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Sabisch v. Moyer

Court of Appeals of Maryland

November 20, 2019

JOSHUA SABISCH
v.
STEPHEN T. MOYER ET AL. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

          Argued: September 6, 2019

          Circuit Court for Baltimore County Case No. 03-C-17-006383

          Barbera, C.J. McDonald Watts Hotten Getty Booth Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Watts, J.

         A writ of habeas corpus-meaning "that you have the body" in Law Latin-is "employed to bring a person before a court, most frequently to ensure that the person's imprisonment or detention is not illegal[.]" Habeas Corpus, Black's Law Dictionary (11th ed. 2019). This Court has observed that "the great object" of a writ of habeas corpus "is the liberation of parties who may be imprisoned or detained without sufficient cause." Olewiler v. Brady, 185 Md. 341, 345, 44 A.2d 807, 809 (1945) (cleaned up). The common law writ of habeas corpus was codified in a Maryland statute in 1809, and later encompassed by the protections of the Maryland Constitution of 1867. See id. at 346, 44 A.2d at 809. Specifically, the Maryland Constitution provides that "[t]he General Assembly shall pass no Law suspending the privilege of the Writ of Habeas Corpus." Md. Const., Art. III, § 55.

         Today, Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 Repl. Vol., 2015 Supp.) ("CJ") § 3-702(a) generally governs who may petition for a writ of habeas corpus, providing:

A person committed, detained, confined, or restrained from his [or her] lawful liberty within the State for any alleged offense or under any color or pretense or any person in his [or her] behalf, may petition for the writ of habeas corpus to the end that the cause of the commitment, detainer, confinement, or restraint may be inquired into.

         Upon receipt of a properly filed petition for a writ of habeas corpus, among other things, "the judge shall grant the writ unless[] the judge finds . . . that the individual confined or restrained is not entitled to any relief[.]" Md. R. 15-303(e)(3)(A).

In this case, we must determine whether a person who was placed on unsupervised probation by a Maryland trial court and subsequently moved to another State was committed, detained, confined, or restrained within Maryland. Following a bench trial in the District Court of Maryland, sitting in Baltimore County, Joshua Sabisch, Petitioner, was found guilty of fourth-degree sex offense. The District Court stayed the entry of judgment and offered Sabisch probation before judgment ("PBJ") with conditions, which he accepted. Five months later, Sabisch appeared before the District Court for a violation of probation hearing, and the District Court found that Sabisch had violated his probation. The District Court modified the conditions of probation to be "unsupervised" to accommodate Sabisch's desire to move from Maryland to Michigan. Sabisch subsequently filed in the Circuit Court for Baltimore County a petition for a writ of habeas corpus, alleging that the terms of his probation constituted an unlawful restraint on his liberty and raising various grounds for relief related to the proceedings in the District Court.[1] At a hearing on the petition, the circuit court denied the petition. Sabisch appealed, and, in an unreported opinion, the Court of Special Appeals granted Respondents' motion to dismiss, holding that, at the time that Sabisch filed the petition for a writ of habeas corpus, he was neither physically restrained nor within the State. Thereafter, Sabisch filed in this Court a petition for a writ of certiorari, which we granted.

         Against this backdrop, we must decide whether the Court of Special Appeals erred in holding that, to be entitled to habeas corpus relief pursuant to CJ § 3-702(a), a person must be physically restrained within Maryland, and that Sabisch was not entitled to habeas corpus relief because he was not physically restrained within the State. We hold that, under the plain language of CJ § 3-702(a), to be eligible to petition for a writ of habeas corpus, a person must be "committed, detained, confined, or restrained from his [or her] lawful liberty within the State[, ]" nothing more and nothing less. The plain language of CJ § 3-702(a) does not limit eligibility for habeas corpus relief to those in physical restraint. Under the plain language of CJ § 3-702(a), a petition for a writ of habeas corpus is not foreclosed where a person is placed on probation with conditions that significantly restrict or restrain the person's liberty within the State. We hold that people who are committed, detained, or confined within the State or persons on probation with conditions that significantly restrain the person's lawful liberty within the State are entitled to seek habeas corpus relief. In short, under CJ § 3-702(a), to be eligible to seek habeas corpus relief, a person must be committed, detained, confined, or restrained in the State, which may involve physical custody or significant restrictions of a person's liberty within the State. Here, when the petition for a writ of habeas corpus was filed, Sabisch, who was on unsupervised probation and living in Michigan, was not committed, detained, confined, or restrained in Maryland, as required by CJ § 3-702(a). Under the circumstances of this case, when Sabisch filed his habeas corpus petition, he was not significantly restrained in Maryland, and thus was not eligible to seek habeas corpus relief in Maryland pursuant to CJ § 3-702(a).

