In re S.F.
| Decision Date | 28 January 2021 |
| Docket Number | No. 582, Sept. Term, 2019,582, Sept. Term, 2019 |
| Citation | 249 Md.App. 50,245 A.3d 30 |
| Parties | IN RE: S.F. |
| Court | Court of Special Appeals of Maryland |
Submitted on the briefs by: Brian M. Saccenti (Paul B. DeWolfe, Public Defender on the brief) Baltimore, Maryland, for Appellant.
Submitted on the briefs by: Cathleen C. Brockmeyer (Brian E. Frosh, Attorney General on the brief) Baltimore, Maryland, for Appellee.
Panel: Nazarian, Arthur, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.*
Nazarian, J. S.F. was twelve years old when he entered Alford1 pleas to two different charges in the Juvenile Division of the Circuit Court for Frederick County. The cases proceeded separately, and each magistrate ordered as a condition of probation, among others, that S not be suspended from school. S filed an exception in each case, arguing that the no-suspension condition of his probation was impermissibly vague and failed to provide him with direction about the conduct that would violate it. At the hearing, the judge overruled the exceptions and found that the suspension condition of probation was not vague. S reiterates his vagueness argument on appeal and we affirm the judgments of the juvenile courts.
On February 12, 2019, S, who at the time was twelve years old, entered an Alford plea to one count of assault in the second degree. At the disposition hearing on April 2, 2019, over counsel's objection, he was placed on community supervision, and the magistrate recommended that he be placed on indefinite probation. As a condition of probation, S was required to "attend school regularly without any unexcused absences, suspensions, or tardiness."
On May 16, 2019, S entered a second Alford plea, this time to one count of misdemeanor theft. At the disposition hearing, over counsel's objection, the magistrate ordered as a condition of probation that S not be suspended from school. Each case proceeded separately, and S filed an exception in each case challenging the no-suspension condition on grounds that it was impermissibly vague and failed to provide him direction about what conduct would violate it. At a hearing on June 5, 2019, the judge denied the exceptions, stating that "I don't think that this term of probation or condition of probation is vague in any way."
S raises one question on appeal: did the juvenile court err by including as a condition of his probation that he not be suspended from school?2 Since a " ‘trial court does not have unlimited discretion to order conditions of probation,’ " we review conditions of probation under an abuse of discretion standard. Meyer v. State , 445 Md. 648, 663, 128 A.3d 147 (2015) (quoting Bailey v. State , 355 Md. 287, 294, 734 A.2d 684 (1999) ). "An abuse of discretion occurs ‘where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.’ " In re W.Y. , 228 Md. App. 596, 608–09, 142 A.3d 602 (2018) (alteration in original) (cleaned up) (quoting Pickett v. State , 222 Md. App. 322, 331, 112 A.3d 1078 (2015) ).
As in the juvenile court, S raises two challenges to the no-suspension condition. First , he argues that the condition fails to adequately apprise him (or the authorities responsible for enforcing the condition) of the actions he must take or refrain from taking to avoid a violation. He argues as well that the vagueness is compounded because the process underlying any potential suspension depends on a third party's exercise of discretion. The State responds that the Frederick County Public Schools’ ("FCPS") code of student conduct outlines in detail the conduct that can lead to a student suspension and that S is entitled to sufficient process before a suspension can be imposed. We agree with the State.
Conditions of probation "must be clear, definite and capable of being properly comprehended and understood not only by the individual upon whom they are imposed but by those responsible for their enforcement." Watson v. State , 17 Md. App. 263, 274, 301 A.2d 26 (1973) (citing Finnegan v. State , 4 Md. App. 396, 403, 243 A.2d 36 (1968) ).
To be enforceable a condition of probation must not be vague, indefinite or uncertain. A general condition of probation is permissible only "so long as it contemplated that the court or its designee (usually the probation authority) will provide the probationer with reasonable, specific direction within the ambit of the initially expressed general condition, and such guidance is in fact given."
