Dimeglio v. State

• Decision Date: 29 September 2011
• Docket Number: No. 2783,2009.,Sept. Term,2783
• Citation: 29 A.3d 663,201 Md.App. 287
• Parties: Joseph Julian DiMEGLIOv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

201 Md.App. 287

29 A.3d 663

Joseph Julian DiMEGLIO

v.STATE of Maryland.

No. 2783

Sept. Term

2009.

Court of Special Appeals of Maryland.

Sept. 29, 2011.

Dennis Murphy (Murphy & Price, LLP, on the brief), Annapolis, MD, for appellant.

James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: EYLER, JAMES R., HOTTEN, FREDERICK J. SHARER (Retired, Specially Assigned), JJ.FREDERICK J. SHARER (Retired, Specially Assigned), J.

Appellant, Joseph Julian DiMeglio, avers in his brief that in the jurisdictions of this State where “DUI/drug courts” function it is common for sanctions to be imposed by those courts, and that frequently defendants are subsequently further punished upon violation of the conditions of probation imposed by sentencing judges. Because that is precisely the outcome of his alcohol-related traffic violations, he argues that his Fifth Amendment double jeopardy rights have been violated.

Appellant was arrested and charged, in the District Court for Anne Arundel County, with various offenses, including driving while impaired by alcohol. This case was transferred to the Circuit Court for Anne Arundel County on appellant's demand for a jury trial. On October 1, 2009, and November 5, 2009, following hearings, the circuit court denied appellant's motion to dismiss the case on double jeopardy grounds.

Thereafter, the parties agreed to proceed on a not guilty plea on an agreed statement of facts, and the court found appellant guilty of driving while impaired by alcohol. Appellant was subsequently sentenced to one year and 60 days, which was suspended in favor of probation, with conditions.

Appellant timely appealed and, as slightly rephrased, presents the following questions for our review:

1. Did the motions court err in denying appellant's motion to dismiss on double jeopardy grounds?

2. Is a knowing and intelligent waiver of the right to be free from double jeopardy required when a defendant agrees to participate in DUI Court?

For the following reasons, we shall affirm.¹

FACTUAL and PROCEDURAL HISTORY

A chronology of pertinent events with respect to the District Court and circuit court cases follows.²

On May 26, 2007, appellant was charged in the District Court for Anne Arundel County with various offenses, including driving while under the influence (Case Number EG44342). On January 30, 2008, and prior to trial, this case was referred to the DUI Court for Anne Arundel County. Although we have not been provided with a transcript of appellant's first appearance in the DUI Court, the record indicates that, in exchange for appellant's agreement to plead guilty to a violation of § 21–902(b) of the Transportation Article ³, the parties and the court entered into the following agreement:

DUI/DWI TREATMENT COURT

This agreement, between the Defendant, the State's Attorney and the Court, is intended to secure the participation of the defendant in the DUI/DWI Treatment Court program. In consideration for the opportunity to participate in the program, the defendant agrees to the following special conditions:

1. Defendant agrees to sign all authorizations for the release of information requested. Defendant realizes that this condition is necessary to coordinate treatment and any other needed services and to monitor compliance.

2. Defendant agrees to keep all treatment and other required appointments scheduled by Clinical Care Monitoring Program staff (CCM), treatment and other resource providers and to attend all [s]cheduled court appearances for progress reviews.

3. Defendant agrees to submit to drug and alcohol testing as directed.

4. An individualized treatment plan will be developed with the defendant and contain his/her requirements and stated goals and objectives. The treatment plan will indicate schedule and type of counseling, substance abuse treatment, and other areas of need such as health, employment and education. The Defendant agrees to participate in treatment and other recommended services. The Defendant agrees to pay for all services as appropriate.

Defendant agrees that if he/she fails to comply with the DUI/DWI Treatment Court requirements, or tests positive for a prohibited substance, the treatment or other service provider may immediately make adjustments:

a. Increase treatment or service intensity

b. Increase drug/alcohol testing

c. Increase progress review schedule

d. Refer to other treatment or service provider, and

e. Any other sanctions, including termination from treatment and/or other services. Defendant agrees to comply with the new conditions until review by the Court at the next scheduled progress review. Defendant will have the opportunity to be heard at that review. The Court is not limited by the above sanctions in the event of a finding that this agreement has been violated. The Court can impose sanctions including community service, daily monitoring, house arrest, incarceration and termination from the DUI/DWI treatment court program. The length of the program and conditions of any probation will reflect the success of the defendant's treatment outcome, recommended continuing care, criminal record, and the Court's desire to help the defendant maintain a productive, sober life.

