Dedo v. State

Decision Date01 September 1995
Docket NumberNo. 109,109
PartiesRobert DEDO v. STATE of Maryland. ,
CourtMaryland Court of Appeals

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Tarra DeShields-Minnis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

RAKER, Judge.

The question we must decide in this case is whether Maryland Code (1957, 1992 Repl.Vol., 1995 Supp.) Art. 27, § 638C(a), 1 requires that a defendant be granted credit toward his sentence for the time he spent in home detention between his conviction and sentencing. We shall hold that the defendant was entitled to credit for time spent in home detention because he was committed to the custody of the Warden of the Wicomico County Detention Center ("WCDC") and, under a home detention agreement, was subject to prosecution for escape for any unauthorized absence from his home.

Robert Dedo was arrested on August 15, 1993, and charged with possession with intent to distribute a controlled dangerous substance in violation of Art. 27, § 286. On October 14, 1993, he was released on bond. He was subsequently indicted and convicted of possession with intent to distribute a controlled dangerous substance (Lysergic Acid Diethylamide).

Dedo requested a deferral of sentencing until the end of August 1994. He indicated that he would be willing to accept any arrangement that the court determined would assure his appearance for sentencing. The following colloquy occurred between the court and the parties THE COURT: ... Are we ready to proceed with sentencing today?

[DEFENSE COUNSEL]: Your Honor, as a result of some discussions with [the prosecutor] which I think you are aware and as a result of Mr. Dedo's having some insurance available until the end of August, we would be asking for a deferral of sentence and any type of arrangement to assure that he comes back would be agreeable to the defendant.

THE COURT: All right.

[DEFENSE COUNSEL]: Just for the record, I will show [the prosecutor], this is his last appointment where he is insured.

THE COURT: It is my understanding the State has no objection?

[STATE]: With some qualifications, Your Honor. I believe there have been some discussions about--

THE COURT: He will be placed on home detention pending scheduling of the sentence.

...

THE COURT: ... The defendant will be ordered on home detention. How is that arranged?

[STATE]: And with the stipulation that he have electronic monitoring, and the defense would request that as well. Your Honor, I would ask--

THE COURT: You want electronic monitoring and any violation of the home detention will result in him being incarcerated pending sentencing.

[STATE]: Your Honor, I further request that the defendant be directed to report immediately to the office.

...

THE COURT: All right. He will be ordered to report there directly after court.

The court order committing Dedo to home detention pending sentencing reads as follows:

TO: WARDEN, WICOMICO COUNTY DETENTION CENTER

YOU ARE HEREBY COMMANDED TO RECEIVE THE BODY OF THE ABOVE NAMED DEFENDANT, WHO IS COMMITTED FOR FURTHER ACTION AS FOLLOWS:

Awaiting Further Proceedings before the Circuit Court for Wicomico County: Sentencing--Defendant on Home Detention and electronic monitoring until sentencing after August 30, 1994.

Dedo signed a Wicomico County Department of Corrections home detention contract that provided that "[a]ny unexcused or unexplained absence during curfew hours will be considered an escape and you will be charged accordingly." Dedo agreed to be "incarcerated" in his home and to be subject to custodial monitoring by both telecommunications technology and surveillance by home detention staff members. Dedo agreed to permit the County Department of Corrections to connect a portable video camera to his telephone to conduct the electronic monitoring. Dedo also agreed to permit members of the home detention staff to enter his home at any time to install or inspect the equipment and to ensure his compliance with all rules, regulations and conditions of the Home Detention Program; to refrain from possessing or using alcoholic beverages; to submit to random urinalysis and breath alcohol testing; and to disciplinary action for any lateness, failure to call in, busy phone line for an extended time, or failure to respond to a call. The agreement also provided:

I further understand that if I violate any of the above conditions of Home Detention, my sentence may be terminated and I will be returned to the Wicomico County Detention Center for the remainder of my sentence. At the absolute discretion of the Home Detention Director and on the Director of the Wicomico County Detention Center.

