Leopold v. State

• Decision Date: 26 March 2014
• Docket Number: Sept. Term, 2013.,No. 0017,0017
• Citation: 88 A.3d 860,216 Md.App. 586
• Parties: John R. LEOPOLD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

216 Md.App. 586

88 A.3d 860

John R. LEOPOLD

v.STATE of Maryland.

No. 0017, Sept. Term, 2013.

Court of Special Appeals of Maryland.

March 26, 2014.

Bruce L. Marcus (Robert C. Bonsib, MarcusBonsib, LLC, on the brief), Greenbelt, MD, for Appellant.

Emmet C. Davitt, State Prosecutor (Thomas M. McDonough, Deputy State Prosecutor, on the brief), Towson, MD, for Appellee.

Panel: WRIGHT, MATRICCIANI, and JAMES P. SALMON (Retired, Specially Assigned), JJ.^*

WRIGHT, J.

Appellant, John R. Leopold, appeals his conviction in the Circuit Court for Anne Arundel County for two counts of misconduct in office. On March 2, 2012, Leopold was charged by indictment with four counts of misconduct in office (Counts 1–4) and fraudulent misappropriation by a fiduciary (Count 5). A bench trial began on January 18, 2013, and continued until January 29, 2013, at which time the circuit court found Leopold guilty of Counts 1 and 3. He was acquitted of the remaining charges.¹

On March 14, 2013, Leopold was sentenced to two years' imprisonment with all but 60 days suspended on Count 1. An identical and concurrent sentence was imposed as to Count 3. In addition, Leopold was placed on 5 years of supervised probation, ordered to pay a fine of $100,000.00, and ordered to complete 400 hours of community service by December 31, 2013. As a special condition of probation, the circuit court prohibited Leopold from “be[ing] a candidate for any local, state, or federal elected office.” On March 15, 2013, Leopold filed this appeal.

Questions Presented

Leopold asks:

1. Whether the charge of Misconduct in Office, as applied to the facts of this case, denied Leopold due process of law as being unconstitutionally vague and overbroad?

2. Whether the sentence imposed was illegal?

Facts

Leopold was twice elected to the office of the County Executive of Anne Arundel County. He was first sworn into office on December 4, 2006, and was reelected on November 2, 2010. Leopold succeeded Janet Owens who, during her time as County Executive, formed the Executive Protection Detail (“EPD”) for the purpose of “provid[ing] security and protection to the County Executive while she was conducting County business.”

The EPD consisted of sworn officers of the Anne Arundel County Police Department, known as Executive Protection Officers (“EPO”), each of whom was requested to have at least ten years of police experience prior to being selected for the unit. According to Patrick Shanahan, the Chief of Police at the time of the EPD's formation, the EPD was formed “rather quickly, ... by the seat of our pants, and we used as a basis for how that unit operated how other departments did theirs and followed State Law.” Shanahan testified that, although a standard operating procedure (“SOP”) was “later” created for the EPD, one did not exist at the time of the EPD's formation. According to Lieutenant Katherine Goodwin, an EPO who served during Owens's tenure, no “written protocol governing the do's and don'ts for the [EPD]” existed at the time of Leopold's trial.

Corporal Joseph Pazulski, an EPO who served under both Owens and Leopold, testified that his initial duties in the EPD were:

to pick Ms. Owens up at her residence, take her to her office which was at the Arundel Center in Annapolis. I would take her from event to event throughout the day and then I would also drop her off at the end of our tour of duty at her home. And our responsibilities were to be a driver as well as her security.

Cpl. Pazulski also testified to running personal errands for Owens, such as getting a pack of cigarettes or buying her lunch.² Cpl. Pazulski explained that he did so:

[d]uring our workday if Ms. Owens was in the office and had a block of hours where she was having meetings at the office, we were stationed right there on the fourth floor, on the same wing as Ms. Owens's office and if I would go to lunch if I knew that she was going to be tied up during that day I would let her know that I was going to lunch, leaving the building and occasionally she asked me to bring her a sandwich back or grab her cigarettes on the way back.

Cpl. Pazulski stated that he “didn't do any campaigning” for Owens, but admitted that he had some “involvement with campaign signs.” When asked to elaborate, he answered:

If someone requested a campaign sign, there were campaign signs in our County vehicle that we drove. And if someone would request it I would just come out and hit the remote control on the trunk, the trunk would open, and the interested person would take the signs that they wanted and I would close the trunk.