Appellant began treatment pursuant to the agreement, and appeared in the DUI court on what appears to have been a monthly basis. Then, on January 18, 2009, appellant was again arrested and charged in the instant case with various offenses, including, driving while impaired by alcohol. This case would later be transferred to the circuit court on appellant's demand for a jury trial.

Four days later, on January 22, 2009, as part of his scheduled review in the DUI Court, appellant appeared before the District Court in Case Number EG44342, the earlier case. (Hon. Thomas J. Pryal, presiding). At that hearing, the court informed appellant that he did not have to talk about the new charges, and that “[y]ou don't have to talk about the facts of the new case, understand that. That's a pending case, ... with legal implications, but what's been going on since I last saw you.” Appellant replied that DUI Court had been helping him and that, “[n]o matter what the outcome of the other trial might be, but I would hope that you wouldn't put me out of this program.”

Appellant informed the court that the new charges (the case that is the subject of this appeal) occurred in Anne Arundel County when he “rear-ended” a vehicle near Hilltop and Bay Ridge Avenue. Appellant told the court that he had been at his sister's house earlier that day and had consumed a number of beers. Appellant decided to drive home and “totaled” a company vehicle.

The court addressed appellant as follows:

THE COURT: But I cannot understand, I have to just say this because I can't let this end without it, I understand you have a terrible problem that you are dealing with in alcoholism and that is something that's difficult to control, if it can be controlled, but you don't have to drive. That's the problem here. Is if you had some alcohol at your sister's house, and I don't know why they would even not knock that drink out of your hand, I can't understand it, but I don't know what the situation is, but whatever. You drink there, you didn't have to drive. And that's the problem that's going to haunt you at this point, not the drinking part.

But, you know, if you had come in here and said, you know, I had a couple of beers watching the game, that's obviously something that we can deal with much more easily than what's going on here, okay? I'm not going to crucify you for this, but I just have to say that because it's something you have to recognize as part of my job here. Okay? I don't know what'll happen in terms of the rest of this program, because a lot of that's up to the State and what they want to do with this new charge.

MS. LASEAR ⁴: They're not going to roll this in.

THE COURT: I'm sure they won't. Okay.

MS. LASEAR: (apparently addressing appellant) But you're going to have to—you will have to court [sic] on this charge. They will not roll this new charge in. They already said that.

APPELLANT: I don't even know what that means.

MS. LASEAR: They will not make your new charge part of the DUI court program. You are going to have to go, it's suggested you get an attorney or a public defender, and you are going to have to go to trial for this new case. And the judge, I doubt it will be Judge Pryal, whatever judge it is—

THE COURT: It won't be me.

MS. LASEAR:—it will just be a whole other case. It will have nothing to do with this. The State will not allow that case to be part of this. I've already talked to them.

THE COURT: All right. I can tell you also that my guess is that at some point they are going to ask that you be removed from this program. That hasn't happened at this point, at least they haven't said anything. But if history is any indicator I believe that's what will happen, okay? So that's just something we are going to have to deal with as we move forward, we are not going to deal with that today, but you need to keep that in mind, okay? I'm sorry about all this, okay?

* * *

THE COURT: I have, you know, like I said, I have good feelings about you, I like you personally, that doesn't change whatever is going to happen though. And, you know, it's devastating for everyone involved and I don't want to linger on the devastating part of it, okay? Because all of us are going to have to get over that and decide what we are going to do next, okay? So you can deal with SCRAM, okay? Obviously where there has to be a sanction I'm going to revoke your PR for the weekend, Friday and—

APPELLANT: I don't know what that means, Your Honor.

THE COURT: I'm going to impose a sanction for your using, for drinking. Getting this DWI.

APPELLANT: Oh. Yes, sir.

THE COURT: All right? So I'm going to revoke your PR. I'm going to have you locked up at the detention center for this weekend. Friday at...