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State v. Brookman

Court of Appeals of Maryland

July 31, 2018

State of Maryland
Crystal Brookman State of Maryland
Marvin Randy Carnes

          Argument: January 5, 2018

          Circuit Court for Montgomery County Case Nos. 121215C / 124172C

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.


          McDonald, J.

         The past three decades have seen the growth, in Maryland and elsewhere, of treatment programs operated under the auspices of the judiciary. In those programs, sometimes identified by the generic phrase "problem-solving courts," judges, counsel, probation officers, and treatment professionals work together to address an underlying issue that brings an individual into the criminal justice system. Problem-solving courts focus on therapy for the individual defendant, in the hope that both the individual and society will be better off in the long run. Preeminent among such programs are those known as "drug courts."

         Drug court programs are conceived of as collaborative rather than adversarial. However, the coercive powers of the court under the criminal law are used as an important instrument to achieve the program's goals. This creates a tension: For a drug court's goals to be achieved, there must be swiftness and certainty of sanction for violation of its protocols. For the criminal justice system to work, there must be due process and respect for appellate rights.

         These consolidated cases concern whether a circuit court's exercise of its coercive powers to incarcerate a drug court program participant in aid of the swiftness and certainty of program sanctions (1) is subject to appellate review and (2) can violate the participant's right to due process.

         Respondents Crystal Brookman and Marvin Carnes were defendants in separate criminal prosecutions in the Circuit Court for Montgomery County. The Circuit Court determined that each was eligible to participate in the court's drug court program as a special condition of probation after each pled guilty in their respective cases. Each did so and fared well in the program for many months.

         In early 2016, Ms. Brookman was alleged to have had a negative urinalysis - based not on a positive finding of illicit drugs, but on a test result that suggested she may have attempted to dilute her urine. At approximately the same time, Mr. Carnes appeared late for a randomly-scheduled drug test. At subsequent hearings concerning their respective alleged violations of the program conditions, each was represented by counsel. Ms. Brookman's counsel asked for a postponement to gather and present evidence contesting her test result; Mr. Carnes' counsel asked the court to consider mitigating evidence before imposing the program sanctions. However, in both cases, the Circuit Court declined to exercise discretion and imposed immediate sanctions from the program's sanctions menu. In both cases, those sanctions included overnight incarceration.

         Ms. Brookman and Mr. Carnes filed applications for leave to appeal, which were accepted by the Court of Special Appeals and consolidated for appellate review. The intermediate appellate court held that Ms. Brookman and Mr. Carnes had the right to seek appellate review of the incarceration sanction. Upon that review, it held that the procedure followed in the Circuit Court did not comply with the requirements of due process.

         We agree with the holdings of the Court of Special Appeals.



         A. Drug Court Programs

         1. Problem-Solving Courts and Emerging Issues

         Although one would hope that most courts contribute to the solution of society's problems, the phrase "problem-solving court" is generally used to denote a special docket in a trial court that targets defendants whose presence in the criminal justice system appears to be traceable, at least in part, to an underlying issue such as substance abuse.[1] To address that underlying issue, participants in the program are subject to a highly structured probation that includes treatment and monitoring. A typical drug court program is divided into several phases of diminishing intensity as the participant progresses in accordance with the program's goals.[2] To encourage a participant's compliance with treatment and monitoring, most programs require frequent status review hearings involving a judge assigned to the program and other court personnel. As a further incentive for participants to comply with the program's conditions, violations of program requirements are generally punished with a series of graduated sanctions, some of which derive from the court's coercive powers.[3]

         As some courts and commentators have noted, the use of coercive powers, coupled with the informal, collaborative nature of the program, can raise issues as to whether a participant has received the procedural due process guaranteed to criminal defendants and probationers.[4] Moreover, because of the intensive monitoring of the participant without counsel, or with counsel who is regarded as a member of a treatment team rather than an advocate, there can be ethical issues, such as the potential for ex parte communications between the judge and a defendant.[5]

         2. Problem-Solving Courts in Maryland

         Problem-solving court programs were first established in Maryland in the early 1990s.[6] According to the most recent annual report of the Office of Problem Solving Courts, there are 53 such programs associated with circuit courts and the District Court, focused on various underlying issues that bring individuals within the jurisdiction of the judicial system - substance abuse, mental health issues, truancy, and veterans' issues. See pscannualreport.pdf (last visited June 4, 2018).