Smith v. State , 306 Md. 1, 7, 506 A.2d 1165 (1986) (quoting Hudgins v. State , 292 Md. 342, 348, 438 A.2d 928 (1982) ). "[A] general term of probation is permissible if the court or its designee provides a defendant with reasonable and specific guidance regarding the general term and the defendant understands what is required of him." Meyer , 445 Md. at 680, 128 A.3d 147 (citing Hudgins , 292 Md. at 348, 438 A.2d 928 ). But "a probation requirement may be so amorphous that it is not reasonable to say that the defendant's complained of action was regulated by the standard of conduct imposed by the sentencing judge, thus rendering the penalty inherently incapable of enforcement." Hudgins , 292 Md. at 348, 438 A.2d 928.
On the face of it, a condition directing someone not to get suspended—much like, for example, a condition directing someone to maintain employment or obtain a driver's license—seems straightforward enough. But S directs us toward two cases, Watson v. State and Hudgins v. State , to support his argument that the no-suspension condition is impermissibly vague. In Hudgins , the defendant argued that the special condition of his probation "to ‘cooperate with the Maryland State Police in tracking down criminals’ was too vague to be enforceable through revocation." 292 Md. at 347, 438 A.2d 928. The Court of Appeals found it likely that the defendant understood the condition because he was required to supply the State Police with information available to him about the criminal activity of others, and he agreed to comply with all reasonable instructions given to him by the police. Id. at 349, 438 A.2d 928. Even so, and without ruling explicitly that the special condition of his probation was not vague, the Court remanded the case to the trial court to determine if any specific instructions were given to the probationer by the police. Id.
In contrast, in Watson , "the trial judge announced as a condition of probation that appellant should pay forty percent of his earnings to or on behalf of the minor children of the victim and further provided that the period of probation shall be indeterminate and subject to the further order of the Court." 17 Md. App. at 272, 301 A.2d 26. We held that the probation condition could not stand because it failed to define the defendant's earnings, to specify whether the condition applied to gross or net earnings, or to identify who determined what constitutes earnings, plus the period of probation under the order was indeterminate. Id. at 270, 301 A.2d 26.
In this case, there is no confusion about what it means to be suspended from school—the vagueness, S argues, lies in the subsidiary questions about what conduct can give rise to a suspension, who decides whether to impose a suspension, and the process he's due before a suspension can be imposed and under these circumstances, the answers to these questions are certain enough that the condition isn't impermissibly vague. For students of the Frederick County Public Schools, as S is, the FCPS code of student conduct outlines the behaviors punishable by suspension. These policies, regulations, and procedures are located on the FCPS website as well as in the FCPS Calendar Handbook that is distributed at the beginning of every school year. See Office of the Superintendent, Frederick Cty. Pub. Schs., 400-08, Discipline (2020) [hereinafter FCPS Reg.], https://apps.fcps.org/legal/doc.php?number=400-08 [https://perma.cc/9P9Q-74KC]. The code of conduct lays out three tiers of interventions, and tiers two and three describe the responses the school may take: tier two behaviors can result in a "bus suspension," or "in-school suspension," and tier three behaviors can lead to "suspension pending parent conference," "short term out of school suspension," "long term out of school suspension," or "extended out of school suspension." Id. at 6. Immediately before the tiers of interventions, the code of conduct lays out the behaviors subject to tier two and three responses—for example: assault, sexual assault, battery, and bullying are defined explicitly as tier three responses—and then defines what each behavioral action means. Id. at 5.
Although these policies don't require an automatic suspension for each incident or behavior, the code of conduct provides S with guidance about the actions or behaviors that could cause him to be suspended from school. And in that regard, this case differs from Watson : the behavior that could give rise to a suspension, and thus to a violation of probation, is defined with sufficient clarity in the FCPS code of student conduct, which also designates who has discretion in imposing disciplinary measures (i.e ., Teacher or School Principal/Designee). See id. at 1; see also Douglas v. State , 130 Md. App. 666, 675, 747 A.2d 752 (2000) ().
S contends that the no-suspension condition is impermissibly vague because "[t]he condition is violated as a direct result of a discretionary action [ ] done by another person [ ] to the juvenile, while virtually all other conditions of probation are violated directly by the actions of the...
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In re S.F.
...court and held that the condition of probation was not unduly vague and did not lack procedural safeguards. In re S.F. , 249 Md. App. 50, 60, 61, 245 A.3d 30, 36, 37 (2021).According to the Court, the condition of probation was "clear, definite and capable of being properly comprehended and......