         BACKGROUND

         Although the issues in this case do not involve resolution of the merits of the claims that Sabisch raised in the petition for a writ of habeas corpus, for context, we set forth the circumstances that gave rise to the imposition of probation and conditions of probation.

         Pretrial Proceedings in the District Court

         In 2016, the District Court tried Sabisch on the sole count of fourth-degree sex offense. It was alleged that Sabisch had sexual intercourse with a fourteen-year-old girl and that he was at least four years older than she was. See Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2015 Supp.) § 3-308(b)(3) ("A person may not engage in . . . vaginal intercourse with another if the victim is 14 or 15 years old, and the person performing the act is at least 4 years older than the victim.").

         On October 26, 2016, Sabisch appeared, without counsel, in the District Court for the first time, seeking a postponement of the trial date. When Sabisch's case was called, the prosecutor explained that the State was not opposed to a postponement. The District Court asked Sabisch whether he had heard the court "explain the importance of having an attorney to the other" defendants who preceded him on the court's docket, and Sabisch responded "[y]es." The District Court asked Sabisch: "What are you going to do about getting an attorney?" Sabisch responded that he had not "thought about it[, ]" and the following exchange occurred:

THE COURT: All right. Well, you need to think about it. You need to either hire private counsel, pay them and have them enter their appearance on your behalf. Or make application to the Office of the Public Defender if you cannot afford private counsel. That's their information, sir. You need to see them at that location in person that's listed there in Towson immediately. Don't wait. This week or next week. You would not want to come back without an attorney and attempt to represent yourself. It would not be in your interest; do you understand that, sir?
[SABISCH]: Yes.

         (Paragraph breaks omitted).

         Trial Proceedings in the District Court and Probation Before Judgment

         On December 8, 2016, Sabisch appeared, without counsel, in the District Court for trial. The prosecutor advised the District Court that it was his "understanding [that] Sab[]i[s]ch [was] entering a guilty plea to his sole charge[, ]" and Sabisch agreed that that was correct. At that time, the District Court gave Sabisch the following advisements:

THE COURT: Sir, the maximum possible penalty of this charge is one year in jail. The State is deferring to me. That[] means they're saying, Judge, it's up to you. I want you to understand I could still impose that maximum sentence. Do you understand that?
[] SAB[]I[S]CH: Yes.
THE COURT: Now, I want you to understand that you certainly don't have to plead guilty. You are entitled to either a judge or a jury trial. In either instance, what would happen is, the State would call in witnesses that they had. They would testify in the witness chair like this one to my left. You could question any witnesses that are called against you. You could call witnesses on your own behalf. You could call yourself as a witness. Or you could say, you choose a judge trial, which you didn't want to testify. If you did that, I would not draw any inference from your silence. If this case was called for a jury trial and a jury was provided, you could tell the judge presiding at that jury trial that you did not want to testify. And the judge would tell those jurors they could draw no inference from your silence.
Now, for a trial like that, a judge or a jury, it would be up to the State to prove beyond a reasonable doubt respectively to the fact finder, be that a judge or a jury, that you were guilty of the charge. Now, if it was a jury trial, the jury's verdict would have to be unanimous. That means all 12 jurors would have to agree. By proceeding like this, pleading guilty, you're waiving your right to have a judge and a jury trial. Do you understand that?
[] SAB[]I[S]CH: Yes.
THE COURT: Sir, if you were on parole or probation to anybody on August the 20th when this event allegedly occurred, the plea that you're entering here in all likelihood would violate that parole or probation. Do you understand that?
[] SAB[]I[S]CH: Yes.
THE COURT: Sir, the offense you're pleading guilty to is that you engaged in intercourse with a person 14-years-old, you being at least four years old[er] than the victim. Are you admitting that in fact that your defenses to that offense, it is correct that you did that?
[] SAB[]I[S]CH: Yes.

