Nelson v. State

• Decision Date: 01 September 1985
• Docket Number: No. 420,420
• Citation: 66 Md.App. 304,503 A.2d 1357
• Parties: Walter E. NELSON v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 304

66 Md.App. 304

503 A.2d 1357

Walter E. NELSON v. STATE of Maryland.

No. 420, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Feb. 6, 1986.

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

Carmina Szunyog Hughes, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty., for Baltimore City and Michael Gross, Asst. State's Atty., for Baltimore City, on brief), Baltimore, for appellee.

Submitted before GILBERT, C.J., and MOYLAN and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

On February 25, 1981, Walter E. Nelson, appellant, was convicted in a non-jury trial in the Circuit Court for Baltimore City, of theft and uttering. He was sentenced to eighteen months to the Division of Correction for the theft conviction and three years for the uttering conviction. Except for six months of the three-year sentence, his sentences were suspended in favor of two concurrent five-year terms of probation. In addition to the usual conditions of probation, appellant was required to pay $165.00 court costs. The judgments were not appealed.

Prior to the filing of the violation of probation charge from which this appeal emanates, appellant was charged with two prior violations of probation, the first on July 16, 1982 and the second on November 15, 1983, neither of which involved the probation rule requiring that he obey all laws. The first violation was dismissed on February 17, 1983. Appellant was convicted of the second on January 19, 1984, but continued on probation with additional costs imposed.

After a hearing in the Circuit Court for Baltimore City on this, appellant's third violation of probation charge, appellant's probation was revoked. The docket entries and the commitment records reflect that the previously suspended sentences of eighteen months and three years, with credit for the time already served, were imposed, to run consecutively to each other and to a term of imprisonment appellant was then serving. On appeal, appellant contends the court erred in revoking his probation:

1. because the evidence failed to show that the alleged violation occurred during his probationary period;

2. because it ordered that the terms of imprisonment previously imposed be served consecutively;

3. because it failed to ascertain that his plea, which was tantamount to a guilty plea, was knowing and voluntary.

Appellant's first and third assignments of error are without merit; however, because the sentence imposed was illegal, we will vacate the sentence and remand for resentencing.

1. Violations occurring during probationary period

Appellant elected to proceed by way of a not guilty plea under an agreed statement of facts. After appellant had been advised by counsel of the nature of the proceedings, the prosecutor presented the statement of facts:

Your Honor, February 25, 1984 ¹ [sic], Mr. Nelson was released on probation, ordered to pay $160 fine--rather court costs. Total amount being $165. He was given probation rules and regulations. They were read to him. He was given an opportunity to ask questions. He did not ask any.

Upon his release after serving six months he was reporting to central intake unit upon being released. The agents [sic] in court today, Ms. Lyell, received the case after Walter Fletcher had the case originally. She has all the records kept in the normal course of business for Mr. Nelson's probation report. The nature of the violation today, Your Honor, is that on the 6th of December, 1984, Mr. Nelson appeared in Baltimore City Circuit Court before Judge Angeletti. And he received four years, Division of Correction for a theft and four years for possession of heroin. ² ... In a second theft conviction, five years concurrent with the four previously imposed. Five years again on theft, again concurrent and five years on another theft, concurrent. ... Mr. Nelson failed to notify his agent of his arrest on 5/17/84.

He is also charged with violating number eight. Mr. Nelson shall not be in possession of any illegal controlled dangerous substance. The nature of that violation is the subsequent conviction for possession of heroin.

Appellant noted no additions or corrections to the statement of facts and moved for judgment of acquittal. The court denied the motion and found appellant guilty of the violations.

Appellant contends that the court erred in revoking his probation. Concerning two of the violations alleged--that he failed to obey all laws and that he illegally possessed a controlled dangerous substance--he posits: "Clearly, the mere fact that appellant may have been convicted of and sentenced for other crimes during his probationary period does not show that he committed a probation violation for, as the Court of Appeals has stated, 'it is not the conviction [or sentence] but the thing itself [the probationer] was doing which must justify the revocation, if it is to be justified at all.' Swann [ Swan ] v. State, 200 Md. 420, 427 (1952)." He concludes that the proof was deficient in this case because it did not show that these violations actually occurred during the probationary period.

