of any proceedings
under Rule 4-243 [plea agreements] or comparable state
or federal procedure regarding a plea specified in
subsection (a)(1) or (a)(2) of this Rule, except in a criminal
proceeding for perjury or false statement if the statement
was made by the defendant under oath and on the record;
or
21
(4) any statement made in the course of plea discussions with
an attorney for the prosecuting authority which do not result
in a plea of guilty or nolo contendere or which result in a
plea of guilty or nolo contendere which was not accepted
or was later withdrawn or vacated.
(Emphasis added.)
To explain the origin of Rule 5-410, the Standing Committee on Rules of Practice
and Procedure (“Rules Committee”) included in its 125th Report to the Court of Appeals
of Maryland, dated July 7, 1993, a “Reporter’s Note” to Rule 5-410 that set forth, in
relevant part:11 “(3) The exception in subsection (a)(2) with respect to pleas of nolo
contendere is intended to codify Agnew v. State, 51 Md. App. 614, 651 (1982).” Rules
Committee, One Hundred Twenty-Fifth Report of the Standing Committee on Rules of
Practice and Procedure at P-11 (July 7, 1993). Further, the minutes from the Rules
Committee’s October 16, 1992 meeting provides some background on the development
and scope of Rule 5-410:
Professor McLain presented Rule 5-410, Inadmissibility of Pleas, Plea
Discussions, and Related Statements, for the Committee’s consideration. . . .
She explained that this Rule has been one of the most amended of the federal
rules. The Rule should encourage defendants to plea bargain, but does not
11
The introduction to the Report provides some background on the Reporter’s Note:
The Reporter’s Notes were prepared initially for the benefit of the Rules
Committee in its consideration of the rules. They were not debated or
approved by the Committee and are not to be regarded as part of the rules or
as an official comment on or interpretation of the rules. The Reporter’s Notes
appended to the rules as published are, in some instances, abbreviated. That
was done in order to reduce the size and cost of publication.
Rules Committee, One Hundred Twenty-Fifth Report of the Standing Committee on Rules
of Practice and Procedure at P-1 (July 7, 1993).
22
protect resulting convictions. The Rule does not apply to statements by
prosecuting attorneys, which would be governed by Rules 5-401, 5-403,
and 5-801. What is protected are any statements made by a criminally
accused to a prosecutor and statements made under Rule 4-243
proceedings or comparable federal or other state proceedings.
Exceptions to the Rule are (1) when in any proceeding another statement
made in the course of the same plea or plea discussions has been introduced
and the statement should in fairness be considered with it (the rule of
completeness), (2) if the statement is offered in a subsequent civil proceeding
as a prior inconsistent statement to attack the credibility of the person who
made the statement, and (3) in a criminal proceeding for perjury or false
statement if the statement was made by the defendant under oath and on the
record.
Rules Committee, Minutes of Meeting at 50 (Oct. 16, 1992) (emphasis added).
C. Effect of Nolo Contendere Plea on a Violation of Probation Proceeding
Finally, we turn to the intersection of a nolo contendere plea and a violation of
probation proceeding. In Horsey, the appellant entered a guilty plea on a charge of theft
and was sentenced to eighteen months of incarceration, all suspended, and three years of
probation, which required him to, among other things, “obey all laws.” 56 Md. App. at
669. A few months later, the appellant was again charged with theft, which had taken place
during the period of probation. Id. The case was submitted to the court on an agreed
statement of facts, and the court entered a probation before judgment under Art. 27, § 641.
Id. The appellant was brought before the court on a violation of probation regarding the
initial conviction for theft on the ground that appellant had failed to “obey all laws.” Id.
The trial court found the appellant guilty of violating his probation and sentenced him to
serve the remainder of his original eighteen-month sentence. Id. at 670.
On appeal, the appellant argued that the trial court could not base a finding of a
violation of probation on a disposition of probation before judgment. Id. This Court
23
rejected the appellant’s argument, because the appellant improperly relied “on the
disposition of the second case rather than upon the underlying factual determination
involved.” Id. at 672 (emphasis in original). We explained that the factual determination
of the commission of an offense is the same for a conviction as for a probation before
judgment disposition, and thus “the same reasoning that permits revocation upon proof of
a conviction would permit revocation upon a showing of guilt prior to a sec. 641
disposition.” Id. at 672-73.
