State v. Peterson

ADKINS, Judge,

concurring.

The Court correctly holds that this case is moot; therefore, I concur in the Court’s judgment. I also agree that this is one of those rare situations where the Court should express its views on the merits of a moot case. But I *91cannot agree with the views of either the majority or the Court of Special Appeals concerning the third sentence of Maryland Rule 4-846(c).

That third sentence requires that a probation revocation “hearing shall be held before the sentencing judge whenever practicable.” The majority reasons that a litigant ordinarily has no right to have his or her case heard before a particular judge; therefore, rules relating to the assignment of judges ordinarily do not confer enforceable rights upon litigants. The majority further concludes that the language and history of Rule 4-346(c)’s third sentence preclude any contention that the provision was intended to confer enforceable rights upon a party to a probation revocation hearing. I have quite a different view of the objective sought to be achieved by this third sentence, and, therefore, of its effect.

The premise underlying that provision is an important policy concept. It is the notion that the sentencing judge, with his presumably greater knowledge of the facts both as they relate to the underlying case and as they bear on the defendant, can best exercise an informed discretion in shaping a sanction if probation has been violated. See Smith v. State, 598 P.2d 1389, 1391 (Wyo.1979) (quoted in Peterson v. State, 73 Md.App. 459, 472, 534 A.2d 1353, 1359-1360).

That concept likely moved the Standing Committee on Rules of Practice and Procedure when, in its Fifty-third Report, it proposed Rule 775, the precursor of Rule 4-846. 8 Md.Reg. 8, 25 (7 Jan.1976). The pertinent section of the proposed rule read:

C. Hearing on Violations of Conditions.
Upon the motion of the State’s Attorney or upon its own motion, the court may hold a hearing to determine whether any condition of probation has been violated. The motion shall state each violation of conditions charged and shall be served on the defendant sufficiently before the hearing to permit him a reasonable opportuni*92ty to rebut the charges. The hearing should be held by the sentencing judge. [Emphasis supplied.]

The final sentence in this draft is cast in hortatory rather than mandatory terms, but clearly embodies a policy strongly favoring use of the sentencing judge at the revocation hearing.1

The proposal produced some concerns on the part of the then State Court Administrator and several judges, a number of whom urged that more flexibility should be built into the rule. Judge Bloom, for the Court of Special Appeals, recounts that history with accuracy and clarity, and like the majority, I find no need to repeat it here. Peterson, 73 Md.App. at 464-466, 534 A.2d at 1355-1356. The upshot was that Rule 775c, as eventually proposed by the Committee and adopted by this Court, effective 1 July 1977, 4 Md.Reg. 235 (16 Feb. 1977), contained a final sentence virtually identical to the penultimate sentence of Rule 4-346(c): “The hearing is to be held whenever practicable by the sentencing judge.” 4 Md.Reg. at 255.

This “legislative” history yields a clear result. The policy of having the sentencing judge preside at the revocation hearing is fundamental and is favored, although it is not absolute. Considerations of practicality come into play when, for some substantial reason, it is not feasible for the sentencing judge to appear at the revocation hearing. I am not persuaded that this important policy may be freely disregarded or applied in vastly different fashions in different parts of the State. The rule is a State-wide rule and clearly should be applied with reasonable uniformity throughout Maryland, subject to whatever minor variations may be required by the phrase “whenever practicable.” Thus, I see no reason why a litigant should not be able to raise the improper application of the rule in a particular case. The situation is analogous to a litigant’s ability to raise the improper application of Rule 4-271(a) (the 180-day *93rule) — a rale that is intended in large part not to confer rights upon criminal defendants but to insure that the criminal justice system works in the public interest by processing cases with reasonable expedition. See, e.g., State v. Brown, 307 Md. 651, 657, 516 A.2d 965, 968 (1986); State v. Frazier, 298 Md. 422, 456-457, 470 A.2d 1269, 1287 (1984).

The question, therefore, becomes how the controlling provisions of Rule 4-346(c) are to be applied. This should be done in a way that recognizes the policy reflected in the rale, but contrary to the view of the Court of Special Appeals, I do not believe that policy mandates a case-by-case determination of what is “practicable.” And contrary to the view of the majority, I do not think that determination should be relegated to the unreviewable discretion of administrative judges.

Among the definitions of “practicable” are “feasible” and “capable of being ... put into practice, with the available means.” The Random House Dictionary of the English Language 1517 (unabridged 2d ed. 1987). And it might have been feasible for Judge Hammerman to make a telephone call to check into Judge Resnick’s availability at the time of the revocation hearing. See Peterson, 73 Md.App. at 471-72, 534 A.2d at 1359. In one sense, it might have been feasible, had Judge Resniek been free at that time, for him to come from a District Court location in Baltimore City to the circuit court in the same city, in order to preside at the hearing. I note, as did the Court of Special Appeals, that Judge Resnick’s earlier order of assignment to the circuit court included the authority to handle unfinished business such as that involved in this case. Id. at 470, 534 A.2d at 1358-59. But feasibility or practicability under the rule must be viewed from a perspective larger than that framed by the facts of this case.