With respect to the third alleged violation, appellant argues that the wording of the charge, "failed to notify his agent of his arrest on 5/17/84", is ambiguous, admitting of two possible interpretations. Because it is possible that the charge meant that he did not notify his agent on May 17, 1984 that he had been arrested, but did so on another date, appellant urges that there is insufficient proof of this allegation as well.

We are satisfied that, given the facts and circumstances of this case, the evidence was sufficient to establish that appellant's subsequent convictions were for violations of the law occurring while he was on probation, and, given the nature of those convictions, to prove that he illegally possessed controlled dangerous substances during the probationary period. In this regard, we note that appellant, apparently relying upon the prosecutor's statement during the statement of facts that the probationary term began February 25, 1984, premises his argument on an erroneous date. The probationary term in this case began February 25, 1981; thus, rather than nine and a half months from the beginning of the probationary term, the time in which the alleged violations could have occurred and still be within the probationary period was closer to three and a half years. Compare Cornish v. State, 65 Md.App. 213, 500 A.2d 295 (1985).

We are likewise satisfied that the evidence with respect to appellant's alleged failure to notify his agent of his arrest, was sufficient. We reject appellant's argument that the charge and the proof were ambiguous. We think it clear that 5/17/84 was the date of the arrest and that he was charged with failing to give his agent notice of that fact. The proof confirmed the charge.

2. Illegal Sentence

At the initial sentencing procedure, the trial court did not state whether the sentences which were imposed and suspended were to be served, upon their execution, concurrently or consecutively to each other. The docket entries merely reflect that they were imposed and, at least in major part, suspended.

After finding appellant guilty of violation of probation, the court reimposed the suspended sentences:

"THE COURT: I find him guilty of violation of probation. The original sentence is reimposed to be served consecutive to the sentencing he is now serving.

THE CLERK: For the record, on larceny that was 18 months and on the attempted bad check which was amended to uttering, he received three years and he gets credit for six months.

THE COURT: Okay. All those sentences will be served consecutive to the sentence he is now serving.

THE DEFENDANT: I have seven and a half years?

THE COURT: I don't know. What is it? Nobody told you to get locked up.

THE DEFENDANT: I'm asking your sentence--

THE COURT: My sentence is consecutive.

THE DEFENDANT: That makes seven and a half years.

THE COURT: I don't know. I don't care how much it makes. They will figure it out for you at the prison."

While there is some ambiguity in the exchange between the court and appellant, from a review of the docket entries and the commitment record, see Maryland Rule 4-351(a), the conclusion is inescapable that the original sentences were directed to be consecutive to each other.

"It is clear ... that when probation is revoked and the suspension of a previously imposed sentence is stricken, then that sentence goes into effect, exactly as it was originally imposed." Magrogan v. Warden, 16 Md.App. 675, 677, 299 A.2d 460 (1973). See Coleman v. State, 231 Md. 220, 189 A.2d 616 (1963). ³ It may not be modified upward, which occurs when a concurrent sentence is made consecutive. Wilson v. State, 45 Md.App. 675, 676, 415 A.2d 605 (1980); State v. White, 41 Md.App. 514, 517, 397 A.2d 299 (1980).

The law in this State is settled, a previously suspended sentence of incarceration, reimposed following a revocation of probation is not modified upward by a direction from the trial judge that it be served consecutively to an intervening sentence of incarceration then actually being served. Kaylor v. State, 285 Md. 66, 400 A.2d 419 (1979); DiPietrantonio v. State, 61 Md.App. 528, 487 A.2d 676 (1985); Hicks v. State, 61 Md.App. 183, 485 A.2d 1021 (1985). Therefore, there can be no question but that there was no abuse when the court exercised its discretion to make the original sentences run consecutively to the intervening ones. Kaylor at 285 Md. at 75, 400 A.2d 419. This does not end our task, however.

Contending that his original sentences were concurrent when imposed, appellant says that the reimposition of those sentences as consecutive sentences renders illegal the sentence he received for violation of probation. He relies on State v. White, 41 Md.App. 514, 516, 397 A.2d 299 (1979) where this Court,...