Probation can be violated in prison, Md. appeals court rules

Convicts can be found to have violated the terms of their probation while still in prison, Maryland’s second-highest court has ruled in revoking the scheduled release of a man who made threatening phone calls from prison to his ex-girlfriend.

In its reported 3-0 decision, the Court of Special Appeals said violation of probation does not mean violation while on probation, as it is commonly – but mistakenly – understood. Rather, the offense is any act warranting “revocation of probation” and can occur any time after initial sentencing, the court added.

“A revocation of probation can be ordered because of triggering misbehavior that occurs not only during a period of active probation (the far more common cause) but also because of misbehavior occurring before the active probationary period has even begun (the rarer case),” Judge Charles E. Moylan Jr. wrote in the opinion filed last week.

“Because the overwhelming majority of revocation cases, however, are based on violations occurring while on active probation, there has resulted the inevitable linguistic slippage of the name for that most common instance of the phenomenon being casually misused to denote the larger phenomenon itself, of which it is but a part,” added Moylan, a retired judge sitting by special assignment. “It is an easy overgeneralization to lapse into, akin to referring to all refrigerators as Frigidaires, to all tissue as Kleenex, or to all soda pop as Coke.”

Montgomery County Circuit Judge Robert A. Greenberg sentenced Derek McKinney in 2011 to 25 years in prison, with all but 10 years suspended, after he pleaded guilty to having assaulted Lily Mona Hakemian. Greenberg also sentenced McKinney to three years’ probation and ordered him to have no contact with Hakemian.

But McKinney did not heed the order. He called Hakemian multiple times from prison, threatening to kill her when he got out.

These threats were frighteningly specific. McKinney said he would “burn” Hakemian “until her f-ing heart stops” and would “wind up beating your f-ing brains in.”

McKinney also told Hakemian that “I’m not only abusive, I’m going to murder you,” according to the Court of Special Appeals’ opinion.

In revoking probation last year and ordering McKinney to serve the full 25-year sentence, Greenberg said McKinney’s actions violated a state law and county ordinance prohibiting threatening phone calls.

McKinney appealed the in-prison revocation, arguing that one must be on probation to violate probation and have it revoked.

“The apparent paradox of one’s violating probation at a time when one is not yet on probation has a certain simplistic allure,” Moylan wrote in rejecting that argument.

“(But) when a sentencing judge pronounces an award of probation, probation in its larger sense has begun, regardless of whether probation connotes the immediate status of the defendant (probation in esse) or is simply the promise or expectation of a future probation (probation in potentia) once the active part of the prison sentence has been served,” Moylan added. “If the judge subsequently learns that the probation is actually not a good risk, it is of no consequence whether that revelation comes while the probation is still in potentia or whether it is already in esse. It will be revoked.”

Moylan was joined in the opinion by Chief Judge Patrick L. Woodward and Judge Alexander Wright Jr.

The Court of Special Appeals rendered its decision in Derek McKinney v. State of Maryland, Nos. 130 and 359, September Term 2017.