This Court next addressed the suggestion by the appellant that the probation before
judgment disposition resulted from a nolo contendere plea. We said:
Appellant’s suggestion that the sec. 641 disposition may have resulted
from the entry of a nolo contendere plea and, thereby, amount to a failure to
prove the crime, is without merit. We point out that the determination of
guilt was based upon an agreed statement of facts. Additionally, appellant's
reliance on Md. Rule 731(d)(2) is not dispositive of the issue. The rule
authorizes a court, on a nolo contendere plea, to impose sentence without
finding a verdict of guilty. We repeat, revocation of probation is
permissible in instances of engaging in criminal conduct or upon
conviction of a crime. Obviously, the statement of facts was sufficient to
warrant a guilty verdict, otherwise the court could not have made a sec.
641 disposition. Appellant's counsel suggests that Judge Hinkel did not
know whether appellant entered a nolo plea or a guilty plea. It makes
no difference . . . .
Id. at 673 (emphasis added). We then reiterated the common law rule regarding
the quantum of proof necessary to show a failure of good behavior is that
proof of conviction for crime is not required and any evidence sufficient to
reasonably satisfy the trial court that the actor has committed a crime is
adequate to sustain an order revoking a suspension for failure of good
behavior.
Id. at 674. Further, the “failure of good behavior may be shown by any evidence reasonably
tending to prove commission of a criminal act.” Id. at 674-75.
24
To summarize the key principles regarding a plea of nolo contendere and its effect
on a violation of probation proceeding, a defendant does not admit guilt or claim innocence
by entering a plea of nolo contendere. Bishop, 417 Md. at 18; CP § 1-101(l). As a result,
no verdict of guilty may be found, nor does the acceptance of the plea of nolo contendere
result in a conviction. McCall, 9 Md. App. at 193; Md. Rule 4-242(e). A plea of nolo
contendere is not receivable in another proceeding as evidence of guilt, and thus the plea
itself is not admissible in a violation of probation hearing. See Md. Rule 5-410(a)(2);
Agnew, 51 Md. App. at 652. Also, any admission or other statement by a defendant in the
course of a nolo contendere plea process12 is not admissible against the defendant in any
violation of probation hearing. See Md. Rule 5-410(a)(2)–(4); Agnew, 51 Md. App. at 652.
Other evidence from the nolo contendere plea proceeding, however, is admissible at the
violation of probation hearing, including “reasonably reliable” hearsay. See Agnew, 51
Md. App. at 653 (holding that at the civil trial to recover “kickback” payments made to
Agnew, the trial court properly relied on four sworn statements that also had been admitted
previously at Agnew’s nolo contendere plea hearing); Md. Rule 4-347(e)(2) (stating that
the trial court may decline to require strict application of the rules of evidence during
probation revocation proceedings); Bailey, 327 Md. at 699 (explaining that hearsay
evidence is admissible at probation revocation hearings as long as the trial court finds such
evidence “reasonably reliable” and there is good cause for its admission). Finally, and
most importantly, the improper admission into evidence at a probation revocation hearing
12
The nolo contendere plea process includes both the nolo contendere plea proceeding and
the plea discussions with the prosecutor. See Md. Rule 5-410(a)(3)–(4).
25
of the nolo contendere plea or a statement by the person who made such plea is not
reversible error if the trial court relies primarily on the evidence properly admitted at the
probation revocation hearing. See Agnew, 51 Md. App. at 653.
II.
A. Contentions of the Parties
Appellant argues that the trial court erred by revoking appellant’s probation “based
solely on evidence that [appellant] entered a nolo contendere plea in another case while on
probation.” Appellant states that a nolo contendere plea “may not be admitted as
inculpatory evidence at a collateral proceeding,” because such plea is neither a conviction
nor an admission of conduct. Thus, according to appellant, the trial court’s “sole reliance”
on appellant’s plea to determine that appellant had violated the terms of his probation was
“an abuse of its discretion.”
