Towers v. State

• Decision Date: 01 September 1991
• Docket Number: No. 1394,1394
• Citation: 92 Md.App. 183,607 A.2d 105
• Parties: Earl Madison TOWERS, Jr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 183

92 Md.App. 183

607 A.2d 105

Earl Madison TOWERS, Jr. v. STATE of Maryland.

No. 1394, Sept. Term, 1991.

Court of Special Appeals of Maryland.

May 29, 1992.

Broughton M. Earnest (Piper & Marbury, on the brief) Easton, for appellant.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Christian J. Jensen, State's Atty., Caroline County, Denton, on the brief), for appellee.

Submitted before WILNER, C.J., and BISHOP and ALPERT, JJ.

WILNER, Chief Judge.

Appellant owned and operated Towers Pharmacy in Denton. Alerted by the Delaware State Police that certain Delaware citizens were purchasing drugs from that pharmacy without a prescription, the Caroline and Queen Anne's County Narcotics Task Force undertook a surveillance of the pharmacy. On two occasions, officers from the Task Force observed appellant give a brown paper bag to an individual known to be a drug dealer from Delaware. On the second occasion, the officers stopped the dealer's vehicle and found in it both syringes and a variety of prescription drugs, including Tylox, Dilaudid, Codeine, Fastin, Percodan, Demerol, and Hycodan. Appellant was then arrested. He admitted to police that he had been selling prescription drugs to drug dealers for approximately five years because he feared that they would harm his family. According to police, however, appellant also admitted that he "got greedy and kept dealing for the money."

Appellant was charged with fifteen counts of possession and distribution of controlled dangerous substances and related offenses. On January 29, 1991, the parties presented to the court a plea agreement they had reached, under which appellant agreed to plead guilty to Count IX, charging him with distribution of Dilaudid, and the State agreed to dismiss the remaining fourteen counts. The plea agreement also provided that appellant would receive no more than the maximum Sentence Guideline of three years incarceration, that the court would determine whether, and to what extent, execution of that sentence would be suspended, that the length of probation and special conditions of probation would be decided by the court, that appellant would pay $20,000 to the Caroline and Queen Anne's County Narcotics Task Force, that appellant would forfeit $840 in cash and a handgun, which were seized during his arrest, and that appellant's pharmacy and car would not be subject to civil forfeiture. The State apparently agreed not to proceed with a forfeiture of the pharmacy so that appellant could sell it and use the proceeds to pay the $20,000 to the Task Force. The Circuit Court for Caroline County "agreed to accept the plea agreement and the sentencing restrictions that go with it." After determining that there was a substantive basis for the plea, the court entered a finding of guilty and ordered a pre-sentence investigation.

When the plea agreement was presented, the court was made aware that the State Board of Pharmacy, which is the agency charged with licensing and regulating pharmacists, had suspended appellant's pharmacy license. The court said, in that regard:

"THE COURT: Yeah. Now let me tell you a couple of things about any probation that might be involved and also because ... of course I know you had a professional license. You understand of course the Court doesn't have anything to do with that license. We didn't issue it to you and we can't take it away. I suppose in some circumstances I might have the right as a condition of probation to prohibit you to operate as a pharmacist but I've got enough to do without having to regulate pharmacists, so in other words.... what is it? Pharmacy Board ... State Board of Pharmacy?

MR. TOWERS: State Board of Pharmacy.

THE COURT: Okay. They're the ones that apparently issued the license. I assume they took it or suspended it or MR. TOWERS: Suspended it ...

THE COURT: ... Yeah well, whether or not you get it back, whether you have hearings is all up to them but under the law we have to report to them this conviction as of the effective date of it, do you understand that?

MR. TOWERS: Yes sir."

(Ellipses in the original.)

Appellant returned for sentencing on April 3, 1991. Although the pre-sentence investigation report turned up nothing more critical of appellant than what had been presented earlier, the court was quite stern in addressing appellant, expressing its deep concern over his conduct and rejecting as an ameliorating factor appellant's claim that he had acted under some duress. Except in two respects, however, the court imposed a sentence consistent with what had been agreed upon when the guilty plea was accepted. Appellant was given 10 years in prison, all but three of which were suspended in favor of five years of supervised probation. The $20,000 payable to the bi-county Narcotics Task Force had already been paid by appellant and that provision was therefore not reflected in the actual judgment announced by the judge and docketed by the clerk.