On September 2, 1994, the court sentenced Dedo to two years in the Department of Corrections. Dedo requested credit against his sentence for the time he spent in home detention. The State objected and argued that the period of time Dedo spent in home detention "was a pre-trial release situation," not incarceration, and therefore, he was not entitled to credit against his sentence. The judge refused to give Dedo credit for the time he spent in home detention, stating that "[h]ome detention is not in jail."

Dedo appealed to the Court of Special Appeals. The court affirmed the judgment of the circuit court, holding that Art. 27, § 638C(a) "does not require credit to be awarded for time spent in home detention after conviction but prior to sentencing." Dedo v. State, 105 Md.App. 438, 453, 660 A.2d 959, 966 (1995). Relying on Balderston v. State, 93 Md.App. 364, 612 A.2d 335 (1992), the intermediate appellate court held that the time Dedo spent in home confinement pending sentencing did not constitute "custody" under Art. 27, § 638C(a) because Dedo requested home detention and the conditions of his home detention would have allowed him "to leave his house to visit the doctor." Dedo, 105 Md.App. at 454, 660 A.2d at 966. The court also noted that there was "no ... indication in the record as to what restrictions were placed on appellant's home detention or whether the home detention was a condition of his continued release on bond." 2 Id. at 453, 660 A.2d at 965. We granted Dedo's petition for writ of certiorari.

Dedo contends that under Art. 27, § 638C(a), a defendant sentenced to a term of confinement is entitled to credit against his sentence for time spent in custody as a result of that charge. He argues that he is entitled to credit for the presentence confinement he spent in home detention because he was committed to the custody of the WCDC Home Detention Program, a program the County operates pursuant to Art. 27, § 645-II. He asserts that under that program a defendant is entitled to credit for each day of any court imposed sentence he serves in home detention. He recognizes, as he must, that he was committed to the program pending sentencing. He argues, however, that Art. 27, § 638C(a) makes presentence confinement the equivalent of post-sentencing confinement for purposes of credit. Therefore, he concludes that he is entitled to credit. In addition, Dedo contends that under Art. 27, § 638C(a), he was entitled to receive credit against his sentence for the time he spent under home detention because he was "in custody"; that is, he was actually in the constructive custody of the WCDC even though he was physically confined in his home. He further asserts that he was in "custody" while in home detention because the Home Detention Contract provided that he could be charged with escape under Art. 27, § 139 for any unauthorized departure from his home. Alternatively, Dedo contends that the trial judge abused his discretion in denying credit for the time he served in home detention.

The State argues that Dedo is not entitled to credit against his sentence for the time he spent in home detention while awaiting sentencing because home detention is not "custody" within the contemplation of the statute, nor can it be considered the equivalent of custody. The State views Dedo's participation in the home detention program as voluntary, and thus, not the equivalent of incarceration, because home detention was imposed at Dedo's behest to enable him to visit his personal physician. The State also argues that he was not committed to a jail or a correctional facility. The State also suggests that home detention was utilized by the court as a "form of conditional bond."

Article 27, § 638C(a) mandates that where an individual is in custody before trial and is subsequently convicted on the charge for which that individual was held, the "time spent in custody prior to the imposition of sentence must be credited against the sentence imposed." Fleeger v. State, 301 Md. 155, 160, 482 A.2d 490, 493 (1984). The statute has a dual purpose: to preclude a defendant from "banking" time before he or she commits a new offense and to eliminate "dead" time, which is time spent in custody that will not be credited to a future sentence. Id. at 163-65, 482 A.2d at 494-95. We observed in Fleeger that "[b]y enacting § 638C(a), the General Assembly sought to ensure that a defendant receive as much credit as possible for time spent in custody as is consistent with constitutional and practical considerations." Id. at 165, 482 A.2d at 495; see also Maus v. State, 311 Md. 85, 101, 532 A.2d 1066, 1074 (1987).

The question is whether commitment to the custody of the Warden of the WCDC with placement in home detention subsequent to conviction but before sentencing constitutes "custody" within the meaning of the credit statute. In order to come within the purview of the statute, Dedo must show that he is (1) "in custody" and (2) in a jail, correctional institution, hospital, mental hospital or other agency. 3

In Maus v. State, 311 Md. 85, 532 A.2d 1066 (1987), we had...

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