         The District Court asked whether it was Sabisch's "final decision to plead guilty[, ]" and Sabisch responded that he would "like to have the witness come forward." The following exchange occurred:

THE COURT: All right. So do you want to plead guilty or do you want to have a trial?
[] SAB[]I[S]CH: What happens if I -- I don't quite understand if I have a trial.
THE COURT: So if you had a trial, what's going to happen is, as I explained to you, witnesses will testify. And you question those witnesses, you could call witnesses on your own behalf. You could testify yourself if you want to or you can remain silent, as I explained to you. It will be up to the State to prove beyond a reasonable doubt that you're guilty of the charge. You have the right to have your case tried. You also certainly have the right to accept the plea. In either instance, you're going to be able to address me in terms of the case. If you plead guilty, however, you're not going to be able, effectively, to stand up and say[:] well, I want to tell you this didn't happen. If you want to give me what's called mitigation through yourself or through someone else in terms of an explanation as to why this happened, you can do that. But again, you have the right to have a trial. Nobody's trying to talk you out of that. Most importantly, I'm not trying to talk you out of that.
So you are in a situation right now where you have the right to either have a trial before me and a trial before a jury or proceed by way of a guilty plea the State told me that you guys agreed to. Do you understand the three options you have?
[] SAB[]I[S]CH: I want a trial.
THE COURT: Do you want to have your case tried before me or do you want to have it tried before a jury?
[] SAB[]I[S]CH: Before you.

         Although Sabisch advised the District Court that he wanted to proceed by way of a bench trial, Sabisch also continued to tell the District Court that he wanted to plead guilty. At that time, the District Court indicated that Sabisch apparently did not understand the legal consequence of a guilty plea, and the following exchange ensued:

THE COURT: Okay. Now, I'm not going to continue to go back and forth. Not because I don't want to, but effectively unless someone is entering what's called a knowing and voluntary guilty plea, I'm just going to enter a not guilty plea on your behalf and call the case for a trial. If you enter a guilty plea, all that's going to happen is, the State's Attorney is going to tell me what happened here. After I've heard that, you're going to have the opportunity to address me and tell me why it happened and anything else you want to tell me. As I told you, if you plead guilty, the one thing you can't do is, you can't then stand up and say, Judge, it didn't happen. Because you're admitting if you plead guilty.
If you want to plead not guilty, there's going to be live testimony. The State's going to call witnesses.
[] SAB[]I[S]CH: I plead not guilty.
THE COURT: You want to plead guilty?
[] SAB[]I[S]CH: Not guilty.
THE COURT: Not guilty.

         The District Court took a brief recess, and asked Sabisch for his "final decision[.]" Sabisch advised that he was asking for a postponement "[t]o get a Public Defender." The District Court asked Sabisch what he had done to obtain a lawyer since October-when he was advised of his right to a Public Defender-and Sabisch responded:

I've been trying to get, because I'm on [Supplemental Security Income], and I've been trying to get the money to save out, but I've also, because I've been homeless, trying to get an apartment and transportation, it's very hard for me. But I'm aware of these charges and I will work even harder if you give me a postponement to get an attorney. I can even go down today to fill out and get a Public Defender.

         The District Court denied the request for a postponement, and the following exchange occurred:

THE COURT: I'm going to have to deny your postponement request, Mr. Sab[]i[s]ch, under the circumstances. Now, you have the right to have your case tried before a jury or a judge. A few minutes ago you indicated to me you wanted to have your case tried before a judge and you're waiving your right to a jury trial, is that correct?
[] SAB[]I[S]CH: I honestly don't understand, but I'd like to plead guilty. I mean, I don't understand any of this, because I've never really done this before.
THE COURT: All right. I've explained to you a couple of times about the difference between a guilty plea and a not guilty plea. And I'm candidly not convinced that you understand what a guilty plea is. And I can only accept the guilty plea if I'm convinced that it's a knowing[] and a voluntary plea, and it's an intelligent plea. And it's that third element that I'm struggling with and I'm not convinced you understand what it is. Because you told me you have a witness here.

