Miller v. State

James Miller v. State of Maryland, No. 2097, September Term, 2019. Opinion by Fader,
C.J.

SENTENCING AND PUNISHMENT—PROBATION AND RELATED
DISPOSITIONS—REVOCATION

Defendant’s failure to comply with terms of probation that required him to make child
support payments or, if he could not do so, provide copies of job applications on a weekly
basis did not constitute “absconding,” and therefore were technical violations of probation
for purposes of § 6-223 of the Criminal Procedure Article (2018 Repl.; 2020 Supp.).
Circuit Court for Wicomico County
Case No. 22-K-15-000518
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2097

September Term, 2019

______________________________________

JAMES MILLER

v.

STATE OF MARYLAND

______________________________________

Fader, C.J.,
Beachley,
Wilner, Alan M.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Fader, C.J.
______________________________________

Filed: February 26, 2021

Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2021-02-26 14:01-05:00

Suzanne C. Johnson, Clerk
 As conditions of his probation pursuant to a conviction for constructive criminal

contempt for failing to pay child support, James Miller, the appellant, had been ordered to:

(1) pay child support, including arrears, on a monthly basis; and (2) if unable to pay child

support, provide copies of ten job applications per week to Wicomico County Bureau of

Support Enforcement (the “Bureau”).1 Mr. Miller failed to do either and was charged with

violating the terms of his probation. Mr. Miller admitted to the violations but argued that

they were “technical” for purposes of § 6-223 of the Criminal Procedure Article (2018

Repl.; 2020 Supp.), and therefore subject to the sentencing limitations in that statute, which

the General Assembly enacted as part of the Justice Reinvestment Act (“JRA”). The State

argued that the violations constituted “absconding” and were therefore not technical. The

Circuit Court for Wicomico County agreed with the State and sentenced Mr. Miller to four

years’ imprisonment.

Mr. Miller filed an Application for Leave to Appeal, which this Court granted to

address his contention that his sentence is illegal because his probation violations were

technical. We hold that Mr. Miller’s violations did not constitute absconding and therefore

were technical for purposes of the JRA. Accordingly, we will vacate Mr. Miller’s sentence

and remand for resentencing.

1
After Mr. Miller pleaded guilty, the Bureau of Support Enforcement was renamed
the Office of Child Support Enforcement. For consistency, we will refer to the office as
the Bureau.
 BACKGROUND

In 2016, Mr. Miller pleaded guilty to one count of constructive criminal contempt

for failing to pay child support in the Circuit Court for Wicomico County. The court

sentenced him to five years’ imprisonment, with all but 12 months suspended in lieu of 36

months’ probation to be supervised by the Bureau. The court imposed the following

conditions of probation:

ORDERED, that upon his release, [Mr. Miller] shall be placed on
thirty-six (36) months of supervised probation, to be supervised by the
[Bureau], during which time he is to make full and timely payments on the
support obligation owed . . . at the rate of $233.00 per month as well as an
additional $50.00 per month on the support arrearage owed until all
arrearages are paid in full; and it is further

ORDERED, that if, during any portion of the supervised probationary
period, [Mr. Miller] is unable to pay the court ordered arrearage payment in
full, he must submit copies of ten (10) different verifiable job applications
per week to his supervising agent at [the Bureau] by 4:00 P.M. on Friday of
each week until he is able to make the court ordered payment; and it is further

ORDERED, that any failure to comply with the conditions of this
probation as set forth may result in violation of probation and revocation of
the suspended sentence.

ORDERED, that [Mr. Miller] shall keep his supervising agent at the
Bureau updated and informed of his current address, work status and the
name and address of any employer.

In March 2018, the State filed a Petition for Violation of Probation, alleging, in

pertinent part, that Mr. Miller had violated his probation by failing to make a single child

support payment on the arrearage and by failing to submit copies of any job applications

during the entire period of his probation. At the violation of probation hearing, the State

argued that Mr. Miller’s failure to pay child support or to provide copies of job applications

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were non-technical violations “on the theory that those [violations] constitute an

absconding from probation[.]” Mr. Miller did not concede that his violations constituted

non-technical violations. His counsel explained that although Mr. Miller had not paid child

support or submitted the required job applications, the defense had insufficient information

as to whether Mr. Miller had been in contact with his supervising agent since 2016. The

court found that Mr. Miller had violated the conditions of his probation, which the court

revoked, but it deferred ruling on whether the violations were technical.

