Gantt v. State

• Citation: 81 Md.App. 653,569 A.2d 220
• Decision Date: 01 September 1989
• Docket Number: No. 762,762
• Parties: Andre Antoine GANTT v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 653

81 Md.App. 653

569 A.2d 220

Andre Antoine GANTT v. STATE of Maryland.

No. 762, Sept. Term, 1989.

Court of Special Appeals of Maryland.

Feb. 7, 1990.

Arthur A. DeLano, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before BLOOM, ROSALYN B. BELL and CATHELL, JJ.

CATHELL, Judge.

Andre Antoine Gantt was convicted by a jury in the Circuit Court for Baltimore City (Prevas, J.) of possession of cocaine with intent to distribute. A 15-year sentence was imposed, to be served consecutively to a federal sentence for which he was then on parole. On appeal Gantt raises the following questions:

1. Did the trial judge err in ordering that appellant's sentence run consecutively to a federal sentence when, at the time of sentencing, appellant's parole from that federal sentence had not been revoked by the parole authority?

2. Did the trial judge err in permitting a police officer to testify that appellant possessed cocaine with an intent to distribute?

3. Was the evidence sufficient to sustain appellant's conviction?

4. Did the trial judge err in denying appellant's motion for postponement?

1.

The correctness of the trial judge's consecutive sentence depends upon a determination of whether a prisoner on parole is serving a sentence, i.e., is the sentence in esse?

Parole and probation, though the terminology is used interchangeably, are clearly distinguishable. Sentencing and probation are covered, in general, in Maryland Code (1987 Repl.Vol., 1989 Supp.), Art. 27, § 641A(a), which provides in part:

(1) Upon entering a judgment of conviction, the court having jurisdiction may suspend the imposition or execution of sentence and place the defendant on probation....

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(3) The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder ... and grant probation....

Article 27, § 641A(b) provides in part:

The court may revoke or modify any condition of probation or may reduce the period of probation. [emphasis added]

A distinction between probation and parole is found in the provisions of Maryland Code (1986 Repl.Vol., 1989 Supp.) Art. 41. Article 41, § 4-609(a) provides:

Whenever any court shall suspend the sentence of any person ... and shall direct such person ... under the supervision of the Division, it shall be the duty of the said Division to supervise ... and report to said court whether or not the conditions of such probation ... are being faithfully complied with by such person. [emphasis added]

Article 41, § 4-501(6) provides:

Probation is the conditional exemption from imprisonment allowed ... in the circuit court.... The condition of any order of probation shall be determined solely by the judge granting the same. [emphasis added]

Article 41, § 4-501(5), provides that parole is

a conditional release from imprisonment.... [It] entitles the recipient thereof to leave the institution in which he was imprisoned, and to serve the remainder of his term outside the confines thereof.... Each such paroled prisoner shall be deemed to remain in legal custody until the expiration of his full, undiminished term; and upon having violated the conditions of his parole, shall be remanded to the institution from which he was paroled. [emphasis added]

Article 41, § 4-511, specifies:

(a) If an inmate released on parole is alleged to have violated a condition of parole, one Commission member shall hear the case on revocation of the parole ....

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(d) [I]f the order of parole is revoked, the prisoner shall serve the remainder of the sentence originally imposed unless the Commission member ... in his discretion, grants credit for time between release on parole and revocation of parole. [emphasis added]

Appeals of parole revocation decisions are to the circuit court, on the record, in the basic nature of an administrative appeal. Article 41, § 4-511(e).

We said in McRoy v. State, 24 Md.App. 321, 330 A.2d 693 (1975), that

the controlling distinction is that a probationer has been conditionally released, but remains the responsibility of the sentencing judge. The function of the Department of Parole and Probation is limited to supervising, on the court's behalf, conformity with the probation conditions.

It has no direct authority over probation in the form of revocation power such as it has over parolees.

McRoy at 328, 330 A.2d 693 (citation omitted).

