Knight v. State

• Decision Date: 25 June 1969
• Docket Number: No. 474,474
• Citation: 7 Md.App. 313,255 A.2d 441
• Parties: James Joseph KNIGHT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 313

7 Md.App. 313

255 A.2d 441

James Joseph KNIGHT v. STATE of Maryland.

No. 474.

Court of Special Appeals of Maryland.

June 25, 1969.

James F. Garrity, Baltimore, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and F. Edward Wheeler, State's Atty. and Asst. State's Atty. for Baltimore City, respectively, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

On 23 March 1967 the appellant was found guilty at a court trial in the Criminal Court of Baltimore of uttering a false instrument (indictment no. 5908), false pretenses (indictment no. 5909) and uttering a false instrument and false pretenses (each of indictments nos. 5910 and 5911). In each case a sentence of two years in the Maryland House of Correction was imposed ¹, the sentences to run concurrently, and each sentence was suspended and the appellant placed on probation for two years. On 1 November 1968 a report of violation of probation was filed and at a hearing on 12 November 1968 in the Criminal Court of Baltimore, at which he was not represented by counsel ², he was found guilty of violating the conditions of probation. The suspension of the sentences was stricken, and the original sentence of two years in each case to run concurrently was reinstated dating from 12 November. The reinstated sentences were to run concurrently with a four year sentence he was then serving which had been imposed on 22 October 1968 upon conviction of an unrelated offense.

On appeal from the revocation of his probation and the striking of the suspension of the sentences, the appellant claims that his constitutional right to representation by counsel, guaranteed by the Sixth Amendment to the Constitution of the United States, was violated at the revocation hearing. He urges that he should have been advised by the court of his right to counsel, and as he was indigent ³, counsel should have been appointed for him, absent an effective waiver by him of the right. In support of his contention he merely points to Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, decided 13 November 1967.

'A proceeding for the revocation of a suspension of sentence and probation is informal in character and not subject to the limitations imposed by law upon the trial leading to a conviction.' Edwardsen v. State, 220 Md. 82, 88, 151 A.2d 132, 135. 'It is established that probation cannot be revoked without giving the probationer a hearing, and that this is a requirement of due process of law.' Wilson v. State, 6 Md.App. 397, 402, 251 A.2d 379, 382, citing Swan v. State, 200 Md. 420, 425, 90 A.2d 690, and Finnegan v. State, 4 Md.App. 396, 243 A.2d 36. In the instant case a hearing is required by statute. See Charter and Public Local Laws of Baltimore City (Flack 1949) § 279, the provisions of which are applicable to the Criminal Court of Baltimore. 'The alleged violator is entitled to a reasonable opportunity to refute the charges laid, not to a formal trial.' Edwardsen v. State, supra, 89, 151 A.2d 136. So '* * * the demands of due process at a probation revocation hearing are generally satisfied if the probationer is extended a reasonable opportunity to defend himself against a charge that he has violated the conditions of his probation.' Brown v. State, 4 Md.App. 623, 628, 244 A.2d 471, 474. See Wroten v. State, 2 Md.App. 410, 234 A.2d 766. An appeal lies from the revocation of a suspended sentence and the striking out of probation by the lower court. Coleman v. State, 231 Md. 220, 222, 189 A.2d 616. The question of whether the terms of probation have been violated is largely one of fact but also includes the construction of the terms of suspension which were made known to the probationer and by which he was to be guided in his conduct. 'Such questions, while primarily within the discretion of the trial judge, are not wholly so, and are reviewable, if only for the purpose of determining whether that discretion has been abused in any way, or whether an erroneous construction has been placed by the trial judge on the conditions of the parole.' Swan v. State, supra, 425-426, 90 A.2d 692; Welborn v. Warden, 2 Md.App. 351, 354, 234 A.2d 633. 'Abuse of discretion may be found if the trial judge acts arbitrarily or capriciously.' Edwardsen v. State, supra, 89, 151 A.2d 135. In Sweeney v. State, 1 Md.App. 233, 238, 229 A.2d 141, 143, we characterized probation as '* * * a personal privilege and a matter of grace, the revocation of which is directed to the sound discretion of the trial court.' Therefore, it would appear that a hearing on an allegation of violation of the terms of probation is not a trial on a criminal charge, but is a hearing to determine judicially whether the conduct of the probationer during the probation period has conformed to the course outlined in the order of probation. A violation of the conditions of probation must be established with such reasonable certainty as to satisfy the conscience of the court of the truth of the violation. It does not have to be established beyond a reasonable doubt; if the facts incline a reasonable and impartial mind to the belief that the probationer has violated the terms of his probation, it is sufficient. And the facts do not have to come to the knowledge of the judge in the manner required by the rules of evidence. Scott v. State, 238 Md. 265, 275, 208 A.2d 575. If the facts justify revocation, the act of revocation is not arbitrary or capricious. Thus, at such a hearing, the probationer is not entitled to all of those rights guaranteed him in criminal prosecutions by the Constitution of the United States and the Constitution of Maryland. We believe, for example, that he has no right to have the issue of the violation of the terms of his probation determined by a jury under the provisions of Amendment VI to the Constitution of the United States and Article 21 of the Declaration of Rights of the Constitution of Maryland, for those rights, therein guaranteed, apply only to 'all criminal prosecutions.'