At sentencing, Mr. Miller argued that his failure to submit the required job

applications was a technical violation. The State disagreed. Although the State

acknowledged that the probation order did not require Mr. Miller to meet regularly with

his probation officer, it argued that the requirement to submit job applications was the

equivalent of required contact with his supervising agent, and that Mr. Miller’s failure to

submit the applications constituted absconding, a non-technical violation. The court agreed

with the State and ruled that the requirement to submit job applications was “analogous to

the normal probation order where [the defendant and probation officer] have to remain in

contact. That’s what allows the Bureau of Support Enforcement officer or worker to know

that the Defendant is complying, that they are doing the things that they need to do, that

there’s contact there with them.” The court therefore found that Mr. Miller’s failure to

comply with the requirement to submit job applications constituted absconding, a non-

technical violation, and sentenced him to serve his four years of backup time.

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 DISCUSSION

In 2016, the General Assembly enacted the JRA, which significantly altered the law

governing probation revocation. See 2016 Md. Laws, ch. 515; Crim. Proc. § 6-223. Before

the enactment, upon finding a probation violation, a trial court “was authorized to ‘impose

any sentence that might have originally been imposed for the crime of which the

probationer or defendant was convicted or pleaded nolo contendere.’” Johnson v. State,

247 Md. App 170, 184 (2020) (quoting Crim. Proc. § 6-223(d)(2) (2008 Repl., 2016

Supp.)).

The JRA established a category of “technical violations” of probation and provided

presumptive limits on the sanctions that courts could impose for such violations. State v.

Alexander, 467 Md. 600, 609 (2020). Doing so “was part of a larger effort to reduce the

State’s prison population and invest the resulting savings in treatment and recidivism-

reducing alternatives to incarceration for low-level offenders.” Id. (citing Revised Fiscal

and Policy Note for Senate Bill 1005 (June 2, 2016)). The JRA defines a “technical

violation” as any violation of probation that does not involve: “(1) an arrest or a summons

issued by a commissioner on a statement of charges filed by a law enforcement officer;

(2) a violation of a criminal prohibition other than a minor traffic offense; (3) a violation

of a no-contact or stay-away order; or (4) absconding.” Crim. Proc. § 1-101(q) (adopting

the definition of “technical violation” set forth in § 6-101(m) of the Correctional Services

Article (2017 Repl.)). The only one of these categories that the State contends applies to

Mr. Miller is absconding, which is defined in § 6-101(b) of the Correctional Services

4
Article as “willfully evading supervision” and “does not include missing a single

appointment with a supervising authority.”

The JRA establishes “a rebuttable presumption that the limits on the period of

incarceration that may be imposed for a technical violation . . . are applicable.” Crim. Proc.

§ 6-223(e)(1). Those limits are 15 days’ incarceration for a first technical violation, 30

days’ incarceration for a second technical violation, and 45 days’ incarceration for a third

technical violation. Crim. Proc. § 6-223(d)(2)(i). “The presumption may be rebutted if the

court finds and states on the record . . . that adhering” to the presumptive limits set forth in

the statute “would create a risk to public safety, a victim, or a witness.”2 Crim. Proc.

§ 6-223(e)(2).

Mr. Miller contends that the circuit court erred as a matter of law in finding that his

failure to provide ten job applications to his supervising agent on a regular basis constituted

absconding. The State argues that the court did not err because the requirement to provide

the job applications served as the mechanism by which Mr. Miller was to maintain contact

with his probation officer, and his failure to comply therefore constituted evasion of

supervision.

We ordinarily review a circuit court’s decision to revoke probation for an abuse of

discretion. Brendoff v. State, 242 Md. App. 90, 108 (2019). Issues of statutory

interpretation, however, are questions of law, which we review without deference. Id.

2
The court in this case did not make a finding that applying the presumptive limits
applicable to Mr. Miller’s violations would create a risk to public safety, a victim, or a
witness.

5
“These two seemingly disparate standards of review are sometimes reconciled with the

observation that it is an abuse of discretion for a court to base a decision on an incorrect

legal standard.” Id. (quoting Rodriguez v. Cooper, 458 Md. 425, 437 n.9 (2018)).

In Brendoff, we considered the meaning of “absconding” under § 6-101(b) of the

Correctional Services Article in the context of an alleged probation violation resulting from

a failure to complete drug treatment as a condition of probation. 242 Md. App. at 107-08.

The State argued that the defendant had absconded from the supervision of two treatment

facilities by leaving one facility and failing to attend therapy sessions at a second. Id. The

defendant asserted that his failure to complete drug treatment did not equate to

“absconding” for purposes of the statute, as there was no evidence that he had “failed to

report to his probation agent or . . . keep his probation agent apprised of his whereabouts.”

Id. at 107.

