Top court reinstates kidnapper’s violation-of-probation conviction

Probation agent had authority to require polygraph

Daily Record Legal Affairs Writer//January 26, 2015

Top court reinstates kidnapper’s violation-of-probation conviction

Probation agent had authority to require polygraph

By Steve Lash

//Daily Record Legal Affairs Writer

//January 26, 2015

Convicts released on mandatory supervision must comply with the “lawful instructions” of their probation agents, even if those instructions are not spelled out in detail in the probation order, Maryland’s top court has held.

The Court of Appeals’ decision reinstates Charles W. Callahan’s conviction for violating his probation, sending him back to prison to serve out the remaining three years of his 17-year sentence for kidnapping and a sex offense.

Friday’s decision also says that an agent’s issuance of lawful instructions does not usurp a judge’s authority to set the terms of probation.

Callahan had challenged the trial court’s finding that he violated probation by disobeying an instruction that he submit to a scheduled polygraph examination. Callahan, through counsel, argued unsuccessfully that the mandatory instruction created “a new, more onerous condition of probation” than required by the trial court, which stated only that he may have to submit to polygraph testing.

The Court of Appeals rejected that argument, noting that probation conditions typically and simply call for probationers to obey their agent’s lawful instructions.

“This condition of probation provides the probationer with notice that the probationer will violate the order of probation by disobeying the probation agent’s instruction if the instruction is lawful,” Judge Shirley M. Watts wrote for the court. “It is not subject to reasonable dispute that a probation agent’s instruction to comply with a condition of mandatory supervision is lawful, as the probation agent simply instructs the probationer to do what the probationer has already agreed, and is legally required, to do. As such, a probationer may expect that disobeying a probation agent’s instruct to comply with a condition of mandatory supervision will result in the imposition of the probationer’s sentence’s balance.”

The high court also rejected Callahan’s argument that the agent’s instructions violated the separation of powers doctrine, noting that the final decision regarding the instruction’s legality rests with the judicial branch and not with the executive.

Brian S. Kleinbord, of the Maryland attorney general’s office, said the Court of Appeals made “a common-sense decision.”

The ruling “will allow the state to more effectively monitor violent offenders” released under mandatory supervision, added Kleinbord, who heads the office’s criminal appeals division. “In rejecting the separation of powers argument, the court recognizes that it’s important for the judiciary to rely on probation agents to see that both probation and parole are adhered to.”

Rachel A. Simmonsen, Callahan’s appellate attorney, did not return telephone messages seeking comment Monday. Simmonsen is with the Maryland Office of the Public Defender.

Child abducted

State prosecutors had charged Callahan with first-degree rape and other crimes arising from the abduction of a 3-year-old child.

In August 1995, he pleaded guilty in Anne Arundel County Circuit Court to kidnapping and third-degree sexual offense. He was later sentenced to 25 years in prison, with all but 17 years suspended, for kidnapping, plus a concurrent term of 10 years for the sexual offense, according to the high court’s opinion.

In March 2009, after serving 14 years, Callahan was released from prison under mandatory supervision. He signed a Mandatory Supervision Release certificate in which he agreed to comply with the lawful instructions of his agent from the Division of Parole and Probation, “which may include … polygraph testing,” the opinion stated.

On Aug. 2, 2011, Briley-Mays gave Callahan a letter stating he was to have a polygraph examination at 10 a.m. on Aug. 11, 2011 and that failure to report could result in a violation of probation charge.

When Callahan failed to show, the state charged him with violating probation.

The circuit court found that Callahan violated probation by not following the agent’s lawful instructions and ordered him in December 2011 to serve the balance of his sentence.

The Court of Special Appeals reversed in a reported opinion on Nov. 20, 2013, saying the agent’s instruction that Callahan report for the polygraph was “not fairly within the ambit” of the conditions set by the trial court, thus usurping the judiciary’s authority and violating the separation of powers doctrine.

The state sought review by the Court of Appeals, which heard arguments Dec. 5.

The case is Maryland v. Callahan, No. 28 September Term 2014.


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