State v. Dopkowski
| Decision Date | 01 September 1991 |
| Docket Number | No. 97,97 |
| Citation | 325 Md. 671,602 A.2d 1185 |
| Parties | STATE of Maryland v. Gary DOPKOWSKI. , |
| Court | Maryland Court of Appeals |
Gwynn X. Kinsey, Jr., Asst. Atty. Gen. and J. Joseph Curran, Jr., Atty. Gen., both on brief, Baltimore, for petitioner.
Michael R. Malloy, Asst. Public Defender, Stephen E. Harris, Public Defender, both on brief, Baltimore, for respondent.
Argued before ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, and ROBERT M. BELL, JJ., and CHARLES E. ORTH, Jr., Judge (retired), Specially Assigned.
On 3 May 1988, Gary Dopkowski, born 10 July 1954, pled guilty in the Circuit Court for Baltimore City to committing the crime of possessing marijuana with the intent to distribute. His plea was accepted by the court. He was found guilty and sentenced to a five year term of imprisonment. The execution of the sentence was suspended, and he was granted supervised, conditional probation for a period of three years.
Although on probation, Dopkowski was not deterred from continuing his criminal career. There is some confusion about the precise dates on which he was arrested and convicted for felony theft and for possession of a controlled dangerous substance, but it is clear that the two arrests and convictions occurred during the period he was on probation granted him upon his conviction of 3 May 1988. In each case the execution of the sentence imposed was suspended and he was released on probation. 1 These unlawful activities on the part of Dopkowski resulted in his arrest for violating the conditions of the probation granted him upon his conviction on 3 May 1988. On 16 July 1990, he was haled before the judge who had first granted him probation. He waived the assistance of an attorney, and admitted that he violated his probation. After extensive examination, the judge accepted the waiver and the admission as "being tendered by [Dopkowski] at this time freely and voluntarily, knowingly and intelligently." The State put before the court the two arrests and convictions which occurred during the probationary period. The judge asked Dopkowski if he had "any corrections, modifications or objections to the statement of facts presented by the State." Dopkowski responded, "No, sir."
Three of the conditions or "rules" to which Dopkowski was subject upon his release on probation granted on his conviction of 3 May 1988, as set out in the Order For Probation, were No. 4: "Obey all laws;" No. 5: "Notify his Probation Agent at once, if arrested;" and No. 8: "Shall not illegally possess, use, or sell any narcotic drug, 'controlled dangerous substance' or related paraphernalia." The judge declared:
I find the statement of facts [as] presented by the State without objection from the defense, [sufficient to] convince this court that there is a reasonable and rational basis upon which to conclude by a preponderance of the evidence that the defendant has violated the terms and conditions of his probation, to wit, for being subsequently convicted of the crimes of larceny and possession of controlled dangerous substances while on probation to this court.
The judge was referring to condition No. 4, "Obey all laws." The judge found that Dopkowski "also violated rule five by failing to report these arrests to his [probation] agent" and, further, that he "violated rule number eight by being convicted of possessing controlled dangerous substances while on probation to this court." The judge offered to hear from Dopkowski "[a]bout anything you think I should know before I impose sentence." Dopkowski responded:
All I can say is I know I had a problem back then. I had a serious drug problem. I know what I did was wrong. I am very sorry for it. Since then I have gone into a drug treatment program. I went through my company to do that. I went into a recovery house and lived for four months. I have been employed steady for eleven years. I'm just asking for leniency.
The judge observed, "I gave you leniency the first time, Mr. Dopkowski." Dopkowski agreed, "Yes, sir, I know that." Upon inquiry by the judge, Dopkowski explained that the controlled dangerous substance he was convicted of possessing was "$10 worth of cocaine" and that the grand larceny charge stemmed from shoplifting. He said there was nothing else that he wished to tell the judge. The judge announced the sentence:
[T]he original five-year sentence that was suspended in this case is reimposed. That five years is to be served in the Department of Corrections, running from July the 9th of 1990, which will give the defendant credit for all pretrial incarceration in this case.
Dopkowski said that he understood the sentence.