In reviewing the legislative history of the JRA, we observed that the JRA had

adopted the policy recommendations of the report of the Justice Reinvestment

Coordinating Council based on three major findings. First, “[a]lmost 60 percent of all

prison admissions represent failures of probation, parole, or mandatory release supervision,

often for technical violations rather than a new criminal conviction.” Id. at 116 (quoting

the Justice Reinvestment Coordinating Council, Final Report, S.B. 602, Leg., Reg. Sess.

at 19 (Md. 2015)) (“JRCC Final Report”). Second, increased lengths of prison stays were

related to technical probation violators serving, on average, 31 months longer than other

offenders sentenced directly to prison. Id. (quoting JRCC Final Report at 1, 8-9, 12).

Third, “that Maryland’s supervision resources and practices did not focus on serious and

6
violent offenders and that the [Division of Parole and Probation] did not have a

standardized framework for responding to technical violations of conditions of

probation[.]” Id. (citing JRCC Final Report at 1, 10-11, 19). Thus, the JRCC

recommended the adoption of a category of “technical violations,” using an incremental

system of “non-custodial sanctions” prior to revocation as well as graduated incarceration

periods based on the number of probation violations. Id. at 116-17 (citing JRCC Final

Report at 19).

Based on the legislative history of the JRA, we determined that the General

Assembly intended that this newly enacted sentencing system for technical violations apply

in circumstances such as a failure to complete drug treatment, especially where the

probationer makes the probation agent aware of his or her location and is responsive to the

agent. Id. at 117-18. We concluded that a contrary interpretation would be at odds with

the goal of reducing the number of probationers imprisoned for “missing a treatment

appointment or failing a drug test.” Id. at 118 (quoting JRCC Final Report at 19).

As to Mr. Brendoff’s violations of probation, we determined as a preliminary issue

that the circuit court had erred in identifying the drug treatment facilities as the

“supervising authorities” for purposes of deciding whether the defendant had absconded.

Id. at 122. Accordingly, we remanded the case for a determination of whether the

defendant had willfully evaded the supervision of the Division of Parole and Probation,

which was the supervising authority for the probation, as opposed to the drug treatment

facilities. Id. We held that “when there is an allegation of a non-technical violation of

7
probation by ‘absconding,’” the trial court must first determine “whether the probationer

willfully evaded his or her supervising authority.” Id.

In Brendoff, we did not reach the issue presented in this case, which is whether

absconding includes the failure to comply with a term of probation that requires a

probationer to provide a supervising authority with information evidencing compliance

with another term of probation.3 We noted, however, certain out-of-state cases interpreting

the term “absconding” under their respective “Justice Reinvestment laws . . . which grew

out of the same nationwide initiative” as Maryland’s JRA. Id. at 119-20 n.22; see, e.g.,

State v. Melton, 811 S.E.2d 678, 681 (N.C. App. 2018) (interpreting “absconding” under a

JRA statute to include only situations where “a defendant . . . willfully makes his

whereabouts unknown to his probation officer, and the probation officer is unable to

contact the defendant”); Legendre v. State, 242 So. 3d 1028, 1030 (Ala. Crim. App. 2017)

(explaining that a probation revocation statute authorizing the imposition of a sentence

beyond statutory limits in the case of a probationer who “absconds” required evidence of

“the concealment of oneself, especially in instances of evading legal process”); State v.

Dooley, 423 P.3d 469, 479-80 (Kan. 2018) (holding that revoking probation for

absconding, without first imposing graduated statutory sanctions, required proof that the

probationer had “the conscious intent to hide from or otherwise evade the legal process”);

3
The Court of Appeals’ decision in State v. Alexander also did not address the issue
raised here. 467 Md. 600 (2020). In Alexander, the Court did not decide whether “the
alleged violations of probation committed by Mr. Alexander – failure to pay restitution and
missing a meeting with his probation officer – were considered technical violations”
because the parties appear to have assumed that they were. Id. at 612.

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Hobson v. State, 230 So. 3d 1096, 1099 (Miss. App. 2017) (interpreting a probation statute

that defined “[a]bsconding from supervision” as “the failure of a probationer to report to

his supervising officer for six or more consecutive months”).

A common thread in the interpretations of “absconding” in each of these out-of-

state cases is a required showing that the probationer had intentionally fled or failed to

report to a supervisory agent to avoid detection and evade the legal process. We find these

interpretations persuasive and consistent with the intent of the General Assembly in

adopting the JRA, as discussed in Brendoff. Here, the State presented no evidence that

Mr. Miller attempted to evade supervision by hiding or concealing himself to avoid

detection. The terms of Mr. Miller’s probation did not require him to meet with a

supervisory agent on a regular basis, to report his whereabouts at any particular time, or

even to report regularly regarding the status of his compliance with his other obligations

under the order. And although the court had required Mr. Miller to “keep his supervising

agent . . . updated and informed of his current address, work status and the name and

address of any employer,” the State did not allege that he failed to comply with that

requirement. In short, the record contains no suggestion that Mr. Miller evaded

supervision.

