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Conaway v. State

Court of Appeals of Maryland

July 11, 2019


          Argued: April 9, 2019

          Argued: May 6, 2019

          Circuit Court for Dorchester County Case No. 09-K-07-012926

          Circuit Court for Washington County Case No. 21-K-80-006054

          Barbera, C.J., [*] Greene McDonald Watts Hotten Getty Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ.


          HARRELL, J.

         These two cases are decided in a consolidated opinion because of similarities in the flagship question posed in each case - whether the Justice Reinvestment Act of 2016 ("JRA"), as codified, grants probationers found to have committed a technical violation of probation the right to appeal directly to the Court of Special Appeals (versus proceeding by an application for leave to appeal) from a circuit court's order of violation of probation and resulting sentence that exceeds the presumptive limits of incarceration for a technical violation.[1]

         Petitioner Tomekia Conaway ("Conaway") admitted, after a series of hearings and failing second (and third) chances given by the trial judge, to violating her probation by failing to complete successfully a drug treatment program. The judge, in the Circuit Court for Dorchester County, revoked ultimately her probation and sentenced her to 15-years of incarceration. In response, Conaway filed a "Notice of Appeal or Alternatively

         Application for Leave to Appeal." The Court of Special Appeals, on 11 June 2018, directed that the case proceed as an application for leave to appeal. Conaway proceeded accordingly. The intermediate appellate court issued a mandate denying her application as read and considered. Conaway petitioned this Court for a writ of certiorari, asserting a right of direct appeal to the intermediate appellate court. The Court granted that petition. Conaway v. State, 462 Md. 554, 201 A.3d 1227 (2019).

         Petitioner Luke Daniel Johnson ("Johnson") sought post-conviction relief and moved to reopen a proceeding relating to a 1980 conviction for first-degree rape and third-degree sexual offense.[2] A judge, in the Circuit Court for Washington County, granted the motion. After a hearing, Johnson received credit for time served and was released, subject to five years of supervised probation, with conditions. Johnson committed subsequently two technical violations of the conditions of his probation. The judge determined Johnson committed a "public safety violation" and sentenced him to ten years of incarceration. Johnson noted an appeal and filed an Application for Leave to Appeal with the Court of Special Appeals. The State moved to dismiss the appeal, and the Court of Special Appeals granted the State's motion on 19 November 2018. This Court granted Johnson's petition for a writ of certiorari. Johnson v. State, 463 Md. 145, 204 A.3d 189 (2019). Johnson's application for leave to appeal remains pending.


         A. Conaway

         Conaway was charged in the Circuit Court for Dorchester County in 2008 with first-degree murder and related charges. She entered a negotiated guilty plea to second-degree murder and was sentenced to 30 years in prison, with all but 20 years suspended. The trial judge ordered also that Conaway serve five years of supervised probation upon her release from incarceration.

         In 2013, Conaway filed a motion to modify her sentence. The circuit court modified the sentence to 30 years in prison, with all but 15 years suspended. The probation requirement remained the same.

         In 2015, Conaway (while still incarcerated) filed a request for an evaluation, pursuant to Md. Code, Health-Gen. § 8-505.[3] The court granted the request. As a result, the circuit court suspended the balance of Conaway's executed sentence upon her admission to a substance abuse program. Conaway was released from prison in 2016 and began her probationary period.

         Conaway's probation officer filed a Violation of Probation Request for Warrant in July 2017. The petition alleged that Conaway violated conditions of her probation. A hearing was held in October 2017. At the hearing, Conaway admitted to violating Rule 13 of the conditions of her probation. Rule 13 required her "to submit to and successfully complete and pay required costs for alcohol and drug testing and treatment as directed" by her probation agent. Conaway failed to show up for drug treatment on numerous occasions and was discharged ultimately from the Dorchester County Addictions Program. Her probation agent recommended a 15-day sanction for a first-time technical violation, consistent with the codified portions of the JRA.[4] At the conclusion of the hearing, the judge deferred sentencing until January 2018, to give Conaway another chance to resume a treatment program and see how she would fare during the intervening time.[5]

         The deferred sentencing hearing was held in January 2018. Conaway's probation agent stated that Conaway enrolled and began a new treatment program. In short order, however, she was discharged from the program because she failed to attend on multiple occasions. The court, during this hearing, deemed Conaway a threat to public safety "because of the underlying charges and the substance abuse issues[.]" As such, the judge revoked Conaway's probation, postponing sentencing until later that day so the court could calculate her time served.

