Bailey v. State, 92

• Court: Court of Appeals of Maryland
• Citation: 355 Md. 287,734 A.2d 684
• Docket Number: No. 92,92
• Parties: Frederick Andrew BAILEY v. STATE of Maryland.
• Decision Date: 04 August 1999

734 A.2d 684
355 Md. 287

Frederick Andrew BAILEY
v.
STATE of Maryland

No. 92, Sept. Term, 1998.

Court of Appeals of Maryland.

August 4, 1999.

Reconsideration Denied August 26, 1999.

734 A.2d 685

Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

RAKER, Judge.

In this case we must decide whether home detention, in the absence of express statutory authority permitting such action, can be imposed validly as a condition of probation. We shall hold that in the absence of statutory authority, a trial court lacks power to order home detention as a condition of probation.

Frederick Andrew Bailey was convicted by a jury in the Circuit Court for Anne Arundel County of the offenses of battery, reckless endangerment, theft over $300, and fleeing or eluding police. On the reckless endangerment count, the trial court sentenced Bailey to five years imprisonment, suspending all but eighteen months. On the battery count, the court sentenced Bailey to a concurrent three-year sentence, with all but eighteen months suspended. On the theft count, the court imposed a concurrent three-year sentence, all suspended. Finally, on the fleeing or eluding police count, the court imposed a concurrent six-month term of incarceration, all suspended. The court placed Bailey on supervised probation for five years, to commence when he was released from the Anne Arundel County Detention Center. As a special condition of probation, effective upon Bailey's release from the detention center, the court ordered home detention for a period of twenty-four months. At the time of sentencing the court stated:

In this case I have concluded that it would not serve society, nor would it be of any rehabilitative benefit at this juncture for me to put Mr. Bailey in a prison system with the Commissioner of Correction. But I do believe that it is appropriate and necessary for the sentencing process to incarcerate Mr. Bailey.

* * * * *

You will serve home detention for a period of twenty-four months when you are released from the Anne Arundel County Detention Center, commencing upon release from the Detention Center, and you will be subject to all rules and restrictions of the House Arrest Program. You'll be permitted to work. You'll be permitted to do any counseling. You'll be permitted to do any public work that I might order. There is to be no use of any alcoholic beverages or any kinds of drugs. There are certain requirements and rules that you'll be required to follow in order to be on the House Arrest Program. This is a condition of probation. If you violate the House Arrest Program, they will then tell me and you will be back for a violation of probation hearing.

Bailey appealed to the Court of Special Appeals, arguing that the trial court imposed an illegal sentence in imposing house arrest as a condition of his probation. The Court of Special Appeals affirmed. We granted certiorari to consider the issue.

Petitioner argues that confinement on home detention constitutes imprisonment and as such, is an illegal condition of probation. The issue is resolved, he suggests, upon a determination of whether home detention as a condition of probation constitutes a "sentence of confinement" for purposes of Maryland Code (1957, 1996 Repl.Vol., 1997 Supp.), Article 27 § 641A(a).¹ Section 641A(a) permits only

734 A.2d 686

five subdivisions, not including Anne Arundel County, to impose as a condition of probation a sentence of confinement. According to Petitioner, because Anne Arundel County is not among those counties authorized to impose "a sentence of confinement" as a condition of probation, and because home detention is a "sentence of confinement," the home detention requirement was an impermissible condition of probation. The detriment to Petitioner if we were to uphold the Court of Special Appeals, he argues, would be to deprive him of good conduct credit "mandated by Dedo [v. State, 343 Md. 2, 680 A.2d 464 (1996) ]" by imposing home detention as a condition of probation, "and thus exceed the statutory maximum punishment for an offense by up to five years." According to Petitioner, the appropriate method to impose home detention is as part of the sentence itself, and not as a condition of probation, thereby ensuring that the inmate would receive all the credit to which he was entitled under § 638C(a) and would not serve a sentence in excess of the statutory maximum

The State argues that Petitioner's home detention was not tantamount to incarceration or custody. According to the State, § 641A(a), which provides that a court may "place the defendant on probation upon such terms and conditions as the court deems proper," affords the trial court "wide discretion to fashion probationary terms that will best meet the needs of the individual probationer and of society as a whole."

