Opinion
No. 501, September Term, 1970.
Decided June 3, 1971.
PROBATION — Where Defendant Given Probation Conditioned Upon His Remaining In Hospital, Defendant Also Subject To The Standard Terms And Conditions Of Probation As Evidenced By His Signature On The Standard Form To Which The Hospital Condition Was Added And By The Transcript Of The Proceedings. pp. 166-167
PROBATION — Revocation Of Probation — Right To Counsel At Hearing — Counsel Need Not Be Afforded Probationer, Regardless Of Indigency, As Sentence Had Been Imposed At Original Trial And The Execution Of The Sentence Was Conditionally Suspended As Opposed To The Imposition Of Sentence Being Conditionally Suspended. p. 167
Appeal from the Circuit Court for Anne Arundel County (SACHSE, J.).
Wayne John Dugas was charged with violation of probation. He had been convicted on three indictments involving narcotics and sentenced to three years but suspended and he was placed on probation for two years which included a provision that he remain in a private hospital. Dugas appeals from the finding of guilty of violating probation and the judgment ordering execution of the original sentence.
Note: Certiorari denied, Court of Appeals of Maryland, October 11, 1971.
The cause was argued before MURPHY, C.J., and MOYLAN and POWERS, JJ.
George N. Manis for appellant.
Clarence W. Sharp, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, State's Attorney for Anne Arundel County, and Frank R. Weathersbee, Assistant State's Attorney for Anne Arundel County, on the brief, for appellee.
Wayne John Dugas was convicted on March 7, 1968 in the Circuit Court for Anne Arundel County on three indictments involving narcotics. A total sentence of three years was imposed, but suspended and appellant was placed on probation for two years, including a provision that he remain in a private hospital. Subsequent to his release from that institution, he had several contacts with the Parole and Probation Department prior to the Department's losing touch with him early in June 1969. Based upon this and other difficulties, a bench warrant was issued for Dugas. Later developments revealed that he had been arrested for possession of marijuana on Assateague Island in June 1969. He was committed to Crownsville State Hospital for evaluation, where he remained for a period, and on April 1, 1970, in the Circuit Court for Worcester County, he was given probation without a verdict for three years, conditioned upon his remaining under some form of Crownsville care. Dugas returned to the Annapolis area and worked until arrested on a warrant. A hearing on the question of violation of probation was held on April 30, 1970 before Judge Sachse, who found appellant had violated the terms of his probation and ordered execution of the original sentence. Dugas appeals, contending primarily that he was denied a constitutional right of counsel at his probation violation hearing, and also complaining that he was not guilty of the violation of the terms of probation, as confinement at the private hospital was the only term imposed. This latter contention may be quickly disposed of, as it is clear that Dugas was also subject to all of the standard terms and conditions of probation, as evidenced by his signature on the standard form, to which the hospital condition was added, and by the transcript of the proceedings at the time sentence was suspended and probation granted. Judge Sachse made abundantly clear that Dugas was to be subject to the usual terms, including, maintenance of good moral conduct, maintenance of gainful employment, obtaining permission of his probation officer for changing residence, and reporting to the probation officer when directed. The testimony at the hearing indicated violations of these provisions.
Appellant's argument concerning the right of counsel at a hearing on revocation of probation is answered in the detailed consideration of the subject by this court in Knight v. State, 7 Md. App. 313, 255 A.2d 441. In Knight we held that the probationer need not be afforded counsel, regardless of indigency. We distinguished the case of Mempa v. Rhay, 389 U.S. 128, as applying only when the imposition of sentence is conditionally suspended. Appellant seeks to have us change the rule, in light of the decision by the U.S. Court of Appeals for the Fourth Circuit in Hewett Cassada v. North Carolina, 415 F.2d 1316, which held that counsel is required under these circumstances, though the court recognized that many federal courts have followed the more limited rule such as found in Knight, and that the Hewett decision is in fact a minority view. We have considered the question, and although a decision of the Fourth Circuit is entitled to respect, it is not binding upon us. Bartholomey v. State, 260 Md. 504, 521, 273 A.2d 164 (1971) and we decline to overrule Knight. See also United States ex rel. Lawrence v. Woods, 432 F.2d 1072 (1970).
Judgment affirmed.