         When court reconvened, Conaway pled her case. She claimed that she was unaware that she had been discharged from the treatment program. Explaining her absences, Conaway said she had been caring for her mother, and that she had spoken to her counselor about making a weekly schedule. In her words, Conaway was "waiting . . . to be set up to go into these classes."

         The judge, moved apparently by Conaway's remonstrations, decided to give her another opportunity to avoid incarceration. He placed Conaway back on probation and deferred further consideration for 60 days, until March 2018, to see if she could comply with the relevant condition of her probation.

         The March 2018 sentencing hearing proved, however, to be "strike three." The probation agent informed the circuit court that Conaway began a new drug treatment plan and program in Dorchester County, in compliance with the condition of her probation. She moved thereafter to Talbot County and stopped attending the program. The court revoked her probation and sentenced her to 15 years in prison. In explaining his decision, the trial judge referred to his prior decisions regarding Conaway's probation status, but did not reiterate that applying the presumptive statutory penalty would create a risk of safety to anyone in particular or generically.

         Conaway filed pro se a notice of appeal to the Court of Special Appeals from the circuit court's revocation of her probation. Four days later, defense counsel entered an appearance and filed a "Notice of Appeal or Alternatively Application for Leave to Appeal." The latter paper asserted that the circuit court erred in two ways: 1) exceeding the 15-day maximum sentence allowed under the Justice Reinvestment Act for a first technical violation of probation; and, 2) doing so without finding that adhering to the presumptive 15-day limit would create a risk to public safety, a victim, or a witness.

         The Court of Special Appeals issued an order, on 11 June 2018, directing "that the case will proceed as an application for leave to appeal." The intermediate appellate court ordered additionally the State to file an Answer to Conaway's application. After considering Conaway's application for leave to appeal and the State's Answer, the Court of Special Appeals issued a mandate denying her application for leave to appeal as "read, considered and denied."

         B. Johnson

         Johnson was charged in the Circuit Court for Washington County, in 1980, with first-degree rape, second-degree rape, third-degree sexual offense, and assault. After a trial, a jury convicted him of first-degree rape and third-degree sexual offense. The trial judge sentenced Johnson to life in prison on the rape conviction.

         In 2015, a judge granted post-conviction relief to Johnson, vacating his conviction and ordered further proceedings. Thereafter, Johnson entered an Alford plea.[6] The judge sentenced him to life, suspending all but thirty-six years, one month, and four days. He received also credit for 13, 183 days of time served, with five years of supervised probation upon his relief.

         Johnson's probation included two standard conditions: (1) report as directed and follow his supervising agent's instructions; and, (2) notify his supervising agent before changing his address, changing his job, and/or leaving the state. There were, additionally, three special conditions: (1) submit to evaluation and attend and complete successfully mental health treatment; (2) have no direct or indirect conduct with the first-degree rape victim; and (3) do not enter or be found near any Sheetz store in Washington County. The conditions included also that he participate in a sex offender tracking and monitoring program, submit to alcohol and drug treatment, and abstain from alcohol, illegal substances, and abusive use of any prescription drug.

         In April 2017, Johnson's supervising agent reported that Johnson had traveled to West Virginia on three separate occasions without her permission. Considering that the purpose of these trips was assertedly to drive home a co-worker of Johnson's, the agent recommended that no action be taken at that time against Johnson.