         Nature of a Problem-Solving Court

         In 2009, this Court was presented with the issue of whether a "problem-solving court" had fundamental jurisdiction, such that it could sanction a criminal defendant who violated a program condition. The Court held that, because the "drug court" in question was essentially a division of the circuit court - a court of original general jurisdiction - it had the fundamental powers of the circuit court. Brown v. State, 409 Md. 1 (2009). The Court held that the question whether the procedures of the drug court violated due process could be addressed through "well-developed mechanisms for correcting any violations" - i.e., appellate review and extraordinary writs. 409 Md. at 8-9 & n. 1. Whether the particular drug court program actually violated due process and the code of judicial conduct because of ex parte communications that a judge might have under the program was apparently raised at oral argument of the case, [7] but not resolved by the decision. The following year, this Court adopted a rule that governs the operation of existing problem-solving courts and the creation of new programs and that addressed at least some of the issues raised, but not decided, in Brown.

         Maryland Rule 16-207

         In 2010, this Court first adopted a rule governing "problem-solving court programs." That rule is currently codified as Maryland Rule 16-207.[8] That rule describes "problem-solving court program" as "a specialized court docket or program that addresses matters under a court's jurisdiction through a multi-disciplinary and integrated approach incorporating collaboration by the court with other governmental entities, community organizations, and parties." Maryland Rule 16-207(a)(1).

         In order to be accepted into such a program, a prospective participant - presumably a defendant in a criminal case in most instances - must execute a written agreement. Maryland Rule 16-207(e)(1). The written agreement is to set forth the requirements and protocols of the program, the range of sanctions that may be imposed against a participant, and any waiver of rights by the participant (e.g., waiver of a right to counsel). [9] As a further condition of acceptance into the program, the trial court is to examine the prospective participant on the record concerning the agreement and make an explicit finding that he or she is acting knowingly and voluntarily. Maryland Rule 16-207(e)(2).

         A program may allow for the imposition of immediate sanctions. Maryland Rule 16-207(f). However, if such a sanction would involve a loss of liberty or termination from the program, the participant is entitled to notice, an opportunity to be heard, and the assistance of counsel before the court makes its decision. Id.[10] The rule also provides that a participant who is terminated from a program is to receive credit for time spent incarcerated while in the program against a sentence that is to be served as a result of termination from the program. Maryland Rule 16-207(g).

         3. Montgomery County Adult Drug Court Program

         The setting for the issues in this case is a problem-solving court program in the Circuit Court for Montgomery County known as the Montgomery County Adult Drug Court Program. It was first established in December 2004. According to the Policies and Procedures Manual for the program, it is a "collaborative effort … to break the cycle of substance abuse" by providing the structure required for a participant to become alcohol and drug free. The program is limited to non-violent addicted offenders following conviction.[11] A defendant may be directed to the program as a condition of probation following a guilty plea or as a consequence of being charged with a violation of probation. An eligible defendant must consent to participation in the program. Upon successful completion of the program, the participant is released from probation.

         The program, which requires a minimum of 20 months to complete, is divided into four phases. Participants advance through those phases by satisfying certain requirements and accomplishing certain goals. For example, to advance from Phase I to Phase II, the participant must, among other things, attend a minimum of three support group meetings each week and have at least 30 consecutive days of clean urinalysis. (Each phase of the program includes a requirement of submitting to random urinalysis.)

         The program manual lists the "key team members" of the program: the judge (referred to as the team leader), the program coordinator, the prosecutor, defense counsel, case managers, and treatment providers. The program manual describes the program as a "non-adversarial, collaborative approach to treatment." It also states that, when a participant violates the program's terms and conditions, the drug court program team will discuss the mandatory sanction to be imposed for non-compliance at a status review hearing, "emphasizing a team, rather than an adversarial process."

