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Brendoff v. State

Court of Special Appeals of Maryland

August 1, 2019

RICHARD BRENDOFF
v.
STATE OF MARYLAND

          Circuit Court for Anne Arundel County Case No. 02K09002331, 02K09002332, 02K09002333

          Fader, C.J., Leahy, Friedman, JJ.

          OPINION

          LEAHY, J.

         Moving prisoners from prison beds to treatment beds was one of the galvanizing objectives of Maryland's Justice Reinvestment Act ("JRA").[1] 2016 Md. Laws, ch. 515.[2]In keeping with this objective, the JRA established presumptive incarceration limits for technical violations of probation. Maryland Code (2001, 2008 Repl. Vol., 2017 Supp.), [3]Criminal Procedure Article ("CP"), § 6-223. However, non-technical violations of probation, such as "absconding," still remain subject to the court's power to revoke probation and impose sentences that might originally have been imposed, without adherence to the presumptive incarceration limits for technical violations. Maryland Code (1999, 2017 Repl. Vol.), Correctional Services Article ("CS"), 6-101(m); CP § 6-223. Absconding is defined as "willfully evading supervision," though it "does not include missing a single appointment with a supervising authority." CS § 6-101(b)(1)-(2).

         Appellant, Richard Brendoff, entered guilty pleas on March 16, 2010, for theft, second-degree burglary, and attempted second-degree burglary in three separate cases in the Circuit Court for Anne Arundel County. While serving his sentences, Brendoff asked the court to commit him to a drug and alcohol treatment program pursuant to Maryland Code (1982, 2015 Repl. Vol., 2017 Supp.), Health General Article ("HG"), § 8-507. On August 23, 2016, the court granted Brendoff's motion and committed him to the Department of Health[4] ("the Department") for residential drug treatment at a facility to be determined by the Department. The court placed Brendoff on supervised probation and, as conditions of his probation, he was to complete drug treatment generally; the residential treatment program specifically; plus, any after care.

         Brendoff was admitted into the Jude House Residential Substance Abuse Treatment Program ("Jude House"), which he left prior to being discharged. On December 20, 2016, the State charged Brendoff with violating a condition of his probation. While the violation of probation ("VOP") hearing was pending, Brendoff contacted his probation agent and entered New Life Addiction Counseling Service ("New Life"), a different out-patient treatment center. Unfortunately, he incurred additional VOP charges on February 23, 2017, after missing six required treatment sessions. At the VOP hearing, the circuit court found that Brendoff had committed non-technical violations of the conditions of his probation based on the allegation that he absconded from the treatment facilities. The court revoked Brendoff's probation and ordered him to serve 10 years of his previously suspended sentences. We granted Brendoff leave to appeal[5] the circuit court's determination that he committed a non-technical violation of his probation by "absconding."[6]

         We hold that when a prisoner is placed on supervised probation upon admission into a drug and alcohol treatment facility pursuant to an order issued under HG § 8-507, the Division of Parole and Probation ("DPP"), which includes the assigned probation agent, is the probationer's "supervising authority" for purposes of ascertaining whether the probationer has absconded within the meaning of CS § 6-101(b). Consequently, the court erred in this case by implicitly treating the treatment facilities as the supervising authorities when the court found that Brendoff committed a non-technical violation of his probation by walking away from Jude House and missing six required appointments at New Life. Accordingly, we remand this case to the circuit court to determine whether Brendoff absconded in violation of his probation by "willfully evading [the] supervision" of his probation agent. CS § 6-101(b)(1)-(2).

         BACKGROUND

         On October 23, 2009, a grand jury in the Circuit Court for Anne Arundel County issued three separate indictments for Brendoff. The first indictment, which arose out of offenses committed on or about October 11, 2009, charged him with second-degree burglary, theft of $10, 000 to under $100, 000, [7] malicious destruction of property, and conspiracy to commit second-degree burglary. The second indictment, which arose out of offenses committed on or about September 28, 2009, charged Brendoff with second-degree burglary, theft of $500 or more, malicious destruction of property, and conspiracy to commit second-degree burglary. The third and final indictment, which arose out of offenses committed on or about September 29, 2009, charged him with attempted second-degree burglary, malicious destruction of property, and conspiracy to commit second-degree burglary.