         Approximately two months later, Johnson's supervising agent requested a warrant for Johnson's arrest. The agent reiterated the three earlier instances when Johnson drove to West Virginia. She claimed also that he had gone to Ocean City without her permission and, additionally, taken a job at the Walkersville carnival without her permission. The circuit court issued a warrant. Johnson was arrested on 22 August 2017. He has remained incarcerated since that date.

         At a hearing on his alleged probation violations, Johnson admitted: (1) to obtaining employment at the carnival from 21-23 July 2017 without the supervising agent's advance permission, and (2) traveling to West Virginia three times without permission. He denied traveling to Ocean City without the agent's permission. The judge found that Johnson had violated the conditions of his probation, but did not announce at that time that he had decided to revoke the probation.

         The judge voiced his concern, however, that Johnson was not a "very good candidate for probation." He highlighted Johnson's trips to West Virginia, other places he was not supposed to be, and allegations that he had propositioned a seventeen-year-old female who also worked at the carnival.[7] The young woman addressed the court, without being subject to cross-examination, over defense counsel's objection. She elaborated on Johnson's interactions with her, stating: "he wanted to take me to Ocean City for three days. He wanted to take me and my mom to his car, but me first, and do something to me in the back seat, unknowingly, which I didn't want to do, so I didn't go." After her statement, a recounting occurred regarding some of the evidence from the 1980 trial.[8]

         The State requested that Johnson be returned to prison for ten years. His transgressions, according to the State, demonstrated that he was a danger to the public. Defense counsel, attempting to mitigate Johnson's probation violations, stressed that the trips to West Virginia involved only giving someone a ride home from work, and that he was only reprimanded initially for these "good deed[s]." Also, defense counsel explained why Johnson went to work for three days at the carnival:

[Johnson] was working [previously] for a gentleman … doing construction type renovations. And [his employer] lost his contract and as a result had to lay off Johnson. And as it's alleged in condition three, that Mr. Johnson worked without permission for three days … the reason was, he had, you know simply was seeking employment in order to get money to pay his bills.
It's my understanding that … the management of the carnival, they found out why he was - what his conviction was, and they let him go as a result of his conviction.

         The circuit court judge sided with the State. He found that Johnson committed technical violations of his probation, and that his violations were "a public safety violation." Expressing his concern about Johnson's conduct regarding the seventeen-year-old female at the carnival, but recognizing that such conduct did not violate any of the conditions of probation, the judge stated: "it still troubles me after all of this time that this was something that you engaged in." The judge sentenced Johnson to life, with all but ten years suspended.


         First, we consider the State's threshold query, raised in Conaway only, whether certiorari was granted improvidently, as well as certain preservation issues. If that is overcome, we analyze next, as a single query, the flagship question presented by both Conaway and Johnson:[9]

Does Md. Code, Crim. Proc. § 6-223(e)(4), which provides that a "finding under paragraph (2) of this subsection . . . is subject to appeal under Title 12, Subtitle 3 or Subtitle 4 of the Courts Article," give a right of appeal to a probationer or defendant who receives an enhanced sentence based on a finding under paragraph (2) of § 6-223(e)?

         For the reasons that we shall elaborate, the question presented by Conaway is one we shall engage on its merits. As to her and Johnson's common question, we hold that probation violators in their positions must seek appellate review by application for leave to appeal. Because of this holding, we leave Johnson's second and third questions[10] for the Court of Special Appeals to consider in Johnson's pending application for leave to appeal.


         We review questions regarding the appealability of orders or judgments without deference to the decisions below. Monarch Acad. Baltimore Campus, Inc. v. Baltimore City Bd. of Sch. Commissioners, 457 Md. 1, 40, 175 A.3d 757, 781 (2017).


         I. Was Certiorari Granted Improvidently in Conaway's Case?

         The State claims that we do not have jurisdiction to consider Conaway's appeal and should dismiss it. We choose to exercise our discretion to consider the merits of her ...

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