The Fourth Circuit described the difference between judicial probation and administrative parole in Alvarado v. McLaughlin, 486 F.2d 541, 544 (4th Cir.1973), stating:

"Penalty" in the statute refers to and embraces simply the sentence imposed by the Court. That sentence is in no way voided or "abated" by the subsequent grant of administrative parole. Parole is not "a suspension of sentence".... ¹ [citations omitted]

Mr. Justice Blackmun, in a dissenting opinion involving the effect of a saving statute on a general parole statute, stated that:

As the Fourth Circuit aptly has observed, parole "is not a release of the prisoner from all disciplinary restraint, but is rather merely 'an extension of the prison walls'; and the prisoner while on parole remains 'in the the legal custody and under the control of' the Parole Board."

Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 2540, 41 L.Ed.2d 383 (1974) (citations omitted).

Appellant cites as authority for his position Johnson v. State, 40 Md.App. 591, 392 A.2d 1157 (1978); however, Johnson is easily distinguishable from the present case. Johnson, and also Alston v. State, 38 Md.App. 611, 379 A.2d 754 (1978), involved reneging on plea bargain agreements, or the making of plea bargain agreements that were impossible to perform.

The facts in Johnson indicated that a plea arrangement was agreed upon whereby the defendant's Maryland sentence would be served concurrently with a Pennsylvania sentence which the defendant was expected to serve as a result of an anticipated Pennsylvania parole revocation. A key ingredient of the plea bargain was that he would actually serve the Maryland time concurrent with the Pennsylvania time in the Pennsylvania prison system. The record reflected that the Pennsylvania authorities had not revoked his parole; thus there was no actual Pennsylvania prison time. The court noted that the subsequent events could not have been contemplated, and then held:

In addition, appellant is clearly being denied an essential element of the bargain, to wit: his immediate return to Pennsylvania. Whether or not the Maryland courts have the power to return appellant to Pennsylvania to serve his time there is beside the point. The crucial consideration here is that appellant has not been given that which he justifiably contemplated as the quid pro quo for his guilty pleas.

Johnson, supra at 597, 392 A.2d 1157.

In Johnson we also said as dicta:

It is entirely conceivable that Pennsylvania could either wait until the Maryland time has been served before reimposing the balance of appellant's sentences or reimpose those sentences so as to run consecutively to those now being served in Maryland.

Id. at 597, 392 A.2d 1157. When discussing the uncertainty as to the intent of Pennsylvania authorities we, because we were dealing with a breach of a plea agreement, did not fully consider that such language might be interpreted in a manner inconsistent with the fact that a person on parole (as opposed to probation) is, as we have said, actually serving his sentence outside the prison walls. To the extent that the dicta in Johnson has been interpreted to indicate that a person on parole is not serving a sentence, that interpretation is repudiated.

We said in State v. White, 41 Md.App. 514, 515, 397 A.2d 299 (1979), that

a judge must relate the sentence he imposes to the status quo at the moment of sentencing.... He may not, however, presume to bind the future. To do so would be, ipso facto, to usurp the sentencing prerogative of some other judge operating in a near or distinct time yet to be. [emphasis added]

We later noted in DePietrantonio v. State, 61 Md.App. 528, 487 A.2d 676 (1985), that our language in White had, in dealing with subsequent sentencing as to probationers, created confusion and that we were "extirpat[ing] it at its root." DePietrantonio was concerned with the imposition of sentences on a defendant who was then on probation. When we referred to the necessity of there being a sentence, then in esse, in order for there to be imposed a consecutive sentence, we were in no way asserting that a parolee is not serving a sentence in esse. We said in that case that "[a] judge cannot imbue the sentence he is then imposing, in any controlling fashion, with power over the future judicial actions of others." Id. at 533, 487 A.2d 676. Parole and parole revocations are not judicial acts. They are administrative acts concerned primarily with removing a person from within the walls of prison, to serve his sentence elsewhere, or to return him behind the walls upon a violation of the administrative conditions of parole. Parole is a preliminary step to release by administrative authorities, not a sentencing act by a judge.

At the sentencing hearing, appellant's counsel inquired of Judge Prevas, "[a]re you allowed to run it [the sentence] consecutive to a sentence he has not yet received?" The trial judge stated "[w]hen you're on parole, you're actually serving your sentence on the street ...." We agree.

Accordingly, we hold that a person who is on parole is actually serving a sentence outside the prison walls. Thus, a judge sentencing a parolee on a subsequent offense may make that subsequent sentence consecutive to the sentence the parolee is serving, i.e.,...