         Participants receive a Participant Handbook. In addition to providing contact information for team members of the drug court program and important information concerning treatment services, testing, and housing, it also details the "menu" of sanctions for violations of the program's rules. The menu consists of nine-page matrix that lists a range of sanctions. Most sanctions are listed according to three axes: (1) the phase of the program (I through IV); (2) the type of violation (e.g., positive urinalysis, failure to appear for treatment, failure to appear for community service); and (3) the number of prior violations (i.e., first violation, second violation, or more). Some sanctions, referred to as "overall sanctions," do not depend on the phase of the program. The menu also lists some standard sanctions regardless of phase or the number of prior violations. The sanctions range in severity from a verbal warning to "jail" and termination from the program. The menu is not precise on the length of incarceration and refers only to "jail" or "increased length of time in jail" for some violations.[12]

         Pertinent to this appeal, the sanction for a missed urinalysis, which is treated as a positive test result (i.e., indicating illicit drug use), is jail, more frequent testing for two weeks, demotion to a prior phase of the program, and additional sanctions if the participant has had a prior missed or positive urinalysis. Also pertinent to this case, a participant is sanctioned if a urinalysis reveals a low creatinine level, which could be evidence of an attempt to dilute the participant's urine for purposes of evading the test.[13] The sanction for the first low creatinine result is a written warning; any subsequent low creatinine result is are treated as a positive urinalysis.

         The handbook advises the participant that the sanctions could be "revised at any time" and that, if so, the participant will receive an updated handbook. It also advises that the drug court program team may consider alternative sanctions if the participant commits multiple violations within a short period of time.

         If a defendant wishes to participate in the program, the defendant must execute a written agreement, as required by Maryland Rule 16-207. The "Drug Court Agreement" used in the Circuit Court's program is not so much a contract - the only parties executing the agreement are the defendant and the defendant's attorney - as a series of acknowledgments and promises by the participant. Many of the acknowledgments summarize aspects of the program; some incorporate elements of Maryland Rule 16-207.

         The written agreement recites a number of the elements of the program - for example, that the program will last at least 20 months, that the participant may be required to take medications and attend at least three recovery meetings every week, that the participant is subject to random alcohol and drug testing, that a failure to report for testing will result in a sanction, and that any attempt to falsify a test, including urine dilution, may result in the participant's termination from the program. In executing the agreement, the participant promises, among other things, to be on time for group meetings, appointments, and court appearances; to refrain from the use or possession of alcohol and illegal drugs and to not associate with persons who use or possess controlled substances. With respect to the imposition of sanctions, the written agreement provides:

I understand that Drug Court imposes graduated sanctions for lack of compliance with program requirements, including incarceration. I have the right to request and have a formal adversarial hearing before the imposition of a sanction of incarceration or before being terminated from Drug Court.

         This appears to be the only reference in the program materials concerning a right to a "formal adversarial hearing." As noted earlier, the program manual indicates the sanctions are ordinarily considered at a status review hearing, which is described as "non- adversarial." Neither the "Drug Court Agreement" nor the other materials elaborate on the nature of the "formal adversarial hearing" that is to precede a sanction of incarceration or whether (and how) it would differ from a normal status review hearing under the program.

         B. Facts and Proceedings

         1. State v. Brookman

         Charges and Guilty Plea in the District Court

         According to the record in this case, on May 26, 2012, Ms. Brookman was initially charged in the District Court of Maryland, sitting in Montgomery County, with four counts related to the theft of jewelry and pawning of stolen jewelry: one count of theft of property valued between $10, 000 and $100, 000, two counts of theft of property valued between $1, 000 and $10, 000, and one count of conspiracy to commit theft of property valued between $1, 000 and $10, 000. She was arrested on those charges on June 7, 2012.

         On August 14, 2012, Ms. Brookman pled guilty to one of the theft charges concerning property valued between $1, 000 and $10, 000; the remaining charges were stetted by the District Court. The District Court sentenced her to 12 months incarceration, a $2, 000 fine, and restitution to the victim of the theft and the pawn shop. The court suspended the fine and ten months of the period of incarceration and placed her on probation for two years, with special conditions that she pay the restitution, refrain from any contact with the victim of the theft (her boyfriend's mother), and submit to alcohol and drug evaluation, testing, and treatment. The two months of incarceration was to begin that day with a recommendation of work release. That same day, however, Ms. Brookman appealed her conviction to the Circuit Court for Montgomery County for a de novo trial.

