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Frequently Judges in Maryland during a criminal sentencing will impose a period of incarceration, and then suspend some or all of the prison time while imposing a period of probation following the defendant’s release from jail, to be monitored by the Probation department and subject to conditions imposed by the judge. If after release from prison, a probationer violates some conditions, then probation may be revoked and the defendant returned to prison to serve out the sentence. Maryland’s intermediate appellate Court in the recent case of Derek McKinney v. State of Maryland explored whether probation can be revoked even before the defendant is released from incarceration in the first place.
The opinion by Senior Judge Charles E. Moylan, Jr., indicates the McKinney plead guilty to assault and use of a handgun in a crime of violence. His conduct included putting a loaded gun into the mouth of his girlfriend. When she continued to contact the defendant prior to sentencing, the Judge was understandably concerned with how to protect the victim from contact with the defendant. Although he could not order her not to contact him, the Judge in including probation as part of the sentence may it clear that the defendant was to have no contact with the victim. The Judge then imposed concurrent (to be served at the same time) lengthy prison sentences of 20 and 25 years, with all but 10 years suspended, followed by three years of supervised probation.
Before the 10 years had been served by the defendant, he violated the conditions of his future probation by on five occasions calling the victim from prison and threatening to kill her upon his release. The prison authorities recorded the phone calls, and the Judge listened to them at a hearing on revocation of probation. Then Judge then imposed the full amount of the original sentences, with no term or probation to follow, and the defendant appealed.
Citing previously case law, the Court had no difficulty holding that terms of probation can be violated even before the defendant is out on the street. Judge Moylan noted that in exercising discretion to suspend some or all of prison time and granting probation, the judge’s decision is based on the assessment that the “probationer is a good risk for such more lenient treatment.” However, the Judge may be persuaded by conduct either pre or post release from jail that the defendant is actually a bad risk for future behavior, and may revoke the probation.
The Court rejected the argument that revoking probation before it began violated the terms of the original plea agreement the led the defendant to plead guilty, holding that imposing a term of probation with conditions necessarily implies that it may be revoked if the defendant does not comply.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.