Jones v. Baltimore City Police Dept.

McAULIFFE, Judge.

The Law Enforcement Officers’ Bill of Rights (LEOBR), Maryland Code (1957, 1992 RepLVol.) Art. 27, §§ 727-734D, provides that a law enforcement officer ordinarily is entitled to an administrative hearing before punitive action is taken against that officer. Section 730(a). There is an exception, however. Section 730(c) provides that “[a] law enforcement officer is not entitled to a hearing under this section if the law enforcement officer has been charged and convicted of a felony.” The question presented by this appeal is whether an officer has been “convicted of a felony” within the meaning of § 730(c) when that officer has been found guilty of a felony but granted probation before judgment pursuant to Art. 27, § 641 of the Code.

I.

On 12 January 1990, the State’s Attorney for Carroll County filed a Bill of Information in the District Court of Maryland sitting in Carroll County, charging Officer Robert *482A. Jones of the Baltimore City Police Department with two felony counts of distribution of and possession with intent to distribute child pornography (Art. 27, § 419A) and with four misdemeanor counts involving obscene matter (Art. 27, § 418). Jones was served with the charging document on 18 January and was immediately suspended from duty. On 19 January a suspension hearing was held by the Chief of the Community Services Division, and the suspension was continued, without pay. Following a preliminary hearing in the District Court, criminal charges were filed against Jones in the Circuit Court for Carroll County. On 7 September, at the conclusion of a trial before the court, Jones was found guilty of both felony counts and sentencing was scheduled for 18 December.1

On 3 October, the Director of the Internal Investigation Division of the Baltimore City Police Department forwarded the report of that division to the Office of the Commissioner, noting that Jones had been found guilty of two felony charges and concluding that administrative charges of misconduct by violation of criminal statutes and general misconduct had been sustained. The Department concluded that Jones had been “convicted of a felony” within the meaning of § 730(c), and on 5 October terminated his employment without a hearing. On 10 October, the Assistant City Solicitor representing the Department advised Jones’ attorney in writing that “[i]n the event that Mr. Jones receives PBJ at his sentencing, the Personnel Order will be immediately rescinded and a trial board scheduled expeditiously.”

On 18 December, Judge Raymond A. Beck, Sr. of the Circuit Court for Carroll County, acting pursuant to Art. 27, § 641, stayed the entry of judgment, deferred further proceedings, and placed Jones on probation for three years, with conditions. Contrary to the representation earlier made by the Department’s attorney, however, the Depart*483ment did not rescind the personnel order terminating Jones’ employment and did not schedule a trial board for resolution of administrative charges.2 On 19 April 1991, Jones filed a “Petition to Show Cause and for a Writ of Mandamus,” alleging that the Department was denying him rights granted by the LEOBR and the United States Constitution, and seeking reinstatement with backpay, damages, and attorneys’ fees.3 The Department responded with a motion to dismiss the petition, contending, among other things, that Jones’ discharge without a hearing was appropriate because Jones had been convicted of a felony.

The matter was heard before Judge John C. Byrnes. Judge Byrnes concluded that a guilty verdict was a conviction within the meaning of § 730(c), and that the subsequent entry of probation before judgment did not alter the fact of conviction. Thus, he held, Jones was properly discharged without a hearing. Jones appealed to the Court of Special Appeals, and we issued a writ of certiorari on our own motion before the case was considered by that Court.

II.

In Shilling v. State, 320 Md. 288, 296, 577 A.2d 83 (1990), and in Myers v. State, 303 Md. 639, 642-45, 496 A.2d 312 (1985), we pointed out that the meaning of the word “convie*484tion” may vary according to the context and purposes in which it appears. In Myers, we said:

At common law a person was not “convicted” of a crime until the court entered a judgment on the finding of guilt. See 2 J. Wigmore, Evidence in Trials at Common Law § 521, at 731 (J. Chadbourn ed. 1979). In today’s usage, however, the meaning of “convicted” and “conviction” turns upon the context and purpose with which those terms are used. See Hunter v. State, 193 Md. 596, 606-07, 69 A.2d 505, 509-10 (1949); see also Conlow v. State, 441 A.2d 638, 639 (Del.1982) (per curiam) (“The meaning of the term ‘convicted’ or ‘conviction’ varies according to the context and purpose of the particular provision — statutory or constitutional — in which it appears or to which it relates.”); State v. Ege, 274 N.W.2d 350, 355 (Iowa 1979) (“The word ‘conviction’ may have different meanings within different contexts.”). For example, in its general and popular sense “conviction” means the establishment of guilt prior to, and independent of, the judgment of the court. See, e.g., State v. Hanna, 179 N.W.2d 503, 507-08 (Iowa 1970); State v. Delashmutt, 676 P.2d 383, 384 (Utah 1983) (per curiam); State v. Herman, 93 Wash.2d 590, 595-96, 611 P.2d 748, 751 (1980). By contrast, in its legal and technical sense this term means the final judgment and sentence rendered by a court pursuant to a verdict or plea of guilty, and it is frequently used to denote the judgment or sentence. See, e.g., State v. Superior Court, 1 Storey 178, 51 Del. 178, 141 A.2d 468, 472 (1958) (“ ‘[C]onviction’ means the final consummation of the prosecution against the accused including the judgment or sentence rendered pursuant to a conviction.”); Vasquez v. Courtney, 272 Or. 477, 480, 537 P.2d 536, 537 (1975) (“The second, more technical meaning [of conviction] refers to the final judgment entered on a plea or verdict of guilty. In [this] case conviction has not been accomplished until the judgment is made by the court.”); Parker v. State Highway Department, 224 S.C. 263, 268-69, 78 S.E.2d 382, 384 (1953) *485(“But the word [convicted] is also often used as including both the ascertainment of the guilt of the accused and the judgment thereon by the Court.”).

