Turner v. State

• Decision Date: 01 September 1984
• Docket Number: No. 216,216
• Citation: 484 A.2d 641,61 Md.App. 1
• Parties: Frank TURNER v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 1

61 Md.App. 1

484 A.2d 641

Frank TURNER v. STATE of Maryland.

No. 216, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Dec. 7, 1984.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Richard Kastendieck, Asst. Atty. Gen., Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. and Ruth Finch, Asst. State's Atty., for Baltimore City, Baltimore, for appellee.

Submitted before WEANT, GARRITY and ADKINS, JJ.

ADKINS, Judge.

The principal question presented in this case is whether Article 38, §§ 1 and 4(c) of the Annotated Code prohibit revocation of probation (and consequent imprisonment) for failure to pay court costs. The facts are undisputed.

In January 1983 appellant Frank Turner pleaded guilty to robbery with a deadly weapon. The Circuit Court for Baltimore City (Johnson, J.) sentenced him to imprisonment for five years, gave him credit for time served, and suspended the balance of the sentence in favor of five years supervised probation. A condition of probation was that Turner pay court costs of $135 within sixty days. On February 22, 1984, Turner appeared before Judge Johnson on a charge of violation of that condition of probation. The record discloses that he had paid $75 of the costs; $60 remained due. Judge Johnson revoked the probation and reimposed the original sentence.

Article 38, § 1 provides in pertinent part:

If any person shall be adjudged guilty of any [criminal offenses as defined in the section] by any court having jurisdiction ... he shall be sentenced to the fine or penalty prescribed ... and shall be liable for the costs of his prosecution; and in default of payment of the fine or penalty he may be committed to jail in accordance with § 4 of this article until thence discharged by due course of law. Any undischarged fine, and any unpaid costs, may be levied and executed as for a judgment in a civil case.

Section 4(c) reads:

Unless discharged by payment or service of imprisonment in default of a fine, a fine may be collected in the same manner as a judgment in a civil action. Costs may be collected in the same manner as a judgment in a civil action, but shall not be deemed part of the penalty, and no person shall be imprisoned under this section in default of payment of costs.

Because the revocation of Turner's probation for failure to pay costs resulted in his imprisonment he argues that it violated the last sentence of § 4(c). Because we think there is a distinction between imposition of a suspended sentence of imprisonment upon violation of a condition of probation and imprisonment for non-payment of costs as a penalty for a crime, we reject his argument. We explain.

Article 27, § 639(a) permits a court to "suspend sentence generally or for a definite time, and [to] make such orders and impose such terms as to costs, recognizance for appearance, or matters relating to the residence or conduct of the convicts as may be deemed proper...." It has contained similar language as to costs ever since its initial enactment as Article 27 § 304A, by Ch. 402, Laws of 1894. ¹ See Kelly v. State, 151 Md. 87, 99, 133 A. 899 (1926).

Trial courts have invoked this authority and based suspension of sentence on the payment of costs, and have made payment of costs a condition of probation, see, e.g., Shade v. State, 18 Md.App. 407, 306 A.2d 560 (1973) and Rites v. State, 15 Md.App. 346, 290 A.2d 554 (1972). ² But we have found no reported Maryland appellate decision that squarely addresses the question whether revocation of probation for violation of this condition violates the provisions of Article 38.

The portions of Article 38, §§ 1 and 4(c) (particularly the latter) that now concern us were first enacted by Ch. 147, Laws of 1970. That Act embodied numerous statutory changes adopted (as its title instructs us) for the purpose, inter alia, of "eliminating imprisonment for the non-payment of costs of criminal prosecutions [,] ... eliminating such costs as part of any penalty, [and] amending the law generally with regard to the payment of fines and commitment for non-payment thereof." As to fines, the Act (to some degree readopting prior law) set limits on the period of incarceration permitted for non-payment of a fine. More importantly, it required a court to inquire into a defendant's "financial and family situation and the reasons for nonpayment of the fine" before imprisoning him for non-payment. Article 38, § 4(b). It was an apparent response to the decisions in Kelly v. Schoonfield, 285 F.Supp. 732 (D.Md.1968) and Morris v. Schoonfield, 301 F.Supp. 158 (D.Md.1969). The judgment in Morris was vacated for reconsideration in light of Ch. 147 and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970); Arthur v. Schoonfield, 315 F.Supp. 548, 551 (D.Md.1970).