         Shortly thereafter, a short bench trial occurred. As the sole witness for the State, the victim, who was fourteen years old at the time of trial, testified that she met Sabisch on the internet. The victim testified that, while she was fourteen years old, she had vaginal intercourse with Sabisch, who was twenty years old. Sabisch called the victim's mother as a witness. On cross-examination, the victim's mother acknowledged that, "[f]rom what [she had been] told," the victim and Sabisch had vaginal intercourse.

         The District Court asked Sabisch whether he would like to testify or remain silent, and Sabisch responded: "I want a jury trial." The District Court explained that a jury trial was no longer an option, and again asked Sabisch whether he wanted to testify or remain silent. After briefly conferring with an assistant public defender who happened to be in the courtroom, Sabisch advised that he would "like to remain silent."

         The District Court found Sabisch guilty of fourth-degree sexual offense, but stayed the entry of judgment and offered him PBJ. The District Court explained that probation would be supervised for twelve months, and would require Sabisch to comply with probation conditions, including no contact with the victim, a substance abuse evaluation, "regist[ration] with law enforcement[, ]" and waiver of the right to appeal. Sabisch told the District Court that he did not understand PBJ, and the following exchange occurred:

THE COURT: So there's a guilty finding that I made, but I struck it in favor of probation before judgment. Now, if you want to accept it, you are waiving your right to an appeal, because there's no guilty finding to appeal to. If you violate my probation, there's 12 months incarceration that is hanging over your head, if you will. And if you violate my probation, I will put you in jail. But hopefully that will not come to pass.
Having said all of this, do you now understand what probation before judgment is?
[] SAB[]I[S]CH: Yes, I do.
THE COURT: Do you want to accept it and waive your right to an appeal?
[] SAB[]I[S]CH: I do.

         The bench trial concluded shortly thereafter.

         Post-Trial Proceedings in the District Court

         A week later, on December 15, 2016, Sabisch-now represented by counsel-filed a motion for modification or reduction of his sentence under Maryland Rule 4-345(e). Sabisch requested that the District Court strike the requirement that he register as a sex offender, arguing that registration was within a trial court's discretion when imposing PBJ and, in his view, requiring him to register was contrary to the "ultimate sentence of probation before judgment." Sabisch also offered to undergo a psychiatric evaluation. The District Court held the motion sub curia.

         Approximately eight weeks later, on February 8, 2017, Sabisch pled not guilty to charges that he violated his probation by having contact with the victim. Sabisch also indicated that he was "not competent to stand trial[.]" The District Court ordered a competency evaluation, and a forensic psychologist found that Sabisch was competent because he demonstrated an understanding of "the nature and object of the proceedings and [an ability to] assist in his defense." On his own initiative, on March 3, 2017, Sabisch submitted to another psychological evaluation. The results of that evaluation revealed that Sabisch presented symptoms of bipolar disorder, borderline personality disorder, and unspecified intellectual disability, and that Sabisch had a low-functioning cognitive ability and an IQ of 59.

         On May 3, 2017, the District Court conducted a violation of probation hearing; Sabisch was represented by counsel. The District Court found that Sabisch had violated probation by contacting the victim. Sabisch asked the District Court to modify his sentence to allow him to move back to Michigan, where he lived before he met the victim and where his family lived. The District Court left the PBJ finding intact and agreed to modify the conditions of probation to accommodate Sabisch's desire to move out of Maryland. The District Court imposed a sentence of eighteen-months "unsupervised" probation that permitted Sabisch to leave Maryland, but, as conditions of probation, required him to among other things, have no unsupervised contact with minors, report to his probation agent by telephone every thirty days or as otherwise determined appropriate by the probation agent, provide his current address, and register as a Tier I Sex Offender.[2]

         After returning to Michigan, Sabisch learned that, under Michigan law, he would be designated as a Tier III sex offender and ...


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