Herold v. State

• Decision Date: 02 September 1982
• Docket Number: No. 706,706
• Citation: 449 A.2d 429,52 Md.App. 295
• Parties: Ralph Jay HEROLD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 295

52 Md.App. 295

449 A.2d 429

Ralph Jay HEROLD v. STATE of Maryland.

No. 706.

Court of Special Appeals of Maryland.

Sept. 2, 1982.

Peter Engel, Baltimore, and Stephen L. Snyder, Pikesville, for appellant.

Stephen B. Caplis, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Md., Sandra A. O'Connor, State's Atty. for Baltimore County, and Scott Smith, Asst. State's Atty. for Baltimore County, on the brief, for appellee.

Submitted before MOORE, LISS and WEANT, JJ.

MOORE, Judge.

This is an appeal from a revocation of probation and reimposition of a suspended two-year sentence. Appellant had been ordered to "attend a mental health program" and did so but was terminated as "unsatisfactory." We shall remand without affirmance or reversal, for such further proceedings as may be deemed appropriate in conformity with this opinion.

I

Ralph Jay Herold, appellant, was charged in April 1980 with assault and battery and a fourth degree sexual offense. The complainant was the 20-year-old daughter of a woman living with appellant, then 31, divorced, and disabled by the loss of his right leg. On June 30, 1980, at a bench trial on an agreed statement of facts, the Circuit Court for Baltimore County found appellant guilty of battery. Disposition was deferred pending a presentence investigation.

The presentence investigation report, completed on August 4, 1980, stated in its "Evaluation and Recommendation":

"Herold became angry and upset when discussing the victim. He impressed this writer as a man who cannot cope with rejection of his ideals and/or way of life. He is narrow minded and rigid in his beliefs and opinions. He may be prone to violence and, as revealed in the offense report, threatened murder and bodily harm. In this agent's opinion this man is in need of psychiatric counseling; however, he most likely will resist therapy.

"Since Dr. Smith's [psychiatric] report is unavailable at this time, the extent, if any, of Mr. Herold's psychological problem is unknown. However, in view of the information gathered in this investigation, it is respectfullyrecommended that the defendant be placed on supervised probation with the stipulation that he attend a Mental Health Clinic." (Emphasis added.)

The report of the court psychiatrist, James E. Smith, II, M.D., was submitted to the sentencing judge on September 8, 1980. The "Summary" was as follows:

"Ralph Herold is an emotionally unstable and immature man who apparently had difficulties prior to a serious accident but who has had more obvious difficulties since. He lacks motivation to carry on any constructive activities and tends to be very sensitive about threats to his adequacy and masculinity. Weapons have apparently served to make him feel more masculine. He has definite potential for explosive behavior and must be regarded as a threat to others. His lack of motivation for change as well as his suspiciousness and emotional volatility makes him a dubious candidate for treatment. Nonetheless, if he is placed on probation it is urged that he be required to get out-patient treatment, not only because there is an outside chance it may help him but also because it may serve as a check on his behavior and emotional status." (Emphasis added.)

On October 10, 1980, appellant received a two-year suspended sentence and was placed on supervised probation for three years. The special conditions of probation were that (1) he make restitution of $87 to the victim through the Probation Department, and (2) he "must attend a mental health program."

On January 5, 1981, appellant was evaluated by Ibrahim Turek, M.D., a psychiatrist at the Northwestern Community Mental Health Center. ¹ Although the record before us contains no report from Dr. Turek, the "Supervision Summary" of appellant's probation agent, Leonard Goldman, in a report dated April 13, 1981, ² states that Dr. Turek diagnosed the appellant as "borderline intellectual functioning" and that he continued to see Dr. Turek until April 1, 1981, "when he was terminated from therapy in an unsatisfactory status." Mr. Goldman's report referred to the psychiatrist's termination letter dated April 1, 1981, not contained in the record, in which Dr. Turek indicated that not only was he unable to establish a therapeutic relationship with appellant,

"but that he also 'became a menace even to the therapist by his threatening behavior verbally and physically'. Dr. Turek also indicates that during the last session the subject displayed a knife, moving it in and out of its case with a threatening attitude."

