Smith v. State

• Decision Date: 01 September 1996
• Docket Number: No. 1329,1329
• Citation: 115 Md.App. 614,694 A.2d 182
• Parties: George SMITH, v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

Page 614

115 Md.App. 614

694 A.2d 182

George SMITH, v. STATE of Maryland.

No. 1329 Sept. Term, 1996.

Court of Special Appeals of Maryland.

May 29, 1997.

Edward J. Kelley (Stephen E. Harris, Public Defender, George E. Burns, Jr., Arthur A. Delano and Gary S. Offutt, Assistant Public Defenders, on the brief), Baltimore, for Appellant.

Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore and Sandra A. O'Connor, State's Attorney for Baltimore County, Towson, on the brief), for Appellee.

Argued before MURPHY, C.J., and MOYLAN and EYLER, JJ.

EYLER, Judge.

The issue presented by this appeal is whether the post conviction petition filed by appellant, George Smith, was properly dismissed on the ground that it was a second petition and not allowed by virtue of Art. 27, § 645A(a)(2)(i) of the Maryland Code (1957, 1996 Repl.Vol.). ¹

I. Facts

The facts are not in dispute and, because of the narrow legal issue presented, may be succinctly stated. Appellant was convicted on an Agreed Statement of Facts of theft over $300 on October 19, 1988, and was sentenced to ten years imprisonment, five years of which was suspended subject to the successful completion of three years probation. Subsequently, an appeal was noted, the judgment was affirmed, appellant moved for modification or reduction of sentence, and that motion was denied. A petition for post conviction relief for ineffective assistance of counsel was filed on August 8, 1990, which, after a hearing, was denied.

On July 9, 1993, a petition for revocation of appellant's probation was filed. After a hearing on March 13, 1995, appellant was found in violation of his probation, his probation was revoked, and he was sentenced to serve the balance of his five-year sentence, commencing February 7, 1995. An application for leave to appeal from the revocation of probation was filed April 5, 1995 and denied on May 31, 1995. An application for review of sentence by a three-judge panel and a motion for modification or reduction of sentence subsequently were filed and both requests for relief were denied.

A petition for post conviction relief addressing the revocation of probation was filed on April 29, 1996. On May 20, 1996, the State filed an answer and motion to dismiss the petition, pursuant to Art. 27, § 645A(a)(2)(i), on the grounds that the petition was the second petition filed, and only one petition was permitted by statute. Ultimately, on August 2, 1996, the State's motion was granted. On August 9, 1996, appellant filed an application for leave to appeal from the dismissal of his petition for post conviction relief. The application was granted on October 29, 1996.

II. Issues and Contentions

Appellant presents two issues in his petition for post conviction relief. Appellant first argues that the "original trial court" imposed the order of probation improperly, in that the court failed to comply with Maryland Rule 4-346 in not providing appellant with a written copy of the probation order. Second, appellant contends that there was no evidence to support a finding that appellant violated the conditions of probation by failing to report to his probation officer. It appears that appellant is arguing both that the conditions of probation, as originally imposed, are unenforceable because they fail to provide specific directions as to when and where to report, and that the evidence is inadequate to support a finding that he failed to report on any particular occasion. The trial court did not reach the merits of either of appellant's issues, but instead, dismissed the petition on the ground that it was barred by Art. 27, § 645A(a)(2)(i).

Art. 27, § 645A(a)(1) and (2)(i) provide as follows:

(a)(1) Subject to the provisions of paragraphs (2) and (3) of this subsection, any person convicted of a crime and either incarcerated under sentence of death or imprisonment or on a parole or probation, including any person confined or on parole or probation as a result of a proceeding before the District Court who claims that the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error which would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common-law or statutory remedy, may institute a proceeding under this subtitle in the circuit court for the county to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction, or in any other proceeding that the petitioner has taken to secure relief from his conviction.

(2)(i) A person may file only one petition, arising out of each trial, for relief under this subtitle.

In granting appellant's leave to appeal from the dismissal of his post conviction petition, we asked the parties to brief and argue the following issue:

Should the post conviction petition filed on April 29, 1996, be dismissed on the ground that it is a second petition and as such is not allowed by virtue of Art. 27, § 645(a)(2)(i)?