303 Md. at 642-43, 496 A.2d 312. We noted that “where ... the statute under consideration imposes a legal disability, courts have defined ‘conviction’ in its legal and technical sense.” Id. at 643, 496 A.2d 312. We quoted the explanation of one commentator that “[t]hese courts reason that the legislature did not intend for valuable rights and privileges to be lost without a final judgment and sentence.” Id. at 643, 496 A.2d 312, quoting Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929, 953-54 (1970) (footnotes omitted). We noted that “[t]his Court has consistently and repeatedly embraced this particular position.” Id.

After reviewing a number of Maryland cases dealing with the subject, we concluded as follows:

In view of these cases, it is inescapable that we have consistently equated a “conviction” with the judgment of the court on the verdict and not with the mere determination of guilt. Accordingly, unless the context in which the word is used indicates otherwise, a “conviction” is the final judgment and sentence rendered by a court pursuant to a verdict or plea of guilty. Thus, as we see it, a person is not “convicted” of an offense until the court enters a judgment upon the verdict of guilty.

Id. at 645, 496 A.2d 312. We then turned to the question of whether the entry of a probation before judgment in accordance with Art. 27, § 641 would alter that interpretation and would render a verdict a “conviction.” We held that it would not.

[W]e hold that probation before judgment under § 641 is not a “conviction,” and a person who receives probation before judgment is not convicted of the crime for which he has been found guilty, unless the person violates the probation order and a court enters a judgment on the finding of guilt.

*486Id. at 647-48, 496 A.2d 312 (footnote omitted). Consistent with our holding in Myers, the Court of Special Appeals has held that a person granted probation before judgment pursuant to Art. 27, § 641 is not a “person convicted of a crime” within the meaning of § 645A(a) of the Maryland Post Conviction Procedure Act, Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 645A-645J. Gakaba v. State, 84 Md. App. 154, 155-57, 578 A.2d 299 (1990).

Shilling v. State, supra, is not to the contrary. In Shilling, we held that a person who had been given probation before judgment for a violation of § 21-902(a) or (b) of the Transportation Article was ineligible for a second probation before judgment for a violation of either of those sections committed within five years after the previous violation. We noted, however, that the legislature had explicitly provided that a disposition of probation before judgment would be considered a “violation” in that instance. Article 27, § 641(a)(2) provided that “[a] person is in violation of § 21-902(a) or (b) if that person receives probation under this section.”

We also held in Shilling that under those circumstances an earlier violation of § 21-902(a) or (b) which resulted in a probation before judgment would have to be treated as a “prior conviction” within the meaning of Maryland Rule 4-245(c), thus requiring that the State give the defendant notice of/the earlier violation at least 15 days before sentencing. We reasoned that the purpose of Rule 4-245(c) was to provide the defendant with an opportunity to be heard where the State alleges a prior conviction or violation of a statute, and that where the legislature had mandated that an earlier probation before judgment be treated as a conviction for purposes of sentencing, the notice was required. Shilling, 320 Md. at 296-97, 577 A.2d 83.

The Department argues that in this case we should interpret “conviction” to include a verdict of guilt followed by probation before judgment because the legislature, in enacting Section 730(c) of the LEOBR, intended to avoid the additional expense and inconvenience of an administrative *487hearing board when a police officer had been found guilty of a felony.

What is now Section 730(c) was added to the LEOBR by Chapter 205 of the Laws of 1986, which enacted House Bill 439. House Bill 439 appears to have been introduced on the recommendation of the Maryland Municipal League. In its letter of 30 January 1986 to the House Judiciary Committee the League described several instances of law enforcement officers who had been convicted of serious crimes, but who insisted on a separate administrative hearing covering the same charges. The League concluded:

Our members believe that a hearing under these conditions is unnecessary, causes unneeded delay in replacing an officer, and wastes the taxpayers’ money. If enacted, HB 439 would address some of this problem by providing that an officer is not entitled to the extra police agency hearing if the officer has been convicted of a felony.

There is no indication in the legislative history that the Maryland Municipal League in recommending the change, or the legislature in adopting it, contemplated a “conviction” in any sense other than the technical and legal meaning of that word which we set forth a year earlier in Myers v. State, supra, i.e., a judgment of conviction. The result sought by House Bill 439 will be achieved whenever a law enforcement officer is found guilty of a felony and sentenced; it is only in the rare instance where an officer is granted probation before judgment after being found guilty of a felony that this problem will arise.