Cpl. Pazulski stated that he did not place Owens's campaign signs in the trunk nor did he know who did. Cpl. Pazulski recalled that when signs were distributed, “sometimes [Owens] would be [present], sometimes she would not.” Cpl. Pazulski testified that he sometimes took Owens to her campaign events, “if [he] was working as her security.” He stated that he never volunteered to assist in Owens's campaign and never touted her candidacy while he was present at her events. Cpl. Pazulski added that, during the Owens administration, EPOs kept records of mileage used for activities that were unrelated to Owens's role as County Executive, including mileage spent on campaign work. The EPOs, however, did not record the amount of time that the EPD spent in protecting Owens. The EPD continued to protect Leopold when he succeeded Owens as County Executive.

On January 15, 2010, Leopold contacted Dr. Roy Bands, Jr., an orthopedic surgeon, “complaining of lower back pain and discomfort into his legs and his feet primarily while standing and walking.” After evaluating Leopold and discussing the treatment options, Dr. Bands gave Leopold a Cortisone injection on January 28, 2010. Thereafter, Leopold became more symptomatic and was writhing in pain during his next visit to Dr. Bands's office.

On February 23, 2010, Dr. Bands performed a six-hour spinal surgery on Leopold, which included a laminectomy³ and stabilization of the bones.⁴ After the surgery,Leopold “wasn't urinating on his own” and therefore, Dr. Bands reinserted a Foley catheter that remained with Leopold following his discharge from the hospital. The catheter drained in a tube to a collection bag strapped to Leopold's ankle. Upon Leopold's release from the hospital, Dr. Bands stated that Leopold would not be able to “bend over to put his socks on, ... change a dressing, ... empty his own foley bag ..., [or] drive a car.”

Despite the surgery, Leopold continued to have low back pain. On July 2, 2010, Leopold consulted Dr. Timothy Burke, a neurological surgeon, who “came up with a surgical plan on how to deal with th[e] problem.” On July 16, 2010, Leopold underwent another operation, this time to revise the fusion and to repair the fluid cyst that resulted from “a tear of the covering of the spinal canal.”

Cpl. Pazulski testified that after the surgeries, Leopold's level of independence changed. Two other EPOs, Corporal Howard Brown and Corporal Mark Walker, stated that they often drained urine from Leopold's collection bag into an empty coffee can for disposal. Cpl. Brown recalled that Leopold directed him to purchase the coffee container, which Cpl. Brown cleaned out and stored in the center console of the County Executive's vehicle. Cpl. Brown stated that he changed the catheter bag because he “was told to do it” and “ didn't think [he] had much recourse.” Cpl. Walker, who testified to draining Leopold's urine at least 40 times, stated that he did not consider draining the catheter a part of his duties as an EPO but continued to do so because “Mr. Leopold told me to.” At no time did Cpl. Walker tell Leopold that he did not want to drain the collection bag.

Cpl. Brown and Cpl. Walker reported their assignments to their supervisors on a regular basis. At no time did those supervisors instruct the EPOs not to undertake or participate in any of the activities assigned by Leopold. At trial, Cpl. Brown and Cpl. Walker admitted that they did not believe their actions—in conjunction with Leopold's urine collection bag—to be criminal.

Patricia Medlin, an assistant to Leopold, was, at the time of trial, 63 years old and a 16–year government employee of Anne Arundel County. Her entire career with the County was, in some capacity, within the County Executive's Office. In 2006, Leopold asked Medlin to become his scheduler. Medlin, who was asked to decide then and there, gave up her position as a “merit employee” to become an “at will employee.” She believed that, by taking the position being offered by Leopold, she would serve at the pleasure of her employer, would have no job protection, and would have no job at the end of Leopold's administration.

Medlin recalled that following Leopold's first surgery, he called her into his office and told her that he had a catheter bag that he would not be able to empty and that he would “require” her assistance. When Leopold asked if she had a problem with it, Medlin said no because she “was afraid” to say otherwise. When asked to elaborate, Medlin explained:

Because it was my experience that, oh how do I say this, that you don't tell him no because then he thinks your [sic], he would consider you unloyal [sic] and I mean people lost their jobs, I've seen it. And I need my job. So I—I just didn't say no because I was scared of losing my job.

Thereafter, she drained the collection bag about two or three times a day for approximately nine to ten months.

According to Medlin, whenever Leopold stood in the doorway of his office and said, “Patty, I need you now,” she knew that she needed to help empty the collection bag. Medlin would go to the bathroom, put gloves on, obtain the coffee can from under the sink, get down on her hands and knees, empty the urine out of the catheter bag into the can, empty the can into the toilet, and rinse out the can. Medlin continued to perform the task until she walked into Leopold's office one...