Instead, Mr. Miller’s violation consisted of the failure to pay child support,

including arrearages, or, in the alternative, to provide specific evidence of his attempts to

obtain employment. The status of his actual compliance with these requirements was

presumably readily ascertainable by the Bureau at any point. The State suggests that we

should treat the obligation to provide the Bureau with copies of job applications as akin to

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an obligation to meet regularly with his supervising agent, but it is not. There is a

difference between failing to report or be available to a supervising authority so that the

authority can determine whether a probationer is in compliance with terms of probation,

on the one hand, and failing to comply with those terms, on the other. A simple example

illustrates the difference. The probation order in this case could have required Mr. Miller

to meet regularly with his supervising agent and to provide copies of job applications at

those meetings. If Mr. Miller had attended those meetings regularly but failed to bring

copies of any job applications, he would have violated the requirements of his probation,

but he could hardly be said to have evaded supervision. Here, the probation order required

Mr. Miller to provide copies of job applications as evidence of his attempts to secure

employment so that he could meet his child support obligation. His failure to provide

copies of the applications did not prevent the supervising agent from knowing where he

was or how to contact him. Nor did it prevent the supervising agent from knowing whether

Mr. Miller was complying with the obligations of the probation order. Mr. Miller’s failure

to submit the applications, combined with his failure to pay his outstanding child support

arrearages, was the violation. Simply put, Mr. Miller’s complete failure to abide by the

applicable provisions of the probation order constituted a violation of the order—and a

seemingly egregious violation at that—but it did not constitute absconding.4

4
Nothing in this opinion should be understood to condone Mr. Miller’s behavior or
to minimize the significance of his violation. The General Assembly has sharply limited
the sentences that can be imposed, absent a risk to public safety, for all but an enumerated
list of probation violations, one of which is absconding. All we decide today is that
Mr. Miller’s violation does not constitute absconding.

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 On this point, we find State v. Ford, 134 P.3d 959 (Or. App. 2006), to be particularly

instructive. In Ford, the court considered whether a probationer had “absconded” under a

rule allowing for the dismissal of the appeal of a criminal defendant who “escapes or

absconds from custody or supervision.” Id. at 960 (quoting Or. R. App. Proc. 8.05)

(emphasis added in Ford). The defendant was convicted of driving under the influence of

intoxicating substances and sentenced to a $1,000 fine and $300 in fees, to be paid in

installments, and two years’ probation. Id. The terms of probation also required that the

defendant complete alcohol or substance abuse treatment. Id. The State alleged that the

defendant had absconded by failing to comply with the conditions of his probation

requiring completion of a drug and alcohol program and payment of the fines and fees. Id.

The court determined that to abscond from supervision, “a defendant must evade

the legal process of a court by fleeing, hiding himself, or making some conscious effort to

avoid custody or supervision.” Id. at 961. “A showing that a defendant has failed to

complete an alcohol and drug evaluation or failed to make payments on court-ordered fines

and fees does not establish that the defendant has fled, is hiding himself, or is making a

conscious effort to avoid custody or supervision.” Id. Because the defendant was not

required to report to any supervisory authority as part of his probation, the court found that

the evidence that he had failed to pay fees and complete drug treatment was insufficient to

establish that he had absconded from supervision. Id. at 962.

We find Mr. Miller’s probation violations in this case substantially similar to those

presented in Ford. Here, there was no requirement that Mr. Miller report regularly to the

Bureau as a condition of probation and no allegation that he failed to report. Similarly,

11
there was no evidence that Mr. Miller concealed himself from the supervision of the Bureau

or that the Bureau was unable to locate him or ascertain his level of compliance with his

obligations.

The legislative history and intent of the JRA convince us that the evidence of

“willful evasion” required to support a finding of absconding, and so bypass the sentencing

limitations of the JRA, requires more than evidence of a compliance violation. Mr. Miller’s

failure to comply with his probation requirements that he make payments and submit job

applications to the Bureau did not show willful evasion of the supervision of the Bureau.

Accordingly, the circuit court erred in finding that his actions constituted the non-technical

violation of absconding and in imposing a sentence beyond the presumptive limit set forth

in § 6-223(d) of the Criminal Procedure Article without making a finding that the

presumptive limit would create a risk to public safety, a victim, or a witness. We will

therefore vacate Mr. Miller’s sentence and remand for resentencing consistent with this

opinion.

SENTENCE VACATED. CASE
REMANDED TO THE CIRCUIT COURT
FOR WICOMICO COUNTY FOR
RESENTENCING. COSTS TO BE PAID BY
WICOMICO COUNTY.

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