Relying on Schlossman v. State, 105 Md.App. 277, 659 A.2d 371 (1995), cert. dismissed as improvidently granted, 342 Md. 403, 676 A.2d 513 (1996) and Balderston v. State, 93 Md.App. 364, 612 A.2d 335 (1992), the Court of Special Appeals held that "sentencing appellant to house arrest as a condition of his probation does not constitute confinement in a jail-type institution as prohibited in Stone, and thus does not constitute an illegal sentence." In Schlossman, the court concluded that although confinement in one's home is restrictive, a person's confinement differs from that in a prison or jail in many material respects. Id. at 302, 659 A.2d at 383. The court stated:

While at home, an offender enjoys unrestricted freedom of activity, movement, and association. He can eat, sleep, make phone calls, watch television, and entertain guests at his leisure. Furthermore, an offender confined to his home does not suffer the same surveillance and lack of privacy that he would if he were actually incarcerated.

We conclude that the restrictions placed on appellant's freedom pursuant to the house arrest program are comparable to, and no more onerous than, the restrictions imposed on the appellant in Balderston. Because we determined in Balderston that such restrictions did not amount to "custody" for the purpose of granting custody credit under Art. 27, § 638C(a), we conclude that the restrictions placed on appellant in the present case do not amount to `incarceration' or `confinement in a jail-type institution' as contemplated in Stone v. State.

Id., 659 A.2d at 383.

Probation has been described as the "[w]ithdrawal of autonomy varying with the terms of the probation order; the primary purpose training for conformity." N. MORRIS & M. TONRY, BETWEEN PRISON AND PROBATION, INTERMEDIATE PUNISHMENTS IN A RATIONAL SENTENCING SYSTEM 178 (1990) [hereinafter BETWEEN PRISON AND PROBATION]. Maryland Code (1957, 1997 Repl.Vol., 1998 Supp.), Article 41, § 4-501(6), defines probation as "the conditional exemption from imprisonment allowed any prisoner by suspension of sentence in the circuit court for any county of this State."² Intensive supervised probation,

734 A.2d 687

implemented in a majority of the states, combines traditional probation with much greater surveillance. See Developments in the Law—Alternatives to Incarceration, 111 HARV. L.REV. 1863, 1896 (1998). Morris and Tonry define intensive supervision probation as a more intensive withdrawal of autonomy, with the same back-up purposes as traditional probation but with more imminent threats. BETWEEN PRISON AND PROBATION, supra, at 178; see also, INTERMEDIATE SANCTIONS IN OVERCROWDED TIMES 89-103 (M. Tonry & K. Hamilton, eds., 1995) [hereinafter INTERMEDIATE SANCTIONS]. While intensive probation programs around the country are so diverse that the term "has almost ceased to have useful meaning," a common feature is that more control involving restrictions on liberty of movement, coercion into programs, and employment obligations are exercised over the offender than in traditional probation. BETWEEN PRISON AND PROBATION, supra, at 180. Intensive supervised probation generally takes three broad forms: a mechanism for early release from prison;³ an alternative to incarceration;⁴ and a way to provide close controls and surveillance for probationers.⁵ The impetus for most of these programs was to give judges authority to impose alternative punishments in order to avoid prison and local jail overcrowding. Id.

Probation is a creature of statute, and as such, the terms of probation are derived from statutory authority.⁶ In Maryland, a court having proper jurisdiction may grant probation. See Art. 27 § 641(a) and § 641A(a). Writing for the Court of Special Appeals, then Chief Judge Wilner, now a member of this Court, explained in Thomas v. State, 85 Md.App. 201, 205, 582 A.2d 586, 588 (1990), that probation in Maryland is available as a sentencing alternative in four different settings. Under Article 27, § 641(a), after a verdict of guilty and with the defendant's written consent, the court may stay the entering of judgment, defer further proceedings and place the defendant on probation. Id., 582 A.2d at 588. Article 27 § 641A(a) authorizes a court to suspend the imposition of sentence and to place a defendant on probation, impose a sentence but suspend the execution of the sentence in favor of probation, or impose a sentence and suspend execution of a part of the sentence in favor of probation. Id., 582 A.2d at 588.

A trial court has broad authority to formulate conditions of probation. The power to impose conditions of probation, however, is not unlimited, and thus, the trial court does not have unlimited discretion to order conditions of probation. See Sheppard v. State, 344 Md. 143, 685 A.2d 1176 (1996) (holding that the trial judge abused his discretion in requiring, as a...