The State responds that appellant “is correct that a plea of nolo contendere cannot
be admitted in subsequent collateral proceedings as an admission of guilt,” but went on to
assert that the trial court “did not violate his probation based on a belief that he admitted
guilt by entering a plea of nolo contendere.” Instead, the State contends that the court
“found the factual basis supporting the nolo contendere plea,” i.e., the State’s factual
proffer during the plea proceeding, as “sufficient for it to find that [appellant] failed to obey
all laws and failed to get permission before possessing a firearm.” The State is correct.
B. Analysis
The central focus of appellant’s argument on appeal is that the trial court erred by
basing its decision to find appellant in violation of his probation “solely on evidence that
26
[appellant] entered a nolo contendere plea in another case while on probation.” Appellant
is correct that the court would have committed reversible error if it had based its finding of
a violation solely on appellant’s nolo contendere plea. See Agnew, 51 Md. App. at 652.
But, contrary to the factual premise of appellant’s argument, the trial court not only did not
rely “solely” on appellant’s nolo contendere plea, the court did not rely on such plea at all.
At the violation of probation hearing on February 27, 2020, the trial court said: “The Court
finds that as I previously ruled, that the nolo contendere plea does not subject [appellant]
to a violation of probation.” Although the trial court erroneously admitted appellant’s nolo
contendere plea as a part of the docket entries from the Prince George’s County case
(State’s Exhibit 1), the court’s express lack of reliance on such plea precludes a holding
that the admission of the nolo contendere plea was reversible error. See id. at 653 (stating
that the admission of a nolo contendere plea against a party in the subsequent proceeding
was not reversible error where “the trial court relied primarily on the testimony and the
sworn declarations against interest properly admitted, which form the basis of the whole
action”) (internal quotation marks omitted).
Further, under Rule 5-410, statements of a defendant who enters a nolo contendere
plea cannot be admitted against that person in any civil or criminal proceeding. Md. Rule
5-410(a)(2)–(3). In the instant case, the trial court admitted into evidence, as State’s
Exhibit 2, the transcript of the nolo contendere plea proceeding in the Prince George’s
County case. Appellant acknowledges that he “did not make any admissions during the
plea proceeding, and did not discuss the facts of the case in any way.” Yet, the State
repeatedly pointed to appellant’s acceptance, through counsel, “either in whole or in part,”
27
of the prosecutor’s proffer of facts. To the extent that defense counsel’s statement during
the nolo contendere plea proceeding that appellant “agree[d]” that the prosecutor’s proffer
of facts “would be the State’s case” constitutes a statement of appellant under Rule 5-410,
such statement cannot be admitted against him in a violation of probation hearing. See id.;
Agnew, 51 Md. App. at 653. The trial court, however, did not indicate in its rulings that it
relied in any way on appellant’s “acceptance” of the prosecutor’s proffer of facts in the
Prince George’s County case. Therefore, the admission of appellant’s statement at the
violation of probation hearing was not reversible error.
A question still remains to be answered: Was there sufficient evidence properly
admitted at the violation of probation hearing to support the trial court’s finding that
appellant had violated the terms of his probation to obey all laws and to obtain permission
before possessing a firearm? Appellant states that “probationers who enter a nolo plea may
have their probation revoked based upon independent evidence of misconduct, such as
testimony by an arresting officer, a witness, or a victim from the underlying case.”
Appellant’s statement, however, is not a complete statement of the law in Maryland. As
set forth above, “any evidence sufficient to reasonably satisfy the trial court that the actor
has committed the crime is adequate to sustain an order revoking a suspension for failure
of good behavior.” Horsey, 56 Md. App. at 674. The strict rules of evidence do not apply
to violation of probation hearings, see Md. Rule 4-347(e)(2), and even the rules against the
admission of hearsay are relaxed. Bailey, 327 Md. at 698.
In Bailey, the Supreme Court of Maryland held that for hearsay to meet the
evidentiary and constitutional requirements for admissibility at probation revocation
28
hearings, the hearsay must be “reasonably reliable” and there must be good cause for its
admission. Id. at 699. The Court went on to identify three factors that “help determine
whether hearsay evidence bears a sufficient degree of reliability”: (1) the presence of
corroborative evidence; (2) whether the proffered hearsay is an objective fact reported by
the declarant; and (3) the source of the proffered hearsay. Id. at 700-03. Finally, the Court
stated that “a major factor in determining good cause to admit the hearsay” is “the
reliability of the proffered hearsay,” and that good cause can be apparent from the record.
