Jones v. Baltimore City Police Dept.

• Decision Date: 01 September 1991
• Docket Number: No. 126,126
• Citation: 606 A.2d 214,326 Md. 480
• Parties: Robert JONES v. BALTIMORE CITY POLICE DEPT. et al. ,
• Court: Maryland Court of Appeals

Page 480

326 Md. 480

606 A.2d 214

Robert JONES v. BALTIMORE CITY POLICE DEPT. et al.

No. 126, Sept. Term, 1991.

Court of Appeals of Maryland.

May 12, 1992.

Michael Marshall (Schlachman, Belsky & Weiner, P.A., both on brief), Baltimore, for appellant.

Michael A. Fry, Asst. Sol. (Neal M. Janey, City Sol., William R. Phelan, Jr., Sr. Sol., Kim I. Montroll, Asst. Sol., all on brief), Baltimore, for appellees.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

McAULIFFE, Judge.

The Law Enforcement Officers' Bill of Rights (LEOBR), Maryland Code (1957, 1992 Repl.Vol.) Art. 27, §§ 727-734D, provides that a law enforcement officer ordinarily is entitled to an administrative hearing before punitive action is taken against that officer. Section 730(a). There is an exception, however. Section 730(c) provides that "[a] law enforcement officer is not entitled to a hearing under this section if the law enforcement officer has been charged and convicted of a felony." The question presented by this appeal is whether an officer has been "convicted of a felony" within the meaning of § 730(c) when that officer has been found guilty of a felony but granted probation before judgment pursuant to Art. 27, § 641 of the Code.

I.

On 12 January 1990, the State's Attorney for Carroll County filed a Bill of Information in the District Court of Maryland sitting in Carroll County, charging Officer Robert A. Jones of the Baltimore City Police Department with two felony counts of distribution of and possession with intent to distribute child pornography (Art. 27, § 419A) and with four misdemeanor counts involving obscene matter (Art. 27, § 418). Jones was served with the charging document on 18 January and was immediately suspended from duty. On 19 January a suspension hearing was held by the Chief of the Community Services Division, and the suspension was continued, without pay. Following a preliminary hearing in the District Court, criminal charges were filed against Jones in the Circuit Court for Carroll County. On 7 September, at the conclusion of a trial before the court, Jones was found guilty of both felony counts and sentencing was scheduled for 18 December. ¹

On 3 October, the Director of the Internal Investigation Division of the Baltimore City Police Department forwarded the report of that division to the Office of the Commissioner, noting that Jones had been found guilty of two felony charges and concluding that administrative charges of misconduct by violation of criminal statutes and general misconduct had been sustained. The Department concluded that Jones had been "convicted of a felony" within the meaning of § 730(c), and on 5 October terminated his employment without a hearing. On 10 October, the Assistant City Solicitor representing the Department advised Jones' attorney in writing that "[i]n the event that Mr. Jones receives PBJ at his sentencing, the Personnel Order will be immediately rescinded and a trial board scheduled expeditiously."

On 18 December, Judge Raymond A. Beck, Sr. of the Circuit Court for Carroll County, acting pursuant to Art. 27, § 641, stayed the entry of judgment, deferred further proceedings, and placed Jones on probation for three years, with conditions. Contrary to the representation earlier made by the Department's attorney, however, the department did not rescind the personnel order terminating Jones' employment and did not schedule a trial board for resolution of administrative charges. ² On 19 April 1991, Jones filed a "Petition to Show Cause and for a Writ of Mandamus," alleging that the Department was denying him rights granted by the LEOBR and the United States Constitution, and seeking reinstatement with backpay, damages, and attorneys' fees. ³ The Department responded with a motion to dismiss the petition, contending, among other things, that Jones' discharge without a hearing was appropriate because Jones had been convicted of a felony.

The matter was heard before Judge John C. Byrnes. Judge Byrnes concluded that a guilty verdict was a conviction within the meaning of § 730(c), and that the subsequent entry of probation before judgment did not alter the fact of conviction. Thus, he held, Jones was properly discharged without a hearing. Jones appealed to the Court of Special Appeals, and we issued a writ of certiorari on our own motion before the case was considered by that Court.

II.