The effect of House Bill 439 is a legislatively mandated form of the issue preclusion arm of res judicata — issues finally litigated adversely to the officer in the criminal litigation are to be taken as established in the subsequent administrative proceeding. This approach is entirely compatible with the established principles of offensive nonmutual collateral estoppel. See Welsh v. Gerber Products, 315 Md. 510, 516-18, 555 A.2d 486 (1989). In utilizing principles of issue preclusion, however, we note that the judgment *488serving as the basis for the subsequent preclusion ordinarily must be a final judgment.

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.

Restatement of Judgments (Second) § 27 (1982). See also §§ 28 and 29 of the Restatement; Cassidy v. Board of Education, 316 Md. 50, 62, 557 A.2d 227 (1989); and Welsh v. Gerber Products, supra, 315 Md. at 516, 555 A.2d 486. Although we have held that probation before judgment may constitute a final judgment within the meaning of a statute governing appeals, we have made it clear that probation before judgment is not a final judgment of conviction for most purposes. See State v. Hannah, 307 Md. 390, 400-01, 514 A.2d 16 (1986). We do not believe the legislature intended probation before judgment to be a final judgment for purposes of issue preclusion.

Finally, we note that the legislature intended that a grant of probation before judgment, unless subsequently altered by a violation of that probation, should have the effect of wiping the criminal slate clean. Article 27, § 641(c) provides:

(c) Fulfillment of terms of probation. — Upon fulfillment of the terms and conditions of probation, the court shall discharge the person from probation. The discharge is final disposition of the matter. Discharge of a person under this section shall be without judgment of conviction and is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of crime.

A person who is granted probation before judgment is entitled, at the time he is discharged from probation or after three years have passed from the date probation was granted, to have all police and court records of his arrest, charge, and disposition expunged. See Art. 27, § 737; Maryland Rules 4-501 through 4-512. A disposition of proba*489tion before judgment cannot be considered a predicate offense for imposition of certain recidivist penalties imposed by law; there is no assessment of points when probation before judgment is granted after a finding of guilt on a motor vehicle charge; and a sentence of probation before judgment is not entered upon a defendant’s public driving record. Shilling v. State, supra, 320 Md. at 298, 577 A.2d 83 (McAuliffe, J., concurring).

Giving due weight to the various factors we have considered, we conclude the legislature intended the preclusive effect of § 730(c) of the LEOBR to operate only when the conviction of a law enforcement officer for a felony was a conviction in the legal and technical sense, i.e., a judgment of conviction. The context and legislative history of § 730(c) do not suggest a contrary result, and it is therefore appropriate that we follow the interpretation we set forth in Myers v. State, supra:

[Probation before judgment under § 641 is not a “conviction,” and a person who receives probation before judgment is not convicted of the crime for which he has been found guilty, unless the person violates the probation order and a court enters a judgment on the finding of guilt.

303 Md. at 647-48, 496 A.2d 312 (footnote omitted).

The dissent offers a number of reasons why it may be in the public interest to have a verdict followed by probation before judgment in a felony case serve as an adequate substitute for an administrative determination of guilt in a police disciplinary proceeding. Whether we agree that such a rule would be beneficial is immaterial — we are not a legislative body and we are not permitted to engraft a strained or artificial interpretation upon a statute to achieve a result that comports with our idea of societal needs. Simpson v. Moore, 323 Md. 215, 223-28, 592 A.2d 1090 (1991) (court will not rewrite statute to achieve a desired result); Kaczorowski v. City of Baltimore, 309 Md. 505, 516 n. 4, 525 A.2d 628 (1987) (a court is not wholly free to *490rewrite a statute merely because of some judicial notion of legislative purpose).

It follows that Jones should not have been discharged without a hearing. Upon remand, the Circuit Court for Baltimore City should direct the Department to promptly furnish Jones the hearing to which he is entitled under the LEOBR. We do not address questions of backpay or attorneys’ fees, because those issues were not addressed below. We note, however, that Jones’ current legal status continues to be suspension without pay, and we believe any questions related to claims for backpay, or for attorneys’ fees pursuant to 42 U.S.C. § 1988, should await the outcome of the administrative proceedings against Jones.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS OF THIS APPEAL TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Dissenting opinion by CHASANOW, J. in which KARWACKI and ROBERT M. BELL, JJ., join.

. The misdemeanor charges were nolle prossed by the State as part of a "plea agreement."

. At some point in time, the Department scheduled some type of hearing for Jones before a hearing board. The Department has characterized this as a “name-clearing hearing,” but is otherwise vague about the purpose or function of, or authority for, such a hearing. The Department does make clear that the hearing it is offering is not for the purpose of determining whether Jones should be fired — that, the Department insists, is a lawful fait accompli.

. Section 734 of the LEOBR provides:

Any law enforcement officer who is denied any right afforded by this subtitle may apply at any time prior to the commencement of the hearing before the hearing board, either individually or through his certified or recognized employee organization, to the circuit court of the county where he is regularly employed for any order directing the law enforcement agency to show cause why the right should not be afforded.