         Brendoff waived his right to a jury trial and pleaded guilty on March 16, 2010, to theft over $1, 000 to under $10, 000 in the first case, second-degree burglary in the second case, and attempted burglary in the second degree in the third case.[8] At the sentencing hearing on April 16, 2010, the circuit court imposed concurrent 15-year sentences with all but eight years suspended for the burglary offenses. The court also imposed a suspended 10-year sentence for the theft offense to run consecutive to the two burglary sentences. For all three offenses, the court placed Brendoff on five years' supervised probation upon physical release from incarceration. The court's order ("2010 Probation Order") imposed certain standard conditions of probation and, as relevant to this appeal, five special conditions of probation:

• Submit to and pay for random urinalysis as directed by Supervising Agent.
• Submit to, successfully complete, and pay required costs for [drug evaluation, testing, and treatment.]
• Attend and successfully complete [drug treatment and education program].
• Totally abstain from alcohol, illegal substances, and abusive use of a prescription drug.
• Have no contact with victims or witnesses.

         HG § 8-507 Commitment

         While serving his burglary sentences, Brendoff requested that the court commit him to the Department for drug and alcohol treatment pursuant to HG §§ 8-505 through 8-507.[9] On July 5, 2016, the Department issued an evaluation report recommending Brendoff for § 8-507 placement. The circuit court held a hearing on August 23, 2016, and issued an § 8-507 order committing Brendoff to the Department for "inpatient residential substance abuse treatment at a facility to be determined by [the Department], beginning upon bed availability and ending upon completion of or termination from treatment[.]" The order provided, in relevant part:

         That supervision of the Defendant shall be provided by:

The Division of Parole & Probation in that the sentence of the Defendant shall be suspended and the Defendant shall be placed on probation effective upon the acceptance and transporting of the Defendant to the designated DHMH Facility.
IT IS FURTHER ORDERED that in the event the Defendant leaves the treatment facility without authorization or is terminated from the facility or any after care program for any reason, the Division of Parole and Probation and the State shall be notified as soon as reasonably possible.

(Emphasis added).

         The balance of Brendoff's sentences for the burglary offenses was suspended upon admission to treatment. The "Probation/Supervision Order" ("2016 Probation Order") stated that Brendoff would be supervised by "Parole and Probation" and that the length of his probationary period was five years. The 2016 Probation Order imposed general conditions and the following special conditions on his probation:

• Submit to and pay for random urinalysis as directed by Supervising Agent.
• Submit to, successfully complete, and pay required costs for [alcohol and drug evaluation, testing, treatment, education], as directed by your supervising agent.
• Totally abstain from alcohol, illegal substances, and abusive use of any prescription drug.
• Successfully complete residential program and any after care.

         The order also included a Consent to Treatment form, signed by Brendoff, which stated:

I further agree to enter and complete any residential or out-patient program recommended and arranged by the Department of Health and Mental Hygiene and to comply with the terms of any Probation Order in this case and any after-care plan developed for me. I have been informed that if I fail to comply with the conditions of my probation, I will face imposition of the sentence which was suspended.

         The Violations of Probation

         Pursuant to the commitment order, Brendoff was admitted on November 10, 2016, into Jude House for 120 days of treatment. On December 9, 2016, however, Brendoff left Jude House prior to being discharged. Brendoff's probation agent submitted a report the next week informing the court of Brendoff's departure from Jude House.

         On or around December 16, 2016, Brendoff was admitted into New Life, an intensive out-patient treatment center. The State nevertheless requested a warrant and filed a statement of charges on December 20, 2016, alleging that Brendoff violated a condition of the 2016 Probation Order by leaving Jude House prior to being discharged. Eight days later, the court issued a summons to Brendoff for an initial appearance on January 30, 2017. Brendoff complied, and at his initial appearance, the circuit court notified Brendoff that his VOP hearing was scheduled for March 6, 2017.