Prior to Mempa, the Court of Appeals and this Court had considered the question of the right to counsel at a revocation hearing. In Edwardsen v. State, supra, it was held that the appointment of counsel was not mandatory on revocation of probation as a matter of due process. ⁴ In Crenshaw v. State, 222 Md. 533, at 535, 161 A.2d 669, at 671, in which Edwardsen was cited, the Court said:

'When a defendant is confronted with a motion to strike out or revoke a suspended sentence or probation for an alleged violation of the conditions or terms thereof, he should be seasonably informed of the substance of the charge against him and should be afforded an opportunity to reply to the motion either orally or in writing, if he desires to do so, but there is no requirement that he should be arraigned, or that he should plead to the charge as if the motion were an indictment, information or state warrant. If the defendant appears at such hearing without counsel, the court may, but it is not obliged to, advise the defendant of his right to obtain counsel or assign counsel to represent him. The failure of the court to do either did not deprive the defendant of his constitutional right to due process. Cf. Hill v. State, 1958, 218 Md. 120, 145 A.2d 445; Bryant v. State, 1958, 218 Md. 151, 145 A.2d 777.'

In Scott v. State, supra, the Court of Appeals construed Edwardsen, saying, 238 Md. at 275, 208 A.2d at 580:

'Edwardsen also held that an accused probationer is entitled to be represented by counsel employed by him but that the State need not furnish counsel unless due process would be affronted, in that, for lack of counsel the probationer would be at such a disadvantage that an ingredient of unfairness actively operated in the process that led to the revocation of his probation.'

And see Sweeney v. State, supra. In Edwardsen the Court said: 'Even under the federal practice it would appear that the appointment of counsel is not mandatory on revocation of probation. See Kelley v. United States, 235 F.2d 44 (C.C.A., 4th Cir.), and cases cited; Gillespie v. Hunter, 159 F.2d 410, 411 (C.C.A., 10th Cir.).' The same observation was made in Sammons v. United States, 285 F.Supp. 100 (United States D.C., S.D. Texas, Houston Division) decided 3 June 1968:

'The lower federal courts have long held that the constitutional right to assistance of counsel in the defense of a criminal prosecution, given by the Sixth Amendment, does not apply to a hearing on a motion to revoke probation. Welsh v. United States, 348 F.2d 885 (6th Cir. 1965); Bennett v. United States, 158 F.2d 412 (8th Cir. 1947), cert. denied, 331 U.S. 822, 67 S.Ct. 1302, 91 L.Ed. 1838 (1947). Although afforded several opportunities (e.g. Crow v. United States, 175 F.2d 799 (4th Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950)) to overrule this rule, the Supreme Court, by denials of certiorari, has allowed it to stand.' at 101.

We conclude that in this State, when sentence has been suspended and terms of probation imposed, either after conviction, as authorized by Md.Code, Art. 27, § 639 and, as to the Criminal Court of Baltimore as also authorized by § 279 of the Charter and Public Local Laws of Baltimore City, or before conviction as authorized by Md.Code, Art. 27, § 641, and motion is made to strike the suspension of the sentence and revoke the probation for an alleged violation of its terms, the following rules have been established 1) there must be a hearing;

2) the hearing is not a 'criminal prosecution' within the meaning of Amendment VI of the Constitution of the United States or Art. 21 of the Declaration of Rights of the Constitution of Maryland;

3) the probationer must be seasonably informed of the substance of the charge against him and afforded an opportunity to answer or explain the facts which have come...