         Appeal to Circuit Court, Guilty Plea, and Sentencing

         On September 14, 2012, in the Circuit Court, she again pled guilty to one count of theft involving property valued between $1, 000 and $10, 000. On October 22, 2012, the Circuit Court conducted a sentencing hearing focused primarily on assessing the amount of restitution. Ms. Brookman admitted that she had been addicted to oxycodone for seven years, but claimed to have overcome her addiction during the previous summer. The Circuit Court sentenced Ms. Brookman to 12 months incarceration, which it suspended in favor of two years' probation, and ordered that she pay restitution of $4, 500 to the victim. As a special condition of probation, the court directed her to stay away from the victim, to abstain from alcohol and illicit drugs, and to successfully complete a drug and alcohol evaluation and testing program. The court did not refer her to the drug court program at that time.

         Probation Violation and Referral to Drug Court Program

         On December 13, 2013, Ms. Brookman returned to the Circuit Court and admitted that she had violated her probation by virtue of a second-degree assault conviction that year. The Circuit Court sentenced her to one-year imprisonment, again suspended, and placed her on three years' probation with various conditions. One of those conditions was that she successfully complete the Circuit Court's drug court program.

         Progress in Program; Low Creatinine Test Result

         Various status review hearings took place in the Circuit Court over the next two years in connection with Ms. Brookman's participation in the drug court program. Although a urinalysis in July 2014 yielded a low creatinine result, she had successfully advanced to Phase III of the program by early 2016. During the week of February 22, 2016, Ms. Brookman was notified that she had received a second low creatinine result from a urinalysis test. As indicated above, under the policies and procedures governing the drug court program, a second low creatinine test is treated as evidence of an effort to defeat testing for illicit drugs and as a "positive" test result. Moreover, drug court policies also treat any attempt to falsify a test, including by dilution, as grounds for termination from the drug court program. The Circuit Court promptly scheduled a status hearing for February 26, 2016.

         Hearing Concerning Program Violation and Sanction

         Prior to the hearing, Ms. Brookman's counsel filed a request for discovery related to the test and for the analyst who conducted the test to appear at the hearing. At the hearing, Ms. Brookman's counsel requested a postponement in order "to review this information," to obtain input from a chemist as to the reliability of the test, and to go over the results with Ms. Brookman. Counsel noted that Ms. Brookman's test result was close to an acceptable level for creatinine, that it thus might be within the margin of error for an acceptable test, and that there was no other reason to believe that Ms. Brookman was abusing drugs at that time. The prosecutor opposed the defense requests, observed that the laboratory that conducted the test was certified, noted that the issue was not arising in the context of an alleged violation of probation (i.e., that Ms. Brookman was not entitled to a probation violation hearing), and urged the court to impose the immediate sanction contemplated by the drug court program for a positive test result.

         The Circuit Court did not explicitly rule on Ms. Brookman's request for a postponement to present evidence to contest the test result. Rather, the court permitted Ms. Brookman to make a statement in which she stated she did not know what caused the test result and that she desired to stay in the program. The Circuit Court then summarized briefly the drug court program policies concerning positive urinalysis test results and low creatinine test results, and imposed immediate sanctions for a positive test result. In particular, it changed Ms. Brookman's "sober date," demoted her from Phase III to Phase II of the program (which would subject her to more frequent testing and increased monitoring in the near future), and directed her to be incarcerated overnight.

         On March 25, 2016, Ms. Brookman filed an application for leave to appeal.

         2. State v. Carnes

         Guilty Plea, Sentencing, and Referral to Drug Court Program

         On December 30, 2013, Mr. Carnes was charged in the Circuit Court for Montgomery County with 46 counts of theft, identity fraud, credit card fraud, conspiracy, and related offenses.[14] On April 15, 2014, he pled guilty to one count of felony theft scheme involving property valued between $1, 000 and $10, 000, and one count of credit card identity fraud. At the guilty plea hearing, the Circuit Court was informed that Mr. Carnes had been accepted into the drug court program.