The probation agent's "Evaluation and Recommendation" in the above report was as follows:

"In a pre-sentence psychiatric evaluation by Dr. James E. Smith, II, M.D., the subject was found to have a 'definite potential for explosive behavior and must be regarded as a threat to others'. He was also considered a poor candidate for therapy. According to his therapist, Dr. Turek, 'those predictions came true.'

"This writer feels that the subject's attitude has worsened to a critical level, and that he must be considered a threat to himself and others. It is therefore respectfully requested that a warrant be issued charging the subject with Violation of Probation." (Emphasis added.)

The violation cited by Mr. Goldman was:

"By being terminated from a Mental Health Program in an unsatisfactory status."

Judge Hormes signed a warrant on the date of Mr. Goldman's report, and it was served upon appellant on May 12, 1981. Thereafter, it appears, appellant's counsel made arrangements for an evaluation of the appellant by David L. Shapiro, Ph.D., a certified psychologist. After seeing appellant, Dr. Shapiro wrote a letter dated May 22, 1981, to appellant's counsel, expressing his willingness to treat Mr. Herold as an outpatient "for intensive psychotherapy" on the following conditions:

"1. If, in my opinion, his condition deteriorates, or he becomes a danger to himself or to others, I will hospitalize him.

2. If Mr. Herrold [sic] refuses to go along with my recommendation for inpatient treatment under such circumstances, it will be considered a violation of his probation.

3. I will keep the court informed of any changes in Mr. Herrold's treatment status, including any failure to adhere to the treatment plan outlined, or any resistance on his part to a recommendation for inpatient treatment if such becomes necessary."

At a probation revocation hearing on June 1, 1981, appellant waived his right to have his probation officer present. The latter was on vacation and appellant, after almost three weeks of incarceration--never having been incarcerated before--was anxious to obtain an "expeditious hearing." His counsel proffered that appellant was willing to see Dr. Shapiro on his terms, that appellant's mother, who was present in court, would help him to "straighten himself out," and that the real problem was appellant's inability to get along with Dr. Turek. "With all due respect to Dr. Turek," counsel stated, "there are times when a person does not click with that particular therapist for whatever reason."

The court reimposed the suspended two-year sentence, remarking:

"Back in October 1980 I found you guilty of a battery charge, and gave you two years' suspended sentence on condition that you attend a mental health program and make restitution. I was faced at that time with the report from Dr. Smith, who is a very good medical psychiatrist, and he said you ... are to be placed on probation to get outside help. We did that. I put you on probation. I put you under the care of Dr. Turek, who is an eminently qualified mental health person, and what does he say? You 'became a menace even to the therapist by your threatening behavior verbally and physically. Sir, I am not going to permit you to go outside the jail anymore. I am scared. I am worried about you, worried about society and the people around you. The sentence of the court will be two years." (Emphasis added.)

The court thereafter rejected a plea from counsel that it be made a condition of appellant's continued probation that he be hospitalized by Dr. Shapiro if "his condition deteriorates and he becomes a danger." The court stated:

"I have had the problem before and he did not respond. I have my responsibility, or what I think is my responsibility, to the citizens of this community. I am sorry in the sense I can't depend on this young man to go out in the street and listen to doctors."

On appeal, Mr. Herold contends that he was denied due process and that the lower court abused its discretion. In the presentation of these claims, he raises essentially two questions:

1. Was appellant denied due process of law because the revocation was based on his mental condition and his failure to achieve mental stability, and not upon a violation of a condition of probation?

2. Did the trial court abuse its discretion in revoking probation because: a) revocation was based on appellant's mental condition or failure to achieve mental stability; b) appellant did not violate any express condition of probation; c) a less stringent and more appropriate alternative was available?

II

Probation in Maryland is defined as the conditional exemption from imprisonment allowed any prisoner by suspension of sentence. Md.Ann.Code, Art. 41 § 107(f) (1978 Repl.Vol.). The conditions of probation "shall be determined solely" by the judge granting it, id., and any condition may be modified or revoked as the court deems proper. Art. 27 § 641A (1982 Repl.Vol.). Probation is a matter of grace, not entitlement, which permits the wrongdoer to keep his freedom "as long as he conducts himself in a manner consonant with established communal standards and the safety of society." Kaylor v. State, 285 Md. 66, 75, 400 A.2d 419 (1979), quoting Scott v. State, 238 Md. 265, 275, 208 A.2d 575 (1965). The probationer (or parolee) has a right to continuance of his probation absent any violation, and this...