Appellant initially notes that we recognized in Flansburg v. State, 103 Md.App. 394, 653 A.2d 966, cert. granted, 339 Md. 232, 661 A.2d 733 (1995), that a challenge to a violation of probation is reviewable in a post conviction proceeding. Thus, he urges, were there no limit on the number of petitions a defendant may file, there is no question but that he would be permitted to bring the current petition. Relying on the definition of "trial" set forth in Black's Law Dictionary, 6th Edition, appellant further argues that a probation revocation hearing is a separate trial for which appellant may file a post conviction petition. Appellant argues that his reading of § 645A(a)(2)(i) is supported by the fact that elsewhere in the statute, the Legislature used the term "conviction." Appellant asserts that the use of the term "conviction" would have circumscribed the number of petitions available in a manner that use of the term "trial" does not.

The State relies principally upon the cases that hold that a probation revocation hearing is not a trial. See, e.g., Clipper v. State, 295 Md. 303, 308, 455 A.2d 973 (1983) (citing State v. Bryan, 284 Md. 152, 159, 395 A.2d 475 (1978)); Edwardsen v. State, 220 Md. 82, 88, 151 A.2d 132 (1959). The State argues that the Legislature is presumed to be aware of case law, and further, that the common and long-established usage of the term "trial" does not include probation revocation hearings. With respect to Flansburg, the State notes that it currently is pending before the Court of Appeals, and the State continues to maintain that Flansburg was incorrectly decided. The State further argues that, assuming post conviction proceedings are available generally to challenge revocation of probation, that fact is not grounds to subvert the clear limit on the number of petitions established by the Legislature. Finally, the State argues that the first issue framed by appellant's post conviction petition should have been raised on direct appeal from appellant's original conviction, and cannot be raised in a post conviction petition. With respect to this last argument, appellant responds that the argument addresses the merits of his petition and not the reason his petition was dismissed at the trial level. Appellant further notes that the parties were asked by this Court to limit their argument to the issue of the limit on the number of petitions a defendant may file.

III. Discussion

We begin by noting that our goal is to ascertain and effectuate the intent of the Legislature at the time it drafted § 645A(a)(2). State v. Pagano, 341 Md. 129, 133, 669 A.2d 1339 (1996); Jones v. State, 336 Md. 255, 260, 647 A.2d 1204 (1994). Our starting point for statutory interpretation is the language of the statute itself, and ordinarily, if the language is free from ambiguity, we will not look beyond the language to ascertain the intent of the Legislature. Pagano, 341 Md. at 133, 669 A.2d 1339; Cianos v. State, 338 Md. 406, 411, 659 A.2d 291 (1995); Jones, 336 Md. at 261, 647 A.2d 1204. Nevertheless, as the Court of Appeals recently has noted, even when the language is plain, the meaning is controlled by the context in which it appears. Pagano, 341 Md. at 133, 669 A.2d 1339. Further, "[w]e may always consider evidence of legislative intent beyond the plain language of the statute." Id.

At first glance, the State has the better of the argument. The phrase "arising out of each trial," originated in Senate Bill 36, Acts of 1986. 1986 Laws of Maryland, ch. 647. That bill added to § 645A, for the first time, a two petition limit, and the language remained unchanged when the petition limit was reduced to one in 1995. See 1995 Laws of Maryland, Chapter 110. The two petition limit had previously been proposed in House Bill 1475, Acts of 1985, but did not pass at that time. A review of the bill files for the 1985, 1986, and 1995 bills have not revealed anything which would shed light on the Legislature's selection of the term "trial." The cases such as Clipper v. State, supra, that hold that a post conviction hearing is not a trial, predate the 1985 and 1986 bills, and it must be presumed that the Legislature was aware of such cases at the time it drafted the "arising out of each trial" language. ² Appellant's reliance upon the Black's Law Dictionary definition of "trial" is unpersuasive, as is appellant's argument that the Legislature would have used the term "conviction" had it intended the result urged by the State. A likely explanation for the Legislature's decision not to use "conviction" is that a single criminal trial often can result in convictions for more...