         While the VOP hearing was pending, Brendoff was arrested and charged with multiple crimes, including attempted murder and armed robbery in connection with a drug deal that went bad on February 20, 2017. Brendoff's probation agent informed the court on February 23, 2017, of these additional violations of the conditions of his probation.[10]His probation agent further reported that on February 15, 2017, New Life sent her a "status report" indicating that "Brendoff had missed six required sessions and that his attitude and appearance were an indication of relapse potential." Consequently, the State amended its statement of charges to include additional allegations that Brendoff also violated the conditions of his probation relating to, inter alia, drug treatment by leaving Jude House prior to being discharged and for missing "six required sessions" at New Life. Accordingly, on February 27, 2017, the circuit court issued a no-bond bench warrant for Brendoff for the VOPs.[11]

         Violation of Probation Hearing

         On November 20 and 22, 2017, the circuit court held a hearing on the charged VOPs. The State called three witnesses: Felicia Powers, Brendoff's probation agent at the time of trial; Cheyenne Potter, Brendoff's co-defendant in the case for attempted murder alleged to have occurred on February 20, 2017; and Detective Franklin Bilbrey, the lead detective in that case. Ms. Potter and Det. Bilbrey testified about the February 20 case that formed the basis for certain VOP charges that are not the subject of the instant appeal.

         Most pertinent to this appeal is the testimony of Agent Powers. She testified that she became Brendoff's probation agent in June 2017. According to Agent Powers, there were two agents on the case before her: Agent Thomas and Agent Sims. Agent Thomas was Brendoff's probation agent at the time he entered treatment at Jude House. Then, when Brendoff later entered treatment at New Life, Agent Sims became his probation agent.

         Agent Powers inherited Agent Thomas's case file on Brendoff. Agent Powers confirmed that Agent Thomas reported the first VOP to the court, indicating that Brendoff had left the Jude House on December 9, 2016. She testified that, based on that VOP report, the circuit court issued a summons for Brendoff during the time he was meeting with Agent Sims and attending treatment at New Life, which he had entered on December 19, 2016. According to the discharge summary from New Life, which the defense moved into evidence, Brendoff was discharged on February 22, 2017, due to attendance issues.[12]

         Agent Powers testified further about her personal knowledge of Brendoff's treatment at Jude House and New Life. She related that after taking over as the supervisor on the case, she never met with Brendoff in person but spoke with him over the phone once, when he called her on October 25, 2017. During that phone conversation, she explained, Brendoff told her that "he had walked away from his 8-507 program" at Jude House because he took opiates following a back injury and relapsed.

         The State averred in closing that the VOP charge rested on two issues: "the treatment allegations and the failure to obey all laws[.]" With respect to the "treatment allegations," the State argued that Agent Powers "testified that [Brendoff] was released to Jude [House] on an 8-507 and he absconded from treatment." Brendoff's counsel retorted that, although Brendoff left Jude House, the events that took place after he left showed that he had not absconded. Specifically, counsel argued that Brendoff was still reporting to his probation agent after leaving Jude House, as evidenced by the fact that he entered treatment at New Life "within a week of walking out of Jude House." Counsel highlighted, additionally, that Brendoff appeared for his arraignment following his exit from Jude House.

         With regard to the allegations that Brendoff missed six treatments at New Life, his counsel acknowledged that "from [New Life's] discharge summary, . . . there certainly was some evidence of relapse and Brendoff had stopped going to classes or was not going consistently." Counsel argued, however, that Brendoff "was not discharged from New Life unsuccessfully until he was arrested and, obviously, could no longer [attend]." Accordingly, defense counsel asserted that Brendoff did not abscond and, therefore, did not violate his conditions of probation relating to drug treatment.

         The case was continued until November 22, 2017, at which time the court issued its findings and determined whether to reincarcerate Brendoff. The court began by stating that, based on all of the evidence, it found that "this is not a technical violation because one of [the] allegations is that Brendoff absconded so it is not a technical violation." Regarding the allegation that Brendoff absconded from drug treatment, the court found that he violated the conditions of his probation relating to drug treatment because it was "undisputed that [] Brendoff walked away from 8-507 treatment at the Jude House on December 9, 2016 without being discharged" and that he also missed the six required sessions at New Life.[13]

         The court found that Brendoff was not doing well in either of his drug treatment programs and that he was not amenable to treatment. The court revoked his probation and ordered him to serve a total sentence of 10 years at the Department of Corrections: (1) three of the 10 years that were suspended for the theft offense; and ...


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