Indeed, it seems that Dopkowski understood the sentence all too well, and he did not like it. Being incarcerated for his transgressions was apparently a new experience for him, and he obviously expected to be placed on probation for the fourth time in a row. He manifested his unhappiness by appealing.
The Court of Special Appeals found no error with respect to the violation of probation. But it vacated the sentence and remanded the matter to the hearing court "for further proceedings in accordance with this opinion." Dopkowski v. State, 87 Md.App. 466, 590 A.2d 173 (1991). The intermediate appellate court observed that, in response to Dopkowski's explanation of his unlawful conduct and request for leniency, the judge below merely said, "I gave you leniency the first time." The Court of Special Appeals complained that "[b]ecause the court made no further factual findings, we do not know if it considered Dopkowski's own efforts to undertake treatment and rehabilitation." Id. at 474, 590 A.2d 173. It held:
it would be an abuse of discretion to fail to consider that a probationer has undertaken treatment and is controlling the underlying problem which precipitated the violations.
Id. The court pointed out:
In the instant case, many reasons could be advanced for a response other than incarceration. One reason is the cost to the community of incarcerating someone who has individually undertaken treatment for the underlying problem and who no longer appears to be a threat to the larger community. Additionally, incarceration is not a good environment for rehabilitating a recovering addict.
The judgment of the Court of Special Appeals gave the State cause for concern, not only in the frame of reference of this case, but also as to probationary revocation hearings in the future. It sought our review, and we granted its petition for a writ of certiorari which presented the question:
Did the Court of Special Appeals err in holding that a trial court must, in conducting the second, "sentencing," phase of probation revocation, explain its reasons for the sentence imposed?
Dopkowski wanted us to examine the effectiveness of his waiver of the assistance of counsel if we granted the State's petition, but we denied his conditional cross-petition directed to that issue.
Confinement of a probation violator is based upon commission of the criminal offense which the State was required to prove beyond a reasonable doubt. Probation rather than incarceration at the time of conviction is a matter of grace which may be withdrawn when the violator is shown ... not to have honored the conditions made known at the time probation was granted.
Wink v. State, 317 Md. 330, 341, 563 A.2d 414 (1989). In the trial court a probation revocation case " 'typically involves two distinct components: (1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation.' " Id. at 332, 563 A.2d 414, quoting Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985).
For the purposes of the first component, the hearing judge "must find the essential facts comprising a violation of a condition by a preponderance of the evidence." Wink, 317 Md. at 341, 563 A.2d 414. Appellate review of the first component is governed by the clearly erroneous rule. See Wink at 338 n. 1 563 A.2d 414.
With respect to the second component, "that of whether the court's discretion should be exercised to revoke probation, appellate review is for an abuse of discretion." Id. at 338, 563 A.2d 414.
Trial judges do not revoke probation unless satisfied that probation should be revoked. Appellate review to determine whether there was reasonable satisfaction would simply analyze whether discretion was abused for want of any reasonable basis for the revocation.
Id. at 338-339, 563 A.2d 414. "In this connection, it is often stated that the question on appeal 'is simply whether there has been an abuse of discretion....' " Coles v. State, 290 Md. 296, 307, 429 A.2d 1029 (1981), quoting Burns v. United States, 287 U.S. 216, 222, 53 S.Ct. 154, 156, 77 L.Ed. 266 (1932). Ordinarily,
[a]buse of discretion will be found only if the trial court has erroneously construed the conditions of probation, has made factual findings that are clearly erroneous, or has acted arbitrarily or capriciously in revoking probation.
Herold v. State, 52 Md.App. 295, 303, 449 A.2d 429 (1982) (citations omitted).
When the trial court has determined that a violation of a condition of probation has occurred, the court may resentence but may not impose a sentence greater than that which was originally imposed and suspended. Donaldson v. State, 305 Md. 522, 528, 505 A.2d 527 (1986). See Turner v. State, 307 Md. 618, 516 A.2d 579 (1986), Smith v. State, 306 Md. 1, 506 A.2d 1165 (1986) and Humphrey v. State, 290 Md. 164, 428 A.2d 440 (1981) for discussions of revocation of probation proceedings.
The trial court, upon its determination that a probationer has violated one or more conditions of probation, enjoys many options. "These options vary from continuing the probation to reimposing...
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