Hersch v. State

Decision Date07 September 1989
PartiesJoseph Edward HERSCH, Jr. v. STATE of Maryland. Ronald E. CLEARY v. STATE of Maryland. 26 Sept. Term 1988 27 Sept. Term 1988
CourtMaryland Court of Appeals

Julia Doyle Bernhardt, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for petitioner, Hersch.

Victoria S. Keating, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for Petitioner Cleary.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

McAULIFFE, Judge.

These two cases, tried separately in the Circuit Court for Prince George's County, generate the same question--may a waiver of the right to a hearing and to adequate proof of a violation of probation be accomplished by a defendant's attorney, or is the right so substantial that waiver of it requires a personal, knowing, and intelligent waiver by the defendant?

I.

Joseph Edward Hersch was convicted in 1984 of possession of PCP with the intent to distribute. He was sentenced to twenty years imprisonment, but the execution of all except one year of the sentence was suspended, and the defendant was placed on five years supervised probation. Among the conditions of his probation were that he "obey all laws," and that he "not illegally possess, use, or sell any narcotic drug, 'controlled dangerous substance,' or related paraphernalia." In July of 1986 a violation of probation hearing was held, and it was determined that Hersch had been convicted in Calvert County in 1985 of driving while intoxicated. Judge Arthur Ahalt found the defendant in violation of probation, directed that he serve seven days imprisonment, and then reinstated the probation.

Four months later, Hersch was again brought before Judge Ahalt for a violation hearing, on the allegation that a urine specimen given by the defendant on October 9, 1986, tested positive for PCP. The adjudicatory portion of the violation hearing of May 27, 1987, was brief:

Defendant's Attorney: Good morning, Your Honor. Ronald Eagelston representing the defendant.

The Court: Does the defendant admit or deny the allegations?

Defendant's Attorney: He admits, Your Honor.

The Court: All right. I will hear you concerning sentencing.

After the judge heard from both counsel and the probation officer on the question of disposition, he permitted the defendant to allocute. Hersch admitted he had a severe drug problem, and requested a drug rehabilitation program instead of incarceration. There was no discussion of the urine specimen, or of the defendant's possible recent use of PCP. The trial judge reimposed the original sentence of twenty years imprisonment, with credit for time previously served.

Ronald E. Cleary was convicted in 1973 in the Circuit Court for Prince George's County of statutory daytime housebreaking, and was sentenced to ten years imprisonment. The execution of all except the first eighty-one days of the sentence was suspended, and the defendant was placed on supervised probation for five years. Cleary's probation contract contained the usual conditions, including the requirements that he obey all laws, report to the assigned probation agent as directed, and not change his home address before obtaining permission from his probation agent.

In August of 1986 the Division of Parole and Probation notified the trial judge that Cleary had changed his address without permission, and had absconded from supervision. In January of 1987, the defendant was arrested on a warrant, served with a copy of the petition for revocation, and released on personal recognizance. Shortly thereafter, however, Cleary was arrested on three new theft charges, and was ordered held in the Prince George's County Detention Center. In April, after disposition of the three theft charges, the defendant requested a bond hearing in connection with his detention for the alleged violation of probation. A bond hearing was held on May 11 and, after the trial judge indicated he was not inclined to reduce the bond, the following occurred:

Defendant's Attorney: Is there some way of expediting the hearing?

The Court: Well, sure. We can expedite the hearing. There is a petition in here. I am sure if your client wants to waive a formal amended petition, and allow the State to amend this petition, to reflect the violations, we can hold the violation hearing right now.

Defendant's Attorney: We have no objection to amend and include an additional count: Condition of failure to obey all laws.

* * *

* * *

The Court: The State, wanting to add "Failure to obey all laws," is granted. I have made the amendment to the petition. How does your client--

Defendant's Attorney: To that amended count we would enter an initial plea of guilty.

The Court: You admit that he did not obey all laws during the period of his probation?

Defendant's Attorney: That is correct, Your Honor, and with an explanation.

The Court: I will hear from you.

Cleary's attorney then explained that two of the three recent charges against the defendant had been dismissed by the State, and that the defendant had pled guilty to a charge of petty theft. He said the defendant had received a sentence that was suspended as to all except time served, and had been placed on supervised probation for one year. The attorney admitted that the conviction amounted to a violation of Cleary's probation, but asked for a reduced sentence to the local detention facility so that the defendant might be considered for work release. The State requested reimposition of the original sentence, and the trial judge then offered the defendant the right of allocution. The defendant said only that he was having problems with drugs. The trial judge reimposed the original sentence of ten years incarceration, with credit for time served.

Both defendants appealed, contending that an admission of violation and waiver of the right to a hearing made by counsel, unaccompanied by any indication of record that the defendant understood and acquiesced in the admission and waiver, was constitutionally inadequate. In unreported opinions, the Court of Special Appeals affirmed the action of the lower court in each case, and we granted the defendants' petitions for certiorari.

II.

The question stated in Hersch's petition for certiorari is representative of the question posed in each case:

Whether an admission of violation of probation can be knowing and voluntary where the charge is not explained to the probationer, he does not personally address the court, and there is nothing in the record evidencing an understanding of his due process rights to contest the charges.

In Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978), Judge Eldridge for the Court reviewed the several meanings of the term "waiver," and the standards applicable to various types of waivers in criminal proceedings. We pointed out there, as well as later in Williams v. State, 292 Md. 201, 215, 438 A.2d 1301 (1981), that although there are a number of "rights" possessed by a defendant that may be waived by the action or inaction of counsel, there were certain fundamental rights that can be waived only where the record affirmatively discloses a voluntary, knowing, and intelligent relinquishment of the right by the defendant himself.

The stricter waiver standard has been fully described by the United States Supreme Court in cases such as Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963); and Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962). Rights to which the stricter standard has been applied in criminal cases include the right to counsel, Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023; the right to trial by jury, Adams v. United States, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942); the privilege against compelled self-incrimination, Emspak v. United States, 349 U.S. 190, 194-95, 75 S.Ct. 687, 690-91, 99 L.Ed. 997 (1955); the rights granted by the Double Jeopardy Clause, Green v. United States, 355 U.S. 184, 191, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957); and the rights granted by the Confrontation Clause, Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966); State v. Collins, 265 Md. 70, 79-80, 288 A.2d 163 (1972). Similarly, in Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), the Supreme Court held that a plea of guilty "shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences." See also Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962).

Accordingly, if we were dealing with a guilty plea entered in a criminal case, the answer would be clear--a knowing and intelligent waiver by the defendant would be required. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Machibroda, supra, 368 U.S. at 493, 82 S.Ct. at 513; Sutton v. State, 289 Md. 359, 364-65, 424 A.2d 755 (1981); State v. Priet, 289 Md. 267, 275, 424 A.2d 349 (1981).

Admitting a violation of probation, however, is not the legal equivalent of entering a guilty plea in a criminal case. Maus v. State, 311 Md. 85, 91, 532 A.2d 1066 (1987); Howlett v. State, 295 Md. 419, 423-24, 456 A.2d 375 (1983). A revocation of probation proceeding, although frequently docketed in the criminal proceeding from which it arises, is "firmly established as a civil action...." Chase v. State, 309 Md. 224, 239, 522 A.2d 1348 (1987). Maryland Rule 4-242, dealing with guilty pleas, does not apply to probation revocation proceedings. See Howlett, supra, 295 Md. at 424, 456 A.2d 375, and Maryland Rule 4-346(c).

However, the fact that a probation violation...

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  • McElroy v. State
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