Boffen v. State

• Decision Date: 12 February 2003
• Docket Number: No. 16 Sept. Term, 2002.,16 Sept. Term, 2002.
• Citation: 372 Md. 724,816 A.2d 88
• Parties: Leroy Carl BOFFEN v. STATE of Maryland.
• Court: Maryland Court of Appeals

816 A.2d 88

372 Md. 724

Leroy Carl BOFFEN v. STATE of Maryland.

No. .

Court of Appeals of Maryland.

February 12, 2003.

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

Annabelle L. Lisic, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

BATTAGLIA, Judge.

On November 9, 2000, petitioner Leroy Carl Boffen (hereinafter "Boffen") appeared in the Circuit Court for Wicomico County to be sentenced on two counts of credit card offenses for unlawfully obtaining goods "by falsely representing, without the consent of the cardholder that he was then and there the holder of a credit card...." During the sentencing, the judge stated that, "[t]he sentence under count number one is fifteen years to the Division of Correction." Before the judge could go any further, Boffen interrupted him, bolted from the courtroom, and ran out onto the street where he was eventually arrested. The issue before us is whether this conduct constitutes first degree "escape" under Maryland law. Under the circumstances of this case, we hold that it does not.

I. Background

On October 21, 1999, a statement of charges was filed in the District Court of Maryland sitting in Wicomico County, charging Boffen with, among other things, two counts of allegedly "unlawfully us[ing] and disclos[ing] a [credit card] number." Later that day, Boffen was arrested, and in a "Commitment Pending Hearing," the Wicomico County Detention Center was "commanded to receive from any officer the body of [Boffen]." About an hour later, in a "Release from Commitment," Boffen was ordered released on a $7,500.00 bond. That bond was later revoked, and in another "Commitment Pending Hearing" dated December 16, 1999, the Detention Center was "commanded to receive from any officer the body of [Boffen]." Thereafter, the case was transferred to the Circuit Court for Wicomico County where a criminal information was filed, charging Boffen with, among other things, the two credit card offenses with which he had been previously charged in the District Court.

On March 31, 2000, the Circuit Court conducted a bail review hearing and ordered that bail be set at $15,000. The next day, the Commissioner for Wicomico County signed a bail bond for that amount. On April 4, 2000, a "Release from Commitment" was filed with the Circuit Court, commanding the Detention Center to "release [Boffen] subject to the following conditions/restrictions: NONE."

On August 21, 2000, after a jury trial, Boffen was convicted in the Circuit Court for two counts of unlawfully obtaining goods "by falsely representing, without the consent of the cardholder that he was then and there the holder of a credit card." After the conviction, the court ordered that Boffen remain free on bond pending sentencing, which occurred on November 9, 2000. During sentencing, the Circuit Court Judge stated, "[T]he sentence under count number one is fifteen years to the Division of Correction...." Before the judge could continue, however, Boffen exclaimed, "No, Your Honor," fled from the courtroom, and ran out of the courthouse and onto the street in downtown Salisbury. During Boffen's absence from the courtroom, the judge continued with the sentencing, imposing an additional fifteen years imprisonment for the second count of his conviction, to run consecutive to the fifteen year sentence for the first count. Meanwhile, Boffen was arrested on the sidewalk adjacent to the Route 50 side of the courthouse by a deputy sheriff who had been in the courtroom and had pursued Boffen.

Boffen was later charged with having "knowingly escape[d] from Wicomico County Detention Center, a place of confinement." Thereafter, a criminal information was filed with the Circuit Court charging Boffen with first degree escape, alleging that on November 9, 2000, Boffen "did knowingly escape from the Division of Corrections, a place of confinement" in violation of Maryland Code, Article 27 § 137 (1957, 1996 Repl.Vol., 2000 Supp.).¹ Boffen was convicted of that charge on May 2, 2001, after a non-jury trial, and was sentenced to seven years and six months imprisonment to run consecutive to his two consecutive fifteen year sentences for the underlying credit card offenses.

