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Russell v. State

Court of Special Appeals of Maryland

February 25, 2015

OLIVER ALLEN RUSSELL
v.
STATE OF MARYLAND

Krauser, C.J., Wright, Berger, JJ.

OPINION

BERGER, J.

This case involves an appeal of two orders of the Circuit Court for Baltimore County modifying the conditions of appellant Oliver Allen Russell's probation. On October 10, 2007, Russell was convicted of child abuse, sexual abuse of a minor, second degree rape, and two counts of third degree sex offense in case number K-06-005368. The court sentenced Russell to eighteen years' imprisonment with all but eight years suspended, and five years' probation. Russell appealed to this Court and, in an unreported opinion, we reversed Russell's convictions and remanded the matter to the circuit court. Russell v. State, No. 2649, Sept. Term 2007 (filed July 23, 2009).

Russell was retried on April 27-30, 2010 before the Honorable Michael Finifter. On April 30, 2010, Russell was convicted of child abuse and sex abuse of a minor. The court sentenced Russell to ten years' imprisonment, suspending all but time served. The court further sentenced Russell to a five year period of probation.[1]

On April 13, 2012, before the Honorable Sherrie R. Bailey, Russell entered an Alford plea to one count of third-degree sex offense in case number K-11-003816 ("the Judge Bailey case"). On April 24, 2012, the court sentenced Russell to ten years' imprisonment, suspending all but time served, and a three-year period of probation.[2]

On February 21, 2013, Russell's probation agent filed a request to modify the conditions of Russell's probation in case number K-06-005368 ("the Judge Finifter case"), requesting that the court add COMET[3] supervision to Russell's probation. On February 26, 2013, Russell's probation agent filed a request to modify the conditions of Russell's probation in the Judge Bailey case, requesting that the court add COMET supervision to Russell's probation. Because the two requests to modify involved the same requested condition, the court scheduled a joint hearing before Judge Bailey and Judge Finifter on April 12, 2013. After the hearing, the trial court granted the probation officers' requests to modify both probations, adding the condition of COMET supervision to Russell's probations. This timely appeal followed.[4]

On appeal, Russell presents a single question for our review:

Did the circuit court err in imposing as an additional condition of probation Collaborative Offender Management Enforcement Treatment (COMET) supervision, a program that permits the supervision team, inter alia, to require a probationer to submit to polygraphs, to impose a curfew and increased reporting requirements if the probationer declines to answer a question during a polygraph, to otherwise impose a curfew between 7 p.m. and 7 a.m., and to electronically monitor the probationer with a Global Positioning System (GPS) device?

The State has moved to dismiss Russell's appeal, asserting that the circuit court's order modifying Russell's probation is not an appealable final judgment.

For the reasons stated herein, we shall deny the State's motion to dismiss and affirm the judgments of the Circuit Court for Baltimore County.

FACTS AND PROCEEDINGS

The COMET supervision program was created in response to legislation passed by the General Assembly in 2006 which mandated the establishment of sexual offender management teams for the supervision of sexual offenders. Md. Code (2001, 2008 Repl. Vol., 2010 Suppl.), § 11-725 of the Criminal Procedure Article ("CP"). At the April 12, 2013 hearing, Division of Parole and Probation ("DPP") Agent Steven DeGross, Jr. testified regarding what COMET supervision entails and further explained why the DPP sought to impose COMET supervision upon Russell.

A COMET supervision team is made up of members from various agencies and offices including the DPP, the local police department, the local State's Attorney's office, and treatment providers. A probationer on COMET supervision is required to comply with a sexual offender management program, which may include intensive reporting requirements, specialized sex offender treatment, electronic GPS monitoring, polygraph testing, computer monitoring, and being compelled to take medication.[5] COMET supervision also may include a 7:00 p.m. to 7:00 a.m. curfew. Agent DeGross testified that the curfew can be adjusted by the COMET supervision team "for work purposes, for church services, for doctor's appointments and things of that nature." The decision to impose a curfew is left to the discretion of the COMET supervision team. The court is not involved in the determination of whether a curfew is appropriate. A curfew may also be imposed as a sanction if a probationer declines to answer a question during a polygraph examination.

Probationers under COMET supervision may be required to submit to polygraph tests during which a state police polygrapher asks the probationer about the crime for which he is on probation. The probationer is also asked about his activities while on probation. Agent DeGross testified that a probationer may be asked whether he has had contact with the victims or unlawful contact with any children. If a probationer admits to a crime, the polygrapher discontinues the polygraph test, notifies the probation agent, and has the probationer repeat the admission to a probation agent. If a probationer does not answer a question during a polygraph test about possible criminal activity, the DPP imposes consequences upon the probationer. Potential consequences include an increased supervision level and/or the imposition of a curfew.[6] Agent DeGross testified that the DPP does "not request a violation of probation hearing, or request a . . . summons or warrant" when a probationer refuses to answer questions during a polygraph examination.

The COMET team also has discretion to impose GPS electronic monitoring, which allows the team to monitor where the probationer goes "24 hours a day, seven days a week." Agent DeGross explained that GPS supervision is imposed as a "temporary 90 day process" but that the COMET team, in its discretion, could put a probationer back on GPS monitoring for an additional 90-day period.

The circuit court granted the request of the State and DPP to modify the terms of Russell's probation to include COMET supervision in the Judge Finifter case (in an order dated April 25, 2013 and filed May 2, 2013) and in the Judge Bailey case (in an order dated May 23, 2013 and filed May 29, 2013). This appeal followed.

MOTION TO DISMISS

The State asserts that the orders modifying Russell's probations are not appealable final judgments under Md. Code (1974, 2013 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article ("CJP").[7] The State asserts that the court's orders modifying Russell's probations are not appealable, either by direct appeal or application for leave to appeal. We are unpersuaded.

First, with respect to Russell's application for leave to appeal in the Judge Bailey case, we note that this Court set the case in for briefing and argument but does not appear to have actually ruled on Russell's application for leave to appeal. To the extent that the application for leave to appeal has not yet been ruled on, we hereby grant Russell's application for leave to appeal the order modifying his probation in the Judge Bailey case.

We now turn to the State's argument that an order modifying probation does not constitute an appealable final judgment. A "final judgment" is defined as "a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans' court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken." CJP § 12-101. The Court of Appeals has explained:

"[A] final judgment" is one that "either determine[s] and conclude[s] the rights of the parties involved or den[ies] a party the means to 'prosecut[e] or defend[ ] his or her rights and interests in the subject matter of the proceeding.'" In re Billy W., 386 Md. 675, 688, 874 A.2d 423, 431 (2005) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767, 773 (1989)) (some alterations in original). Important is whether "any further order is to be issued or whether any further action is to be taken in the case." Id. at 689, 874 A.2d at 431.

Douglas v. State, 423 Md. 156, 171 (2011).

Russell's probation order was modified by the circuit court pursuant to Maryland Rule 4-346(b), which provides that "[d]uring the period of probation, on motion of the defendant or of any person charged with supervising the defendant while on probation or on its own initiative, the court, after giving the defendant an opportunity to be heard, may modify, clarify, or terminate any condition of probation, change its duration, or impose additional conditions." To date, no reported appellate decision has explicitly addressed whether an order modifying probation pursuant to this rule constitutes an appealable final judgment. ...


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