Brendoff v. State
| Decision Date | 01 August 2019 |
| Docket Number | No. 578, Sept. Term, 2018,578, Sept. Term, 2018 |
| Parties | Richard BRENDOFF v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Argued by: Brian L. Zavin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
Argued by: Carrie J. Williams (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: Fader, C.J., Leahy, Friedman, JJ.
Leahy, J. Moving prisoners from prison beds to treatment beds was one of the galvanizing objectives of Maryland's Justice Reinvestment Act ( "JRA").1 2016 Md. Laws, ch. 515.2 In keeping with this objective, the JRA established presumptive incarceration limits for technical violations of probation. Maryland Code (2001, 2008 Repl. Vol., 2017 Supp.),3 Criminal Procedure Article ("CP"), § 6-223. However, non-technical violations of probation, such as "absconding," still remain subject to the court's power to revoke probation and impose sentences that might originally have been imposed, without adherence to the presumptive incarceration limits for technical violations. Maryland Code (1999, 2017 Repl. Vol.), Correctional Services Article ("CS"), 6-101(m) ; CP § 6-223. Absconding is defined as "willfully evading supervision," though it "does not include missing a single appointment with a supervising authority." CS § 6-101(b)(1)-(2).
Appellant, Richard Brendoff, entered guilty pleas on March 16, 2010, for theft, second-degree burglary, and attempted second-degree burglary in three separate cases in the Circuit Court for Anne Arundel County. While serving his sentences, Brendoff asked the court to commit him to a drug and alcohol treatment program pursuant to Maryland Code (1982, 2015 Repl. Vol., 2017 Supp.), Health General Article ("HG"), § 8-507. On August 23, 2016, the court granted Brendoff's motion and committed him to the Department of Health4 ("the Department") for residential drug treatment at a facility to be determined by the Department. The court placed Brendoff on supervised probation and, as conditions of his probation, he was to complete drug treatment generally; the residential treatment program specifically; plus, any after care.
Brendoff was admitted into the Jude House Residential Substance Abuse Treatment Program ("Jude House"), which he left prior to being discharged. On December 20, 2016, the State charged Brendoff with violating a condition of his probation. While the violation of probation ("VOP") hearing was pending, Brendoff contacted his probation agent and entered New Life Addiction Counseling Service ("New Life"), a different out-patient treatment center. Unfortunately, he incurred additional VOP charges on February 23, 2017, after missing six required treatment sessions. At the VOP hearing, the circuit court found that Brendoff had committed non-technical violations of the conditions of his probation based on the allegation that he absconded from the treatment facilities . The court revoked Brendoff's probation and ordered him to serve 10 years of his previously suspended sentences. We granted Brendoff leave to appeal5 the circuit court's determination that he committed a non-technical violation of his probation by "absconding."6
We hold that when a prisoner is placed on supervised probation upon admission into a drug and alcohol treatment facility pursuant to an order issued under HG § 8-507, the Division of Parole and Probation ("DPP"), which includes the assigned probation agent, is the probationer's "supervising authority" for purposes of ascertaining whether the probationer has absconded within the meaning of CS § 6-101(b). Consequently, the court erred in this case by implicitly treating the treatment facilities as the supervising authorities when the court found that Brendoff committed a non-technical violation of his probation by walking away from Jude House and missing six required appointments at New Life. Accordingly, we remand this case to the circuit court to determine whether Brendoff absconded in violation of his probation by "willfully evading [the] supervision" of his probation agent. CS § 6-101(b)(1)-(2).
On October 23, 2009, a grand jury in the Circuit Court for Anne Arundel County issued three separate indictments for Brendoff. The first indictment, which arose out of offenses committed on or about October 11, 2009, charged him with second-degree burglary, theft of $10,000 to under $100,000,7 malicious destruction of property, and conspiracy to commit second-degree burglary. The second indictment, which arose out of offenses committed on or about September 28, 2009, charged Brendoff with second-degree burglary, theft of $500 or more, malicious destruction of property, and conspiracy to commit second-degree burglary. The third and final indictment, which arose out of offenses committed on or about September 29, 2009, charged him with attempted second-degree burglary, malicious destruction of property, and conspiracy to commit second-degree burglary.