Id. at 705.
In the instant case, the trial court relied on the proffer of facts given on the record
by the prosecutor in support of appellant’s nolo contendere plea at the plea hearing before
the Circuit Court for Prince George’s County. The proffer of facts was part of the official
transcript of proceedings entered into evidence at the violation of probation hearing as
State’s Exhibit 2. The proffer of facts is clearly hearsay.
Applying the Bailey test, we conclude that the proffer of facts is “reliable hearsay”
and that there was good cause for its admission at appellant’s violation of probation
hearing. First, there was evidence to corroborate the proffer of facts. The docket entries,
other than the entry of the nolo contendere plea, state that a criminal indictment had been
filed against appellant for, among other things, the crime of possession of a firearm by a
convicted felon (“Count I”). The docket entries and transcript then indicate an amendment
to Count I to charge the same offense under the non-mandatory version, PS § 5-133(b).
Finally, the trial court imposed a sentence consistent with the penalty provided for a
violation of PS § 5-133(b).
29
Second, the proffer of facts provided objective facts constituting the evidence that
the prosecutor declared would be admitted at trial to prove that appellant committed the
charged offense. Third, the source of the proffer of facts was the prosecutor’s statement
on the record in open court of the facts showing appellant’s commission of a criminal
offense to which appellant was entering a plea that would subject him to punishment. The
Prince George’s County court also found that the proffer of facts provided an adequate
foundation for the court to accept appellant’s plea.
Lastly, good cause to admit the proffer of facts was apparent from the record. See
id. at 705. The purpose of the proffer of facts was to establish a factual basis for the trial
court to determine the commission of a crime and the criminal agency of appellant. Given
the significance of a proffer of facts in plea proceedings and the inconvenience of calling
a police officer or other witness to testify at the violation of probation hearing, there was
good cause to admit the proffer of facts. See id. at 705-06.
Therefore, this Court holds that the trial court did not commit reversible error in the
admission of evidence at appellant’s violation of probation hearing and that there was
sufficient evidence, in the form of reasonably reliable hearsay, for the trial court to find
that appellant violated the terms of his probation by failing to “obey all laws” and by failing
to obtain permission before possessing a firearm. Because failing to “obey all laws” is not
a technical violation of probation, we also hold that the trial court did not abuse its
discretion by revoking appellant’s probation and imposing six years of incarceration, which
was one-half of the suspended period of incarceration.
This Court would be remiss if we did not address, albeit briefly, the following
30
statements made in appellant’s brief:
Because the plea of nolo contendere is clearly designed to insulate
individuals from the collateral consequences of a guilty plea, criminal
defendants who are on probation commonly use the nolo contendere plea in
order to accept the benefits of a favorable plea offer. Through the use of the
nolo contendere plea, they are able to avoid the repercussions a guilty plea
would have on their probationary status.
These statements suggest a common view among at least some practitioners that the entry
of a nolo contendere plea by a person on probation immunizes that person against a later
violation of probation, and as a result, no part of a nolo contendere plea proceeding can be
used against that person in a violation of probation hearing. As we have seen, only the
nolo contendere plea itself and any statement by the defendant made during the nolo
contendere plea process13 cannot be used against the defendant in a violation of probation
hearing, or in any civil or criminal proceeding for that matter. Indeed, the trial judge who
accepted appellant’s nolo contendere plea recognized the possibility of a finding of a
violation of probation against appellant arising out of the nolo contendere plea proceeding
when he advised appellant, as follows:
THE COURT: Okay. I want to go over a couple of ramifications of your
plea just to make sure you understand it. If you were on parole or probation
in any other case, you understand that this plea could have a negative impact
on that. Do you understand that?
[APPELLANT]: Yes.
THE COURT: What I mean by that is say you have a case that has been
represented to me that you are on [probation] where you have back-up
time. That judge, as a result of this case, could potentially sentence you
to additional jail time, extend your probation, do any number of things.
Do you understand that?
13
See footnote 12, supra.
31
[APPELLANT]: Yes, sir.
(Emphasis added.)
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED. APPELLANT TO PAY
COSTS.
32