In Shilling v. State, 320 Md. 288, 296, 577 A.2d 83 (1990), and in Myers v. State, 303 Md. 639, 642-45, 496 A.2d 312 (1985), we pointed out that the meaning of the word "conviction" may vary according to the context and purposes in which it appears. In Myers, we said:

At common law a person was not "convicted" of a crime until the court entered a judgment on the finding of guilt. See 2 J. Wigmore, Evidence in Trials at Common Law § 521, at 731 (J. Chadbourn ed. 1979). In today's usage, however, the meaning of "convicted" and "conviction" turns upon the context and purpose with which those terms are used. See Hunter v. State, 193 Md. 596, 606-07, 69 A.2d 505, 509-10 (1949); see also Conlow v. State, 441 A.2d 638, 639 (Del.1982) (per curiam) ("The meaning of the term 'convicted' or 'conviction' varies according to the context and purpose of the particular provision--statutory or constitutional--in which it appears or to which it relates."); State v. Ege, 274 N.W.2d 350, 355 (Iowa 1979) ("The word 'conviction' may have different meanings within different contexts."). For example, in its general and popular sense "conviction" means the establishment of guilt prior to, and independent of, the judgment of the court. See, e.g., State v. Hanna, 179 N.W.2d 503, 507-08 (Iowa 1970); State v. Delashmutt, 676 P.2d 383, 384 (Utah 1983) (per curiam); State v. Herman, 93 Wash.2d 590, 595-96, 611 P.2d 748, 751 (1980). By contrast, in its legal and technical sense this term means the final judgment and sentence rendered by a court pursuant to a verdict or plea of guilty, and it is frequently used to denote the judgment or sentence. See, e.g., State v. Superior Court, 1 Storey 178, 51 Del. 178, 141 A.2d 468, 472 (1958) (" '[C]onviction' means the final consummation of the prosecution against the accused including the judgment or sentence rendered pursuant to a conviction."); Vasquez v. Courtney, 272 Or. 477, 480, 537 P.2d 536, 537 (1975) ("The second, more technical meaning [of conviction] refers to the final judgment entered on a plea or verdict of guilty. In [this] case conviction has not been accomplished until the judgment is made by the court."); Parker v. State Highway Department, 224 S.C. 263, 268-69, 78 S.E.2d 382, 384 (1953) ("But the word [convicted] is also often used as including both the ascertainment of the guilt of the accused and the judgment thereon by the Court.").

303 Md. at 642-43, 496 A.2d 312. We noted that "where ... the statute under consideration imposes a legal disability, courts have defined 'conviction' in its legal and technical sense." Id. at 643, 496 A.2d 312. We quoted the explanation of one commentator that "[t]hese courts reason that the legislature did not intend for valuable rights and privileges to be lost without a final judgment and sentence." Id. at 643, 496 A.2d 312, quoting Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929, 953-54 (1970) (footnotes omitted). We noted that "[t]his Court has consistently and repeatedly embraced this particular position." Id.

After reviewing a number of Maryland cases dealing with the subject, we concluded as follows:

In view of these cases, it is inescapable that we have consistently equated a "conviction" with the judgment of the court on the verdict and not with the mere determination of guilt. Accordingly, unless the context in which the word is used indicates otherwise, a "conviction" is the final judgment and sentence rendered by a court pursuant to a verdict or plea of guilty. Thus, as we see it, a person is not "convicted" of an offense until the court enters a judgment upon the verdict of guilty.

Id. at 645, 496 A.2d 312. We then turned to the question of whether the entry of a probation before judgment in accordance with Art. 27, § 641 would alter that interpretation and would render a verdict a "conviction." We held that it would not.

[W]e hold that probation before judgment under § 641 is not a "conviction," and a person who receives probation before judgment is not convicted of the crime for which he has been found guilty, unless the person violates the probation order and a court enters a judgment on the finding of guilt.

Id. at 647-48, 496 A.2d 312 (footnote omitted). Consistent with our holding in Myers, the Court of Special Appeals has held that a person granted probation before judgment pursuant to Art. 27, § 641 is not a "person convicted of a crime" within the meaning of § 645A(a) of the Maryland Post Conviction Procedure Act, Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 645A- 645J. Gakaba v. State, 84 Md.App. 154, 155-57, 578 A.2d 299 (1990).

Shilling v. State, supra, is not to the contrary. In Shilling, we held that a person who had been given probation before judgment for a violation of § 21-902(a) or (b) of the Transportation Article was ineligible for a second probation before judgment for a violation of either of those sections committed within five years after the previous violation. We noted, however, that the legislature had explicitly provided that a disposition of probation before judgment would be considered a "violation" in that instance. Article 27, § 641(a)(2) provided that "[a] person is in violation of § 21-902(a) or (b) if that person receives probation under this section."

We also held in Shilling that under those circumstances an earlier violation of § 21-902(a) or (b) which resulted in a probation before judgment would have to be treated as a "prior conviction" within the meaning of ...