The two new items added by the court were (1) an additional $15,000 fine payable through the Division of Parole and Probation at the rate of $3,000 a year and, (2) as a condition of probation, that appellant "not work in a pharmacy without [the] Court's permission even if [he regained his pharmacy] license." This appeal concerns only those two items, appellant complaining that both were beyond the authority of the court to impose. His complaints have merit.

(1) The $15,000 Fine

As noted, the plea agreement presented to and accepted by the court called for appellant to pay $20,000 to the Narcotics Task Force. There was no provision for any other fine or monetary exaction. Indeed, in commenting on the $20,000, the court stated at that time "[Y]ou would be required at sentencing to make a.... pay a fine or in lieu of a fine, a contribution to the drug task force for Caroline/Queen Anne's County of ($20,000) Twenty Thousand Dollars, and by the way I think in fairness there that there is a fine permitted for this offense. I'm telling you up front if this is a condition I'm not going to fine you even if I have a right to. That wasn't stated but we'll just operate on that understanding. So we'll call that in lieu of a fine whether you call it a contribution but you'd have to pay ($20,000) Twenty Thousand Dollars at sentencing for the agreement to be carried out, you understand that?

A Yes sir."

(Emphasis added.)

At sentencing, the court took a very different approach:

"Now this twenty thousand dollars ($20,000) that you paid, I take it, was in return for releasing ... the State's doing certain things ... the State's Attorney releasing forfeiture and dismissing the other cases. And I intend to impose a fine because the fine is different from that and the fine is fifteen thousand dollars ($15,000) which will be payable through Parole and Probation in installments of three thousand ($3,000) dollars each year you are on probation and the reason for that is this, as I figure it from your own statement you averaged sixteen hundred ($1,600) dollars a month for 15 months, that's giving you the benefit of the doubt which comes out to twenty eight thousand eight hundred dollars ($28,800) of money that you made through a State license that you shouldn't have made. You owe society back that."

The State concedes, and we agree, that the court's imposition of the $15,000 fine was improper. Md.Rule 4-243(c)(3) states that "[i]f the plea agreement is approved, the judge shall embody in the judgment the agreed sentence...." In interpreting Md. Rule 4-243, the Court in Smith v. State, 80 Md.App. 371, 375, 563 A.2d 1129 (1989), held that:

"[I]f the plea agreement is approved, the judge shall embody the agreement into the disposition of the case.... 'As a general rule, once a judge has accepted a guilty plea and bound the defendant to it, the judge cannot refuse to carry through the bargain that induced the pleas.' "

The court accepted an agreement under which appellant undertook to pay, and in fact did pay, $20,000 to the Caroline and Queen Anne's County Narcotics Task Force in lieu of any fine. An additional fine of $15,000 was not a part of the plea agreement and indeed was expressly excluded by the court. It therefore cannot be imposed.

(2) Condition of Probation

In the course of the sentencing proceeding, the court was apprised that appellant's pharmacy license had been suspended for only a year--until October 1, 1991. Whether that meant that the license would be automatically reinstated then or that appellant could simply apply for reinstatement at that time is not clear. ¹ In either case, that did not sit well with the court, and it remarked:

"I find it appalling that the Pharmacy Board would consider ever giving you back a pharmacy license. That's the[ir] business but I know this much, you should not work in a pharmacy without Court permission even if you have your license and the reason is Mr. Towers, not that I propose to set myself up as a Super Pharmacy Board but you can't be trusted with the license. Obviously you succumbed to temptation once and there's a good chance you'd do it again. You'd be a marked man so you can't expect at least while you're on probation to be working in a pharmacy by yourself again. At least not without the Court's permission."

That sentiment was reflected in the following written statement imposed as a condition of probation: "Do not work in a pharmacy without Court's permission even if you have a license...."

Appellant challenges that condition on two grounds--(1) that it usurps the prerogatives of the Board of Pharmacy, which is the body authorized by the General Assembly to grant, suspend, and reinstate licenses to practice pharmacy, and (2) that it amounts to a violation of due process by interfering with his ability to earn a living, which is a Constitutionally-protected property interest. ² Although these two complaints enjoy a certain measure of overlap, th...