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Callahan v. State

Court of Special Appeals of Maryland

November 20, 2013

CHARLES WILLIAM CALLAHAN
v.
STATE OF MARYLAND

Krauser, C.J., Berger, Salmon, James P. (Retired, Specially Assigned), JJ.

OPINION

Krauser, C.J.

In 1995, Charles William Callahan, appellant, pleaded guilty in the Circuit Court for Anne Arundel County to kidnapping and third-degree sexual offense and was therefore sentenced to substantial terms of imprisonment for those offenses. Upon release, he was to be placed on supervised probation for a period of five years. His probation was subject to standard conditions, requiring, among other things, that Callahan report as directed to his probation agent and follow the agent's "lawful instructions."

In March 2009, Callahan was released from prison on "mandatory supervision release, " subject to standard and special conditions imposed by the Maryland Parole Commission. One of the special conditions required that Callahan comply with the Division of Parole and Probation's sexual offender management program, which mandated that he required him to submit to a polygraph test if instructed to do so. Both Callahan's mandatory supervision release and probation were monitored by the same agent within the Division of Parole and Probation.

About two and one-half years after his release from prison, Callahan was charged with violating his probation after he failed to report for a polygraph examination. A hearing followed at which the circuit court found that Callahan's conduct amounted to a failure to follow a lawful instruction of his agent and then terminated his probation.

Callahan subsequently filed an application for leave to appeal, which we granted. The issue now before us is:

Whether the circuit court erred in determining that the probation agent's order that Callahan submit to a polygraph test (a condition of mandatory supervision release, but not a condition of probation), was a "lawful instruction" he was required to follow as a condition of his probation.

Because the condition that Callahan submit to a polygraph test, if instructed to do so, was imposed exclusively by the Maryland Parole Commission as part of his mandatory supervision release, we conclude that the circuit court erred in revoking Callahan's probation for failing to follow the agent's instruction that he appear for a polygraph test. We, therefore, remand with the instruction that the circuit court vacate its order revoking Callahan's probation.

BACKGROUND

In February of 1995, Callahan was charged with kidnapping, false imprisonment, assault, rape, and multiple sexual offenses. The victim of those crimes was a three-year old.

After pleading guilty to kidnapping and third-degree sexual offense, [1] the court sentenced Callahan to twenty-five years' imprisonment, with all but twenty years suspended, for the kidnapping offense and to a concurrent term of ten years for the sex offense. The court also imposed a five-year term of supervised probation upon release. The court later modified the kidnapping sentence to twenty-five years, with all but seventeen years suspended, and left intact the previously imposed order of probation.

Callahan gave his written consent to the order of probation. The "standard" conditions of that order included the following condition: "Report to your Probation Agent as directed and follow his/her lawful instructions." The court did not attach any "special" conditions to Callahan's probation, other than that he pay court costs and a $250 fee to the Office of the Public Defender.

On or about March 5, 2009, after serving fourteen years of his sentence and having accumulated 2, 156 diminution of confinement credits, Callahan was released on mandatory supervision.[2] His release was subject to numerous conditions imposed by the Maryland Parole Commission, which were set forth in a "mandatory supervision release certificate." The certificate included standard conditions, very similar to those in the probation order, as well as a dozen special conditions.[3] One of the special conditions of his mandatory supervision release read:

Comply as directed by your parole/probation agent with the Division of Parole and Probation's sexual offender management program, which may include intensive reporting requirements, specialized sex offender treatment, electronic monitoring, medication, polygraph testing, and computer monitoring.

The mandatory supervision release certificate also contained an acknowledgment by Callahan that a violation of a condition could result in the Commission's revocation of his conditional release. The acknowledgment provided:

I have read, or have had read to me, this certificate, including the reverse side which lists the standard conditions of mandatory supervision as well as any special conditions as established by a Commissioner of the Maryland Parole Commission. I understand my obligation to abide by all conditions and that I will be deemed as if released on parole. I will remain under the supervision of the Division of Parole and Probation, subject to the ...

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