Practicability must be considered in light of systemic considerations, including the need to move cases in the interests of both the parties and the public, and the need to *94limit, to the extent we can, growing backlogs in our courts.2 In short, frequent movement of judges from court to court in order to preside at probation revocation hearings is not always practicable because of the potentially adverse effects on dockets, parties in other cases, and court administration. On the other hand, Rule 4-346(c) is an important procedural statement, and its very terms demonstrate that mere trivial inconvenience should not be allowed to frustrate the policy in favor of the sentencing judge presiding at a revocation hearing. In construing and applying the rule, we must balance these conflicting concerns. For purposes of Rule 4-346(c), a per se rule as to practicability would best serve the policy of the rule and the sometimes competing interests of our judicial system, those who adjudicate within it, and those who litigate within it.

When the sentencing judge is a judge of the judicial circuit in which the sentencing was conducted, it is practicable for that judge to preside at the probation revocation hearing, unless the judge is no longer on the bench, or is unavailable for reasons such as protracted illness or disability.3 As the majority notes, there is considerable intracircuit mobility of circuit court judges pursuant to Rule 1202 b. Since each circuit is administered by a circuit administrative judge, Rule 1200 c, it ordinarily is feasible to ar*95range intracircuit assignments for probation revocation hearings. This does not require the more complex administrative activity (and the possible, although not inevitable, longer travel) involved when intercircuit assignments are required or when judges must be moved from one court level to another, ie., District Court to circuit court.

Furthermore, the practicability requirement of the rule is satisfied when the sentencing judge was a visiting judge4 temporarily assigned to the sentencing court, who, when the assignment of the revocation proceeding for hearing is made for a specific date, is once again scheduled to be sitting on that specific date in that same court for the purpose of hearing general matters. Under these circumstances the visiting judge is functionally indistinguishable from a resident judge of the sentencing court and is to be treated as though he were one, for Rule 4-346(c) purposes.

Finally, in my view, it is per se practicable under the rule for the sentencing judge to preside at the revocation hearing when the sentencing judge, although falling within neither of the categories mentioned above, at the time of sentencing notes on the record that he or she wishes to preside at any revocation hearing and, when contacted to preside on a specific date, reaffirms that wish and has the approval of that judge’s administrative judge so to preside. Such a notation emphasizes the sentencing judge’s special concern for the probationer and particular interest in the effectiveness of the probationary program. It indicates an ongoing desire to monitor probation and effectuate the probationary goals envisioned by the judge at the time of sentencing. When such a specific interest has been manifested and reaffirmed, the importance of the presence of the sentencing judge at the revocation hearing outweighs the administrative difficulty that may be involved, and the *96approval of the appropriate administrative judge further indicates the feasibility of this procedure.5

In all other cases, I would deem it per se impracticable to recall the sentencing judge to preside at the revocation hearing.

The procedure I visualize is designed to avoid substantial administrative disruption within the Maryland court system. At the same time, it supports the fundamental policy of Rule 4-346(c). In the many cases in which the sentencing judge is a judge of the court where the sentence involving probation is imposed, and resident in the county in which the sentencing occurs, that judge ordinarily will handle a revocation hearing. If the sentencing judge is out of his or her county of residence, but within his or her judicial circuit, the same result will occur, as it will when a visiting judge is back at the host court at the time of sentencing and when the sentencing judge indicates, on the record, that he or she wishes to return for a probation revocation hearing. Under these principles, it is likely that the sentencing judge will preside at a probation revocation in a substantial number of, if hot most, cases, thus effectuating the policy of the rule Statewide.6

Judges COLE and McAULIFFE have authorized me to state that they concur with the views expressed herein.

. Proposed M.D.R. Rule 775 was of like tenor. 3 Md.Reg. 8, 36 (7 Jan.1976).

. At the beginning of Fiscal 1988, for example, 228,079 cases were pending in the circuit courts. The figure had increased to 250,694 by the end of the fiscal year. Annual Report of the Maryland Judiciary 1987-1988 48.

. In the discussion that follows, I assume that the sentencing judge is still an active judge (z.e., that he or she has neither resigned, retired, nor died) as of the date of the revocation hearing. While certain former judges may be recalled to active service for temporary assignment pursuant to the provisions of Art. IV, § 3A of the Constitution and § 1-302 of the Courts and Judicial Proceedings Article, the administrative and fiscal problems involved render it per se impracticable to recall a former judge who imposed sentence to preside at a revocation of probation hearing.

I further assume that the sentencing judge is not, at the time of the revocation hearing, subject to a protracted illness or disability of a nature that would unduly delay the revocation hearing.

. By "visiting judge” I mean a judge from outside the circuit in which the sentencing court is located or one from a court level other than that of the sentencing court.

. Obviously, if the sentencing judge is no longer an active duty judge at the time of the revocation hearing, or is then disabled by a factor such as protracted illness, another judge may preside at the revocation hearing.

. I am inclined to agree with the majority that a careful reading of Article 27, § 652, and a thoughtful analysis of its purpose will show that the statute and rule are not in conflict. See 315 Md. at 79 n. 2, 553 A.2d at 675 n. 2. If there is conflict, the rule, as the more recently promulgated, will prevail. Hensley v. Bethesda Metal Co., 230 Md. 556, 561-562, 188 A.2d 290, 292-293 (1963); see also County Fed. S. & L. v. Equitable S. & L., 261 Md. 246, 252-253, 274 A.2d 363, 367 (1971). Not before the Court in this case is the relationship between § 642 and § 643A(d), or the relationship between § 643A(d) and Rule 4-346(c) — regarding revocation of probation hearings in the District Court.