Kelly and Morris both dealt with the constitutionality of pre-1970 provisions of Article 38 with respect to imprisonment for non-payment of fines and costs. Morris squarely held that where indigents are involved, "the State cannot constitutionally include costs in the time to be served under Art. 38, section 4." 301 F.Supp. at 161.

In Arthur, the United States District Court addressed the new Article 38 provisions adopted by Ch. 147. It concluded that

the new statute places certain clear limitations on sentencing courts in Maryland, in order to avoid serious constitutional problems and to meet present-day standards. One such limitation prevents imprisonment for non-payment of costs. [footnote omitted].

315 F.Supp. at 552. What the Arthur court condemned, as violative both of new Art. 38, § 4 and of constitutional protections, was a practice of the former Municipal Court of Baltimore City. Under that practice, defendants sentenced to imprisonment were not assessed with court costs. Defendants sentenced only to fines were. The sentences were suspended upon condition of immediate payment of fines and costs, but those defendants who were unable to make contemporaneous payment were then committed for failure to pay, without any inquiry as to financial ability.

So far as court costs are concerned, the 1970 provisions of § 4(c) eliminated that problem. Costs are no longer a part of the penalty and no one may be sentenced to prison for failure to pay them. But the language of § 4(c) does not necessarily manifest a legislative intention to prohibit revocation of probation when costs are made a condition of probation and are not paid. In construing the statute in that context, we must seek out the true legislative intent, reading the law "without forced or subtle interpretations designed to extend or limit the scope of its operation." Sites v. State, 300 Md. 702, 710, 481 A.2d 192 (1984).

Given the circumstances under which present §§ 1 and 4(c) were enacted, as well as the plain language of the new provisions, it is clear that they contain no limitation on requiring payment of court costs as a condition of probation. The statutory wording contains no explicit proscription to that effect. To imply such a proscription, moreover, would be inconsistent with the rule that statutes in pari materia are to be construed harmoniously if that is possible, giving effect to the provisions of each. Board of Education of Howard County v. Howard County, Maryland, 45 Md.App. 358, 370, 413 A.2d 568 (1980). Article 27, § 639, as we have seen, expressly permits payment of costs as a condition of probation. When the Article 38 provisions were modified in 1970, a number of other laws were also amended, but not Article 27, § 639. Both the Article 38 sections and § 639 were amended in the same Act in 1972--Ch. 181 of the Laws of that year--but the "costs" provision of § 639 was untouched. Furthermore, that provision has been reenacted without change on numerous occasions, most recently by Ch. 98, Laws of 1982. All of this, it seems to us, manifests a legislative intention that the use of payment of costs as a condition of probation is not inconsistent with the Article 38 prohibition against imprisonment for non-payment of costs that are not part of the penalty for a crime. See Applestein v. Osborne, 156 Md. 40, 143 A. 666 (1928) and Prince George's County v. Laurel, 51 Md. 457 (1879).

It is one thing for the legislature to say that costs are not part of the criminal penalty and that one may not be imprisoned because of their non-payment. It is quite another to say that when payment of costs are made a condition of probation, probation may not be revoked and the original punishment reimposed. Probation is an act of grace. Kaylor v. State, 285 Md. 66, 75, 400 A.2d 419 (1979). It permits a court, in its discretion, to suspend what would be the normal penalty for violation of the criminal law in favor of conditions which, if performed, tend to promote the rehabilitation of the criminal as well as the welfare of society. Scott v. State, 238 Md. 265, 275, 208 A.2d 575 (1965). In other words, in an appropriate case, the criminal defendant is given a second chance--an opportunity to show that by performing the conditions of probation he can function as a law-abiding and useful member of society. If he faithfully performs those conditions, he is spared the more drastic punishment that generally follows a violation of the criminal law.

If, however, the defendant fails to perform the conditions of probation he may forfeit the benefits of probation. In such a case, when the original sentence or some portion of it is reimposed, the "original sentence is the only true punishment; the probation revocation is merely the withdrawal of favorable treatment previously afforded the defendant." Clipper v. State, 295 Md. 303, 313, 455 A.2d 973 (1983). Thus, he is not imprisoned because court costs have been imposed as part of the criminal penalty; he is imprisoned because of reimposition...