Brendoff waived his right to a jury trial and pleaded guilty on March 16, 2010, to theft over $1,000 to under $10,000 in the first case, second-degree burglary in the second case, and attempted burglary in the second degree in the third case.8 At the sentencing hearing on April 16, 2010, the circuit court imposed concurrent 15-year sentences with all but eight years suspended for the burglary offenses. The court also imposed a suspended 10-year sentence for the theft offense to run consecutive to the two burglary sentences. For all three offenses, the court placed Brendoff on five years' supervised probation upon physical release from incarceration. The court's order ("2010 Probation Order") imposed certain standard conditions of probation and, as relevant to this appeal, five special conditions of probation:
HG § 8-507 Commitment
While serving his burglary sentences, Brendoff requested that the court commit him to the Department for drug and alcohol treatment pursuant to HG §§ 8-505 through 8-507.9 On July 5, 2016, the Department issued an evaluation report recommending Brendoff for § 8-507 placement. The circuit court held a hearing on August 23, 2016, and issued an § 8-507 order committing Brendoff to the Department for "inpatient residential substance abuse treatment at a facility to be determined by [the Department], beginning upon bed availability and ending upon completion of or termination from treatment[.]" The order provided, in relevant part:
(Emphasis added).
The balance of Brendoff's sentences for the burglary offenses was suspended upon admission to treatment. The "Probation/Supervision Order" ("2016 Probation Order") stated that Brendoff would be supervised by "Parole and Probation" and that the length of his probationary period was five years. The 2016 Probation Order imposed general conditions and the following special conditions on his probation:
The order also included a Consent to Treatment form, signed by Brendoff, which stated:
I further agree to enter and complete any residential or out-patient program recommended and arranged by the Department of Health and Mental Hygiene and to comply with the terms of any Probation Order in this case and any after-care plan developed for me. I have been informed that if I fail to comply with the conditions of my probation, I will face imposition of the sentence which was suspended.
Pursuant to the commitment order, Brendoff was admitted on November 10, 2016, into Jude House for 120 days of treatment. On December 9, 2016, however, Brendoff left Jude House prior to being discharged. Brendoff's probation agent submitted a report the next week informing the court of Brendoff's departure from Jude House.
On or around December 16, 2016, Brendoff was admitted into New Life, an intensive out-patient treatment center. The State nevertheless requested a warrant and filed a statement of charges on December 20, 2016, alleging that Brendoff violated a condition of the 2016 Probation Order by leaving Jude House prior to being discharged. Eight days later, the court issued a summons to Brendoff for an initial appearance on January 30, 2017. Brendoff complied, and at his initial appearance, the circuit court notified Brendoff that his VOP hearing was scheduled for March 6, 2017.
While the VOP hearing was pending, Brendoff was arrested and charged with multiple crimes, including attempted murder and armed robbery in connection with a drug deal that went bad on February 20, 2017. Brendoff's probation agent informed the court on February 23, 2017, of these additional violations of the conditions of his probation.10 His probation...
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Johnson v. State
...v. Alexander , 467 Md. 600, 609, 226 A.3d 1 (2020) ; Conaway v. State , 464 Md. 505, 520, 212 A.3d 348 (2019) ; Brendoff v. State , 242 Md. App. 90, 111, 213 A.3d 737 (2019).A "technical violation" is defined as "a violation of a condition of probation ... that does not involve: (1) an arre......
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Johnson v. State
...violation of probation. State v. Alexander, 467 Md. 600, 609 (2020); Conaway v. State, 464 Md. 505, 520 (2019); Brendoff v. State, 242 Md. App. 90, 111 (2019). A "technical violation" is defined as "a violation of a condition of probation . . . that does not involve: (1) an arrest or a summ......
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Johnson v. State
...violation of probation. State v. Alexander, 467 Md. 600, 609 (2020); Conaway v. State, 464 Md. 505, 520 (2019); Brendoff v. State, 242 Md. App. 90, 111 (2019). A "technical violation" is defined as "a violation of a condition of probation . . . that does not involve: (1) an arrest or a summ......