         On June 11, 2014, Mr. Carnes was sentenced to 10 years incarceration for the felony theft scheme and a concurrent 18 month sentence for identity fraud, with credit for time he had already spent in custody. The terms of incarceration were suspended in favor of three years supervised probation with the condition that Mr. Carnes complete the drug court program. Mr. Carnes did not seek leave to appeal at that time.

         Missed Urinalysis

         Approximately a year and a half later, Mr. Carnes had advanced to Phase III of the program and was working as a truck driver. Before going to work on February 17, 2016, he called the program's urinalysis phone line at 7:30 a.m. to find out whether he was required to report for a random urinalysis test that day. The list of participants to be tested that day had apparently not yet been updated and at 8 a.m. Mr. Carnes went to work, without having resolved whether he had to report for testing that day. During the day, his truck broke down and after taking four hours to return from Cumberland to Montgomery County, he arrived home at about 1 a.m. the next morning. He called the urinalysis line at 1:30 a.m. and learned that he had in fact been selected for a random urinalysis test the previous day. He immediately called one of the drug court program staff members and reported to a testing facility at 3:00 a.m. The test result was negative for forbidden substances. Later that day, he underwent full blood and urine tests, which were also negative.

         Hearing Concerning Program Violation and Sanction

         On February 26, 2016, the Circuit Court conducted a drug court status hearing concerning Mr. Carnes' failure to appear for the urinalysis test that had been randomly scheduled for February 17. At the outset, Mr. Carnes' counsel stated an intent to present evidence that Mr. Carnes did not actually miss a urinalysis after hearing "the State's evidence." The Circuit Court responded that there was "no evidentiary requirement for there to be any demonstration" by the State. What followed was essentially a proffer of the underlying facts by defense counsel, which appeared to be accepted by the prosecutor and the court.

         Based on that proffer, Mr. Carnes' counsel urged the court to regard the situation as a "late urinalysis" - for which the sanctions menu did not state any particular sanction - rather than a "missed urinalysis" and to refrain from imposing a sanction, in light of the fact that the tests on February 18 were all "clean." Counsel argued that strict application of the sanctions menu without regard to Mr. Carnes' individual circumstances would violate his right to due process.

         In response, the prosecutor stated that other participants who had appeared late at the testing center had been treated as having a missed urinalysis, that all participants were on notice of the sanctions menu, and that the situation could have been avoided if Mr. Carnes had called his case manager during the day before he returned to Montgomery County. In any event, the prosecutor argued, program sanctions should not be imposed on a "case-by-case" basis.

         The Circuit Court stated that a "bedrock and core component" of the drug court program was random urinalysis. The court opined that it was incumbent on Mr. Carnes, after his unsuccessful effort at 7:30 a.m., to call again during the day to determine whether he had been randomly selected for testing that day. The court observed that there was no exception in the menu of sanctions for a "late urinalysis" and that Mr. Carnes was asking to be treated differently from other participants in the program. Accordingly, the court imposed the sanctions specified in the drug court program for a missed urinalysis which, as indicated above, is treated as a positive test result for illegal substance use. That sanction includes, among other things, overnight incarceration, delay of graduation date from the program, and change of sober date. However, the court postponed the requirement of overnight incarceration so that Mr. Carnes could participate in his daughter's birthday celebration that night.

         On March 25, 2016, Mr. Carnes filed an application for leave to appeal.

         3. Court of Special Appeals Decision

         On June 6, 2016, the Court of Special Appeals granted leave to appeal for both Ms. Brookman and Mr. Carnes and consolidated the two appeals. In a published decision, the intermediate appellate court held that the hearings at which the Circuit Court imposed sanctions against Ms. Brookman and Mr. Carnes violated their rights to due process. Accordingly, it vacated the Circuit Court's decisions and remanded both cases for further proceedings. 232 Md.App. 489 (2017).

         4. Epilogue

         After the decision of the Court of Special Appeals, the participation of both Respondents in the drug court program was terminated, although with different results. On May 17, 2017, the Circuit Court closed Mr. Carnes' probation satisfactorily and recognized him as a "successful graduate" of the drug court program. On May 25, 2017, the Circuit Court closed Ms. Brookman's probation ...

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