The judge presiding over the escape trial noted that, although no statement remanding Boffen to custody had been made by the original sentencing judge, Boffen had been in the "constructive custody [of the Detention Center], at least from the time of his conviction forward," based on Maryland Rule 4-349(a) and (b),² and further concluded that the Detention Center is a "place of confinement" under the escape statute. Alternatively, the trial judge concluded that Boffen was in the constructive custody of the Division of Correction when he fled. According to the judge who presided over the escape trial, Boffen was "lawfully under sentence," "committed to a specific institution,[the Division of Correction]" and subject to restrictions defining the boundaries of his freedom when the sentencing judge stated, "[T]he sentence under count number one is fifteen years to the Division of Correction."

Boffen appealed to the Court of Special Appeals, which affirmed in an unreported opinion. The intermediate appellate court reasoned that Boffen "was in constructive custody [of the Division of Correction] from the instant that [the original sentencing judge] stated `[t]he sentence under count number one is fifteen years to the Division of Correction.'" The court determined that, [w]hen [Boffen] fled the courtroom, he had been committed to the custody of the Division of Correction."

We granted Boffen's Petition for Writ of Certiorari, Boffen v. State, 369 Md. 178, 798 A.2d 551 (2002), to consider the following question, which we have rephrased:³

Did the trial court err in concluding that Boffen had committed first degree escape when, on November 9, 2000, he appeared in a courtroom for sentencing for two counts of credit card offenses after having been free on bail, and when the judge stated, "[T]he sentence under count number one is fifteen years to the Division of Correction," Boffen interrupted him and fled from the courtroom.

For the reasons set forth below, we conclude that under the circumstances of this case, Boffen's flight from the courtroom did not constitute the crime of first degree escape under Article 27, Section 137, because he was not within the actual or constructive custody of a place of confinement within the meaning of the statute.

II. Discussion

Boffen contends that he did not commit the crime of first degree escape when he ran from the Wicomico County courtroom during sentencing. In support of that contention, Boffen claims he was not in the actual or constructive custody of a place of confinement when he fled. Specifically, Boffen argues that, contrary to the conclusion of the Circuit Court and Court of Special Appeals, no "constructive custody in the Division of Correction can exist where there has never been any imprisonment, that is, no actual physical custody in any of its `place[s] of confinement....'" The State, on the other hand, asserts that "[o]nce sentence is imposed, defendants like ... Boffen are in constructive custody until physically restrained by the authorities." Thus, the State maintains that Boffen committed first degree escape because he was in the constructive custody of the Division of Correction (hereinafter "DOC") right after the original sentencing judge stated, "The sentence under count number one is fifteen years to the Division of Correction." For the following reasons, we conclude that Boffen did not commit the crime of first degree escape when he fled.

First degree escape is a statutory crime in Maryland, and at the time of Boffen's departure from the courtroom on November 9, 2000, it was set forth in Article 27, Section 137 of the Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.). Section 137(a) provides that "[a] person may not knowingly escape from a place of confinement." A person violating Section 137 is "guilty of the felony of escape in the first degree and on conviction is subject to a fine not exceeding $20,000 or imprisonment not exceeding 10 years or both." The statute does not define "escape," but Section 136(b) provides that "`[e]scape' retains its judicially determined meaning." The Committee to Revise Article 27,⁴ in its annotation to Section 136, in explanation, suggests that "[t]he definition of escape is intended to include the case law interpreting former Art. 27, § 139."⁵ Hence, we turn to case law to determine whether Boffen committed the crime of escape.

This Court had refined the "judicially determined meaning" of escape in Farris v. State, 351 Md. 24, 716 A.2d 237 (1998). There, we declared that, "in order to come within the ambit of Article 27, § 139, the escapee must have been legally detained in `the State penitentiary or a jail, house of correction, reformatory, station house, or other place of confinement in this State or... to the Alcohol and Drug Abuse Administration for examination or inpatient treatment.'" Id. at 29, 716 A.2d at 240. Then, we explained that "[t]he prisoner must ... `escape.'" Id. Although "escape" was not defined in the statute, we cited our prior decision in Stewart v. State, 275 Md. 258, 273, 340 A.2d 290, 298 (1975), for the proposition that, "[t]he physical act of escape is the unauthorized departure from lawful custody." Id. "Custody," we observed, "may be actual or constructive." Id. We interpreted Section 139 to "prescribe[] `two modes of committing a single offence, i.e., escaping from the institution itself—from within the walls of the prison—or escaping from the bounds where [the prisoner] had been assigned.'" Id. at 33, 340 A.2d 290, 716 A.2d at 242 (quot...